Heidtmann v Rail Corporation New South Wales
[2018] NSWWCCPD 23
•4 June 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Heidtmann v Rail Corporation New South Wales [2018] NSWWCCPD 23 | |
| APPELLANT: | Michael James Heidtmann | |
| RESPONDENT: | Rail Corporation New South Wales | |
| INSURER: | Self-insured | |
| FILE NUMBER: | A1-5521/17 | |
| ARBITRATOR: | Mr Dalley | |
| DATE OF ARBITRATOR’S DECISION: | 24 January 2018 | |
| DATE OF APPEAL DECISION: | 4 June 2018 | |
| SUBJECT MATTER OF DECISION: | Leave to extend time to appeal; r 16.2(12) of the Workers Compensation Commission Rules 2011; construction of a Deed of Release; whether subsequent claim for industrial deafness excluded by damages paid pursuant to the Deed; s 151A of the Workers Compensation Act 1987 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Turner Freeman |
| Respondent: | Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time for making an appeal, pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011, is refused. | |
INTRODUCTION
This appeal concerns the interpretation and application of a Deed of Release (the Deed). The worker entered into the Deed with the respondent in settlement of a work injury damages claim. The worker subsequently claimed additional compensation for an accepted industrial deafness injury. The issues on appeal concern whether the terms of the Deed encompassed the industrial deafness injury and thereby precluded any further claim, by the operation of s 151A of the Workers Compensation Act 1987 (the 1987 Act) because the worker had recovered damages in respect of that injury.
BACKGROUND
Michael Heidtmann, the appellant, was employed by the respondent as a train driver between 1972 and 23 July 2004.
During the course of his employment, Mr Heidtmann was exposed to noise which resulted in industrial deafness. In 1995, he sought lump sum compensation for hearing loss and received a payment of $1,232.28.
On a date which is not apparent from the evidence, Mr Heidtmann made a claim for work injury damages. None of the documents relating to the work injury damages claim are in evidence and Mr Heidtmann’s brief statement of evidence makes no reference to it or the circumstances leading up to the claim for work injury damages.
On 18 September 2012, the parties resolved the work injury damages claim and entered into the Deed pursuant to which Mr Heidtmann was paid the sum of $337,490.
By letter dated 1 September 2017, Mr Heidtmann’s solicitors made a claim on his behalf for payment of the sum of $22,000. This represented 15% Whole Person Impairment (WPI) in respect of 30.6% binaural hearing loss pursuant to s 66 of the 1987 Act and for the provision of hearing aids pursuant to s 60 of the 1987 Act.
On 13 October 2017, the respondent issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability. It relied on an assessment undertaken by Dr Paul Niall, in which it was found that Mr Heidtmann’s impairment level fell below the 10% threshold for lump sum compensation pursuant to s 66(1) of the 1987 Act.
On 30 October 2017, Mr Heidtmann filed an Application to Resolve a Dispute (the Application) in the Commission. He alleged sensorineural binaural hearing loss. He claimed $22,000 in respect of 15% WPI. The claim was based on a report of Dr S Tamhane dated 4 August 2017.
On 1 November 2017, the respondent filed a Reply to the Application. It sought leave to dispute the claim on the basis that Mr Heidtmann had entered into the Deed on 18 September 2012 which released the respondent of all claims in respect of injuries sustained by him whilst in the employ of the respondent. It submitted that Mr Heidtmann was precluded by the terms of the Deed from pursuing the claim for lump sum compensation, by operation of s 151A(1)(a) of the 1987 Act.
On 15 January 2018, the matter proceeded to a conciliation and arbitration hearing before a Commission Arbitrator. No oral evidence was called. The Arbitrator heard submissions from the parties’ legal representatives. He reserved his decision.
On 24 January 2018, the Arbitrator issued a Certificate of Determination (COD) together with a statement of reasons. He found in favour of the respondent. The COD is in the following terms:
“The Commission determines:
1. The date of injury alleged in the Application to Resolve a Dispute is amended to
23 July 2004.2. Award for the respondent.”
Mr Heidtmann appeals the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
Quantum
There is no dispute that the threshold requirements as to quantum in s 352(3) of the 1998 Act are satisfied.
