Norton v Blight (No 3) - [2016] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
NORTON v BLIGHT (No 3)
[2016] SADC 17
Judgment of His Honour Judge Slattery
24 February 2016
WORKERS' COMPENSATION
The plaintiff Norton was injured in a motor vehicle accident in the course of her employment. It was agreed that the plaintiff was responsible for 90% of the accident by reason of her contributory negligence. The parties agreed upon the total assessed damages. Judgment in favour of the plaintiff Norton was handed down in the sum of $55,189.00 in accordance with the parties’ agreement on liability. This amount was placed into the District Court Suitor’s Fund.
Norton received workers compensation payments under the Workers Rehabilitation and Compensation Act 1986 (SA) (the “1986 Act”) by Employers Mutual Limited (EML) as an agent of the WorkCover Corporation. During the course of these proceedings, EML gave notices to Blight of a claim for entitlement to recover the amounts of workers compensation paid to Norton under the Act.
WorkCover Corporation of South Australia is by leave an intervenor in these proceedings and seeks the payment to it the amount of workers compensation payments made to Norton since the accident totalling $43,559.34. This amount relates to amounts paid to Norton and an assessment of amounts payable in the future.
Whether the Corporation’s claim should be reduced by the percentage of the plaintiff’s contributory negligence in the common law action.
Whether s 54(7)(d)(iv) of the Act is intended to have retrospective effect.
Whether and if so what version of the 1986 Act or the Return to Work Act 2014 (SA) (‘RTW Act’) applies to this claim.
Held:
1. The claim to reduce the Corporation’s claim according to the percentages of liability agreed in the common law action is refused. The contributory negligence of the plaintiff had been taken into account at the time of the assessment of the defendant’s liability to make a payment of damages to the plaintiff.
Workers Rehabilitation and Compensation Act 1986 Part 2 of Schedule 9, s54 (5), (6), (7), (8); Return to Work Act 2014 s66; War Precautions (Moratorium) Regulation Regulation 8C; District Court Rules Rule 89; Acts Interpretation Act 1915 (SA) s16, s22 ; Law Reform Act s7 , referred to.
Worrall & Anor v The Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28; Pardo v Bingham LR 4 Ch; State of South Australia v Collings (1996) 65 SASR 432; Paglia v Trice (1991) 56 SASR 62, discussed.
Cocca v Salkeld (No. 2) [2014] SADC 157 ; Maxwell v Murphy (1957) 96 CLR 266 ; Rodway v The Queen (1990) 169 CLR 515; Republic of Costa Rica v Erlanger (1876) 3 Ch D 62; Santos Limited v Saunders (1988) 49 SASR 556; Workcover Corporation v Hojski (1993) 170 LSJS 129; Amalgamated Society of Engineers v Adelaide Steamship Co Limited (1920) 28 CLR 129 ; Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355 ; Mills v Meeking (1990) 169 CLR 214; Repatriation Commission v Vietnam Veterans Association of Australia, NSW Branch Inc (2000) 48 NSWLR 548; New South City Council v GIO General Limited (1997) 191 CLR 85 ; Burch v SA (1998) 71 SASR 12 ; York Civil Pty Ltd v Workers Rehabilitation and Compensation Corp (SASC Debelle J no 6749 17 August 1998, unreported); Manser v Spry (1984) 181 CLR 428, considered.

NORTON v BLIGHT (No 3)
[2016] SADC 17
JUDGE SLATTERY

This action involves a claim by Workcover Corporation under a statutory charge[1] upon an amount of money paid into the District Court Suitors Fund. That money derives from a damages claim between the plaintiff and the defendant arising out of a motor vehicle accident which took place on 4 July 2008. The principal questions in this action are whether and if so what version of the Workers Rehabilitation and Compensation Act 1986 (the Act) or the Return to Work Act 2014 (RTW Act) is applicable in respect of this claim and the measure of the right of the Corporation (if any) to make recovery from any damages assessment as between the plaintiff and the defendant.
[1] s54(7)(e) Workers Rehabilitation and Compensation Act 1986.
General background
On 4 July 2008 the plaintiff was injured in a motor vehicle accident in the course of her employment. The plaintiff was the driver of one vehicle and the defendant was the driver of the other vehicle. In the civil action brought by the plaintiff worker for damages arising out of the negligence of the defendant, it was agreed that the plaintiff Norton was 90% liable for the accident by reason of her contributory negligence.
At one level, that is a peculiar position as the defendant Blight was only responsible for 10% of the liability for the accident. Of the two drivers, Blight was least responsible and more logically may be seen to have been the appropriate plaintiff in the action (if injured). That is the basis upon which this matter progressed to Court.
