K.B. Hutcherson Pty Limited v Correia

[1994] HCATrans 339

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S167 of 1993

B e t w e e n -

K.B. HUTCHERSON PTY LIMITED

Applicant

and

JOSE CORREIA

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Hutcherson 1 13/5/94

AT SYDNEY ON FRIDAY, 13 MAY 1994, AT 10.56 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my

learned friend, MS N. ABADEE, for the applicant.

(instructed by Hickson Lakeman & Holcombe)

MR D.E. GRIEVE, QC:  May it please Your Honours, I appear

with MR J.W. CATSANOS for the respondent.

(instructed by Taylor & Scott)

MASON CJ:  Mr Jackson, it is not that we have any distaste

for you or the arguments you present but, again, it

may accelerate proceedings if we heard from

Mr Grieve in the first instance.

MR JACKSON:  Yes. Your Honour, might I say one thing before

Your Honours do that, but not an attempt to

dissuade Your Honour from it?

MASON CJ: Yes.

MR JACKSON: It is, as appears from my learned friend's

written submission, there has been an amendment to

the Act which deals with the first issue, namely,
the question of the way in which the table

operates. Now, that takes away future cases. It

does, however, leave a significant number of cases

yet to be determined and, Your Honours, it has only

been possible to obtain very, very recently,

because the Act has only just come into force, some

estimation of the number of cases available and I

would seek in that regard to file in Court and ask

Your Honours to read an affidavit of Roderick

Stuart Cameron, sworn today, dealing with that issue.

MASON CJ:	You have handed a copy of that to Mr Grieve?
MR JACKSON:	Yes, Your Honour.
MASON CJ: Yes, you have leave to file it in Court. Yes,

Mr Grieve.

MR GRIEVE:  In our submission, those cases that are pending

fit into two categories: first, those which are

merely, as yet, undetermined applications - that

is, undetermined by any judicial officer - and,

secondly, those that have been the subject of a
determination by way of award. Indeed, the instant

case is in that second category.

The award made by the primary judge stands.

It obviously has not been affected by the Court of

Appeal's decision, save that the Court of Appeal

saw fit to affirm it. The amending legislation

provides in plain terms that notwithstanding its

expressed retrospectivity, that retrospectivity is

Hutcherson 2 13/5/94

subject to and not intended to affect any awards

that have been made.

In our written outline, we set out reference

to the particular provisions in question.	They are
not all that easy to find.	Indeed, it is easier to

simply go to them by page reference rather than by

reference to section. The relevant pages are 6, 13

and 14. At pages 5 and 6 the amendment to the

table is to be found. Relevantly, at the foot of

page 5, a new subsection 65(4) is inserted:

For the avoidance of doubt, the interpretation

of provisions following the Table to this
Division form part of the Table and apply to
the interpretation of the losses mentioned in
the Table. This subsection is taken to have
applied from the commencement of this

Division.

Plainly retrospective. On page 6, about line 24,

we have the new provision relating to the loss of

legs at or above the knee as well as below the

knee, in the way in which our friends would contend

that the old provision should have been construed.

Then, if we go forward to page 13, clause 7 at

the foot of it introduces another plain piece of

retrospectivity but that is qualified at the top of

page 14 by subclause (2):

However, the amendment made by

Schedule 2(5)(d) to the Workers Compensation

Legislation (Miscellaneous Amendments) Act

1993 does not affect:

(a) any award of compensation made before the

date of assent to that Act.

The Parliament, in short, has spoken and, if we may

say so with respect, has, at least on this

occasion, spoken clearly. It has, in effect, said

that it never intended the sections to be read as

the Court of Appeal read them in the instant case.

In effect, the Parliament has, in our submission, accepted the correctness of the Court of Appeal's decision. In our submission, that acceptance must

necessarily have been right having regard to the

literal language of the section as it obtained

before these amendments.

Whether that is right or not perhaps may not

matter in the sense that, were special leave to be
granted on the first question, the Court would be

confronted with, in our submission, something of a

conundrum: either it would be invited to

reconsider the meaning of a section which, to all

Hutcherson 13/5/94

intents and purposes, has now been repealed or, at

all events, substantially amended, that being the

section which was considered by the Court of

Appeal; or, alternatively, the Court would be

invited to determine the merits of this matter,

having regard to legislation which did not apply to

it at the time that it arose. In that sense, the

Court would, in our submission, effectively be

embarking upon a hearing de novo.

It would only be entitled to do so, we submit

with profound respect, on the assumption that at the end of the day it would be setting aside the

award. In other words, one would work back from

the result, saying, "On the assumption that we will

set aside the award so as to attract the attention

of the amending legislation, we will look at it in
the light of the amending legislation", otherwise
the award is there and one looks at the Act as it

stood before the amendment. We submit that there

can be no utility at all in the courts looking at

an Act no longer in force, to all intents and

purposes.

That takes me back, really, to where I started

from, namely, that in light of the amending
legislation, even though there may be a series of

cases in the pipeline, they do quite plainly fit

into one or other category as indicated. They

either have been the subject of awards, in which

case the approach taken by the Court of Appeal,

whether or not applied to them, covers the matter.

And if they have not been the subject of award,

then the amending Act applies and makes it plain as

to the applicant's entitlement in each case. So we

submit the first question, on any view of it, does

not warrant the grant of special leave.