Time
The Arbitrator’s decision was issued on 24 January 2018. The Application Appeal Against Decision of Arbitrator was registered in the Workers Compensation Commission (the Commission) on 26 February 2018, outside the 28 days within which an appeal can be made in compliance with s 352(4) of the 1998 Act. Mr Heidtmann has sought an extension of time to lodge the appeal. The application is opposed by the respondent.
Mr Heidtmann’s submissions on the application to extend time
Mr Heidtmann’s submits that his solicitors sought advice from counsel, Mr McManamey, concerning the prospects of an appeal from the Arbitrator’s decision. That advice was received the same day. Instructions were then sought from Mr Heidtmann to lodge the appeal. Those instructions were not received until 31 January 2018. By then Mr McManamey was departing overseas on 1 February 2018 and not in a position to draft submissions prior to departure. Mr McManamey undertook to draft the submissions on his return. Mr Heidtmann submits: “[u]nfortunately the due date was misdiarised as 26 February 2018 being the Monday immediately after 24 February 2018.”
Mr Heidtmann submits that the Workers Compensation Commission Rules 2011 (the 2011 Rules) do not set out the factors to be considered in the exercise of the discretion to extend time for the filing of an Appeal Against the Decision of Arbitrator. Ultimately, so it is submitted, the discretion must be exercised to ensure that “justice between the parties” is achieved.[1]
[1] Citing, Gallo v Dawson (in liquidation) (1990) 93 ALR 47; Wykanak v Rockdale City Council [1999] NSWCA 191; Halliday v High Performance Personnel [1993] HCA 13; 67 ALJR 678; 11 ALR 637; Alexandrou v State Rail Authority of NSW [2004] NSWWCCPD 54.
Mr Heidtmann further submits:
“In this matter the appeal is one week out of time. There is no prejudice to the Respondent occasioned by the delay whereas the potential prejudice to the Appellant is obvious.”
The respondent’s submissions on the application to extend time
The respondent opposes the granting of an extension of time for the making of the appeal. The respondent relies on the relevant authorities referred to and considered by Deputy President Wood in Gilliana v Souvenir World (Airport) Pty Ltd [2018] NSWWCCPD 5 at [38]-[67].
Given the language of the 1998 Act and 2011 Rules, it is clear that Mr Heidtmann bears the onus of persuading the Presidential member that the statutory discretion should be exercised.
Mr Heidtmann’s submissions do not engage with the statutory text and do not set out an argument as to what “exceptional circumstances” would, in this instance, move the discretion of the Presidential member.
Moreover, so it is submitted, the explanation provided by Mr Heidtmann in his submission is deficient. Mr Heidtmann has chosen not to place evidence of the circumstances of delay before the Presidential member. Rather, an explanation is set out in the submission. That explanation is couched in the vaguest of terms and does not descend into detail of what happened. It should not be left to the respondent and Presidential member to speculate as to why the delay occurred. The explanation is unsatisfactory and cannot support a factual finding of “exceptional circumstances”.
The only matters that Mr Heidtmann has identified as being relevant to the exercise of discretion are that the appeal is one week out of time and that there is no prejudice.
However, the respondent submits that also to be taken into account is the absence or unsatisfactory explanation for delay, the merits of the appeal itself and the overall course of the claim history. In the course of the arbitration hearing, Mr Heidtmann made much of the fact that the respondent had not defended the Application on the basis of a late claim, the Application having been filed in 2017 in respect of a 2004 injury. However, it should be noted that the Application itself was only amended on the date of the hearing to delete the reference to injury on 23 April 2017 and substitute the date of injury to 23 July 2004.
It is submitted that while the respondent would have been within its rights to seek leave in its denial of liability to plead the time provisions in respect of a 13-year-old claim, it chose to contest the matter on the legal basis which had previously been notified. Nevertheless, the conduct of Mr Heidtmann in bringing such a late claim in the first instance is a matter that should be taken into account in the exercise of the discretion to extend time.
Consideration
Rule 16.2(12) of the 2011 Rules provides for an extension of time for making an appeal. It provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The principles to be applied to applications for an extension of time to appeal have been considered in the following authorities to which I have regard.
In Gallo v Dawson,[2] McHugh J observed that in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
[2] [1990] HCA 30; 93 ALR 479 (Gallo).
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.[3]
[3] (Gallo), 480.
