Loongana Lime Pty Ltd v Worth
[2006] WASCA 183
•7 SEPTEMBER 2006
LOONGANA LIME PTY LTD -v- WORTH [2006] WASCA 183
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 183 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:75/2005 | 22 MARCH & 25 AUGUST 2006 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 7/09/06 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | LOONGANA LIME PTY LTD (ACN 079 943 196) BRETT NORMAN WORTH |
Catchwords: | Appeal Workers' compensation Worker recovering money from a third party Whether worker liable to repay workers' compensation Employer's right of indemnity from negligent third party |
Legislation: | Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 28, s 31, s 36, s 37, s 39 Civil Aviation (Carriers' Liability) Act 1961 (WA) Rules of the Supreme Court 1971 (WA), O 58 r 11 Workers' Compensation and Rehabilitation Act 1981 (WA), s 91, s 92, s 93 |
Case References: | Geraldton Building Co v Cramer [2001] WASCA 244 Redding v Lee; Evans v Muller (1983) 151 CLR 117 Scott v Bowyer [1998] 1 VR 207 Tickle Industries Pty Ltd v Hann & Anor (1974) 130 CLR 321 Tooth & Company Ltd v Tillyer (1956) 95 CLR 605 Watson v The Council of the City of Newcastle (1962) 106 CLR 426 Western Mining Corporation Ltd v N B Little & Sons Pty Ltd (1993) 10 WAR 237 Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139 Worth v Loongana Lime Pty Ltd [2005] WASC 126; (2005) 192 FLR 203 Xpolitos v Sutton Tools Pty Ltd (1977) 136 CLR 418 Ardeshirian v Robe River Iron Associates (1993) 43 FCR 475 Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Cork & Bandon Railway Co v Goode (1853) 1 CLR 345 Fothergill v Monarch Airlines Ltd [1981] AC 251 Hewitt v Benale Pty Ltd (2002) 27 WAR 91 Jones v Wrotham Park Settled Estates [1980] AC 74 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Khoury (M&S) v Government Insurance Office of NSW (1984) 165 CLR 622 Kingstone v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404 Lorimer v Smail (1911) 12 CLR 504 Manners v Transfield Pty Ltd (1992) 8 WAR 111 Mersey Docks & Harbour Board v Henderson Bros (1888) 13 App Cas 595 Muller v Dalgety & Co Ltd (1909) 9 CLR 693 Public Transport Commission (NSW) v J MurrayMore (NSW) Pty Ltd (1975) 132 CLR 336 R v Kerney; Ex parte Jurlama (1984) 158 CLR 426 Secretary, Department of Social Security v Knight (1996) 44 ALD 283 Sidhu v British Airways Plc [1997] AC 430 South Pacific Air Motive Pty Ltd v Mangus (1998) 87 FCR 301 State Government Insurance Commission (WA) v Teal (1990) 2 WAR 105 Taylor v Public Service Board (NSW) (1976) 137 CLR 208 Zangzinchai v Milanta (1994) 53 FCR 35 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LOONGANA LIME PTY LTD -v- WORTH [2006] WASCA 183 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
- Appellant
AND
BRETT NORMAN WORTH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BLAXELL J
Citation : WORTH -v- LOONGANA LIME PTY LTD [2005] WASC 126
File No : CIV 2181 of 2004
(Page 2)
Catchwords:
Appeal - Workers' compensation - Worker recovering money from a third party - Whether worker liable to repay workers' compensation - Employer's right of indemnity from negligent third party
Legislation:
Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 28, s 31, s 36, s 37, s 39
Civil Aviation (Carriers' Liability) Act 1961 (WA)
Rules of the Supreme Court 1971 (WA), O 58 r 11
Workers' Compensation and Rehabilitation Act 1981 (WA), s 91, s 92, s 93
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr C L Zelestis QC & Mr P V Lansell
Respondent : Mr R J L McCormack
Solicitors:
Appellant : Jackson McDonald
Respondent : Donna Percy & Co
Case(s) referred to in judgment(s):
Geraldton Building Co v Cramer [2001] WASCA 244
Redding v Lee; Evans v Muller (1983) 151 CLR 117
Scott v Bowyer [1998] 1 VR 207
Tickle Industries Pty Ltd v Hann & Anor (1974) 130 CLR 321
Tooth & Company Ltd v Tillyer (1956) 95 CLR 605
Watson v The Council of the City of Newcastle (1962) 106 CLR 426
Western Mining Corporation Ltd v N B Little & Sons Pty Ltd (1993) 10 WAR 237
(Page 3)
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139
Worth v Loongana Lime Pty Ltd [2005] WASC 126; (2005) 192 FLR 203
Xpolitos v Sutton Tools Pty Ltd (1977) 136 CLR 418
Case(s) also cited:
Ardeshirian v Robe River Iron Associates (1993) 43 FCR 475
Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Cork & Bandon Railway Co v Goode (1853) 1 CLR 345
Fothergill v Monarch Airlines Ltd [1981] AC 251
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Jones v Wrotham Park Settled Estates [1980] AC 74
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Khoury (M&S) v Government Insurance Office of NSW (1984) 165 CLR 622
Kingstone v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404
Lorimer v Smail (1911) 12 CLR 504
Manners v Transfield Pty Ltd (1992) 8 WAR 111
Mersey Docks & Harbour Board v Henderson Bros (1888) 13 App Cas 595
Muller v Dalgety & Co Ltd (1909) 9 CLR 693
Public Transport Commission (NSW) v J MurrayMore (NSW) Pty Ltd (1975) 132 CLR 336
R v Kerney; Ex parte Jurlama (1984) 158 CLR 426
Secretary, Department of Social Security v Knight (1996) 44 ALD 283
Sidhu v British Airways Plc [1997] AC 430
South Pacific Air Motive Pty Ltd v Mangus (1998) 87 FCR 301
State Government Insurance Commission (WA) v Teal (1990) 2 WAR 105
Taylor v Public Service Board (NSW) (1976) 137 CLR 208
Zangzinchai v Milanta (1994) 53 FCR 35
(Page 4)
1 STEYTLER P: I have had the advantage of reading the judgment of Wheeler JA. It is consequently unnecessary for me to restate the facts giving rise to the question of construction that arises in this case or to restate all of the statutory provisions to which her Honour has referred.
