Mark Wayne Baggs v Waratah Engineering Pty Limited ACN 001 891 729
[2012] NSWDC 199
•02 November 2012
District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Mark Wayne Baggs v Waratah Engineering Pty Limited ACN 001 891 729 [2012] NSWDC 199 Hearing dates: 11 October 2012 Decision date: 02 November 2012 Before: F Marks ADCJ Decision: 1. Motion is dismissed.
2. Costs reserved.
Catchwords: Employee injured in motor vehicle accident in New Zealand - whether law of NSW applies to proceedings claiming damages against employer - whether employee a coal miner while travelling to a coal mine - held Court has jurisdiction Legislation Cited: Workers Compensation Act 1987; Acts Interpretation Act 1987 (NSW); Coal Mines Regulation Act 1982 Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, Harrison v Melhem [2008] NSWCA 67; Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11, Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272; Fenton v ATF Mining Electrics Pty Ltd (2004) 1 DDCR 744 Category: Interlocutory applications Parties: Mark Wayne Baggs (Plaintiff)
Waratah Engineering Pty Limited ACN 001 891 729 (Defendant)Representation: S B Lowe (Defendant/Applicant on Motion)
J E Sexton SC (Plaintiff/Respondent on Motion)
Moray & Agnew (Defendant/Applicant on Motion)
Lee Sames Egan (Plaintiff/Respondent on Motion)
File Number(s): 2012/42734 Publication restriction: Nil
Judgment
By Statement of Claim the plaintiff Mark Wayne Baggs claims damages for negligence from his employer, the defendant in the proceedings, Waratah Engineering Pty Limited. The defendant carried on business involving inter alia the manufacture repair and maintenance of mining equipment including underground mining and provided on-site training and the preparation of operational procedures and guidelines for the purpose of carrying out mining activities. Relevantly, the defendant conducted its business from premises in New South Wales. The plaintiff as part of his work duties was directed by the defendant to travel to the Pike River coal mine in New Zealand together with another employee. On the afternoon of 11 July 2010, a vehicle which was being driven by the other employee for the purpose of taking both him and the plaintiff to the Pike River mine left the road and crashed. The other driver died and the plaintiff sustained serious injuries. In these proceedings he seeks damages based on the alleged negligence of the driver, for which the defendant employer is said to be vicariously liable.
The defendant has asserted that there is no entitlement in the plaintiff to bring proceedings claiming damages in this court, or at all. The basis for this assertion is the existence in New Zealand of certain no-fault accident legislation which precludes the bringing of claims for damages. The plaintiff asserts that by reason of the provisions of the Workers Compensation Act 1987 ("the Act"), the claim for damages can be brought in New South Wales, and indeed, the laws of New South Wales apply to the exclusion of the laws of any other jurisdiction.
Furthermore, the plaintiff asserts that he is a coal miner for the purpose of the Act and that he is entitled to have damages assessed on a more favourable basis than would otherwise apply.
These two issues, namely jurisdiction and the appropriate law, and whether the plaintiff is a coal miner are matters of fundamental significance to the parties for reasons which are obvious. Neither party wishes to waste resources and incur costs if this court has no jurisdiction. If the plaintiff is not a coal miner for the purposes of the Act, then, as was candidly conceded by his counsel, it may not be worth his while pursuing the claim. I was told that neither issue in the circumstances of these proceedings has previously been dealt with by any court.
In these circumstances both parties urged me to determine these issues as preliminary issues. I raised with counsel for both parties the usual principles which apply in summary strikeout applications, having regard to cases such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69. The parties have filed an agreed Statement of Facts and both counsel submitted that there were sufficient facts established to enable the court to decide both these matters as separate issues in the proceedings. Whilst I have some misgivings about proceeding in this way I am persuaded that I should do so because common sense dictates that if at all possible both parties should be spared the unnecessary expense and delay of otherwise preparing the proceedings for a full hearing.
The agreed facts
I set out the agreed Statement of Facts.
The time of the cause of action for the plaintiff's claim being injury sustained in motor vehicle accident on 12 July 2010 the parties agree as follows:-
1.The defendant was a corporation under the laws of Australia having its principal place of business at 537 Lake Road, Argenton NSW 2284.
2.The plaintiff was an employee of the defendant.
3.The defendant's business included:
3.1.Manufacture and repair of underground mining equipment.
3.2.Providing personnel to commission, repair and maintain mining equipment, including underground mining equipment.
3.3.Providing personnel to provide repairs and maintenance on mining equipment.
3.4.Providing personnel to perform repairs and maintenance on mining equipment at mines, including coal mines.
3.5.Providing on site training and preparing operation procedures and guidelines for the purpose of carrying out mining activities, including coal mining activities.