In Bryce v Department of Corrective Services,[4] Allsop P considered r 16.2(11) of the Workers Compensation Commission Rules 2006, which is in the same terms as r 16.2(12) of the current rules. His Honour held:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction ...”[5]
[4] [2009] NSWCA 188 (Bryce).
[5] Bryce, [10] (Beazley JA (as her Honour then was) and Giles JA agreeing).
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd,[6] Basten JA observed:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”[7]
[6] [2014] NSWCA 34; 72 NSWLR 160 (Land Enviro Corp).
[7] Land Enviro Corp, [9] (Beazley P and Leeming JA agreeing).
What is meant by the expression “exceptional circumstances”, albeit in a different statutory context, was also considered in Yacoub v Pilkington (Australia) Ltd.[8] In that decision Justice Campbell reproduced the following list of exceptional considerations he listed in San v Rumble (No 2):[9]
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2001] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”[10]
[8] [2007] NSWCA 290 (Yacoub).
[9] [2007] NSWCA 259, [59].
[10] Yacoub, [66].
I accept the respondent’s submission that Mr Heidtmann has made no attempt to identify circumstances that would meet the statutory description of “exceptional circumstances”. Mr Heidtmann’s explanation that his counsel was unavailable to act upon instructions to draft appeal submissions within time due to his leave arrangements cannot be considered exceptional circumstances. Nor can the explanation that the time for filing an appeal lapsed because the last date for lodging the appeal was “misdiarised”. The circumstances described do not meet any of the descriptors of “exceptional circumstances” discussed above.
The absence of exceptional circumstances is not fatal to the extension of time being granted. However, it is a factor I am required to take into consideration.
I am mindful of the fact that the delay in lodging the appeal is relatively short.
Whether an extension of time is granted will depend in part upon the prospects of the appeal succeeding. For the reasons discussed below, I am of the view that the appeal cannot succeed. It follows that there cannot be any substantial injustice in refusing leave to appeal.
Accordingly, I decline to extend time to appeal.
GROUNDS OF APPEAL
Mr Heidtmann alleges that the Arbitrator erred:
(a)in failing to consider whether the Deed applied to the subject injury when the Deed expressly limited the physical injuries to which it applied, to injuries occurring on dates other than the date of the injury the subject of these proceedings.
LEGISLATION
The 1987 Act provides:
“151A Effect of recovery of damages on compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):
(a)the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b)the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(c)the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.
(2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation:
(a) the amount of any weekly payments of compensation already paid in respect of the injury concerned,
(b) the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned.
(3) If damages are recovered in an action under the Compensation to Relatives Act 1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death:
(a)the amount of any compensation under Division 1 of Part 3 paid in respect of the death is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and
(b)a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker.
(4) If a person recovers motor accident damages in respect of an injury from the employer liable to pay compensation under this Act:
(a)the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation.”
THE DEED
The Deed under consideration is as follows:
“Background
A. The Releasor was employed by the Employer as more fully set out in his claim for Work Injury Damages.
B. The Employer was self insured pursuant to the Workers Compensation Act 1987 at all times material to this claim and settlement.
C. The Releasor alleges personal injuries ("the said injuries") arising out of or in the course of the employment of the Releasor by the Employer as set out in the claim for Work Injury Damages and the Schedule annexed hereto and alleges to have been incapacitated and otherwise suffered loss and damage as a result of the said injuries.
D. The Releasor alleges that the said injuries were caused by the negligence of the Employer and/or its servants or agents or as a result of a breach of statutory duty by the Employer and/or its servants or agents.
E. The Employer denies liability in respect of the said injuries.
F. The Releasor has agreed to accept as damages the sum of money referred to in the Schedule in full and final settlement and discharge of all actions, suits, claims, costs and demands which the Releasor may now have or at any time hereafter has against the Releasees, their servants or agents arising out of the said injuries.