2 In a nutshell, the question, as argued before us, is whether an injured worker, who has been paid compensation by a third party for his injury pursuant to a statutory obligation but who has also been paid workers' compensation by his employer under the Workers' Compensation and Rehabilitation Act 1981 (WA) ("WCR Act"), is entitled to retain both, especially in circumstances in which the payment by the third party was made pursuant to the terms of an agreement in which liability in negligence to make it is denied, and not pursuant to the judgment of any court (whether made by consent or not). In this case the statutory obligation is s 28 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) which, together with other provisions of that Act, is applied by the Civil Aviation (Carriers' Liability) Act 1961 (WA) (like Wheeler JA, I will refer to the combined operation of the two Acts as the "CA Act"). Section 28, read with s 31 of the CA Act, provides that a carrier (in this case, Goldfields Air Services) is "liable for damage sustained by reason of … any personal injury suffered by … [a] passenger" (in this case the respondent ("worker")). The primary Judge found that the worker is, in this case, entitled to retain the full amount of both forms of compensation. The appellant, relying upon s 93(1)(a) of the WCR Act, contends that he erred in that conclusion.
3 Section 93(1) of the WCR Act read as follows:
"93. Remedies against stranger
(1) Where the disability for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof but neither the employer nor any person for whose negligence the employer is legally responsible was negligent -
(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to
- recover both damages and compensation and shall bring to account in reduction of his entitlement to compensation the amount recovered by way of damages;
- (b) the employer is entitled to be indemnified by the person whose negligence caused the disability to the worker (in this section called 'the defendant') to the full extent of the employer's liability to pay compensation under this Act, whether or not the defendant has discharged his liability to pay damages to the worker by judgment or by settlement or otherwise."
4 There are seven features of that section which must be noticed for the purposes of the rival contentions advanced in this appeal. The first is that the opening words of s 93(1) refer to a disability "caused under circumstances creating a legal liability" in the third person to pay damages in respect of it. The second feature is that the legal liability must be one to pay "damages". The third is that the effect of the opening words of s 93(1) is that the section is expressed to operate only if there was no negligence ascribable to the employer. The fourth is that the words "shall not be entitled to recover both damages and compensation [under this Act]" are not, for the reasons pointed out by Wheeler JA, meant to be read literally, so as to preclude any entitlement to recover both at any time and under any circumstances. The fifth is that s 93(1)(a) requires the worker to "bring to account" what is "recovered" by way of damages "in reduction of" his or her entitlement to compensation. The sixth is that, under s 93(1)(b), the employer is entitled to be indemnified by the person "whose negligence caused the disability to the worker", a concept narrower than that of a person under "a legal liability … to pay damages" in respect of the disability (although, in practice, in the vast majority of cases the "legal liability" will arise as a consequence of the commission of the tort of negligence). The seventh is that the person identified in s 93(1)(b), and not the person described in the opening words of s 93(1)(a) (although they will often be the same person), is called "the defendant" for the purposes of s 93(1)(b) and ss 93(2) to (5) (the latter provisions are set out in the judgment of Wheeler JA).
5 As I read s 93(1)(a) in its context (as that context appears from the judgment of Wheeler JA), that section precludes the worker from retaining the entirety of both forms of compensation received by him in
(Page 6)
- this case and requires him to repay to his employer so much of the compensation received from the third party as equals that which he has received from his employer. I appreciate that this construction gives rise to some difficulties, but the same is true of any other construction and it seems to me that there are less difficulties with this construction than with any other.
6 In my opinion, the evident intention of s 93(1)(a), more especially if read in its wider context in the WCR Act (see, in particular, s 92(b) and (c), which qualify the prohibition on double recovery contained in s 93(1)(a) and s 92(g), and see, as to s 92(c), Western Mining Corporation Ltd v N B Little & Sons Pty Ltd (1993) 10 WAR 237 at 239 per Anderson J), is to attain two principal objectives. The first is to ensure that, save in the case of exceptions that are expressly provided for, there will be no double recovery by a worker in respect of one disability. The second is to ensure that any damages recovered by the worker from a third person are ordinarily to be applied in repayment of workers' compensation payments already made by the employer and that the employer will be relieved of the obligation to pay further compensation, to the extent of any balance of the damages received by the worker from the third person remaining after repayment by the worker. Any other construction than that which I favour would not satisfy both objectives.
7 It is true that this construction does not sit entirely comfortably with the requirement, in s 93(1)(a), that the worker "shall bring" the amount recovered from the third person "to account in reduction of his entitlement to compensation". However, I regard the words "bring to account" and the word "entitlement" as being wide enough to comprehend an obligation to repay workers' compensation already received from the employer, even though the words "in reduction of" are also used. I read the word "entitlement", in this composite phrase, as referring to the whole of the worker's entitlement, comprehending not only that which he or she is yet to receive, but also that which he or she has received. This construction seems to me to be supported by the fact that the composite phrase to which I have referred immediately follows the words "but shall not be entitled to recover both damages and compensation and". If a different construction was to be adopted, a worker who had yet to receive payments of workers' compensation would be in a better position than one who has already been paid his or her full entitlement in that respect, for no apparent reason. Moreover, the effect of such a construction would be that employers would inevitably withhold workers' compensation for so long as they could in any case in which there was a prospect of recovery of damages from a third person.
(Page 7)
8 Also, while s 93(1)(a) permits a worker to "take proceedings" against both his or her employer and the third person and speaks of the amount "recovered" by way of damages, I doubt that the legislature could have intended that, when damages are recovered after proceedings have been commenced, the section applies to those damages, but not in the case of damages received from a person who was under a legal liability to pay them and who did pay them on demand without the need for any proceedings. Once again, there is no apparent reason for a distinction of that kind.