4.The plaintiff was a "worker" for the purposes of the Workers Compensation Act 1987 ("the 1987 Act") and the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act").
5.The plaintiff's employment was usually based at the defendant's principal place of business.
6.The plaintiff's work included work at that place when required in and around coal mines in NSW, QLD and NZ.
7.In the days prior to Sunday, 11 July 2010 the defendant directed the plaintiff to travel to the Pike River coal mine, New Zealand ("the mine") with another employee of the defendant, Barry Pearson, for the purpose of his employment duties.
8.The plaintiff had been directed by the defendant to attend the mine previously and did attend the mine between 07/08/2008 and 13/08/2008.
9.As part of his employment duties with the defendant, the plaintiff had previously attended coal mines in NZ as follows: Pike River mine in August 2008 and Spring Creek mine in December 2008.
10.The defendant had developed and constructed a machine called "the Waratah Guzzler" for use in the extraction of coal at the mine.
11.The defendant directed the plaintiff to attend the mine to train Pike River workers in the use and maintenance of "the Waratah Guzzler" at the mine.
12.Pursuant to the direction from the defendant, the plaintiff and Barry Pearson travelled by air from Sydney to Christchurch, NZ on Sunday, 11 July 2010 and from there in a vehicle provided by the defendant to Greymouth NZ for overnight accommodation before travelling to the mine.
13.At around 5.50 am on Monday, 12 July 2010 the plaintiff and Barry Pearson departed Greymouth eventually taking Taylorsville Road in the direction of the mine. Barry Pearson was driving the vehicle and the plaintiff was in the front passenger seat.
14.At about 6.05 am on Monday, 12 July 2010, while driving the vehicle on Taylorville Road towards the mine, Barry Pearson lost control of the vehicle which crossed the centre line onto the wrong (right) side of the road and eventually off the road falling approximately 13 metres into adjacent creek bed ("the accident").
15.The plaintiff suffered serious injuries in the accident.
16.The plaintiff's injuries were sustained in the course of and/or arising out of his employment with the defendant.
17.The plaintiff's employment with the defendant was a substantial contributing factor to the plaintiff's injury.
18.The plaintiff made a claim on the defendant for Workers Compensation under the 1987 Act and the defendant has paid and continues to pay compensation for various benefits under that Act.
19.The Pike River mine was a place, pit, and/or shaft on or in which an operation for mining was carried on.
20.The Pike River mine was a coal mine.
21.For the purpose of carrying out the direction by the defendant, the plaintiff intended to, inter alia, train and demonstrate the "Waratah Guzzler" to workmen in and around the Pike River mine.
22.The "Waratah Guzzler" is a machine used in the extraction of coal from a mine.
23.Had the accident not occurred, the plaintiff would have operated "the Waratah Guzzler" at the mine to demonstrate and train workers at the mine.
24.The plaintiff intended to attend the mine for one week to carry out the above work and to assist the workers in and around the mine in maintenance and training of other equipment which had been provided by Waratah and which was used at the mine.
25.The plaintiff had attended to Pike River min and performed work in and around the mine in the course of his employment with the defendant on three previous occasions.
26.The accident was caused by the negligence of Barry Pearson.
27.The defendant is vicariously liable to the plaintiff for the negligence of Barry Pearson.
There is one other agreed fact, which is relevant to the second issue to be determined, namely whether the plaintiff was a coal miner. It is agreed between the parties that if the plaintiff had not been involved in the motor accident and had proceeded to the Pike River mine, and assuming that that mine was a coal mine for the purpose of the Act, and the plaintiff had carried out the work that he was intending to do at that mine, he would have been a coal miner for the purpose of that legislation.
The defendant prepared a document which contained the following concession:-
The defendant concedes that:
A. even though
(a) the plaintiff was not employed as a "coalminer" in the conventional or dictionary sense of the word, viz:
● a person who works in a coal mine removing coal from the ground
● someone who digs coal in a coal mine
● a person whose job is digging coal in a coal mine
and
(b) the plaintiff was employed by the defendant engineering company in a training and instructional capacity (see Agreed Facts 21,23 and 24), as distinct from being employed by a coal mine operator or an "employer in the coal industry",
B. on the assumption (which is not conceded) that the Pike River Mine was a "mine" as defined in s. 3 of the Workers Compensation Act 1987
then if the plaintiff had arrived at the mine so that physically or geographically he was "in or about" the mine at the time he was injured, and at that time he was actually carrying out the duties referred to in Agreed Facts 21, 23 and 24, then on the present state of the authorities he would fall within the statutory definition of "coalminer" for the purposes of Schedule 6 Part 18 cl. 3(4) of the Workers Compensation Act 1987.