The injuries received by the plaintiff were compensable injuries under the Act. It was on that basis that the amounts of workers compensation were paid to the plaintiff due to the injuries that the plaintiff sustained in that motor vehicle accident.
Following the agreement on liability, after a trial on damages before a Judge of this Court and before the hearing of an appeal against that judgment, the parties agreed that the damages of the plaintiff were to be assessed in total at $551,891.02. As a result there was then judgment entered in favour of the plaintiff Norton in the amount of $55,189.00 (in accordance with parties’ agreement on liability). This amount has now been placed into the District Court Suitors Fund.
The plaintiff received weekly payments of workers compensation under the Act: these amounts were paid by Employers Mutual Limited (EML) as the agent of the Workcover Corporation. From time to time before and after the commencement of these proceedings, EML gave notice to the defendant of the amounts of compensation paid to the plaintiff under the Act. These notices were preparatory to the claim by the Corporation against the damages assessed in the common law action.[2] Notice was also given from time to time that, similarly, if there were future payments of workers compensation, then a claim would be made against any damages assessment in favour of the plaintiff in the civil law action for repayment of amounts of workers compensation paid to the plaintiff. These notices may be described as notices of an intention to make a claim for recovery.
[2] s54(5) and (7) of the Act.
The final amount claimed by the Corporation in respect of workers compensation payments made to the plaintiff is in the amount of $43,559.34. This is a claim in respect of amounts paid and an assessment of that amount payable in the future.
The Workcover Corporation of South Australia is, by leave of the Court, an intervener in these proceedings and it seeks payment to it of that sum of $43,559.34. The plaintiff contends that because of the operation of s54(7)(d)(iv) of the Act, there must be reduction of 90% of that amount ($43,559.34) to reflect the contributory negligence agreement of the parties in the common law action.
The parties’ contentions
The plaintiff argues that just as the plaintiff’s damages in the common law action were reduced by 90% on account of her contributory negligence, so also should any recovery made against the plaintiff under the Act be reduced. The question of whether or not that argument is correct is the principal issue for determination in these proceedings.
The Corporation contends that on its proper construction, s54(7) of the Act operates such that the Corporation is entitled to receive the amount of $43,559.34 from the sum paid into the Suitors Fund in this action.
The parties have prepared and provided to me an Agreed Statement of Facts. It is necessary for the sake of completeness to set out some of those facts here. Paragraphs 2, 4, 6, 11 and 17 of the Statement of Facts read as follows:-
2.The injuries (suffered by the plaintiff) arose from the plaintiff’s employment and were compensable injuries (“the compensable injuries”) within the meaning of the… Act…
4.By letter dated 19 November 2008 EML first gave notice to the defendant (by her insurer) of an entitlement to recover compensation under s54 of the Act. At the time of the letter, payments totalling $4,367.20 had been made and the letter provided that “projected future payments will need to be calculated and included in the declared total of our recovery sum for any potential settlement negotiations”.
6.By letter dated 7 October 2011, EML gave notice to the defendant (by the solicitors for her insurer) that the extent of the entitlement to recovery from damages payable by the defendant to the plaintiff was the amount of the compensation paid to that date, namely a total of $28,249.56. The letter included the following paragraph:
“At this stage the worker’s condition with regard to the work related injury appears to have stabilised and we do not anticipate further costs will be incurred in relation to this claim. This, however, does not discharge our obligation to the worker should further costs eventuate in relation to the aforementioned injury.”
Subsequent letters dated 28 June 2012 and 9 May 2013 advised that there was no change to the amount paid since the last notice.
11.By letter dated 3 February 2014, Workcover claimed a recovery amount of $43,557.34 (the total claimed recovery amount) representing compensation paid in the amount of $26,917.34 and an estimate of compensation payable in the future in the amount of $16,640. The plaintiff does not challenge the reasonableness of the amount claimed by way of compensation paid or the estimate of the compensation which may be payable.
17.If and to the extent that s54(7)(d)(iv) of the Act is relevant to the extent of Workcover’s recovery rights:-
17.1 The case involved contributory negligence on the part of the plaintiff for the purposes of and within the meaning of s54(7)(d)(iv) of the Act;
17.2 The agreement reached between the parties on liability reflected a fair and reasonable assessment of the degree of the plaintiff’s contributory negligence;
17.3 The defendant established that the plaintiff’s contributory negligence contributed to the occurrence of the compensable injury.
Decision
For the reasons which follow, I accept the argument of the Corporation. I refuse to reduce the claim of the Corporation against the plaintiff under the Act in accordance with the percentages of liability agreed in the common law action. The appropriate reduction of contributory negligence of the plaintiff has already occurred at the time of the assessment of the defendant’s liability to make a payment of damages to the plaintiff and that, consequentially, there is no basis under the Act for a further reduction of the amount of damages claimable against the fund generated from the damages sum in accordance with the split of liability on a 90/10 percentage basis.