9 I should deal, also, with two other contentions that were advanced on behalf of the respondent.
10 The first of these is that a payment made pursuant to s 28 of the CA Act is not, or not necessarily, "damages" for the purposes of s 93(1). One of the foundations for this argument is that, even ignoring, for the moment, the effect of s 93(1)(b) (to which I shall later return), the only "damages" contemplated by s 93(1) are those payable by a person whose negligence caused the disability. Counsel for the respondent relies, in this respect, upon what was said by Taylor J, in Watson v The Council of the City of Newcastle (1962) 106 CLR 426 at 439, in respect of the then provisions of s 64 of the Workers' Compensation Act 1926-1958 (NSW), which read as follows:
"Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof -
(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to retain both damages and compensation. If the worker recovers firstly compensation and secondly such damages he shall be liable to repay to his employer out of such damages the amount of compensation which the employer has paid in respect of the worker's injury under this Act, and the worker shall not be entitled to any further compensation. If the worker firstly recovers such damages he shall not be entitled to recover compensation under this Act;
(Page 8)
- (b) if the worker has recovered compensation under this Act, the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid;
(c) if the worker subsequently obtains judgment for damages against the person who has paid under such indemnity, such payment under the indemnity shall be, to the extent of the amount of such payment, a satisfaction of the judgment for damages."
- Taylor J said, of s 64(a), the following:
"The paragraph operates where the worker 'recovers firstly compensation and secondly such damages'. What are 'such damages'? They are the damages which the tortfeasor is liable to pay by reason of the circumstances in which the injury was caused."
12 Nor can it be said, in my opinion, that compensation paid pursuant to s 28 of the CA Act is not "damages" within the ordinary meaning of that term as used in s 93(1) of the WCR Act. Section 36 of the CA Act provides that, subject to certain specified exceptions (provided for by s 37), the liability of a carrier under s 28 in respect of a personal injury suffered by a passenger "is in substitution for any civil liability of the carrier under any other law in respect of the injury". Section 39(1) provides that if, in an action against a carrier under Pt IV, the carrier proves that the damage was caused or contributed to by the negligence of the passenger, the "damages" recoverable are to be assessed in accordance with s 39. Section 39(2) provides that the court shall first determine the "damages" that would have been recoverable if there were no limit on the amount of those damages fixed by or in accordance with Pt IV and there had been no negligence on the part of the passenger. Section 39(3) provides that the "damages" determined under s 39(2) are to be reduced to
(Page 9)
- such extent as the court thinks just and equitable having regard to the share of the passenger in the responsibility for the damage. All of these provisions seem to me to support the proposition that the compensation provided for by s 28 is "damages" for the purposes of s 93(1).
13 It also seems to me that the money paid by the third person in this case was "damages", notwithstanding that it was paid pursuant to the terms of an agreement (the deed of release referred to in the judgment of Wheeler JA), and notwithstanding also that, in the deed, the carrier "denies any liability in negligence" in respect of the injuries suffered by the worker "and does not admit any obligation to pay damages, or any monies, to the … [the worker] as alleged or at all … ". The agreed statement of facts prepared in this case for the purposes of the hearing before the primary Judge specifically records that "the carrier admits that it has a legal liability pursuant to the CA Act to pay the statutory compensation sum and has paid the statutory compensation sum" (par 6) and we were told, during the course of the hearing, that we are to proceed upon that basis notwithstanding anything to the contrary in the deed of release.
14 That brings me to the second of the contentions to which I have earlier referred. It is that, because s 93(1)(b) gives to an employer an entitlement to be indemnified only by "the person whose negligence caused the disability to the worker", the "legal liability" in the opening words of s 93(1) must mean a liability arising out of the tort of negligence. I am unable to accept this. There seems to me to have been a deliberate decision to include, in the range of persons referred to in the opening words of s 93(1), any person other than the employer who was under a legal liability to pay damages in respect of the disability, however that liability arose. I find it difficult to think that, if a more restricted category of persons was intended (a question left open by Malcolm CJ in Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139 at 146 - 147), the legislature would not have said so. That could have been done very simply. Moreover, as I have said, the opening words of s 93(1) specifically refer to the concept of negligence in the course of excluding the operation of the section in the case of a negligent employer. It may also be significant that the third person referred to in s 93(1)(b), and not the third person referred to in the opening words of s 93(1), is referred to as "the defendant" for the purposes of the ensuing provisions.
15 Finally, I should mention that the appellant seems to me to be right in not contending that s 93(1)(b) has any operation in this case. It is apparent from the plain meaning of the words used in s 93(1) that the third
(Page 10)
- person referred to in subpar (b) is one whose negligence caused the disability, notwithstanding that, as I have said, a wider category of persons appears to have been deliberately specified in the opening words of s 93(1). There may be sound policy reasons for including a wider range of persons in the opening words of s 93(1), so far as the operation of subpar (a) is concerned (which, as I have said, seems to me to be designed to avoid double recovery), but restricting the category of persons who are required by subpar (b) to indemnify the employer, whether or not those persons have discharged their liability to pay damages to the worker, to persons whose negligence caused the disability to the worker. That being so, there is no more justification for ignoring the words "whose negligence caused the disability" in subpar (b) than there is, in my respectful opinion, for reading down the category of third persons referred to in the opening words of s 93(1). Consequently, because there is, in the agreed facts, no basis for any finding that the carrier was negligent, s 93(1)(b) has no operation.
16 It follows that I would allow the appeal, set aside the judgment of the primary Judge and, in lieu, order that there be a declaration that the appellant is entitled to be reimbursed for the workers' compensation benefits paid by it to the respondent.
WHEELER JA:
The appeal
17 This is an appeal from a decision of Blaxell J, made on an application pursuant to O 58 r 11 of the Rules of the Supreme Court1971 (WA). It concerns the operation of s 93 of the Workers Compensation and Rehabilitation Act 1981 (WA) (the "WCR Act"), as the Workers Compensation and Injury Management Act 1981 (WA) was formerly known, and its relationship with certain provisions of the Civil Aviation (Carriers' Liability) Act 1961 (WA). The last-mentioned Act applies certain provisions of the Civil Aviation (Carriers' Liability) Act 1959 (Cth). I refer collectively to the applied provisions and the State Act which applies them as "the CA Act". The issue arose in proceedings between the respondent (the "worker") and the appellant (the "employer"), which was his employer. The party referred to as "the carrier", Trevlyn Pty Ltd (trading as "Goldfields Air Services") was initially a defendant to the proceeding, but obtained leave to withdraw upon undertaking to abide by the decision of the Court.