The jurisdiction argument
The plaintiff submitted that this matter was governed by section 150A of the Act, which is in the following terms;
150A The applicable substantive law for work injury claims
(1) If compensation is payable (whether or not it has been paid) under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs:
(a) whether or not a claim for damages in respect of the injury can be made, and
(b) if it can be made, the determination of the claim.
(2) This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.
(3) For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it:
(a) would have been payable but for a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision, or
(b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.
(4) A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.
(5) In this Division:
State includes Territory.
The plaintiff said that compensation was payable under the statutory workers compensation scheme of New South Wales in respect to the injury he sustained. Therefore the substantive law of New South Wales is the substantive law that governs whether or not a claim for damages in respect of the injury can be made and, if so, the determination of the claim.
Reliance was also placed on section 9AA of the Act which requires that there be a connection between a worker's employment and New South Wales. Such a connection can be established if the worker usually works in employment in New South Wales. Furthermore, by subsection(2) the fact that the worker is outside New South Wales when the injury happened does not prevent compensation being payable under the Act if it is in respect of employment that is connected with New South Wales.
The defendant's submission essentially was that section 150A of the Act was introduced as part of a raft of amendments designed to deal with "cross border amendments". In his written submissions Mr S B Lowe, counsel for the defendant helpfully reproduced part of the second reading speech of the relevant Minister, the Honourable Ian MacDonald when the Amendment Bill was considered by the Legislative Council. I set this out hereunder;
WORKERS COMPENSATION LEGISLATION AMENDMENT BILL
Second Reading
The bill before the House introduces a number of further reforms to the workers compensation legislation.
The Workers Compensation Legislation Amendment Bill can be summarised as follows.
Schedule 1 to the bill establishes a scheme to address cross-border issues in workers compensation.
.....
I now turn to each of these amendments in more detail.
For a number of years, there has been concern about the need for employers to take out workers compensation insurance for individual workers in more than one State or Territory even if these employees are working only temporarily in another State. Over the past 10 years there have been a number of attempts to resolve these cross-border issues. Discussions with all of the States and Territories at ministerial and officer level have recognised the need for a legislative solution. Attempts were made to prepare national template legislation, but these attempts have foundered because the proposed solution became too complicated and unworkable. However, national principles have been agreed. These aim to eliminate the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction. These principles also are intended to ensure that workers working temporarily in another jurisdiction will only have access to the workers compensation entitlements-and common law benefits-available in their home State or "State of connection" and to provide certainty for workers about their workers compensation entitlements and ensure that each worker is connected to one jurisdiction or another.
In addition, it has been agreed between New South Wales, Queensland and Victoria that each State should pursue complementary legislation establishing a single rule for workplace-related accidents, consistent with the national principles.
Queensland introduced amendments to deal with this issue on 7 November. As Victoria is currently preparing for elections, legislative action in that State has been delayed. It is hoped that the provisions in all three eastern States will be operative by the middle of next year. It is also hoped that the other Australian States and Territories will adopt the template legislation that has been developed.
Schedule 1 to the bill introduces the necessary legislative framework to give effect to these principles by amendments to the Workers Compensation Act. The test for home State connection is set out in proposed section 9AA (3). If a single home State cannot be clearly determined by the first test, that is, what is the usual place of employment, the second test-where is the worker usually based-will be applied.
If no one State is identified by the application of the first two tests, the final test will be applied. That is, what is the employer's principal place of business in Australia? In deciding whether a worker usually works in a State, section 9AA (6) provides that temporary arrangements under which a worker works in a State for a period of not longer than six months are to be disregarded.
This will remove the need for employers to have two workers compensation policies for employees working temporarily interstate for up to six months. Other provisions in schedule 1 will enable the recognition of a determination of the State of connection made in another State and will enable the State of connection tests to also apply to common law claims against an employer. The reforms contained in schedule 1 will be of significant benefit to both workers and insurers. It will give employers with workers in different States clear guidelines on their workers compensation responsibilities. It will also provide injured workers with increased certainty about their workers compensation entitlements and common law rights.
It was submitted on behalf of the defendant that section 150A, being part of this amending package should be construed so as to limit its application to injuries sustained within Australia.
My reading of section 150A, in the context in which it appears in the Act, does not suggest to me that there is any indication that it necessarily applies only to situations where a worker is injured within Australia.
The principles of statutory construction are well-known, although sometimes their application may be challenging. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 McHugh, Gummow, Kirby and Hayne JJ discussed the proper approach in the context of the need to reconcile conflicting statutory provisions. I would adopt the following comments as apposite to the task before me;
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute[45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"[46]. In Commissioner for Railways (NSW) v Agalianos[47], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed[48]." (at [69], citations omitted).