General terms
1. Definitions and interpretation
1.1 Definitions
In this Agreement
Agreement means this document and includes the schedules and annexures;
Includes means includes without limitations; and
Person includes a firm, corporation, body corporate, unincorporated association or any governmental authority.1.2 Interpretation
In this Agreement, unless the contrary intention appears, a reference to:
(a) one gender includes the others [sic];
(b) the singular includes the plural and the plural includes the singular;
(c) a clause, annexure or schedule is a reference to a clause in or annexure or schedule to this Agreement;
(d) a document (including this Agreement) includes any variation or replacement of it;
(e) a statute, ordnance, code or other law includes a regulation or other statutory instrument made or issued under it and consolidations, amendments, re-enactments or replacements of any of them;
(f) a person includes a firm, corporation, body corporate, unincorporated association or an [sic] governmental authority;
(g) a person includes a reference to the person's executors, administrators, legal personal representatives, successors and permitted assigns; and
(h) a party means a person who is named as a party to, and is bound to observe the provisions of, this document.
2. Settlement
In consideration of the releases, promises and warranties referred to in this document, without any admission of liability on the part of the Employer, the Employer/Self Insurer agrees to pay the Releasor for and on behalf of the Employer in full and final settlement of the claim, damages in the sum of $337,490 inclusive of any costs of or related to the claim ("the Settlement Sum”).
3. Payment
3.1 Direction as to payment
The Releasor directs and authorises the Insurer to pay the Settlement Sum to his lawyers [named], and agrees that receipt of the settlement sum by [the lawyers] will satisfy the Employers and Self Insurers obligations under clause 2 of this document. The payment of those damages is in full and final settlement of all amounts owed to the Releasor in relation to allegations of personal injury against the Employer.
3.2 Medicare acknowledgment
[Acknowledges potential liability pursuant to the Health and Other Services (Compensation) Act 1995 Cth]
3.3 Medicare – authority to pay
[Provides for deduction of any amount due to Medicare]
3.4 Centrelink
[Provides for payment of any amounts due to Centrelink]
3.5 Interest
[Makes provision relating to when, or if, interest becomes payable].
4. Workers compensation payments
The settlement sum is clear of any payments made by or on behalf of the Releasees under the provisions of the Workers Compensation Act 1987 and/or the Workplace Injury Management and Workers Compensation Act 1998, up to the date of this deed, together with the following:
(a)In addition the releasees acknowledge they are liable to meet outstanding expenses properly falling under s60 of the Workers Compensation Act 1987 incurred prior to the date of this Deed, provided that such accounts or receipts are received by the Employer/Self Insurer's solicitors within 14 days from date of this Deed.
(b)In addition, the releasees agree to continue paying any currently accepted ongoing weekly compensation benefits (subject to ongoing medical certification and any other statutory requirements) covering the periods up to the date that the cheque for the settlement sum herein is drawn.
(c)In addition the releasees agree to pay any unpaid weekly payments payable but unpaid for the period 15.5.12 to 18.9.12.
5. Release
The Releasor releases the Releasees from all obligations, sums of money, actions, suits, causes of action, proceedings, claims, demands, accounts, costs and expenses whatsoever at law, in equity or pursuant to statute which the Releasor now has, could, would or might have against the Releasees, its employees or agents arising out of or in any way related to the injuries or employment referred to in the Schedule.
6. Entire agreement
This document contains the entire agreement between the parties in respect of the subject matter of this document and it supersedes all prior understandings and representations between the parties with respect to the subject matter of this document.
7. Governing Law
The contents of this document, its meaning and interpretation and the relationship of the parties are to be governed by the laws of New South Wales. The parties admit to the jurisdiction of the Courts of that place.
8. Severability
If any provision of this document is held to be invalid or unenforceable for any reason, it should be severable and shall not affect the remaining provisions of this document.
9. Independent legal advice
The Releasor warrants that he has received independent legal advice as to his entitlements in relation to the injuries, employment and termination thereof and the terms of this document and acknowledges that the Releasees rely upon this warranty in the execution of this document.
10. Acknowledgement
The parties acknowledge that they enter into this document fully and voluntarily upon their own information and investigations.
11. Bar to proceedings
The parties agree that this document may be pleaded by the parties as a bar to any actions, suits, claims, demands or legal proceedings instituted by any party in respect of any matter arising out of or in connection with the subject matter of this document.
12. Schedule
Period of employment: 10 July 1972 to 23 July 2004
Nature of employment: Train Driver from 1977 to 23 July 2004
Period of insurance: Self insured at all relevant timesDate of injury: Various injuries up to 29 January 2004 resulting in psychological injury.
Various physical injuries from on or about 5/09/75 to 09/07/84
Nature of injury: Psychological injury
Any other injury suffered or arising out of or during the course of the releasor's employment with the employer between 10 July 1972 and 23 July 2004.