The relevant provisions of the Act
Sections 54(5), (6), (7) and (8) of the 1986 Act as at 1 July 2012 read as follows:-
54—Limitation of employer's liability
(5)     Where—
(a)     compensation is paid or payable under this Act in respect of a compensable injury;
(b)     a right of action exists against a person other than the employer for damages in respect of the injury,
the person by whom the compensation is paid or payable is entitled to recover from that other person the amount of the compensation in accordance with subsection (7).
(6)     Where—
(a)     a compensable injury arises out of the use of a motor vehicle;
(b)     the employer was or ought to have been insured against liability for the injury under the law of compulsory third-party motor vehicle insurance;
(c)     compensation is paid or payable by the Corporation or a self-insured employer under this Act in respect of the injury,
the Corporation or a self‑insured employer (as the case requires) is entitled to recover the amount of the compensation in accordance with subsection (7).
(7)     Where—
(a)     compensation is paid or payable to a person (the injured party) under this Act;
(b)     the injured party has received, or is entitled to, damages from another person (the wrongdoer) in pursuance of rights arising from the same trauma as gave rise to the rights to compensation under this Act;
(c)     the person by whom the compensation is paid or payable under this Act (the claimant) is entitled to recover the amount of the compensation by virtue of subsection (5) or (6),
then the following provisions apply:
(d)     the claimant is entitled to recover the amount of compensation paid or payable under this Act from the wrongdoer or the injured party but subject to the following qualifications:
(i)no amount may be recovered from the wrongdoer in excess of the wrongdoer's unsatisfied liability to the injured party; and
(ii)the claimant must exhaust its rights against the wrongdoer before recovering against the injured party; and
(iii)no amount may be recovered from the injured party in excess of the amount of the damages received by the injured party; and
(iv)in a case involving contributory negligence on the part of a worker, the amount to be recovered from the wrongdoer by the claimant under this subsection must be adjusted to the extent that is just and equitable having regard to the extent to which the wrongdoer establishes that the contributory negligence contributed to the occurrence of the relevant injury;
(e)     the claimant shall, on giving notice to a wrongdoer of an entitlement to recover compensation under this section, have a first charge, to the extent of the entitlement, on damages payable by the wrongdoer to the injured party;
(f)    any amount recovered by the claimant against a wrongdoer under this subsection shall be deemed to be an amount paid in or towards satisfaction of the wrongdoer's liability to the injured party;
(g)     an action for the recovery of compensation under this subsection—
(i)may be heard and determined in proceedings brought in the District Court of South Australia; and
(ii)must be commenced within 3 years after the date of the trauma referred to in paragraph (b).
…
(8)     In this section—
contributory negligence means a failure by a worker to take reasonable care for his or her own protection or the protection of his or her own interests;
damages includes any form of compensation payable apart from this Act in respect of a compensable injury;
employer includes—
(a)     any person for whose torts an employer is vicariously liable;
(b)     any person who is vicariously liable for the torts of an employer;
the law of compulsory third-party motor vehicle insurance means—
(a) Part 4 of the Motor Vehicles Act 1959 (including a policy of insurance under that Part); or
(b) the law of another State or a Territory of the Commonwealth that corresponds to Part 4 of the Motor Vehicles Act 1959 (including a policy of insurance under such a law).
The Act as it existed at the time of the collision and at the time that EML first communicated a recovery amount did not contain s54(7)(d)(iv). That sub-placitum has now been removed under the relevant sections of the Return to Work Act 2014 (RTW Act) which deal with these issues.[3] The RTW Act repealed the 1986 Act. I will address that matter later in these reasons.
[3] Viz s66 RTW Act: commencement date 1 July 2015.
The question of any retrospective operation of s54(7)(d)(iv)
At this juncture it is necessary to say something about the question of the applicability of s54(7)(d)(iv). That sub-placitum came into operation on 1 July 2012. The Corporation contends that the sub-placitum is substantive in effect, and therefore it ought not to apply to a trauma and injury occurring prior to 1 July 2012.[4] The plaintiff did not specifically address the relevant authorities referred to by the Corporation. Her position was that, on its face and on its plain construction, the sub-placitum has application. The plaintiff contended that the amount to be recovered pursuant to the charge must be adjusted having regard to the extent of the plaintiff’s contributory negligence. The proper context is a recovery from a defendant pursuant to a charge. The plaintiff argues that, to that extent at least, the judgment of Judge Smith in Cocca v Salkeld (No. 2)[5] should not be followed.