I commence my consideration of the construction of this provision by examining the context in which it appears in the legislation. The Act is divided into a number of Parts. For example, Part 2 deals with liability to pay compensation, Part 3 with compensation benefits, and Part 4 with uninsured liabilities. Part 5 in which section 150A appears, is entitled "common law remedies." Part 5 consists of 6 Divisions. Division 1 contains some "preliminary" matters. Division 1A is entitled "choice of law". There are 6 sections within Division 1A, and I set them out below;
150A The applicable substantive law for work injury claims
(1) If compensation is payable (whether or not it has been paid) under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs:
(a) whether or not a claim for damages in respect of the injury can be made, and
(b) if it can be made, the determination of the claim.
(2) This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.
(3) For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it:
(a) would have been payable but for a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision, or
(b) would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.
(4) A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.
(5) In this Division:
State includes Territory.
150B Claims to which Division applies
(1) This Division applies only to a claim for damages against a worker's employer in respect of an injury that was caused by:
(a) the negligence or other tort (including breach of statutory duty) of the worker's employer, or
(b) a breach of contract by the worker's employer.
(2) Subsection (1) (a) applies even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.
(3) A reference in this Division to a worker's employer includes a reference to:
(a) a person who is vicariously liable for the acts of the employer, and
(b) a person for whose acts the employer is vicariously liable.
150C What constitutes injury and employment and who is employer
For the purposes of this Division:
(a) injury and employer include anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State, and
(b) the determination of what constitutes employment or whether or not a person is the worker's employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State.
150D Claim in respect of death included
For the purposes of this Division, a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury.
150E Meaning of "substantive law"
In this Division:
a State's legislation about damages for a work related injury means:
(a) for this State-Part 5 of this Act and Chapter 7 of the 1998 Act, and any other provision of this Act or the 1998 Act providing for the interpretation of anything in that Part or Chapter, and
(b) for any other State-any provisions of a law of the State that is declared by the regulations to be the State's legislation about damages for a work related injury.
substantive law includes:
(a) a law that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action, and
(b) a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time), and
(c) a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit, and
(d) a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered, and
(e) a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered, and
(f) a law expressed as a presumption, or rule of evidence, that affects substantive rights, and
(g) a provision of a State's legislation about damages for a work related injury, whether or not it would be otherwise regarded as procedural in nature,
but does not include a law prescribing rules for choice of law.
150F Availability of action in another State not relevant
(1) It makes no difference for the purposes of this Division that, under the substantive law of another State:
(a) the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State, or
(b) the circumstances on which the claim is based do not give rise to a cause of action.
(2) In this section:
another State means a State other than the State with which the injury is connected.
It is clear from a reading of Division 1A that there are a number of sections which deal with circumstances where the legislation of another State is referred to. I note for completeness that in section 150A (5) State is defined to include a Territory. State and Territory must refer to a State and Territory within Australia. So much is clear from Sec 21 of the Acts Interpretation Act 1987 (NSW). However, there are a number of provisions of Division 1A which can and do apply in the absence of the involvement of the law of any other State. Indeed, section 150A itself contemplates circumstances where compensation is payable in respect of an injury under the New South Wales scheme alone. This is clear from subsection (2).
Division 2 of Part 5 contains a number of provisions dealing with the recovery of damages in the context of claims for and payment of compensation benefits. Importantly, Division 3 modifies substantially the entitlement to claim common law damages. There is a restriction on damages that may be awarded for loss of earnings in the award of damages unless a specified threshold has been exceeded, and limitations on the awarding of certain other damages. It will be seen that Part 5 of the Act sets out a code intended to deal with and regulate the awarding of damages to workers who sustain what I shall describe generally for present purposes as "work injuries".
Notwithstanding the introduction of Division 1A into Part 5 of the Act as part of the professed intention of the legislature to alleviate the difficulties for employers as described in the extract from the second reading speech set out above, I cannot see any justification for reading down the provisions of Division 1A so as to apply only to circumstances where an injury has been sustained in a State or Territory of Australia. The governing words of section 150A refer to the payment of compensation under the statutory workers compensation scheme of a State in respect of an injury to a worker. In those circumstances the substantive law of that State governs whether or not a claim for damages in respect of the injury can be made and, if it can be made, the determination of that claim.
As Mr J E Sexton SC, counsel for the plaintiff submitted, to provide a contrary construction would expose a worker and an employer to the uncertainty of an award of damages in an appropriate case to be determined as to entitlement and quantum according to the vagaries of the jurisdiction where an accident occurred. Mr Sexton pointed out that there may be a vast difference in the availability and quantification of damages between New Zealand and the State of Texas in the USA. The construction which I prefer results in a consistent exposure by employers to the cost of damages awarded to injured employees, and a consistent entitlement to damages for employees provided the appropriate nexus with New South Wales applies.
