Mitchell v G-Force Recruitment Ltd
[2023] VCC 1389
•17 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
WorkCover List
Case No. CI-22-03098
| PAULA-JO MITCHELL and ORS | Plaintiff |
| v | |
| G-FORCE RECRUITMENT LTD (ACN 006 145 222) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2023 | |
DATE OF JUDGMENT: | 17 August 2023 | |
CASE MAY BE CITED AS: | Mitchell and Ors v G-Force Recruitment Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1389 | |
REASONS FOR JUDGMENT
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Subject:Worker’s compensation
Catchwords: Accident Compensation Act 1985, sections 5, 5A, 5AA, 86, 92B, 100; Dependency claim; Weekly pension; Pre-injury average weekly earnings; End date for calculation
Legislation Cited: Accident Compensation Act 1985; Transport Accident and Accident Compensation Legislation Amendment Act 2010
Cases Cited:Vicinity Funds v Commissioner of State Revenue [2022] VSCA 176; Turnbull v North Eastern Ready Mixed Concrete (Wangaratta) Pty Ltd [2008] VCC 1711; Stevens v Alcoa of Australia Ltd [2002] VCC 7; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Kelly Ann Quigg v M. Sipthorp & C.A. D’Ambra (t/a Northend Carpentry) [2017] VMC 13; Museums Victoria v Susnjara [2021] VSCA 166
Judgment: The date of injury for the purposes of calculating PIAWE is the last date of employment being 20 June 2003
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P Over with Ms K L Bradey | Maurice Blackburn |
| For the Defendant | Mr M F Fleming KC with Ms S Gold | Wisewould Mahony |
HIS HONOUR:
Introduction
1Mr Timothy Meadley (“the deceased worker”) was employed by G‑Force Recruitment Ltd (“the defendant”) to perform maintenance crew work for Barwon Water during the period from approximately 2001 until the last date of that employment on 20 June 2003. His work involved the repair of asbestos cement water mains and caused him to be exposed to asbestos. Because of that exposure, he developed mesothelioma, which in turn caused his death on 29 June 2021. His widow, Ms Paula-Jo Mitchell and two dependent children (“the plaintiffs”) made dependency claims arising out of his death pursuant to the Accident Compensation Act 1985 (“the Act”).
2The dispute in this proceeding is the calculation of pre-injury average weekly earnings (“PIAWE”) for the purpose of weekly pension payments to the dependants pursuant to s92B of the Act. The dispute is about the date of the relevant injury.
3The plaintiffs fairly posed the question for the Court as follows:
“Where a deceased worker’s dependants have an entitlement to compensation in the form of weekly payments of pension under ss 86 and 92B of the Accident Compensation Act 1985 (Vic) (the Act) in respect of the death of a worker as a result of the disease of mesothelioma, what is the date of injury in respect of the mesothelioma for the purpose of calculating the deceased worker’s pre-injury average weekly earnings (PIAWE)?”[1]
[1]Plaintiffs’ Outline of Submissions, paragraph 1.
4As set out in the reasons that follow, I conclude that the date of injury is no later than the last date of employment with the defendant, being 20 June 2003.
Agreed facts
5The parties filed a statement of agreed facts. To give context to the proceeding the agreed facts are set out as follows:
“A. Agreed Facts
1. The first plaintiff is the wife of the late Timothy Meadley.
2. The second and third plaintiffs are the children of the first plaintiff and the late Mr Meadley.
3. Between 2001 and 2003 the late Mr Meadley was employed by the defendant.
4. In the course of and for the purpose of his employment with the defendant, he performed work for Barwon Water as part of a repair and maintenance crew, and he was required to work with asbestos water pipes.
5. He last worked for the defendant on 20 June 2003.
6. He contracted mesothelioma from exposure and inhalation of asbestos dust and fibres.
7. By reason of the mesothelioma, he was first incapacitated from earning full-time wages in his then employment (not with the defendant) from 21 March 2021, and he did not work from that date until his death on 29 June 2021.
8. It is alleged by the plaintiffs and admitted by the defendant that:
(a)he was a worker within the meaning of the that term in the Accident Compensation Act 1985 (ACA) in his employment with the defendant;
(b)mesothelioma is a disease within the meaning of that term in s 5 of the ACA;
(c)his mesothelioma was due to the nature of his employment with the defendant;
(d)the nature of employment gave rise to a significantly greater risk of contracting mesothelioma;
(e)his mesothelioma caused or contributed to his death;
(f)at the time of his death, the plaintiffs were each wholly or mainly dependent on him within the meaning of the ACA;
(g)his mesothelioma was deemed to be an injury for the purposes of the ACA by operation of s 86 of the ACA so that the plaintiffs have an entitlement to compensation.