(Page 11)
The factual background
18 The statement of agreed facts relevant to the application is quoted in [5] of the reasons of Blaxell J in Worth v Loongana Lime Pty Ltd [2005] WASC 126; (2005) 192 FLR 203. That paragraph reads as follows:
"5 For the purpose of the present application all parties (including the carrier) have agreed upon the following statement:
'The Parties
1. On the material date [14 November 2001];
a) the worker was employed by the employer and was a passenger in the aircraft being operated by the carrier;
b) the carrier was the owner of the aircraft and operated an aircraft charter business in Western Australia trading as 'Goldfields Air Services';
c) the carriage of the plaintiff in the aircraft was a carriage to which the CA Act applied;
- The Event
2. On the material date the aircraft made a forced landing near Kalgoorlie/Boulder, as a result of which the worker suffered personal injuries ('The Event').
The Worker's Claim Against The Employer
3. As at the date and time of the Event, the worker was engaged in the course of his employment with the employer.
4. Subsequent to the Event;
a) the worker made a claim against the employer for statutory benefits pursuant to the WCR Act on the ground that he
- suffered a disability for the purposes of the WCR Act by reason of the injuries he suffered in the Event;
- b) the employer accepted liability for the worker's claim; and
c) consequent upon the worker's claim against it, the employer paid statutory benefits of $191,738.41 to or on behalf of the worker ('the Workers' Compensation Sum') pursuant to the WCR Act.
- The Worker's Claim Against The Carrier
5. The worker commenced the District Court Action against the carrier, alleging, inter alia, that his sustaining of personal injuries, as referred to in paragraph 2 above, was a consequence of the Event which was caused by the carrier's negligence, alternatively claiming damages for personal injury pursuant to the CA Act.
6. The carrier admits that it has a legal liability pursuant to the CA Act to pay the statutory compensation sum and has paid the statutory compensation sum.
7. There is a dispute between the employer and the worker as to which party is entitled to be paid the Workers' Compensation Sum which sum forms part of the statutory compensation sum paid by the carrier.
The Employer's Claim Against The Carrier
8.
(a) By a letter dated 1 November 2002, Jackson McDonald, solicitors for SGIO Insurance Limited ('SGIO'), the employers' indemnity insurer for the employer, and in the exercise of the right of subrogation, made a claim against the
- carrier for indemnity in respect of statutory benefits paid to or on behalf of the worker pursuant to the WCR Act, the total of such monies being the Worker's Compensation Sum, on the ground that the carrier was under a statutory liability to indemnify the employer.
- (b) The claim for indemnity in respect of the Workers' Compensation Sum was made, relevantly, pursuant to ss.92 and 93 of the WCR Act, and s.37(a) of the CA Act.
- 9. The worker;
(a) denies that he has any obligations, directly or indirectly, to repay to the employer or the carrier the or any part of the Worker's Compensation Sum;
(b) says that the Workers' Compensation Sum should not be deducted from the statutory compensation sum and paid to the employer;
(c) says that the Workers' Compensation Sum should be paid to the worker as part of the statutory compensation sum.
These Proceedings
10. The purpose of the within proceedings seeking declaratory relief from this Honourable Court, is intended by the worker to raise questions of law for determination by the court, in support of
(a) the plaintiff's denial as to his having any obligation, directly or indirectly, to repay the or any part of the Workers' Compensation Sum to the employer, or the carrier; and
(b) the employer's claim that by reason of;
- (i) the carrier's legal liability to pay damages in respect of the Event pursuant to the CA Act; and
(ii) sections 92 and 93 of the WCR Act, all of the Workers' Compensation Sum should be repaid to the employer."
19 There is some confusion in the agreed statement of facts, both internally and when those facts are read with the originating summons and the supporting documents. It can be seen that par 4(c) recites that the employer paid the statutory benefits to the worker pursuant to the WCR Act, that amount then being defined as "the Workers' Compensation Sum". Paragraph 9(c), however, recites the worker's assertion that he should be paid the Workers' Compensation Sum. It seems not to be in issue that the sum recited has, in fact, been received by the worker by way of workers' compensation.
20 The statement of agreed facts further recites that it is to be read in conjunction with the originating summons and the bundle of documents which the parties have agreed. The bundle of documents includes the deed of release and settlement between the parties. While the statement of agreed facts recites that, for the purposes of the originating summons, the carrier admits that it has a legal liability pursuant to the CA Act to pay the statutory compensation sum (par 6), the deed of release recites that the carrier denies any liability in negligence and does not admit any obligation to pay any money either to the worker or the employer (par H(a)). This inconsistency was resolved, in response to a query from the Court, on 25 August 2006. It is agreed, as between the appellant and the respondent, that the carrier had a legal liability pursuant to the CA Act, but not otherwise.
21 The originating summons asserts that the worker claimed a legal right to "retain" both the statutory compensation sum and the workers' compensation sum, which appears to suggest that both amounts had been paid to him. However, it appears from the deed of release that the statutory compensation sum (which is in that document referred to, together with an amount of costs, as "the settlement sum") has, in part, been paid to the worker's solicitors, presumably for forwarding to the worker, and has, in part, been paid by way of a cheque payable to the employer's workers' compensation insurer, which cheque is held by the employer's solicitors pending an order of either this Court or the District
(Page 15)
- Court determining the entitlement to that sum. That amount is quantified in the deed of release as a sum of a little over $188,000, but the sum paid by way of workers' compensation is described in both the statement of agreed facts and the originating summons as an amount of a little over $191,000.
22 My understanding of the agreed facts, then, includes the following:
• The carrier does not admit any liability in negligence, and does not admit any obligation to pay damages to the worker, but for the purposes of the originating summons, it is agreed that it has a liability pursuant to provisions of the CA Act.
• Pursuant to that legal liability under the CA Act, the carrier has paid the sum of $500,000.