It follows that the only substantive basis for restricting the operation of S 150A in the manner contended for by the Defendant is the intention of the legislature to the extent that this is disclosed in the Second Reading Speech. There are well established restrictions on the use which a Court might make of such material. The relevant authorities and an authorative exposition of the principles are contained in the judgment of the NSW Court of Appeal in Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380.
At [12 -16] Spigelman CJ said;
I wish to express my agreement with the analysis by Mason P of the House of Lords judgment in Pepper v Hart [1992] UKHL 3; [1993] AC 593. Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, "capable of assisting in the ascertainment of the meaning of the provisions" within s 34(1) of the Interpretation Act 1987. I only refrain from using the word "never" to allow for a truly exceptional case, which I am not at present able to envisage.
Of course, other statements in the course of a Second Reading Speech by a minister, bearing in mind the fact that s/he will almost always be speaking on behalf of, at least, the Lower House of Parliament by reason of the operation of our party system, will be of use on matters such as the purpose, which used to be referred to as mischief.
However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].)
The authoritative determination of the meaning of a statutory provision is an exercise of the judicial power, not of the legislative power, let alone of the executive power. In the Australian system of the separation of powers, it is the courts which determine what the legislative intention when enacting a particular provision was.
The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma [1995] ZACC 1; (1995) (4) BCLR 401 at 402[1995] ZACC 1; ; [1995] (2) SA 642; Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 459; Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].)
At [168 - 170] Mason P said;
[168] On my understanding, the law is clear in Australia that a minister's understanding of the effect of a statute or the state of the common law cannot give the Bill he or she is promoting an effect inconsistent with its terms as construed by the court. In Re Bolton; Ex parte Beane, three justices of the High Court of Australia went further in refusing to give any weight to a minister's unambiguous second reading speech that contradicted the text. Mason CJ, Wilson J and Dawson J stated (at 518):
The words of a Minister must not be substituted for the text of the law. ... It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
[169] These three justices were former Solicitors-General who may perhaps be taken to have had some awareness of the capacities of busy ministers seeking to expound a Bill and/or persuade the Parliament to pass it to be prone to the gamut of human imperfections to which we are all subject.
[170] I would respectfully adopt and apply the following passage in the judgment of Kirby J in Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11 at 228 CLR 529 (at 555-556[82], citations omitted):
This court has repeatedly insisted that the Second Reading and other speeches in Parliament may only be used to throw light on the meaning of legislative words, to the extent that such speeches are sustained by the legislative text as subsequently adopted. It is in the nature of parliamentary speeches that they commonly lack the precision of statutory language. They can sometimes be motivated by forensic and political factors. They occasionally stray into hyperbole. The rule of law requires that this court give effect to the purpose of Parliament expressed in the law made by or under an enactment. It is not part of a court's function, as such, to give effect to parliamentary speeches, ministerial media releases or other informal statements unless, validly, they have the specific endorsement of a parliamentary enactment. Saying this is not to discourage the proper use of such materials. It is simply to insist on the primacy of the enacted law.
I conclude that the provisions of S 150A should be read by applying their plain meaning in accordance with the words used. I decline to construe the section by inserting any jurisdictional limitation because there is simply nothing within its provisions or within any of the other provisions in Part 5 or of the Act as a whole which would justify such an approach.
Is the plaintiff relevantly a coal miner?
I have previously mentioned that some of the provisions of Part 5 of the Workers Compensation Act 1987 restrict the quantum of damages that may be awarded to injured workers. Schedule 6 to the Act moderates some of these restrictions if the worker is a "coal miner".
The relevant statutory provisions are helpfully contained in Mr Lowe's written submission and I set these out below.
In order to attract the more generous scope for "coalminers" to bring modified common law proceedings in New South Wales the plaintiff must bring himself within the statutory definition of that term.
Sch 6, Pt 18, cl 3(4) of the Workers Compensation Act 1987 relevantly provides:
Part 18Special provision relating to coal miners
...
3 2001 amendments not applicable to coal miners
Subject to this clause, the 2001 amendments do not apply to or in respect of coal miners and this Act and the 1998 Act (and the regulations under those Acts) apply to and in respect of coal miners as if the 2001 amendments had not been enacted.
....
(4) In this clause:
coal miners means workers employed in or about a mine.
the 2001 amendments means the amendments made by the Workers Compensation Legislation Amendment Act 2001 and Schedules 1, 2, 3 and 8 to the Workers Compensation Legislation Further Amendment Act 2001.
Identifying the class of workers encompassed by "coal miners" so defined requires looking back to WCA s.3:
3 Definitions
(1AA) In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise.