9. The parties agree that the version of the ACA that applies in relation to the assessment of the date of injury for the purposes of calculating the pre injury average weekly earnings is version 121, being the version of the Act that was operative when he ceased his employment with the defendant on 20 June 2003.
B. Proceedings and Issues
10. The plaintiffs made a dependency claim for compensation pursuant to the ACA.
11. The claim was initially rejected, and the plaintiff issued these proceedings.
12. The defendant subsequently accepted the plaintiffs’ claim.
13. By consent, on 7 March 2023, the Court made orders, relevantly, for the defendant to pay each of the plaintiffs:
(a)lump sum compensation (Orders 5, 6, 7); and
(b)a weekly pension in accordance with s 93B(2) of the ACA, subject to the determination of the quantum of the late Mr Meadley’s pre injury average weekly earnings (Order 9).
14. The parties are in dispute as to what is the date of injury to use to calculate the late Mr Meadley’s pre-injury average weekly earnings in accordance with s 5A of the ACA, and accordingly the applicable rate of the pensions.
15. The plaintiffs filed an Amended Statement of Claim dated 11 May 2023. The plaintiffs contend (at paragraphs 24 to 26) that the date of injury for the purposes of the calculation of the pre-injury average weekly earnings and the rate of the pensions is:
(a)21 March 2021, being the date that from which the late Mr Meadley was first incapacitated for his then employment because of his mesothelioma; or
(b)29 June 2021, being the date that the late Mr Meadley died.
16. The defendant filed a Defence dated 26 May 2023. The defendant contends (in paragraph 27) that the date of injury for the purposes of the calculation of the pre-injury average weekly earnings and the rate of the pensions is 20 June 2003, being the late Mr Meadley’s last date of employment with the defendant.”
Evidence
6The parties filed written submissions which were taken as exhibits. The plaintiffs tendered the report from Dr Jonathan Burdon[2] and the statement of agreed facts. The parties made oral submissions in the context that the Court had read and considered the written submissions. Due to the thorough nature of the written submissions, the hearing of this proceeding was completed in a relatively short period of time.
[2] Exhibit P3.
7In addition, the parties provided a joint folder of relevant legislation, authorities, and extrinsic materials.
8I have considered all the tendered evidence, the transcript of the oral submissions, and the folder of authorities. I shall refer to that material to the extent necessary in these reasons.
Legislation
9The parties agree that Version 121 of the Act is the applicable version as it existed as at the last date of the deceased worker’s employment with the defendant. The parties further agreed during oral submissions that for the definition of PIAWE as contained in s5A, by reason of the Transport Accident and Accident Compensation Legislation Amendment Act 2010, the operative version of the Act is Version 229.
10Before expanding upon the parties’ contentions, it is convenient to set out the relevant provisions of the Act:
“5 Definitions
(1) In this Act unless inconsistent with the context or subject-matter—
"disease" includes—
(a)any physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development; and
(b)the aggravation, acceleration, exacerbation or recurrence of any pre-existing disease;
"injury" means any physical or mental injury and without limiting the generality of the foregoing includes—
(b)a disease contracted by a worker in the course of the worker’s employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and
(c)the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;
Pre-injury average weekly earnings:
“5A Definition—pre-injury average weekly earnings
(1)In this Act, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means, subject to this section, the sum of—
(a) the average of the worker’s ordinary earnings during the relevant period (excluding from that period any week during which the worker did not actually work and—
(i)was not on paid leave; or
(ii)was on paid leave at a rate less than the base rate of pay)—
expressed as a weekly sum; and
(b) the worker’s earnings enhancement (if any) in the relevant enhancement period.
…
5AADefinitions applying to pre-injury average weekly earnings—relevant period
(1)Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to—
(a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks;
(b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.
(2)Subject to subsection (4), the relevant period, in relation to pre-injury average weekly earnings of a worker who, during the 52 weeks immediately before the injury, voluntarily (otherwise than by reason of an incapacity for work resulting from, or materially contributed to by, an injury which entitles the worker to compensation under this Act)—
(a) alters the ordinary hours of work; or
(b) alters the nature of the work performed by the worker—
and, as a result, the worker’s ordinary earnings are reduced, does not include the period before the reduction takes effect.”[3]
[3]Joint Book of Authorities, pages 48−52.
…
Compensation for disease due to employment:
“86. Compensation for disease due to employment
If—
(a)a worker is suffering from a disease within the meaning of section 5 which incapacitates the worker from earning full wages at the work at which the worker was employed; or
(b)the death of a worker is caused or was materially contributed to by any disease—
and the disease is due to the nature of any employment in which the worker was employed and if employment of that nature was a significant contributing factor at any time prior to the date of incapacity, the worker or the worker’s dependants shall be entitled to compensation in accordance with this Act as if the disease were an injury.”[4]
[4]Joint Book of Authorities, page 37.