The nature and conditions of employment and any specific injury in the course there of causing or aggravating injury to the head, neck, whole of spine, all of both upper and lower limbs, trunk, chest, disease, all senses, skin and any primary or secondary psychological injury, functional overlay, internal organs, sexual organs, brain and sequelae excluding latent injuries.
Agreed amount: $337,490.”
THE ARBITRATOR’S REASONS
The Arbitrator set out the extracts from the relevant authorities. There is no challenge to the principles the Arbitrator applied in construing the Deed. He identified that there was “a conspicuous absence of evidence” as to the circumstances surrounding the Deed.[11] He noted that the details of the work injuries damages claim were not put into evidence by either party.
[11] Heidtmann v RailCorp [2018] NSWWCC 19 (Reasons), [28].
The Arbitrator found that the Deed evidenced a payment of “damages”.[12] In respect of “the claim”, he then construed the Deed to determine the meaning of the words “the claim”.[13]
[12] Reasons, [3].
[13] Reasons, [31].
Recital C to the Deed alleges personal injuries arising out of or in the course of employment as set out in the work injury damages claim and the Schedule to the Deed.[14]
[14] Reasons, [32].
Recital F provided Mr Heidtmann agreed to accept “as damages” the sum of money referred to in the Schedule in settlement of all actions arising out of the “said injuries”.[15]
[15] Reasons, [34].
The Arbitrator held:
“Counsel for [Mr Heidtmann] sought to draw a distinction between the injuries which were the subject of the claim for Work Injury Damages and the other injuries noted in the Schedule which provided a description of areas of potential liability for the respondent and which he submitted should be seen as defining the additional potential rights which paragraph 5 purported to terminate by way of release. I do not accept that submission.”[16]
[16] Reasons, [36].
The Arbitrator concluded that the reference to “the said injuries” could only be a reference to the injuries referred to in recital C. That, the Arbitrator concluded, was clear whether or not the terms of the Deed were interpreted contra proferentem (against the party who drafted the deed).[17]
[17] Reasons, [37]-[38].
The Arbitrator noted that it was not in dispute that the reference to “all senses” in the Schedule included hearing loss.[18]
[18] Reasons, [39].
The Arbitrator held:
“The inclusion of that injury in the Schedule is, in my view, sufficient to establish that the payment to Mr Heidtmann was at least in part monetary compensation for loss of hearing as well as for the other items referred to in the Schedule. It does not matter that the payment was also made in respect of other injuries (see Adams v Fletcher International Exports Pty Ltd [2008] NSWCA 238 at 27).”[19]
[19] Reasons, [40].
The Arbitrator concluded that the hearing loss was not a “latent injury”.[20] That was because Mr Heidtmann knew he had industrial deafness that was gradually worsening over time, including since his retirement. That finding has not been challenged.
[20] Reasons, [41]-[45].
The Arbitrator concluded:
“I am satisfied that, on [an] objective reading of the deed of release, Mr Heidtmann has received monetary compensation for injuries which included noise induced hearing loss and his claim in respect of that injury is barred by operation of section 151A(1)(a) of the 1987 Act.”[21]
[21] Reasons [46].
He concluded therefore that the defence pursuant to s 151A(1)(a) of the 1987 Act was made out and there must be an award in favour of the respondent.[22]
SUBMISSIONS
[22] Reasons, [47].
Mr Heidtmann’s submissions
Mr Heidtmann submits that there is no dispute that his employment with the respondent was noisy. The only issue to be determined by the Arbitrator was whether the payment of damages pursuant to the Deed was a payment in respect of the same injury, being the hearing loss.
Mr Heidtmann’s primary submission before the Arbitrator was that the Deed in its own terms did not apply to a physical injury occurring on 23 July 2004. The Arbitrator failed to consider that submission and made no determination as to whether the Deed applied to the physical injury occurring on 23 July 2004.
Mr Heidtmann submits that the Arbitrator correctly observed that the Deed was to be interpreted giving the words used their natural grammatical meaning and reading the Deed as a whole. However, the Arbitrator erred by failing to consider every part of the Deed to which his attention was drawn.
It is accepted that the injury the subject of the release are the injuries described in the Schedule to the Deed.