[4] Manser v Spry (1984) 181 CLR 428; Maxwell v Murphy (1957) 96 CLR 266 at 267.
[5] [2014] SADC 157 at [22]-[24] and [27]-[30].
The plaintiff also argues that the sub-placitum has a prospective operation only and applies to amounts yet to be recovered. Another reason is that to give the provision a retrospective operation would interfere with vested rights. A proper view is that the sub-placitum is only intended to operate after it comes into effect on 1 July 2012. The plaintiff further argued that there is no indication whether the Act that a charge created before 1 July 2012 is, after that date, subject to the operation of s54(7)(d)(iv) of the Act.
The plaintiff did not challenge the submission of the Corporation that the sub-placitum operates upon substantive rights. Such amendments would not presume to have a retrospective operation. To that extent, there is some uniformity in the approaches of the two parties. The difference is that the plaintiff contends that the provision operates upon the damages in this matter because the operative date is when the charge becomes enforceable.[6] This date has not yet been reached (on this argument) and when it does, the sub-placitum applies when there is a recovery of an amount from a wrongdoer. It operates by taking into account antecedent facts and circumstances as a base for what is prescribed for its future operation.
[6] Plaintiff’s submissions paragraph 15.
There are a number of things that may be said about those submissions. The first is that as a matter of policy, there seems no limit upon what previous facts may be taken into account in making such an assessment. The argument appears to be directed to support the contention for retrospective operation, notwithstanding that the plaintiff gainsays any such retrospective operative effect of the sub-placitum.
The second is that the argument appears to overlook the operative effect of s54(7)(e) under which the charge on the fund is created by notice. This creates a first charge on the damages payable. Although perhaps trite, this is not a situation that may be equated with a floating charge in the corporate sense. In the circumstances of a floating charge, the instrument of charge will ordinarily provide for crystallisation of the charge on or in the event of a wide range of default circumstances committed by a corporation. In the usual course, the concept of “default” is given a broad definition and interpretation and so providing to the secured creditor a broad palette of choices.
These concepts and principles are well known and understood. Another type of charge is what is colloquially called a fixed charge[7] which operates as a security over a specific asset. Under s54(7)(e), there is no “floating” aspect of the charge because it fixes upon the damages sum in accordance with a notice to the extent of the entitlement. That is, according to the notice, there is a charge upon the chose (the right to receive damages on the legal claim) and in the event that the amount of the charge exceeds the value of the chose, the charge does not operate. To extend the corporate analogy, the corporate charge holder would be unsecured to the extent of any deficiency between the value of the charge and the claim upon the charge.
[7] It is not intended here to set out a description of the types of charges which may be created. There are hybrid forms of charges, such as a partly fixed and partly floating charge and there are variations of all of these models. It is not necessary that those matters be addressed here.
The operation of s54(7)(d)(iv)

It is therefore necessary for me to give detailed consideration to this question of the operation of sub-placitum (iv) and I do so below. To put matters into proper context, it is necessary to articulate the two opposing arguments on the operation of the sub-placitum. The plaintiff contends for its operation in a particular way that is favourable to her. The Corporation contends that the sub-placitum does not operate or that, even if it did, the proper interpretation of it means that it has operative effect on the claim of the plaintiff as contended for here by the Corporation.
As a result of the view that I have formed on the issue, I have adopted the position that it is necessary to consider the primary submissions of the plaintiff on the assumption that whatever view I form about the operation of the sub-placitum, I should proceed on the basis that the plaintiff’s primary argument is correct (only for the sake of argument).
I have proceeded on that basis because I have also formed the view that the argument for the operative effect of s54(7)(d)(iv) succeeds but for different reasons. In the result, I will consider the operation of that sub-placitum including on a different basis than contended for by the plaintiff. For the reasons that follow that different basis has no effect upon my decision.
Statutory amendments: s54 after 2011
Section 54 of the 1986 Act was amended in 2011 and the commencement date of the amendment was 1 July 2012; section 54(7)(d)(iv) forms part of the section after that date. There were no transitionary provisions. By their nature, cases involving aspects of contributory negligence will likely be on foot at the time of such amendments. There appears no disconnect between the time that a compensable event involving contributory negligence occurs and the time that the Corporation seeks recovery from the wrongdoer who may wish to plead and prove contributory negligence. This will include compensable events occurring before and after 1 July 2012 as a matter of commonsense. I can think of no sensible reason why a wrongdoer who is subject to a claim by the Corporation after 1 July 2012 in respect of events occurring prior to 30 June 2012 should be precluded from attempting to reduce such claim by pleading contributory negligence.