• The worker has received from the employer a sum of approximately $190,000 by way of workers' compensation.
• The sum of $500,000 from the carrier has been paid as to approximately $310,000 by cheque to the worker. A further amount, representing approximately the amount paid by the employer by way of workers' compensation, has been paid by way of cheque held by solicitors pending the resolution of these proceedings.
23 It is relevant to note precisely how the original District Court proceedings were determined. As par 5 of the statement of agreed facts recites, the worker commenced a District Court action against the carrier. That was discontinued by the worker, with no order as to costs, as a result of a minute of consent orders dated 14 October 2004. The payment of the $500,000 was not payment pursuant to a judgment, or money paid into court. It was paid solely as a result of the deed of release and settlement entered into between the worker, carrier and the employer, one of the terms of which was that the worker and the carrier would sign and file a minute of consent orders discontinuing that action.
24 It is also relevant to note that the respondent received very severe injuries as a result of the accident, requiring extensive treatment and rehabilitation, and was left with significant permanent disabilities. By reason of those disabilities, he has been unable to work since the date of the accident. It seems not to be in dispute that, were it not for the
(Page 16)
- provisions of the CA Act, the damages to which the worker would have been entitled would have significantly exceeded $500,000. However, the "statutory compensation sum" referred to in the statement of agreed facts is, by reason of the CA Act, the maximum amount for which the carrier could be liable. Relevant provisions of the CA Act are as follows:
"28. Liability of the carrier for death or injury
Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
...
31. Limitation of liability
(1) Subject to the regulations relating to passenger tickets, the liability of a domestic carrier under this Part in respect of each passenger, by reason of his injury or death resulting from an accident, is limited to:
(a) where neither paragraph (b) nor paragraph (c) applies -
$500,000;
36. Liability in respect of injury
Subject to the next succeeding section, the liability of a carrier under this Part in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of injury.
- 37. Certain liabilities not excluded
Nothing in this Part shall be deemed to exclude any liability of a carrier:
(a) to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, that employer or other person under a law of the Commonwealth or of a State or Territory providing for compensation, however described, in the nature of workers' compensation or
(b) to pay contribution to a tort-feasor who is liable in respect of the death of, or injury to, the passenger;
but this section does not operate so as to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with this Part."
History and policy of s 93 WCR Act
26 Both the employer and the worker in the present case made reference in the course of their submissions and oral argument to questions of legislative policy and to the desirability of avoiding what they asserted to
(Page 18)
- be potentially inconvenient or undesirable consequences. Such considerations, however, may be of little utility.
27 A discussion of, and comparative survey of, State and Federal provisions broadly similar to s 92 and s 93 WCR Act is contained in Sykes and Yerbury, Labour Law in Australia (vol 1 1980), commencing at page 310. The learned authors there note that the English provisions which are the predecessor of legislation of this kind were, in broad essentials, based on the concept that the existence of workers' compensation did not remove a right in the worker to sue the employer or a third party at common law, but that the worker could not pursue both paths, either simultaneously or at different times. There was, so far as the employer was concerned, a requirement that the worker "elect" between the two remedies. Once a worker with full knowledge of the existence of both sets of rights had elected to pursue one path against the employer, he could not then pursue the other.
28 There was also, so far as third parties were concerned, a prohibition on the "recovery" of both compensation and damages. The word "recover" was strictly interpreted to include mere receipt of compensation under the Act, so that any receipt of compensation would permanently bar the worker from taking common law proceedings against a third party, even where there was no knowledge in the worker of the alternative remedy, or intent to elect one or the other. Such a system would plainly be incompatible with the intention of modern workers' compensation legislation such as the WCR Act, which aims to ensure that workers give prompt notice of claims and that weekly payments are commenced promptly and with minimum formality.
29 The authors of Sykes and Yerbury at page 311 make the comment, in relation to the election and recovery limbs of the English legislation:
"All the Australian jurisdictions started off with one or the other or both of these provisions but the lines have been so criss-crossed by amendments that the original distinction of pattern, to the extent that it existed of course, has been blurred. The English provisions, to put the matter mildly, did not work well and produced a welter of conflicting decisions and dicta [footnote omitted]. The Australian legislative attempts to improve the pattern were thoroughly justified and in fact in most cases the legislatures in making amendments did attempt to render what was left intelligible. They did try to clear up the original swamp as well as to build bridges over it."
(Page 19)
30 However, it is apparent from the further discussion which continues through to page 327 of the text, that the "swamp" has not been thoroughly drained. A number of anomalies, or perceived anomalies, may arise. Importantly for present purposes, the discussion at pages 324 to 325 deals with the situation where the employer has paid compensation and wishes to seek indemnity, and the worker has also proceeded against the third party and recovered judgment for damages, or received money from the third party without judgment, or without taking proceedings. The authors observed that:
"Very many complicated sets of circumstances may arise here depending not only on the relative order in which the proceedings by the worker against the tortfeasor and the proceedings by the employer for indemnity are instituted but also on the time sequence of the payment of moneys due as damages and money paid as indemnity. In New South Wales, South Australia, the Seamens'Compensation Act and the Territory Ordinances if the worker receives payment of common law damages, he is liable to pay the employer out of such damages the amount of compensation paid by the latter [the authors refer to relevant statutory provisions expressly requiring the worker to repay], but little more guidance is given; in some cases the legislation gives the employer a charge, in respect of the compensation paid, over the damages payable by the tortfeasor to the worker provided that the employer gives notice to the tortfeasor, a provision which is effectual only if the tortfeasor has not yet paid over the amount payable or agreed to as damages. ... In the last resort, if the third party has paid over the damages to the worker the employer can enforce his indemnity leaving the third party to recover against the worker the amount paid thereunder: Vic s 79(3). This would seem to represent the general or residual position ... "
- The authors continue:
"As regards the solution of the various complicated situations which may develop, ... the provisions do not present a common pattern, the situations may be complicated and there is the necessity of considering the relationship of the provision in question to the other provisions of the Act. The courts will be very sensitive towards any possibility of any one party being able to effect a double recovery. Much of the legislation has
- been of an ad hoc character and designed to rectify situations of injustice and anomaly as they arose."