Mr Heidtmann submits that the Arbitrator failed to have regard to the nature of the injuries described in the Schedule to the Deed under the heading “Date of injury”. It is submitted that the Arbitrator focussed his attention only on the terms of the Schedule under the heading “Nature of injury”.
Mr Heidtmann submits that the Deed expressly limits the physical injuries to which it applies, to injuries occurring on certain dates. It is submitted that the only way the deed can be read in order to give meaning to all of the words is to understand that the description of the nature of the injury is a description of the circumstances in which the specifically identified injuries occurred. Any other approach, so it submitted, would give no meaning to the specific identification of dates of injury.
Mr Heidtmann submits:
“The deed can only be read to limit its application to injuries occurring on the specific dates identified in the deed. The dates do not include the deemed date of injury being loss of hearing. It follows that the deed does not represent a payment in the same respect in the subject injury.”
The Arbitrator failed to understand the significance of the specific dates. There is no dispute that the other terms would include an injury in the form of hearing loss but it could only be if the loss was the result of a physical injury on one of the identified dates. The injury is on a different date and therefore is not an injury in respect of which Mr Heidtmann has received damages.
The respondent’s submissions
There is a single ground of appeal. The error is said to be constituted by a failure by the Arbitrator to consider Mr Heidtmann’s submission that the Deed, and therefore the damages, did not apply to a discrete physical injury occurring on 23 July 2004.
However, it is clear from paragraph [36] of the reasons that the Arbitrator was seized of Mr Heidtmann’s argument and that he considered the submission and rejected it.
This is hardly surprising, considering that clause 12 of the Deed, the Schedule, described the “Nature of Injury” as:
“Psychological injury
Any other injury suffered or arising out of the course of the releasor’s employment with the employer between 10 July 1972 and 23 July 2004.”
The fact that the Arbitrator considered Mr Heidtmann’s argument should be a sufficient basis to dispose of the ground of appeal. In addition, it is clear that the industrial deafness claim, the subject of the Application, clearly falls within the ambit of the “Nature of injury” described in the Deed, namely one sustained between 10 July 1972 and 23 July 2004. The Arbitrator was correct in his conclusion.
The respondent submits that the appeal should be dismissed.
CONSIDERATION
The issues in this appeal turn on the construction of the Deed. The general principles to be followed in construing a deed are the same as to be applied to a written contract. Justice Sackar in Sydney Attractions Group Pty Ltd v Frederick Schulman[23] considered the general principles to be applied to the construction of a written contract, where his Honour held:
“[34] The principles to be followed in relation to the proper construction of a written contract have recently been summarised in Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 in which Bathurst CJ (with whom Macfarlan and Meagher JJA agreed) said at [52]:
‘The principles underlying the construction of written contracts are well established and it is not necessary to deal with them at length. A contract is to be construed by reference to what a reasonable person would understand by the language in which the parties have expressed their agreement having regard to the context in which the words appear and the purpose and object of the transaction: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Limited v Alphafarm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 at [40]; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 234 CLR 151 at [53]. At least in the case of ambiguity, resort can be had to the surrounding circumstances known to the parties in interpreting the particular provision: Codelfa Construction Pty Limited v State Rail Authority of NSW[1982] HCA 24; (1982) 149 CLR 337 at 352; Western Export Services Inc v Jireh International Pty Limited[2011] HCA 45; (2011) 282 ALR 604.’”[24]
[23] [2013] NSWSC 858 (Sydney Attractions).
[24] Sydney Attractions, [34].
Justice Sackar added:
“A commercial agreement should be given a businesslike or commercially sensible construction. However, generally speaking, if the language used is unambiguous a court must give effect to that language unless to do so would give the contract an absurd operation.
...
The court should have regard to all words used in the agreement to ensure the congruent operation of the various components as a whole (Wilkie v Gordian Runoff Ltd[2005] HCA 17; (2005) 221 CLR 522 at [16] per Gleeson CJ and McHugh, Gummow and Kirby JJ).”[25]
[25] Sydney Attractions, [35]-[36].
As the Arbitrator found, the Deed must be construed according to its terms. It must be construed by reference to what a reasonable person understands by the language, context in which the words appear, purpose and object of the agreement.