In Worrall & Anor v The Commercial Banking Company of Sydney Ltd[8] the High Court was required to consider the operation of Regulation 8C of the War Precautions (Moratorium) Regulation. Those Regulations provide that any determination decision judgment direction, order or assessment made or given by any Court in any matter arising under the Regulation is final and conclusive and is without appeal. The question was whether or not that provision operated retrospectively so as to include any determination of the Supreme Court of the State made before the date of commencement of the Regulation, namely 28 September 1917. The decision of the High Court was read by Barton J who said[9] that the question must be answered by ascertaining the intention of the legislative authority acting under its statutory law. The Court was satisfied that a power to appeal was a right and not a procedure irrespective of the procedural rules that might surround the right of appeal. At page 31, the Court held as follows:-
…the distinction between" rights" and" procedure" is only an aid to interpretation, and not the test. The test is: What did the Legislature mean when its words are read, after giving due weight to every relevant consideration?
[8] (1917) 24 CLR 28.
[9] At page 31.
The Court accepted the approach of Lord Hatherley in Pardo v Bingham[10] where his Lordship said:-
We must look to the general scope and purview of the statute and at the remedy sought to be applied and consider what was the former state of the law and what it was that the legislature contemplated.
[10] LR 4 Ch, at page 740.
The High Court then held at page 32:-
If, doing this, we find that though no expressed words are found, yet the necessary intendment of the language is retrospectivity, the task is at an end. Necessary intendment only means that the force of the language in its surroundings carry such strength of impression in one direction that to entertain the opposite view appears wholly unreasonable.[11]
[11] See per Lord Eldon in Wilkinson v Adam 1 V&B 422.
In State of South Australia v Collings,[12] the Full Court of the Supreme Court of South Australia considered an appeal on a point of law from the Workers Compensation Appeal Tribunal. The principal question was the operation of Regulation 16A which came into force well after the worker sought a determination of his entitlements to compensation that were first considered in December 1994. The point of law was whether the Regulation 16A operated only prospectively. Doyle CJ, who wrote the decision of the Court, summarised the situation and the state of the applicable law from pages 434-435 as follows:-
The worker suffered an injury on 23 May 1989, and that injury was a compensable disability. The claim for a lump sum was made by letter dated 11August 1992. The claim was one in respect of two or more disabilities and so fell within cl 5 of the Schedule. Schedule 3 in its present form came into force after those dates (on 10 December 1992), but the case proceeded on the basis that it applied to the injury and to the claim. That assumption is correct, having regard to the terms of the relevant transitional provision.
…The Corporation's determination of the worker's entitlement in this matter was made on 22 December 1994. The case has been argued on the basis that that was after the date of disallowance. Despite the disallowance, apparently the Corporation made its determination by reference to the approach provided by the disallowed regulation. The Review Officer found that the Corporation erred in doing so, and in my opinion that decision was correct. It follows that the Review Officer had to determine the correct method of determining the worker's entitlement.
The Review Officer held that regulation 16A could apply only to injuries that occurred after 27 April 1995, the date on which the regulation came into operation…
The Tribunal upheld the Review Officer on this point. The Tribunal… held that regulation 16A was not merely procedural but also affected the rights of the parties… The Tribunal referred to the decision of the High Court in Rodway v The Queen (1990) 169 CLR 515 and in particular to the following passage (at 518)… and further relied upon (a) passage from Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at 69…
The Tribunal said that grave injustice would be done because had the Corporation not, at the outset, wrongly determined the worker's entitlement, there would have been no application for review and the worker's entitlement would have been settled and beyond review before regulation 16A came into force.
The court is confronted, yet again, with the issue of the application of a law, which affects the entitlement of a worker under the Act, to a disability which occurred before the relevant law came into force and to a claim for compensation made before that date… Parliament is, of course, entitled to enact legislation capable of applying to existing disabilities and to rely upon the courts to interpret that legislation and, in the course of doing so, to apply the usual presumptions. But experience has shown that particular difficulties can arise in a situation of the type identified by me, and while principles of statutory interpretation are capable of supplying an answer, those principles involve distinctions which at times are elusive. Nor can one be satisfied that the results are always satisfactory… the answer will turn upon the application of legal principles which themselves are not precise in their application. The court is not able to give a decision according to its assessment of fairness or its assessment of what Parliament probably had in mind or its assessment of what is most efficient in the administration of the Act… in the end the court must apply the ordinary rules of interpretation to the relevant law.