31 It is also desirable to consider briefly the somewhat diverse views which have been expressed from time to time concerning the policy of legislation of this type in Australia. I mention them below, in chronological order. It appears to me that, depending upon the context, the emphasis may be upon avoidance of "double recovery", or upon cost-shifting between employer and third party, or upon some more complex policy.
32 In Tooth & Company Ltd v Tillyer (1956) 95 CLR 605, the provision directly under consideration was the employer's indemnity as against a negligent third party. Dixon CJ, Williams, Webb and Fullagar JJ (at 612) said, in that context, that "the policy of the provision is to adjust the responsibilities arising from the co-existence of two liabilities as alternatives either of which might be pursued by the worker or, in the case of his death, by some or all of the persons prejudiced by his death". In Watson v The Council of the City of Newcastle (1962) 106 CLR 426, McTiernan J, at 432, described the policy of a provision of this kind as being that " ... compensation should not, as a benefit for the worker, or a burden for the tortfeasor, be cumulative on damages, that damages should, if recovered by the worker, as far as they can, be the fund out of which compensation is paid, and that, as between the employer and the alleged tortfeasor, the burden of compensation recovered from the employer should be finally cast upon the tortfeasor, but should not be a burden ultra the damages for which the worker has obtained judgment against the tortfeasor". In Tickle Industries Pty Ltd v Hann & Anor (1974) 130 CLR 321, again in the context of consideration of the employer's indemnity (in circumstances where the worker's dependants would have had no right of action), Barwick CJ referred to the policy of the English prototype as being based in the "obvious and necessary justice in giving the employer, who has been involved in the payment of compensation by the wrongful act of another, a right of recovery against that other … " (at 326). In Xpolitos v Sutton Tools Pty Ltd (1977) 136 CLR 418, again in the context of the employer's indemnity, Gibbs J referred to the "beneficent purpose" of the Act so far as workers are concerned, in ensuring that appropriate compensation was paid to the worker (at 427). (Those observations find an echo in this context in Western Mining Corporation Ltd v N B Little & Sons Pty Ltd (1993) 10 WAR 237 at 239 (per Anderson J)). However, in my view, the most satisfactory consideration of the policy of legislation of this kind was that of Aickin J in Xpolitos who, at 441, observed:
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- "The Act is in truth a set of substantially independent provisions, with some overlapping but with no single discernible policy in any relevant respect."
33 It is no doubt because of the difficulty of discerning a clear consistent policy, or a dominant policy, that there is in the cases mentioned above a very close attention given to the precise words of the particular statute in question, and the degree to which those words are different from or similar to words judicially interpreted in other cases (for example, Xpolitos at 422 per Barwick CJ, 431 - 433 per Gibbs J). Against that background, I at last turn to the provisions of the WCR Act.
The WCR Act
34 The relevant provisions are found in Pt IV Div 1. The Part is headed "Civil proceedings in addition to or independent of this Act". Section 91 provides that if an action is brought to recover damages independently of the Act (presumably, although it is not express, an action by the worker against the employer), and it is determined that the employer is not liable in such an action, but that he would have been liable to pay compensation under the WCR Act, the Court is to assess compensation, or refer the assessment to an arbitrator.
35 Sections 92 and 93 read as follows:
"92. Both damages and compensation not recoverable
Where in respect of a disability an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as 'the defendant') or against both of them -
(a) if the court decides the action should succeed, then after damages have been ascertained but before judgment is entered for the worker in the action, the worker shall be given a reasonable opportunity to elect whether to have judgment or to discontinue the action;
(b) if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer and the defendant, there shall be deducted from the amount of the judgment and be paid to the
- employer a sum representing the amount (after apportionment in respect of any contributory negligence of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant's liability to pay to the worker shall be reduced accordingly;
- (c) if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payments and expenses referred to in paragraph (b) shall be a first charge on the judgment or the amount of money paid into court and the defendant shall be bound to pay the amount of the compensation, and medical and other expenses to the employer and the judgment shall be pro tanto discharged by such payment, or the amount due under the charge shall be paid out of court to the employer or his authorised agent, as the case may be;
(d) if the action is discontinued the worker shall pay the costs of the employer or of the defendant or of each of them or such part of those costs as the court thinks fit;
(e) if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer or the defendant or both or is settled by the acceptance of money paid into court by the employer or the defendant or by both of them, the worker shall not commence or continue proceedings for, or in relation to, compensation under this Act in respect of the same injury;
(f) if a worker's claim for damages against the employer or the defendant is settled by agreement otherwise than by a judgment, an acceptance of an
- offer to consent to judgment, or an acceptance of money paid into court -
(i) the employer or the defendant shall file a memorandum of the terms of the settlement with the Director within 3 months of the date of its execution by the worker;
(ii) the worker shall not commence or continue a claim for compensation under this Act in respect of the same injury unless the Director disapproves of the settlement within 6 weeks of the agreement for settlement being filed with the Director;
(iii) the Director shall not disapprove of the agreement unless he is satisfied the agreement was induced by fraud or misrepresentation or that it would clearly be for the worker's benefit to disapprove of it;
(iv) the Director if he disapproves of the settlement shall serve notice in writing of his disapproval on each of the parties to the settlement of his decision and of the reasons for his disapproval by pre-paid post to the address of the party set out in the settlement or the last known address of a party, within 14 days of the making of his decision;
- (g) where a claim for compensation is commenced or continued after the Director disapproves of a settlement referred to in paragraph (f), the amount recovered or recoverable under such settlement shall be brought into account in reduction of the worker's entitlement to compensation;
(h) Part III Division 7 does not apply to an agreement for settlement referred to in this section.
(Page 24)
- 93. Remedies against stranger
(1) Where the disability for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof but neither the employer nor any person for whose negligence the employer is legally responsible was negligent -
(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to recover both damages and compensation and shall bring to account in reduction of his entitlement to compensation the amount recovered by way of damages;
(b) the employer is entitled to be indemnified by the person whose negligence caused the disability to the worker (in this section called 'the defendant') to the full extent of the employer's liability to pay compensation under this Act, whether or not the defendant has discharged his liability to pay damages to the worker by judgment or by settlement or otherwise.