In this Act:
.......
mine means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 8 (3) of the Coal Mine Health and Safety Act 2002, is a place to which that Act does not apply.
Recourse to the Coal Mines Regulation Act 1982 (the long title of which is "An Act for regulating coal mines (and oil shale and kerosene shale mines) and certain related places.") throws up only a general definition (the qualifications not being relevant):
5 Definitions
In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
mine, when used as a noun, includes (subject to subsections (3)-(16)) any place, land, building, structure, pit, shaft, drive, level, drift, excavation and work on or in which, or whereby, any operation for or in connection with mining is carried on and any pipe, conveyor or ropeway used for the conveyance of coal or stone, but does not include a coal preparation plant that is a declared plant under Part 5A.
It was the submission of Mr Lowe that the Coal Mines Regulation Act 1982 does not have extraterritorial effect and that it should be construed so as to apply only to coal mines in New South Wales. Accordingly, the reference in the section 5 definition to a mine must be construed as a reference to a mine in New South Wales. It follows that a person could not be a coal miner for the purpose of the reference in schedule 6 to the Workers Compensation Act unless that person was employed in or about a coal mine in New South Wales.
Mr Sexton responded that whether or not the Pike River coal mine was in New South Wales was irrelevant. So long as the plaintiff's work included work in and around coal mines in New South Wales, he would thereby be a coal miner for the purpose of the definition. Mr Sexton relied on para 6 of the Statement of Agreed Facts which refers to the plaintiff's work as being, inter alia, around coal mines in New South Wales as well as in other places.
Another way of looking at the matter, and one which I favour, is to consider the reference to a mine within the meaning of the Coal Mines Regulation Act as being a convenient way of describing a coal mine. That is, instead of defining a coal miner and, relevantly, a coal mine by reference to a mine which is in turn defined within the Coal Mines Regulation Act, a definition could have been used which took the form of a consolidation of the relevant parts of both pieces of legislation. If one takes an approach to construction of the definition as being confined to defining who is a coal miner for the purpose of schedule 6, then any consideration of extraterritorial application becomes irrelevant. As Mr Sexton emphasised, the necessary territorial nexus is to be found within the principal provisions of the Workers Compensation Act which govern the bringing of a claim for compensation and damages.
If the definition of coal miner is to be confined to the territorial nexus which the defendant advocated, namely a coal mine in New South Wales, that would seem to me to create a resultant situation which would otherwise cut across the general policy of the Act and in Particular Part 5 which is intended to determine the substantive law for work injury claims by reference to an appropriate work connection with New South Wales. Such an approach would arguably restrict a coal miner from taking advantage of the more generous provisions in the Act dealing with the quantum of damages if, for example, he or she was temporarily sent to work for a short period in a coal mine in, say, Queensland, and was injured there, although his or her usual workplace was in New South Wales. Again, I take the view that the appropriate approach to construction of the legislation is to regard the employment as requiring the relevant jurisdictional nexus. I see no justification for reading into the definition of a coal miner any restriction which would confine a coal mine to one situated within New South Wales. I regard the reference to the definition in the Coal Mines Regulation Act 1982 as being a mechanism only for defining what is a mine for the purpose of schedule 6.
This conclusion is reinforced by reference to the history of this definition. Prior to the legislation in force as at the date of the incident which gave rise to these proceedings, the definition of "coal miners" in the Act was; "means workers employed in or about a mine to which the Coal Mines Regulation Act 1982 applies." As Mr Sexton pointed out, this definition is clearly intended to confine a coal miner to someone employed in or about a mine in New South Wales, because that Act is limited in its application to mines within New South Wales. The words used in that definition need to be contrasted with the words in the current definition which, as I have said, refers to workers employed in or about a mine within the meaning of the Coal Mines Regulation Act. The "meaning" is intended to convey a description or definition of what is a mine without necessarily, or even tangentially referring to any geographical nexus.
The conclusion which I have reached has been formulated without reference to what Mr Sexton described as the beneficial nature of this legislation. This characterisation of the legislation further reinforces the conclusion to which I have come.
The defendant submitted that if, contrary to its approach to the construction of "coal miner", I concluded that for the purpose of schedule 6 to the Act it was not necessary that the coal mine be located within New South Wales, nevertheless the plaintiff was not a coal miner as defined for the purpose of the Act. It was submitted that a person would only be a coal miner whilst employed, that is actually working, on or about a coal mine. It was on this basis that the parties agreed that if I had concluded that the Pike River mine was a coal mine for the purpose of the Act, the plaintiff would have been a coal miner if he had reached the mine and had not been involved in the accident. Both the defendant in support of this proposition and the plaintiff in opposing it relied on the judgment of the New South Wales Court of Appeal in Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272.