Weekly pensions for dependants of worker who dies:
“92B. Weekly pensions for dependants of worker who dies
(1)Words and expressions defined in section 92A have the same meaning in this section as in that section.
(2)In addition to compensation under section 92A, compensation in the form of weekly payments of pension is payable subject to and in accordance with this section.
(3)If the worker leaves one, and only one, dependent partner, the partner is entitled to a weekly pension at the rate of—
(a)during the first 13 weeks after death—
(i) 95 per cent of the worker’s pre-injury average weekly earnings; or
(ii) $850—
whichever is the lesser; and
(b)from the end of the first 13 weeks after the death until the end of 3 years after the death—
(i) unless sub-paragraph (ii) or (iii) applies, 50 per cent of the worker’s pre-injury average weekly earnings or $850, whichever is the lesser; or
(ii) if the worker leaves not more than 5 dependent children who are entitled to a pension under this section and sub-section (11) applies, an amount calculated in accordance with the formula—
where—
N is the number of dependent children so entitled; or
(iii) if the worker leaves more than 5 dependent children who are entitled to a pension under this section and sub-section (11) applies, $567.
…
(10)If the worker’s death occurred more than one year after the date of the injury, the pre-injury average weekly earnings of the worker shall be varied in accordance with section 100 as at the first anniversary of the injury as well as in respect of each subsequent anniversary.
(11)This sub-section applies if the total amount of weekly pensions payable to the dependent partner, dependent partners, and the dependent child, or dependent children, of a worker under—
(a)sub-sections (3)(b) and (7) or (8); or
(b)sub-sections (4)(b) and (7) or (8)—
would, but for the application of this sub-section, exceed $850.”
Indexation of weekly pensions for dependants of a worker who dies:
“100A Indexation of weekly pensions for dependants of a worker who dies
(1)Subject to subsection (2), the amount of any compensation in the form of weekly payments of pension payable under section 92B to a deceased worker’s dependants must be varied—
(a) on 1 July 2014 in respect of the financial year commencing on that date; and
(b) on 1 July in each subsequent year in respect of the financial year commencing on that date—
by varying the amount of the worker’s pre-injury average weekly earnings for the purposes of the calculation of the amount of the weekly pension in accordance with the formula—
where—
A is the amount of the worker’s pre-injury average weekly earnings within the meaning of Division 2 of Part I or, if that amount has been varied in accordance with this section as in force for the time being, that amount as last so varied;
B is the average weekly total earnings of all employees in Victoria in original terms for the most recent reference period in the preceding calendar year published by the Australian Bureau of Statistics as at 15 June immediately preceding the date on which the variation is made;
C is the average weekly total earnings of all employees in Victoria in original terms for the corresponding reference period in the calendar year preceding the calendar year referred to in B published by the Australian Bureau of Statistics as at 15 June immediately preceding the date on which the variation is made.
(2)If a worker’s death resulted from or was materially contributed to by an injury arising out of or in the course of employment and the deceased worker died more than one year after the date of the injury, the amount of any compensation in the form of weekly payments of pension payable to the dependants of the deceased worker under section 92B must be varied on the anniversary date of the injury in respect of the year beginning on that date by varying the amount of the deceased worker’s pre-injury average weekly earnings for the purposes of the calculation of the amount of the weekly pension in accordance with the formula—
where—
D is the amount of the worker’s pre-injury average weekly earnings within the meaning of Division 2 of Part I or, if that amount has been varied in accordance with this section, that amount as last so varied;
E is the average weekly total earnings of all employees in Victoria in original terms for the most recent reference period published by the Australian Bureau of Statistics as at the 15th day of the month preceding the month in which the date on which the variation is made falls;
F is the average weekly total earnings of all employees for Victoria in original terms for the corresponding reference period one year earlier than the reference period referred to in E published by the Australian Bureau of Statistics as at the 15th day of the same month referred to in E.”
The plaintiffs’ contentions
11The plaintiffs noted that the PIAWE was to be determined in accordance with s5A, namely the average weekly earnings during the 12 months preceding the relevant injury. Thus, there is a need to identify the “relevant injury” and the date of the relevant injury.
12The plaintiffs correctly characterised the proceeding before the Court as an exercise in statutory construction and referred to the principles of such as set out in Vicinity Funds v Commissioner of State Revenue.[5]
[5][2022] VSCA 176.