The rules of interpretation have their own difficulties. There is a presumption against giving retrospective operation to legislation. But the correct identification of what is a retrospective operation is not always easy, because most legislation affects existing rights and obligations. A distinction is drawn between procedural provisions and provisions having a substantive effect, but once again in our system of law it is often difficult to distinguish between what is procedural and what is substantive. There is a presumption against the interference with vested rights, but deciding what is a right for these purposes is not always easy. Procedural statutes can affect rights. And in the end one is searching for a parliamentary intent, and when Parliament is silent on the matter the process of divining that intent, once one moves from the application of the presumptions, can be quite subjective…
[12] (1996) 65 SASR 432.
Doyle CJ then turned to the question before the Appeal Court. There was no doubt that Regulation 16A applied to any determination under clause 15 made after that Regulation came into operation even if the disability was suffered before Regulation 16A came into operation (my emphasis). This is the result of the proper interpretation of the transitional provisions enacted when the Third Schedule was amended.
His Honour then addressed the question whether Regulation 16A applied to a disability suffered before the Regulation came into operation when a determination has been made by the Corporation before the Regulation came into operation but the determination occurs after Regulation 16A came into operation. His Honour defined the question as follows:-
It is a different result to be reached (compared with the situation referred to in the preceding paragraph) because a determination was made by the Corporation in respect of the disability before Regulation 16A came into operation? … the issue is the applicability of Regulation 16A to such disabilities when a determination has been made by the Corporation in respect of a disability before Regulation 16A came into operation.
Doyle CJ then recited the relevant legal principles applicable to a decision by a Review Officer. In particular, the Review Officer is required to apply the law and the facts as they stand at the date of the determination by the Review Officer: Santos Limited v Saunders (1988) 49 SASR 556; Workcover Corporation v Hojski (1993) 170 LSJS 129. His Honour then discussed the position of the Review Officer who was not required to apply the law when the Corporation first determined the entitlement but that reasoning could not avoid the application of Regulation 16A. His Honour then held at page 436 as follows:-
It does not follow from what I have said that reg 16A was to be applied by the Review Officer in the instant case. All I have said so far is that it cannot be said that the application of regulation 16A was excluded on the basis that the law to be applied was the law as at the date of the Corporation's determination. That leaves for decision the question of whether regulation 16A was applicable to the claim for a lump sum when it fell to be determined by the Review Officer.
That requires a consideration of the terms of cl 5 and of regulation 16A. In my opinion the question is answered by the terms of cl 5 itself.[13]
In cl 5 Parliament has said that a worker's entitlement "will be determined" in accordance with principles prescribed by Regulations. Clearly, Parliament must have contemplated that there would be a period during which no relevant regulation would be in force. So Parliament must have contemplated that there would be a period during which determinations under cl 5 would not be affected by a regulation under cl 5. But it seems to me that by the terms of cl 5 Parliament has clearly indicated that once a regulation is made it will be applied thereafter in all cases falling to be decided under cl 5.
I can see no reason to exclude, from the reach of a regulation made under cl 5, a determination made by a Review Officer which will take effect in substitution for a determination made by the Corporation before the relevant regulation came into operation. I consider that Parliament must have intended that all decisions which fell to be made under cl 5 once the relevant regulation came into operation would be subject to its application…
This preliminary conclusion has to be considered in the light of the presumption against giving to legislation a retrospective effect and in the light of the presumption against an intention to interfere with vested rights…
…the terms of cl 5 rebut the operation of presumption. At the level of substance, it is not difficult to conceive of Parliament intending a regulation under cl 5 to apply to all determinations made once it came into effect. At a more technical level it can be said that regulation 16A operates prospectively, and not retrospectively…
As to the presumption against interference with vested rights, it seems to me that the force of that presumption is weakened by the fact that Parliament has expressly contemplated the later enactment of a regulation which will affect the quantum of compensation…
But there is a more fundamental difficulty with the argument which invokes the presumption against interference with vested rights. In my opinion the true position is that the worker, prior to the commencement of regulation 16A, had a right to the determination of the worker's entitlement under cl 5. It was not a right to a determination free from the effect of a regulation made under cl 5. The right was simply a right to a determination under cl 5, and all one can add is that until a regulation was made the contemplated regulation could not affect the determination…
[13] cf s54(7)(d)(iv).
In this case, sub-placitum (iv) speaks of cases involving contributory negligence of the worker. It does not refer to any time period for the commencement of such cases and appears to refer to a case arising at any time. Then the amount recoverable is to be adjusted having regard to the contributory negligence of the worker. That is to be considered in the context of the overall scheme of the provision which enables a Corporation to make a recovery from a wrongdoer or an injured party. Similarly, there is no time period specified governing the matters which are to be seen as constituting the events that are to be taken into account in any determination of contributory negligence. It would be unusual were it otherwise because aspects of contributory negligence by their nature must arise at the time of the event of injury. Those matters may not necessarily be fully comprehended or assessed until well after the event. The claims in relation to the event may not be formulated or made or resolved until well after the event. These are all matters for consideration at varying times.