That leaves the second question, the interest

question. So far as that is concerned, we submit

first that the decision below is not attended by

sufficient doubt to warrant the grant of special	leave and, alternatively, even if that is not
right, the question is not of sufficient public
importance to warrant its reconsideration by this Court.

As far as the first point is concerned, the

working of the Workers Compensation legislation

relevantly is in contrast with the working of the
common law principles as to the assessment of

damages in one significant respect so far as

presently relevant. That is that the worker's

entitlement to the award in dollar terms is to be

assessed as at the date of the injury and not at

the date of hearing. That is, as it were, an

across-the-board rule which applies equally to the

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entitlement of an award by way of compensation for

pain and suffering and otherwise.

Now, the practical effect of that is this, in

our submission, that if a worker suffers an

incapacity which causes him compensable pain and

suffering, at the instant of suffering that

incapacity he has his dollar entitlement, whatever

that may later prove to be. It matters not how

long it takes for the determination by curial

process or otherwise of that dollar entitlement.

The tribunal determining it in due course has to look back to the date of incapacity, not to deal

with the matter as at the date of hearing, in

contrast to the common law approach. The effect of

that, in our submission, is simply that the moment

the injury is suffered the entitlement arises and

the employer is indebted to the worker in that

amount. It matters not that the worker may suffer

his pain over a protracted period and it matters

not that the worker may anticipate a continuance of

that pain after the date of the award.

For the purpose of computing interest, his

entitlement runs from the minute he suffers the

injury, and for so long as he is kept out of his

money, we submit that he is entitled to interest on

the whole of it. That, in our submission, was the gravamen underlying the Court of Appeal's decision on the second point which, as I have put, is not,

we submit, attended with sufficient doubt to

warrant the grant of special leave.

MASON CJ: Thank you, Mr Grieve. Yes, Mr Jackson.

MR JACKSON:  Your Honours, as to the first point and as to

the application of the amending legislation, may I

take Your Honours to page 14 of the amending

legislation attached to our learned friend's

written submissions. The position which obtains is

that which appears from the provision at the top of

page 14 which says: 

However, the amendment ..... does not affect -

and then it lists, for example, "any award of

compensation". Now, Your Honours, what that means

is, as I have submitted earlier, that in respect of

cases where an award has not yet been made, the

law which is applicable is the law as amended by

the amending Act. In respect of cases where the

award such as this and the 20 or 30 others at least

that are referred to in the affidavit where the

award has been made but there are still proceedings

in relation to it by way of appeal, the situation

which then obtains is that the court decides the

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case on the basis of the law absent the amending
provision.

So that, Your Honours, the issue is exactly the same as that which obtained prior to the

amending Act. All that has happened has been, of

course, that the number of potential cases to which

the provisions are applicable has been reduced

and, no doubt, very significantly reduced. But as

the affidavit demonstrates, there is, Your Honours,

a large identified number of cases in which the

same or a similar point arises in relation to legs

and then there are a number of cases which may be

very large in which it is not possible to give an exact number dealing with cases where awards have

been made but have to be reviewed in the

Compensation Court. So, Your Honours, the issue is

not dead. The range of its application is limited,
and it is a very important issue in respect of

those cases.

Your Honours, that is the first thing I would

seek to say in relation to that question.

Your Honours, I am not certain if Your Honours want

me to develop the argument in support of the issue, one way or the other, in relation to that point. I

am happy to do so.

MASON CJ:  Mr Jackson, the one point we would want to hear

you on is why should not the grant of leave be

confined so as to exclude the interest point?

MR JACKSON: Just this, Your Honours: the argument that is

advanced against us on that, if I can just go to

the substance of it for one moment, is essentially

that there is established at the time when the

injury occurs the amount which is the amount which may be obtained. That, of course, is the limit of the amount which may be obtained. But the fact

that the limit is established at the time of

injury, Your Honours, in our submission, does not

affect the proposition which is the subject of our

contention in that regard.

Your Honours, all I can say in relation to it

is that it is an issue which arises in every case

where there is a claim under section 67 in respect

of pain and suffering. Your Honours, in relation

to that, there seems no reason, in our submission,

why the approach taken in relation to the

calculation of interest, in similar circumstances,

in cases arising under the general law would not

apply also to provisions of this kind or awards of

this kind.

Your Honours, could I give an example of the application of the general law. It is the decision

Hutcherson 6 13/5/94

of the Court of Appeal in New South Wales in a case

which is not on Your Honours' lists. It is

Metropolitan Heat Industry Board v Willia.ms, (1991)

24 NSWLR 54. The headnote accurately states the

propositions which were adopted by the court, and

Your Honour will see those set out at the bottom of

page 58G through to page 59E. The reason being, of

course, that in respect of the period prior to the

making of the award not all the pain and suffering

occurs at once and it is appropriate to make some

adjustment in respect of that.	Your Honours, those
are the submissions we make.

MASON CJ: There will be a grant of special leave in this

matter but it will exclude the interest point on

the footing that it involves no question of general

principle.

MR GRIEVE:  Could we, before Your Honours conclude that

matter, invite the Court to consider, as a condition of the grant of special leave, a condition along the lines imposed in the last case,

this being a matter really raised by the appellant,

we submit, as a matter of principle going well

beyond the interests of this particular worker.

MASON CJ: Those considerations, in so far as they affect

any question of costs, can be dealt with at the

hearing.

MR GRIEVE:  May it please Your Honour.

AT 11.15 AM THE MATTER WAS ADJOURNED SINE DIE

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