(2) If there were -
(a) negligence by the employer or by some person for whose negligence the employer is legally responsible which caused or contributed to the worker's disability , the extent of the indemnity of the employer by the defendant is reduced by the proportion that the employer's negligence and that of any person for whose negligence the employer is responsible bears to 100%; or
(b) negligence by the worker which caused or contributed to the worker's disability, the
- extent of the indemnity of the employer by the defendant is reduced by the proportion that the worker's negligence bears to 100%.
- (3) All questions as to the right or amount of any such indemnity may, in default of agreement between the employer and the defendant, at the instance of the employer, be determined by the Directorate in any action brought by the worker before the Directorate.
(4) If the defendant has paid the whole or any part of the damages to the worker in respect of the disability caused or contributed to by the defendant and the defendant is required to and has indemnified the employer for the payment of any compensation paid to the worker in respect of the same disability, the defendant may sue and recover from the worker the amount so paid to the employer not exceeding the amount of damages paid to the worker by the defendant.
(5) If the worker has been successful in proceedings to recover damages against the defendant and does not recover the full amount of such damages and any portion of the compensation under this Act paid by the employer to the worker has not been refunded to the employer out of the damages, then the employer may, at his own expense and in the name of the worker and upon giving the worker an indemnity against all costs and expenses, sue and recover from the defendant the amount of any balance of such damages then remaining unpaid, but any damages so recovered from the defendant in excess of the amount of compensation paid to the worker under this Act shall be payable to and received by the worker."
36 One can see here the "criss-crossing" referred to in Sykes and Yerbury. Section 92 is concerned with the position where the worker brings an action against either his employer or some other person, or both. Section 93 is not necessarily concerned with a situation where an action is
(Page 26)
- brought by the worker against anyone, although certain subsections are capable of application only if there has been such an action; for example, subs (5) applies only where the worker "has been successful in proceedings" against a third party defendant.
Issues in the present case
37 The questions which appear to arise in the present case are:
• whether pursuant to s 93(1)(a) a worker who has recovered damages from a third party is liable to repay from that money an amount which represents the compensation paid to the worker by the employer; and
• whether pursuant to s 93(1)(b) a non-negligent employer is entitled to be indemnified by a person having a legal liability to the worker even where the conduct of the person giving rise to the liability cannot properly be described as "negligence".
38 Looking simply at the words of s 93(1), the answer to both questions would appear to be "No". Leaving aside the question of what is meant in s 93(1)(a) by the words "shall not be entitled to recover both damages and compensation", to which I turn in a moment, subpar (a) appears to be directed only to the situation which arises where there is some compensation still to be paid to a worker at the time that the worker recovers damages against the third party defendant. In that event, the worker is to bring to account in reduction of the entitlement to compensation the amount received by way of damages. The subparagraph contains no express requirement of, or reference to, repayment by the worker, unlike the New South Wales, South Australian or Northern Territory legislation referred to in Sykes and Yerbury.
39 Although it was not canvassed in argument, it seems to me there may be a further reason for finding that subpar (a) is inapplicable in the circumstances of this case. It permits the worker to "take proceedings" against the person to recover damages. The amount to be brought to account in reduction of the entitlement to compensation is the amount "recovered by way of damages". Particularly in the light of the structure of s 92, an issue arises as to whether those expressions would extend, as here, to an amount paid by way of compromise, without admission of liability, and not the subject of a judgment or payment into court. That question might arise notwithstanding the agreed admission that the carrier
(Page 27)
- was liable pursuant to the CA Act. That is a question which it is, however, not presently necessary to determine.
40 The portion of s 93(1)(a) upon which the appellant particularly relied in this case, is that which provides that the worker "shall not be entitled to recover both damages and compensation". The first observation to be made about this is that it cannot mean what it appears to say; that is, it cannot be that the section prohibits a worker who has recovered damages from recovering any compensation and vice versa. If it had that meaning, it would not be necessary for subpar (a) to go on and require the worker to "bring to account in reduction of his entitlement to compensation" the amount recovered by way of damages. Parliament appears to have considered that, were it not for those concluding words, the worker could be entitled to recover additional compensation, notwithstanding that he had recovered damages.
41 Further, the concluding words of subpar (a) appear to contemplate that there may be circumstances in which some amount of compensation will be recovered subsequent to a recovery of damages. That is because the damages are brought to account "in reduction" of the entitlement to compensation, rather than obliterating the entitlement to compensation entirely. The paragraph appears to contemplate that there may be situations in which the amount of damages recovered is smaller than the amount of compensation which would remain to be paid, so that, while the latter will be reduced, there will still be some amount remaining which will be paid to the worker. Finally, s 93(4) clearly contemplates a situation where a worker has been paid either the whole or any part of the damages and has also been paid workers' compensation, which the third party may then "recover" from the worker.
42 In that context, it seems to me that there is no reason to read subpar (a) as requiring repayment by the worker of so much of any workers' compensation received as does not exceed the amount received by way of damages. The paragraph could have made express provision in that way, as has been done in some other jurisdictions. However, the legislature has chosen (perhaps deliberately) to require such repayment only by the mechanism of s 93(1)(b) in conjunction with s 93(4). By and large, the effect will be that "double recovery" (in the sense of retention of both damages and compensation) by the worker is precluded, unless the third party is not negligent, or is unable to indemnify the employer, or perhaps, as here, there is some statutory cap on the liability of the third party.
(Page 28)
43 If that understanding is correct, the words of "shall not ... compensation" are to be understood as part of a composite expression which includes the concluding words of subpar (a), so that the ability to recover both damages and compensation is not, as the words appear to suggest, prohibited, but is prohibited only to the extent of requiring the worker to bring to account the amount recovered by way of damages in the way which that subparagraph provides.
44 The way in which I would read s 93(1)(b) is, in my view, consistent with authority in this Court dealing with s 92. That section, of course, overlaps the subject matter of s 93. As I have noted, s 92 is concerned with a situation where proceedings have been brought by the worker, while s 93 is, in part, apparently directed to that situation and, in part, creates rights and responsibilities which exist regardless of whether proceedings have been brought.