13The plaintiffs highlighted that s5 defines “disease” and incorporates some diseases, but only those where the disease was contracted by a worker “in the course” of the worker’s employment. Notably, a disease that arose out of employment did not fall within the extended definition of “injury” under the Act. The means for establishing an entitlement to compensation under s86 for a disease arising “out of” employment uses the device of deeming by using the expression “as if”. That expression introduced a statutory fiction, deeming something to be what it is not.[6] This was important, as it was used to create an entitlement to compensation “as if the disease were an injury”.
[6] T 12, L 1-5.
14Critically, the plaintiffs submitted that the operation of the deeming device in s86 was controlled by setting out a series of preconditions that must be met. The plaintiffs submitted that there cannot be any deemed injury under s86 unless, and until, each of the preconditions have been satisfied.[7]
[7] T 12, L 27-31.
15The plaintiffs contended that because the deeming device will only operate when all the preconditions have been satisfied in s86, it is possible to identify with precision the exact time when the deemed injury arises; “it can be easily applied, worked out”[8] because it will be the date that the last of the preconditions in s86 is satisfied.
[8] T 16, L 9-18.
16The plaintiffs highlighted the need to give a construction to s86 that gives operative effect and has regard to the objects of the Act, including to provide adequate and just compensation to injured workers.
17The plaintiffs relied upon the construction of s86 by his Honour Judge Coish in Turnbull v North Eastern Ready Mixed Concrete (Wangaratta) Pty Ltd.[9]
[9][2008] VCC 1711.
18Accordingly, the plaintiffs submitted that the date of deeming under s86 (being the date on which the last of the preconditions in s86 is satisfied) is also the date of injury, which would then be either the date of incapacity (21 March 2021) or the date of death (29 June 2021).
19Pausing, in that context, the submissions regarding the construction of s86(a) and s86(b) were effectively the same, and so these reasons can address those alternate submissions in the same manner, namely by considering the construction of the provisions based on the one submission. However, for completeness, I note that in oral submissions, leading counsel for the plaintiffs submitted that s86(b) only needs to be considered if s86(a) had not been satisfied, but that on the facts of this proceeding, s86(a) created the entitlement.[10]
[10] T 37, L 15-18
20Finally, in what was described as a backstop position and one not pressed, the plaintiffs submitted that if their primary contentions were not accepted by the Court, then the date of injury ought to be determined by reference to the medical evidence in the report from Dr Burdon in relation to the onset of the disease of mesothelioma, namely some time in early to mid-2020.
The defendant’s contentions
21The defendant contended that the resolution of the issue in this proceeding needed to be seen in the context of the history of relevant workers compensation legislation both in Australia and the United Kingdom and what can be drawn from that history.[11]
[11] T 56, L 12-18.
22Next, the defendant contended that the “relevant injury” for the purposes of the calculation of the pension is the last date of the deceased worker’s impugned employment, being 20 June 2003.[12]
[12]Although, as elaborated by senior counsel during oral submissions, that was an arbitrary date, and it could be some other earlier date during the relevant employment if there was an evidentiary basis to so conclude.
23Next, the defendant contended that as s100A provided for indexation, no issue of unfairness arose.
24The defendant contended that its approach was logical, internally coherent, and consistent with the text, legislative history, and purpose of s86.
25The defendant submitted that by its words and subject matter, s86 is directly linking the deemed injury with employment of a particular nature. Therefore, it would be illogical and contrary to its purpose to then have the “relevant injury” (and therefore calculation of PIAWE) arising on a date entirely disconnected with the impugned employment. The purpose of the fiction created by s86 was to easily enable a worker to recover compensation against an employer where factual causation may be difficult to establish. It submitted that the contentions of the plaintiffs fail to comprehend that.
26The defendant highlighted that if the date of injury was set at the date of “incapacity for full wages”, the injury could post-date the onset of symptoms or need for medical treatment. Further, if it was set at the date of death, in circumstances where a worker had already been incapacitated, then the designated date (previously determined) would change upon the death of the worker.
27The defendant submitted forcefully that the plaintiffs’ fallback position regarding the development of symptoms during 2020 should be rejected. As it highlighted, the difficult task of determining the pathological (but possibly symptomless) onset of the date of the disease is contrary to the very purpose of s86, which was to sidestep complex questions about the onset and causation of industrial diseases for the benefit of workers. On that point, in short, I agree.
28The defendant submitted that as s86 is expressly a statutory fiction, when determining the date of injury, it is beside the point when (in fact) the relevant disease process commenced. No additional evidence is required to establish the onset of symptoms or the progression of the disease. It avoided complications which might arise where the onset of the disease pre-dates the cessation of the relevant employment.