Mr Heidtmann accepted that the terms of the Deed would exclude an injury in the form of hearing loss if it occurred between the dates specified in the Schedule under the heading “Date of Injury”. His submission that the claim for hearing loss can still be maintained because it is an injury deemed to have occurred on a date beyond those identified in the Schedule is rejected for the following reasons.
The submission that the Arbitrator failed to consider Mr Heidtmann’s primary submission, namely, that the Deed on its own terms did not apply to a physical injury occurring on 23 July 2004, cannot be accepted. The Arbitrator expressly acknowledged Mr Heidtmann’s primary submission where he said:
“Counsel for [Mr Heidtmann] sought to draw a distinction between the injuries which were the subject of the claim for the Work Injury Damages and the other injuries noted in the Schedule which provided a description of areas of potential liability for the respondent and which he submitted should be seen as defining the additional potential rights which paragraph 5 purported to terminate by way of release. I do not accept that submission.”[26]
[26] Reasons, [36].
The Arbitrator acknowledged the argument advanced by Mr Heidtmann’s counsel, namely that he sought to draw a distinction between the psychological and other injuries referred to by date or a range of dates under the heading “Date of Injury” from other areas of potential liability identified under the heading “Nature of Injury” in the Schedule. The Arbitrator rejected that submission because the release in paragraph [5] identified the parties’ agreement to release the respondent from any claims Mr Heidtmann “now has, could, would or might have” against the respondent “arising out of or in any way related to the injuries or employment referred to in the Schedule.” (emphasis added)
As the Arbitrator correctly stated, the injuries referred to in the release can only refer to the injuries referred to in the Schedule, including those described under the heading “Nature of Injury”. This included the “nature and conditions of employment and any specific injury in the course thereof causing or aggravating injury to…all senses”. There is no dispute that the reference to “all senses” includes hearing loss.
Mr Heidtmann’s submission conveniently ignores the unambiguous terms of the Deed which excluded liability for injuries of any kind occurring between 10 July 1972 and 23 July 2004. That is, at any time during the course of Mr Heidtmann’s employment.
To accept Mr Heidtmann’s submission would mean to ignore the clear and unambiguous language of the agreement. Applying the authorities referred to above, the Commission cannot ignore the unambiguous language of the Deed, unless to do so would give the Deed an absurd operation. I do not accept giving effect to the words appearing under the heading “Nature of injury” would give rise to any absurdity.
In construing the Deed, I must have regard to all words used in the agreement to ensure the congruent operation of the various components as a whole.[27] Read as a whole, the objective intention of the agreement is self-evident from the plain words in the Schedule, including those words appearing under the headings “Nature of injury”, “Period of employment” and “Nature of employment”.
[27] Wilkie v Gordian Runoff Ltd[2005] HCA 17; 221 CLR 522.
Paragraph [5] of the Deed described the extent of the release. The Deed plainly releases physical and psychological injuries sustained by Mr Heidtmann on particular occasions or during particular periods of employment, as Mr Heidtmann submits. However, it also releases any other injury that Mr Heidtmann had or could potentially have had arising out of or in any way related to the injuries or “employment” referred to in the Schedule. The employment referred to in the Schedule was the whole of the employment with the respondent between 10 July 1972 and 23 July 2004.
It follows that, as Mr Heidtmann’s employment spanned 10 July 1972 to 23 July 2004 and the injuries referred to in the Schedule included injury to “all senses” (which it is accepted included hearing loss), Mr Heidtmann’s accepted industrial deafness injury, which was deemed to have occurred on 23 July 2004, was released by the operation of the Deed.
I have not been directed to any reasoned argument or authority to support the submission that the Deed should be construed as narrowly as Mr Heidtmann submits. The Arbitrator was correct to find that the unambiguous language used in the Deed quite clearly excludes liability for the current hearing loss claim Mr Heidtmann seeks to prosecute, because he has recovered damages for all injuries sustained during the course of his employment including his hearing loss. It follows that the respondent has discharged its onus of establishing a defence under s 151A of the 1987 Act.[28]
[28] Currie v Dempsey (1967) 69 SR (NSW) 116, 125; Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114, [71].
As I have stated, for these reasons the appeal cannot succeed.
DECISION
Mr Heidtmann’s application to extend time for making an appeal, pursuant to r 16.2(12) of the 2011 Rules, is refused.
Judge Keating
President
4 June 2018
22
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