The circumstances in Ellavale bear some passing similarity to the factual situation in these proceedings. The injured person was employed by a business involved in overhaul maintenance and breakdown work on equipment used in various coal mines. He was required to carry out work as a leading hand fitter and turner from time to time at coal mines. It was said that about 50% of the employer's business involved work at mine sites. In the three years prior to the accident which gave rise to the proceedings, between 36% and 47% of his duties were performed at coal mines.
Unlike the circumstances in these proceedings, Mr Pilgrim was actually working at a coal mine when injured. His employer argued that Mr Pilgrim was not a coal miner because he was not employed by an entity which operated the coal mine. This argument was rejected by the judge at first instance and by the New South Wales Court of Appeal. Handley JA and Beazley JA delivered separate reasons. MW Campbell AJA agreed with both.
For present purposes the legislation being applied by the court in Ellavale is relevantly the same as the form of the legislation as it applies to these proceedings. (There is one stark difference to which I have already referred, namely the definition of a coal mine).
Handley JA concluded that "workers employed in or about a coal mine qualify for the enhanced benefits whoever their employer may be and regardless of its involvement in the mining operations." (At [4]). He then referred to a line of authority which focused attention on the work being performed and the general nature of the service being provided. His Honour said;
[11] The cases referred to enable me to conclude that persons who merely visit a coal mine in the course of other duties to make deliveries, or for similar purposes such as postmen, couriers, chauffers, truck drivers and others are not employed in or about the mine. The general nature of their work excludes such a finding and they are not so employed merely because their work takes them from time to time to the mine site, even if, as in the case of the postman, this is for a short time every working day. In the words of Gibbs J, for such workers the mine is not "the place in or about which [they] ordinarily perform the duties of [their] employment".
[12] On the other hand I do not think that the relevance of "the general nature of the workman's service" involves an inquiry over an extended period. In the three years before this accident the respondent performed between 36% and 47% of his duties at coal mines. In my judgment a worker such as the respondent does not become a coal miner as defined if 50.1% of his work over some more or less arbitrary period was in or about a coal mine, but is not a coal miner if the percentage is only 49.9%.
[13] It seems to me that nothing turns on the regularity or otherwise of the work done by a worker in or about a coal mine. The focus is on the actual work being done by the worker at the time of his injury provided this was substantially centred in or about the mine. This excludes workers who visit the mine in the course of their employment for relatively short periods whose general work is not in or about the mine. It includes a worker whose general work for the time being is in or about the mine even if it is expected to last only for a relatively short time and whether his employer is the coal mine operator or not.
[14] A tradesman, employed by a contractor, called in for a short job underground, measured in hours or days, who is injured at the mine would, in my judgment, be employed in or about the mine at the time of his injury regardless of the general nature of his duties before that job. In other cases the fact that the employer is the mine operator may be important, for example in the case of truck drivers employed by the operator for the transport of coal from the mine.
[15] A tradesman such as the respondent who worked for between 36% and 47% of his time in or about a coal mine is a coal miner as defined while doing such work, but not at other times, and he would not become a coal miner at other times even if more than half his work over some more or less arbitrary period was in or about a coal mine. The problems with journey cases in this situation can be left to another day.
It will be seen that the focus of attention directs enquiry to the work being performed at the relevant time. Of course, the relevant time for the purpose of those proceedings was the time when the injury was sustained. Mr Lowe submitted that when the plaintiff in these proceedings was injured he was not performing the work of a coal miner, but was in the course of travelling so as to enable him to be able to undertake that work when he arrived at the mine. Accordingly, he was not a coal miner at the time that he suffered the injury and therefore did not come within schedule 6.
It follows from the approach adopted by Handley JA that it is possible to dissect the activities undertaken by someone who may, at some stage, be performing work which might be characterised as that of a coal miner, but at other times performing work which falls outside that characterisation. If one can differentiate between the various circumstances in which work is performed, then it might logically follow that one can also delineate other activities such as travelling to perform work.
The submission of Mr Sexton would not permit of such differentiation and delineation. It was his submission that; ".... the circumstances that an injury occurs on a journey to a place of employment does not take a worker out of the definition of "coal miner". That is, again, because it is the general nature of the employment and not the precise location of the place of injury which determines whether or not a worker is characterised as a "coal miner"." I am not convinced that the defendant's submission can be so easily rejected. It is clear from the reasons for judgement of Handley JA that the worker might be performing the same general duties at more than one workplace. However, it is only if those duties were carried out in or about a coal mine that the worker would be a coal miner. Nevertheless, Handley JA certainly reserved for consideration circumstances where a worker was injured whilst travelling to or from a coal mine.