29In short, the defendant submitted that fixing the date of injury as the last date of the relevant employment was both readily determinable and consistent with the approach to deemed injuries due to gradual exposure elsewhere in the Act.
30The defendant highlighted that amendments to the Act that applied to this proceeding (s100A) meant that indexation would apply and that was parliament’s response to any unfairness created by the latency between exposure and the entitlement to statutory benefits.
31Finally, the defendant contended that there was case law that supported its approach.
Case law
32The parties agree that there is no legal authority that is binding on the Court in respect to the question posed in this proceeding.
33There are, however, several authorities that the Court was referred to as of relevance and which I shall now discuss.
Stevens v Alcoa of Australia Ltd[13]
[13][2002] VCC 7.
34Stevens is a decision of his Honour Judge Hicks of the County Court delivered 30 April 2002. The plaintiff in that proceeding was a former pot-room operator at the Alcoa aluminium smelter in Point Henry, Victoria. The plaintiff claimed to have suffered bladder cancer in the course of his employment. The Court was required to determine whether the plaintiff was entitled to compensation pursuant to s82(1), s82(6) and/or s86. Issues arose for determination in Stevens both as to whether the plaintiff’s employment gave rise to an increased risk of bladder cancer, and, if so, what was the applicable legislation (version of the Act) that the Court was to apply. None of those considerations apply in the proceeding before me.
35In any event, Judge Hicks concluded that:
“... whilst neither s.82(6) nor s.86 deem a date of injury, diseases and gradual process injuries are deemed to be compensable injuries and injuries arising out of or in the course of the employment. This reinforces, in my view, the date of injury is the last date of employment in an industry of the relevant nature.”
Turnbull v North Eastern Ready Mixed Concrete (Wangaratta) Pty Ltd[14]
[14][2008] VCC 1711.
36Turnbull is another decision of the County Court. In that proceeding, his Honour Judge Coish delivered reasons for judgment in which his Honour disagreed with the conclusion of Judge Hicks that pursuant to s86 the date of injury is the last date of relevant employment.
37The plaintiff in Turnbull was suffering silicosis. The defendant in that proceeding submitted that the plaintiff’s date of injury was 16 August 1989, which was the last date of his employment with the relevant defendant, and accordingly his weekly payments of compensation should be based upon the pre-injury average weekly earnings in the 12 months preceding that date, with no indexation.
38There is something of an undercurrent in the decision by Judge Coish that his Honour was troubled by the lack of indexation if he was to accept the defendant’s arguments. As his Honour noted, a worker suffering from a disease such as silicosis will often not be incapacitated for work as a result of the disease for many years from the date of the exposure to the noxious substance. His Honour said:
“It therefore seems completely inappropriate that such workers would only be entitled to a weekly payment of compensation based upon a calculation of pre-injury weekly earnings which may pre-date incapacity by 10 or 20 years or more. This result seems to be completely at odds with the objects of the legislation which include the provision of “…adequate and just compensation to injured workers” (s.3(d)).”[15]
[15]Turnbull, paragraph [36].
39Judge Coish concluded that the proper interpretation of s86 is that, pursuant to that section, the date of injury is the date upon which the disease “... ‘incapacitates the worker from earning full wages at the work at which the worker was employed’ (s86(1)(a))”.[16]
[16]Turnbull, paragraph [31].
40Judge Coish said that there was strong support for his interpretation of s86 to be found in the comments of Ashley JA in Grech v Orica Australia Pty Ltd[17] at paragraphs [69] to [76].
Grech v Orica Australia Pty Ltd[18]
[17](2006) 14 VR 602.
[18]Ibid.
41The facts in Grech were that the plaintiff had a long period of employment with the defendant, including before and after 20 October 1999. That date assumed some importance because of amendments to the Act which abolished the ability of injured workers to bring a common law claim for injuries suffered after 12 November 1997 but which was subsequently reversed (after a State election) so that common law was reintroduced for workers injured on or after 20 October 1999.
42The issue in Grech was whether the plaintiff had established and identified compensable injury suffered on or after 20 October 1999. The injury suffered by the plaintiff could broadly be described as overuse injuries to the wrists. In that context, it is convenient to set out the relevant paragraphs in Grech (as were set out by Judge Coish in Turnbull), as follows:
“69. In circumstances where, as here, the symptoms of bilateral compressive neuropathy only developed subsequent to 20 October 1999, and could be attributed to the further development of median nerve compression in response to repetitive work strains on and after 20 October 1999, it is tempting to conclude that the plaintiff did not sustain compensable injury before 20 October 1999. So to approach the matter would not be without some force. Because it is the fact that the scheme of the Act, as with the predecessor legislation, tends to equate injury with its externally evident manifestation.