These factors appear to be reflected in the form of drafting of this sub-placitum. That drafting appears to assume the fluid nature of this type of claim arising out of the same incident that gives rise to a claim for compensation. I acknowledge that the provision as a whole is concerned with compensation paid or payable and I have already discussed the “in futuro” aspect of the operation of the provision. The argument would follow, consistent with authority, that there is no indication from Parliament (as would usually be expected) of the retrospective operation of the sub-placitum. I have earlier explained, that situation is not necessarily (but often is) conclusive, but I think that view overlooks an important factor. The subsection refers to compensation “…paid or payable… under this Act” (my underlining). It operates in respect of compensation paid in the past (as well as payable) that becomes the subject of the operation of the sub-placitum. That form of expression is then used throughout including in the other sub-placita of the subsection.
I think that before expressing any concluded view on this topic it is necessary to restate that on the view I have formed and which I later explain, the Corporation would succeed in this case even assuming the correctness of the position taken by the plaintiff. This is how I have proceeded to determine this matter. However the plaintiff’s argument is that the claim for a charge (s54(7)(e)) and the operative effect of that charge (s54(5) and (7)) only come into effect after 1 July 2012 and are therefore subject to the operation of s54(7)(d)(iv). Upon that basis the plaintiff makes her contentions which I have not accepted. Perhaps unusually, my view does not completely accord with the contentions of either party. The Corporation appears to submit at least tacitly that my decision on this issue is open to me in this situation.
Consistent with the approach taken by Doyle CJ in Collings, I consider that Parliament must have intended that s54(7)(d)(iv) applied to all claims made in respect of compensation paid or payable prior to the enactment of the provision. This means that it applies to compensation payments already made but for which no notice of charge and no claim for payment has been made under s54(7), irrespective of when the compensation was paid. It would be a strange result if it were otherwise having regard to the wording of the subsection and its operation. Because the other machinery provisions have not changed, I think that there is a unity of operation of each of the subparagraphs and sub-placita of the sub-sections such that there is a recognition of rights arising before the amendment which are then no more than a chose. Once damages are assessed in respect of that chose (arising before 1 July 2012) and a letter of charge is delivered, the amended sub-placita will have application. I think it is very doubtful whether this would ever interfere with vested rights and no argument put to me on that topic has been persuasive.
I would hold that the usual rule that unless otherwise stated or made apparent by the drafting method of inclusion of specific terms that an amendment is not intended to have retrospective effect does not apply to this sub-placitum. That said, the more important question is whether the sub-placitum operates in the way contended for by the plaintiff. For the reasons set out below I reject the plaintiff’s arguments on that topic.
Section 54(5)
Section 54(5) is what may be described as a qualifying provision and the requirements of the two subparagraphs (a) and (b) are satisfied. The plaintiff Norton is the person to whom compensation was paid (by the employer) under the Act and the plaintiff has a cause of action against the defendant. Thus the Corporation has a right of action against the defendant to recover amounts of compensation paid to the plaintiff.
Under s54(7)(a), (b) and (c) of the Act, once it is shown that compensation is payable to the plaintiff under the Act and the defendant has received or is entitled to receive common law damages arising from the same trauma and there is an entitlement to recovery under s54(5), then subparagraphs s54(7)(d) and (e) apply. In those subparagraphs a reference is made to “a claimant” who is the legal person that paid the compensation to the plaintiff, namely EML (substituted here by the Corporation). This completes the connection between s54(5) and (7) and the rights and obligations arising under those subparagraphs.
Upon satisfaction of the requirements of those three subparagraphs there are, then, two steps involved and these require separate consideration of subparagraphs (d) and (e).
Section 54(7)(d)
Under s54(7)(d), the Corporation is permitted to recover amounts of compensation paid or payable[14] from the defendant or from the plaintiff. The rights of the Corporation arise directly against the plaintiff because she is the recipient of the common law damages award and she is the person to whom amounts of workers compensation have been paid (s54(5)). As there is no direct relationship between the Corporation and the defendant, any right of recovery must arise in an indirect way. That right is established under s54(7)(e); that subparagraph requires the Corporation to give notice to the defendant (called the wrongdoer) of its right to recover compensation (s54(5) and (7)) and that it has a first charge to recover amounts of workers compensation paid or payable to the extent of her entitlement or the damages payable by the defendant.
[14] The use of this form of expression ordinarily begets payment of compensation made: in the past; being presently made or required to be made in the future.