45 In Geraldton Building Co v Cramer [2001] WASCA 244, Owen J noted that s 92 applied only where a worker's claim for damages independently of the Act had been the subject of an "action", but not where that claim had been otherwise settled, for example, by exchange of letters without the issue of a writ. Where there was an "action", s 92 precluded the worker from "commencing or continuing" a claim for workers' compensation if the action was settled. It was only where the action was settled by judgment or by acceptance of money paid into court that s 92 provided for the employer's workers' compensation liability to be a "first charge" on the judgment or amount paid into court. In terms with which Malcolm CJ and Wallwork J agreed, his Honour noted, at [20]:
"As I have already said, the legislative intent behind s 92 is to defeat a double recovery by a worker from an employer arising from the same injury. In other words, a worker who is injured in a work related accident may recover workers compensation or common law damages but not both: EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998 per Kennedy J at 8 - 9. It will be apparent from what I have said that I am not at all sure that the section achieves this objective. The plain ordinary meaning of the words that the legislature has employed cannot be ignored. There are situations that fall outside the words used."
- That approach is consistent with the way in which I would read s 93.
(Page 29)
46 So far as the second question posed in [37] is concerned, subpar (b) refers only to an entitlement to indemnity from the person "whose negligence" caused the injury. The employer's submissions would require substituting for the words "whose negligence caused the injury" the words "who caused the injury to the worker in circumstances creating a legal liability in that person", which would be a significant rewriting. There would appear to be no warrant for such a substitution, particularly since the opening words of s 93 employ both the expressions "legal liability" and "negligence"; this suggests that the legislature was alive to the difference and used the different expressions deliberately, although its purpose in doing so remains obscure.
47 In the broad, then, the way I would read s 93(1) is as follows. The words "creating a legal liability in some person" have effect in relation to subpar (a). Where there is such a liability, and the worker takes proceedings, and the worker "recovers" damages, the worker would be entitled to further workers' compensation only where the amount of damages recovered was smaller than the amount of workers' compensation properly payable by the employer, assuming some compensation remained unpaid. Under subpar (b), it is necessary for the employer to identify a person who is negligent, rather than a person who has a legal liability of some other kind. Where a person whose negligence caused the injury is identified, then regardless of whether the worker takes proceedings, the employer is entitled to take proceedings and is entitled to be indemnified by that person to the full extent of the employer's liability to pay compensation. That is so whether the third party has paid damages to the worker or not. Where the third person has paid damages (however that expression be understood) to the worker, however, and has also indemnified the employer, the third person is entitled to look to the worker to recover the amount paid to the employer, to the extent that that amount does not exceed the amount of damages paid.
48 I accept that, if s 93(1) is understood in the manner I have described, it may operate on occasion in a way which appears to be illogical or anomalous. For example, if the word "negligence" is read as referring to negligence properly so called, rather than to other types of liability, recourse under the section may appear to be available to an employer who is not negligent, but who has committed a deliberate tort against the worker, such as assault (assuming the employer to be a natural person). Similarly, the employer is entitled to be indemnified only by a person whose negligence has caused the injury to the worker, and not by a person who has deliberately assaulted the worker, or who has acted in some other way which might give rise to a statutory right of action. As I have already
(Page 30)
- noted, however, provisions of this type do frequently, because of complexity and ad hoc amendment, give rise to significant anomalies. An example very close to the example above is to be found in Scott v Bowyer [1998] 1 VR 207. In that case, although it was not necessary to determine the question, Winneke P, Brooking and Hayne JJA noted that the relevant Victorian provision appeared to provide a right of recovery by way of indemnity to an employer only in circumstances where the negligence of the employer had itself contributed to the relevant injury, and appeared to deny such a right to an employer who was wholly innocent (at 220). The history of that Victorian provision, as described by their Honours, appears to reveal a series of legislative attempts to remove one anomaly which immediately led to the creation of another.
49 Finally, the appellant submitted that a reading of s 93 in the way which I have described would be unjust, in that it would offend the policy at common law, and as expressed in the WRC Act, against "double dipping" by the worker. While it may be unfortunate for the appellant that there is no indemnity and no right to recover workers' compensation from the worker, I do not accept that there is, in the present case, necessarily an unacceptable double recovery by the worker. It is, of course, often the case that a person who recovers damages in respect of an injury may receive and keep also certain benefits from other sources without offending any "double dipping" principle. The issues are discussed, and examples of benefits which persons recovering common law damages are entitled to keep, are given in Redding v Lee; Evans v Muller (1983) 151 CLR 117. There is no absolute prohibition at common law of any form of double recovery, or overlapping recovery. It would therefore not be surprising if the WCR Act permitted a worker in some circumstances to keep some damages, or part thereof, and workers' compensation payments.
50 Further, in the circumstances of the present case, it is common ground that by reason of the statutory cap under the CA Act, the amount payable by the carrier would be inadequate to compensate the worker fully for the injury he sustained. It is consistent with what might generally be regarded as the "beneficent purpose" of the WCR Act that, where the statutory cap is inadequate, the worker should also be entitled to retain the benefit of compensation paid. It is not consistent with the apparent statutory policy of reducing the burden on the employer, to permit the worker to retain both sums. However the section is read, in the circumstances of the present case, one or the other of the statutory purposes will not have been achieved. There is no reason to consider that the policy against "double dipping" should be given priority.
(Page 31)
51 Although the question does not arise in this case, because of the absence from the agreed facts of any suggestion that the carrier was negligent, I should mention that nothing in these reasons should be understood as attributing any particular meaning to the opening words of s 36 of the CA Act. Whether s 36 and s 37 could be read as providing that the substitution of the statutory right under the CA Act does not have effect, so far as the employer's right to indemnity is concerned, where the carrier has been negligent, so leaving open a possible action under s 93(1)(b) of the WCR Act (subject to the statutory cap - s 37 of the CA Act), has not been an issue raised by the parties, and does not require consideration.
52 I would dismiss this appeal.
53 PULLIN JA: I have read the draft reasons prepared by Steytler P. I agree with those reasons and have nothing to add.
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