In her reasons for judgment Beazley JA canvassed the beneficial nature of the legislation in the context of dangerous conditions which existed in coal mines. Her honour said;
[89] This is a case where the application of the principles of statutory construction do not overwhelmingly point to one construction over the other. Rather, there are sound arguments that support either construction. However, in the end result, I am of the opinion that the purpose of Sch 6 Pt 18 cl 1 is that those who work in the inherently dangerous conditions of coal mines were to be entitled to more favourable compensation benefits, and that purpose is best achieved by construing the clause in the way contended by the respondent.
I should add that Beazley JA considered submissions concerning application of the approach to construction of this legislation to journey claims. Her Honour indicated that there would be no difficulty in applying the legislation to journey claims. It might be concluded that it was her Honour's view that if a worker could be characterised as a coal miner, then any injury which occurred on any journey undertaken for the purpose of the employment or on any statutory journey which attracted the payment of workers compensation benefits would come within the beneficial provisions. However, because her Honour's reasons do not contain any detailed analysis of the way in which that application of the approach to construction would work in terms of an injury sustained on a journey, I am not prepared to draw any particular conclusion from her Honour's judgment.
This leaves for consideration whether I am able to construe the provisions of the legislation in such a way that the plaintiff in these proceedings may be characterised as a coal miner whilst travelling to a coal mine to perform work which, if performed at the coal mine he would do so as a coal miner. Mr Sexton emphasised that the legislation was clearly beneficial legislation designed to enhance the quantum of claims for damages brought by mine workers. He submitted that the legislation should be construed beneficially.
It was Mr Sexton's submission that once a person was characterised as a coal miner for a particular situation or circumstance, then he or she did not lose that characterisation while doing something which was part and parcel of that work and within the scope of that occupation. A judicial officer in New South Wales remains a judge whilst attending a law conference in Hong Kong. (This was the example cited by Mr Sexton). Accordingly, it being uncontroversial and admitted for the purpose of the proceedings that the plaintiff would have been a coal miner whilst performing work at the Pike River mine (leaving aside questions of extraterritoriality), there is no reason why he should lose that characterisation whilst proceeding to the mine for the purpose of undertaking that work.
As a matter of practicality, and common sense, I find this submission to be persuasive. Whilst I should not be seen in any way as characterising the defendant' submissions as lacking practicality or common sense, it seems to me that if its approach were logically extended to an otherwise uncontroversial situation, the result would be seen to be incorrect. Assume the defendants' submission was applied to someone who worked full-time extracting coal employed by the operator of a coal mine, and such a person was asked to travel to a nearby site, not a coal mine, for the purpose of picking up a piece of machinery for use in the mine, and was injured whilst on the journey. On the defendant's argument that person would not be a coal miner whilst on the journey because he would not at the relevant time have been employed in or about a coal mine.
The approach to construction which I favour is consistent with the general approach adopted by Handley JA, the thrust of which is to have regard to the general nature of the worker's service. The plaintiff would have been characterised and regarded as a coal miner once he had reached the mine. I cannot see any good reason why he would lose that characterisation and not be so regarded whilst travelling to the mine to perform the work of a coal miner. Travelling to a coal mine to perform the work of a coal miner was something which he was undertaking in the course of that part of his employment, and was clearly within the scope of his employment. Whilst doing so, and when injured he was a coal miner for the purpose of the Act and entitled to have his claim for damages considered as such.
I was referred to one other authority, a judgment of Bishop DCJ in this Court in Fenton v ATF Mining Electrics Pty Ltd (2004) 1 DDCR 744. In that case an employee of a company which manufactured and repaired equipment used in mines, including coal mines died whilst working in the employer's factory. He sometimes attended coal mines for repair of their electrical equipment. His Honour stated that the determination of whether the deceased worker was a coal miner was a question of fact, in considering whether "there is sufficient evidence to indicate that a worker was employed in and about a coalmine." His Honour concluded that there had to be "... a real and effective physical contiguity between the employment, a coal mine and the subject industry." There was no such contiguity in the circumstances of those proceedings. However, the circumstances which apply to these proceedings are significantly different. The plaintiff was travelling to a coal mine for the purpose of carrying out work there which the defendant concedes would have constituted him as a coal miner.
Conclusion
For the reasons which I have given I find that this court has jurisdiction to determine these proceedings, and that the plaintiff's claim falls to be determined under the provisions of the Workers Compensation Act 1987, on the basis that the plaintiff is a coal miner as defined for the purpose of schedule 6 of that Act.
ORDERS
The defendant's application is dismissed.
The question of costs has not been argued before me and I shall reserve costs. I grant liberty to apply in the event that the parties are unable to reach agreement about costs.
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Amendments
08 November 2012 - Inserted catchwords
Decision last updated: 08 November 2012
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