70. So, first, a worker must give notice of injury and make a claim in respect thereof within a certain period of its occurrence: see Sections 102(1), (5), 103(1), (b) and 105.
71. Second, compensation is payable, inter alia, for death and for incapacity for work resulting from or materially contributed to by the injury, for injuries (the word is used in a different sense) of a maiming kind and their consequences, for permanent impairment resulting from injury, and for medical and like expenses. Each such entitlement bespeaks something that has manifested itself to the detriment of the worker.
72. Third, the calculation of a worker’s entitlement to compensation for incapacity is affected by matters such as “pre injury average weekly earnings”, “suitable employment” and “current work capacity”. See, for instance, ss.93A(2)(b)(i) and 93C(8).
73. By section 5A(1), “the worker’s pre-injury average weekly earnings” means, shortly, the average weekly earnings during the 12 months preceding “the relevant injury”, or shorter period that the worker has been employed by the same employer, calculated on a particular basis. The section then becomes very complicated, dealing with all sorts of variant situations. But one thing is clear, the section is founded on the notion that there is a discrete time at which injury occurs.
74. Suppose that a worker suffers the onset of incapacitating back pain on a particular day at work, but that the same is a manifestation of compensable injury attributable to employment strains over a period of years, such strains having contributed to spinal degeneration and so set the scene for the emergence of incapacitating symptoms. How should pre-injury average weekly earnings then be calculated? Should they be calculated at the time of the first employment strain, or the last, or some other time? And what happens if the breakdown occurs whilst the worker is at home? The practical answer has been that pre-injury average weekly earnings have always been calculated by reference to the worker’s earnings at the time of development of incapacitating symptoms.
75. Much the same considerations apply when one is considering “current work capacity” and “suitable employment”. Each of those terms is defined in s.5(1), the definitions referring to the worker’s “pre-injury employment”. The definitions only work if the external manifestation of unwellness is treated as injury.
76. These are no new things. The same considerations were in point in the provisions for giving notice of injury and making a claim under s.41 of the Workers Compensation Act 1958, in the calculations of “average weekly earnings” for the purposes of clauses 1(b)(i) and (ii) to s.9 of that Act, and in the calculation of “loss of weekly earnings” for the purposes of clauses 1(b)(ii). And, by way of emphasis, such considerations were in point under comparable provisions of the much earlier workmen’s compensation legislation of the United Kingdom.” [19]
[19]Ibid, paragraphs [69] to [76].
43In this proceeding, the plaintiffs relied on Grech, although appropriately acknowledged it is a case concerning physical injury and not a disease.
Kelly Ann Quigg v M. Sipthorp & C.A. D’Ambra (t/a Northend Carpentry)[20]
[20][2017] VMC 13 (“Quigg”).
44Quigg is a decision of the Magistrates’ Court. The worker died as a result of a melanoma leading to the development of metastases. He had been employed by the defendant as a carpenter from about 2001 until 2003. The claim was admitted, and the relevant date of injury was nominated as 17 December 2001, which was accepted by him as being “the relevant date of injury for the purposes of assessing the claim” because it was the date when he first noticed changes to a mole on his calf. Mr Quigg last worked in August 2015, and died on 28 June 2016. The plaintiff argued that the PIAWE should have been calculated in the 12‑month period leading up to August 2015, when Mr Quigg last worked. On the other hand, the defendant argued that the appropriate end date for such calculation was the nominated date of injury, i.e. 17 December 2001.
45Magistrate Wright concluded that the PIAWE for weekly pension purposes (s92 of the Act) should be calculated over the relevant period prior to the nominated date of injury: namely, in that case, 17 December 2001.
46As highlighted by leading counsel for the plaintiffs, a distinguishing feature of Quigg’s case was that the plaintiff agreed with the defendant’s determination that the relevant date of injury was 17 December 2001. The short point was that, in circumstances where the date of injury was agreed, the definition of PIAWE should be applied based on that date of injury. Magistrate Wright noted that may lead to an unfair result, but “any deficiencies are a matter for parliament and not for the court”.[21] Relevantly, his Honour said:
“…In any event the development of sequelae does not mean that the date of injury stretches or changes beyond that date of the primary injury. Gradual process or disease-type injuries have their own deeming provisions. This is for good reason.
Obviously, it will often be difficult to establish a work injury using the normal provisions of the Act, for example proving that exposure to asbestos in a particular employment did in fact result in a specific injury at a particular time. Alternatively, a person exposed to a deleterious substance every day in a specific employment may in fact have a separate work-related injury on each such date of employment.
The “gradual process” and “industrial disease” provisions get around these problems by deeming a date of injury as at a particular date and in particular circumstances.
It is quite another matter to say that the symptoms or sequelae of diseases extend the end-date to or at which the entitlement to a weekly payment is calculated. There should be no confusion between the later occurrence of sequelae of an accepted injury and the date of injury giving rise to those sequelae and subsequent death.”[22]
[21]Quigg at paragraph [55].
[22]Quigg at paragraphs [60] to [63].
47Magistrate Wright discussed the relevant authorities, including the decisions in Turnbull and Grech. Notwithstanding the distinguishing feature of the proceeding before him, his Honour concluded his reasons by stating that he respectfully agreed with the analysis by Judge Hicks in Stevens and disagreed with Judge Coish in Turnbull.
Consideration
48The narrow issue to be resolved is the identification of the date of injury for a disease deemed by s86 to entitle the deceased worker’s dependants to compensation “as if the disease were an injury”.
49Section 86 is a deeming provision for the purpose of creating an entitlement to compensation.
50It may be first observed that the relevant case law is of limited assistance. The cases discussed all have unique characteristics which can be distinguished from this proceeding, and none are binding.
51Second, I respectfully agree with Magistrate Wright’s description of the relevant provisions as relatively clear and straightforward. I too see no ambiguity or need to go to secondary dicta or other resources to resolve the issue before the Court.
52Third, I consider that the relevant legal principles regarding construction of the relevant provisions are not in dispute. In undertaking that task, it is necessary to have regard to the text, context and purpose of the relevant provisions.[23]
[23] Vicinity [69]-[70]; see also, as an example of High Court authority, Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
53Fourth, care must be exercised in transposing what was said by Ashley JA in Grech, a case based on physical injury, to the proceeding before the Court. In Grech, Ashley JA considered the issue of the identification of a gradual process type injury, before and after an arbitrarily imposed date in the Act. That is a much different scenario than the construction of s86.
54This proceeding involves a consideration of a statutory provision dealing with a category of claims based on a type of disease, to create an entitlement to compensation “as if” the disease were an injury. The function of s86 is to avoid the type of factual enquiry discussed by Ashley JA in Grech.
55Fifth, for an injury, including a disease contracted by a worker in the course of employment, the date of injury will be established by medical and other evidence, such as in Grech, to include evidence of the onset and cause of incapacitating symptoms.
56In contrast, as the defendant contended, the purpose of s86 is to create an entitlement to compensation for a worker (or dependants of a worker) where factual causation may be difficult to establish.
57While I agree with the plaintiffs that s86 operates to provide for something to be what it is not, contrary to their contentions, that is the limit of what it does. The purpose of s86 is to avoid the need to establish factual causation. Provided that s86(a) or (b) is satisfied (the preconditions) and the disease is due to the nature of any employment (my emphasis) there is an entitlement to compensation “as if” the disease were an injury.
58But, s86 does not stretch beyond the statutory fiction to create a date of injury. Because the disease must be due to the nature of any employment, which can only be employment of a nature to create an exposure to contract the disease, I consider that the date of injury cannot be after that employment.
59Dealing with the specifics of this proceeding, the plaintiffs seek payment of a pension to be calculated by reference to the deceased worker’s last paid employment, because it produced a greater benefit to them than if the pension was calculated by reference to earnings with the defendant. Yet at the same time, the plaintiffs accept that for the purposes of s86 the mesothelioma was due to the nature of the deceased worker’s employment with the defendant.
60The acceptance that the relevant exposure occurred in the employ of the defendant is important. Subject to satisfying either of the preconditions in s86(a) and (b), it provides the nexus between the relevant employment – described by the defendant as the ‘impugned employment’ – and the entitlement to compensation “as if” injury was suffered with the defendant. In my opinion, this means that the date of injury can never be later than the last date of the relevant employment. In other words, “pre-injury” employment can only be a reference to the impugned employment.
61Sixth, the plaintiffs seek to construe a date of injury into s86 by contending that there cannot be any deemed injury and by extension a date of injury, until the preconditions in the provision are met. I disagree.
62In my opinion s86 creates an entitlement to compensation when the preconditions are met. But it does not extend the date of injury to a date after the relevant employment. The fictional effect of s86 should not be taken further than is necessary to achieve its purpose.
63In that context, the development of incapacity (or death) should not be conflated with the statutory fiction created by s86. I agree with Magistrate Wright that there should be no confusion between the later occurrence of sequelae of an accepted injury and the date of injury giving rise to those sequelae.
64Seventh, after a consideration of the relevant cases, I prefer the approach to the construction of s86 as arrived at by Judge Hicks in Stevens and Magistrate Wright in Quigg.
65I respect the opinion of Judge Coish, but I disagree with his conclusion in Turnbull. As mentioned, there is a sense that his Honour’s conclusion was influenced by a concern about the unfairness that the lack of indexation created. Indexation is now expressly provided for in the Act, even if, in the present proceeding, the indexation might be considered inadequate, or as the plaintiffs submitted, no specific solution to the problem created in this proceeding.[24]
[24] T 73, L 16.
66In that regard, the Court has considerable sympathy for the position advocated forcibly in this proceeding by their counsel, in circumstances where the deceased worker went on to achieve high paid employment and was afflicted with mesothelioma when still a relatively young man. When the indexation provisions were introduced, as a matter of policy, the Act could have been amended to cover such a scenario whereby the indexation might be considered insufficient. But as a matter of law, it was not so extended.
67Eighth, the construction I prefer leads to a logical and readily determined date, consistent with the benefit of the fiction created by s86. The approach contended for by the plaintiffs does not.
68Ninth, s86 cannot be read in isolation to create a date of injury for PIAWE purposes. It must be read in consideration of ss5 and 5AA, which introduce concepts of “pre-injury average weekly earnings” and of “the relevant period”. Different scenarios (and different calculations) are then provided for depending on a range of factors, including period of employment, absences from employment, and earnings enhancements (such as overtime) but by reference to pre-injury employment with an employer.
69The contentions of the plaintiffs mean the reference to “employer” in the provisions would refer to employment in which the plaintiff did not have the exposure to contract the disease. It could lead to scenarios whereby the PIAWE calculations are less than if linked to the impugned employment. There could be occasions when the indexation provisions are otiose.
70The construction advanced by the plaintiffs might be beneficial to them in this proceeding, but equally has the potential to create illogical or less beneficial outcomes in other proceedings or claims.
71For example, the onset of incapacity could operate to create a date of injury, and a worker could conceivably be incapacitated by a disease for many years, but the date of injury for PIAWE purposes might then change upon the worker’s death. Or consider the scenario where a worker removed themselves for a period from paid employment, say to raise children, only to contract a relevant disease while off work and there may be no pension entitlement.
72The potential for illogical and unfair outcomes equally does not sit comfortably with the concept of the beneficial nature of legislation, to provide no fault compensation for injured workers or their dependants.
73Regarding the submission that the Act should be construed as beneficial legislation, in Museums Victoria v Susnjara[25] the Court of Appeal said that the question of whether the Act is beneficial, and thus falls to be construed beneficially, is not an easy one having regard to the interrelation between provisions in the Act which ‘give’ on the one hand, and those which ‘take’ on the other.[26]
[25] [2021] VSCA 166 (Beach, Kaye and Osborne JJA).
[26] Ibid [79].
74In fact, the beneficial nature of the deeming effect of s86 is promoted by the construction I have arrived at. It allows for the harmonious operation of the relevant provisions and the smooth acceptance of a claim for a relevant disease once the provisions are satisfied. The date of injury is never later than the last date of the relevant employment, which is an obvious and easily identifiable date.
75Tenth, relevant to the last point, I am considering a provision for the purposes of statutory compensation, which are not the same as common law compensation. The very nature of the PIAWE provisions means that a worker (or his or her dependants) does not necessarily recover the actual losses.
76Finally, it is tempting to say nothing more about the plaintiffs’ “unattractive” backstop position. It does not appear in the pleadings and was not pursued during oral submission. It could be simply rejected on the basis that the distinction between not pursing the submission as opposed to not specifically abandoning it is illusory.
77But as it was not abandoned and for completeness, briefly I reject the submission that the date of injury can or should be determined on medical evidence, in this case contained in the report from Dr Burdon.
78To take such approach would remove the obvious benefit of the statutory fiction created by s86. It would require complicated (or even impossible to obtain) medical evidence, in this case about exposure to asbestos, the latency period and the employment for which an entitlement to compensation arises. It would create considerable uncertainty and do violence to what s86 sets out to achieve.
Conclusion
79The plaintiffs properly framed the question for determination in this proceeding at the commencement of their submissions.
80For the reasons expressed, I conclude that where a deceased worker’s dependants have an entitlement to compensation under ss86 and 92B, the date of injury for the purposes of calculating PIAWE is the last date of employment (or in an appropriate case, if the evidence permits such a conclusion, an earlier date but no later than the last date of employment), in this proceeding being 20 June 2003.
81Accordingly, the plaintiffs are entitled to a pension in accordance with s92B with the calculation of such pension entitlements to be made by reference to 20 June 2003 as the date of injury.
82I shall hear from the parties as to the appropriate form of consequential orders, including orders for costs.
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