The words “to the extent of the entitlement” appears to comprehend that there may be a limit to the entitlement but also that there may be an accumulation of a number of payments over a period of time that inform the extent of the charge. That position is consistent with use of the expression “…by whom the compensation is paid or payable”. Those words reflect a broad canvas of possibilities including one or a series of payments made in the past, presently or in the future: self evidently until the quantum of the future payment is determined no notice may be given in relation to it. The Act thus contemplates a number of payments of entitlements that inform the charge.
The decision of the Full Court of the Supreme Court of South Australia in Paglia v Trice[15] concerned a worker who had sustained injuries while travelling to work. The worker was involved in a motor vehicle accident. The other vehicle was driven by the defendant Trice. Paglia received payments of compensation under the 1986 Act as a result of disabilities caused by the accident. Apart from weekly payments of compensation, the Corporation paid for medical expenses, physiotherapy and chiropractic expenses and rehabilitation expenses. Paglia sued Trice in the District Court and obtained a judgment of $23,511.00. There was a disallowance of some claims which are not relevant to the current action before me. The Corporation then gave notice to Paglia and to the defendant claiming a charge on the judgment sum and there was then a dispute about the amount claimed by the Corporation under its charge.
[15] (1991) 56 SASR 62.
There was a case stated to the Supreme Court on a number of questions only one of which is relevant to the matters before me. That second question concerned the operation of s43 of the Act and whether or not Paglia might be entitled to compensation from the Corporation by way of a lump sum for non-economic loss. In answering the second question[16] it became necessary for the Court to consider the operation of s54(5) and (7) respectively. At page 69, King CJ held as follows:-
Subsection 54(5)… confers a right of recovery upon the person referred to as the claimant and including, of course, the Corporation by whom compensation is paid or payable under the Act. The claimant is entitled to recover the amount of the compensation paid or payable under the Act from the wrongdoer to the extent of the wrongdoer’s unsatisfied liability and from the injured party to the extent of any amount not recovered from the wrongdoer but not exceeding the damages which the injured party has received. These amounts may be recovered by action and any such action must be instituted within three years of the trauma giving rise to the entitlement to damages and compensation. The charge on damages payable by the wrongdoer to the injured party conferred by s54(7)(e) extends to the amount of the claimant’s entitlement to recover compensation from the wrongdoer. What is the extent of that entitlement?... a consideration of the section as whole makes it plain that the claimant’s entitlement to recover compensation is coextensive with the liability to pay compensation. The intention disclosed is that the claimant is to be indemnified to the extent of the wrongdoer’s liability to damages. I can see no warrant in the act for limiting the entitlement to recover to amounts actually paid and to amounts due and quantified at the time of the institution of the claimant’s action or at any other time which may be thought to be relevant. That being so, notwithstanding difficulties, I think that the word payable must be understood as including amounts of compensation which the claimant will or may become liable to pay in the future.
[16] The decision of the Court was written by King CJ with whom Millhouse and Debelle JJ agreed.
King CJ then made observations of the circumstances where a Court is confronted with the problem of making an assessment of not only amounts of compensation that have been paid but also, those amounts of compensation which may be paid in the future. King CJ thought that the task of the Court would be to “arrive at a sum of money payable at the time of judgment in the claimant’s action, which represented a fair evaluation of the claimant’s future and often contingent liability”.[17]
[17] At page 70.
As the Statement of Agreed Facts in this matter discloses, the amount claimed by Workcover in the sum of $43,557.34 which was agreed to be compensation paid in the amount of $26,917.34 and an estimate of compensation payable in the future in the amount of $16,640.00. That calculation is not challenged by the plaintiff in this action.
King CJ then went on to observe[18] as follows:-
The entitlement in respect of which the charge under s54(7)(c) is created is coextensive with the entitlement to recover against the wrongdoer. The amount for which the charge attaches is limited by the amount of the entitlement assessed in accordance with the principles which I have discussed. It is limited however in my opinion in another way. The charge is created by the giving of a notice. There must be both entitlement and notice. It seems to me that the wrongdoer can only be affected by the charge to the extent of the notice which he has received. He is under a legal liability to satisfy the injured person’s judgment forthwith. It cannot be the wrongdoer’s obligation to ascertain the amount of the claimant’s claimed entitlement. The responsibility of notifying the wrongdoer must be that of the claimant. It follows that the claimant must give notice of the amount of the claimant’s claim and the charge can be operative only to the extent of the amounts so notified…
The position of the wrongdoer against whom judgment has been obtained or who desires to settle an injured person’s claim might be difficult. His liability to the injured person will be satisfied by payment to the claimant only to the extent of the claimant’s entitlement. If he pays to the claimant an amount in excess of the true entitlement, he will remain liable to the injured person for the excess. If the injured person and the claimant are not in agreement, the wrongdoer, for his own protection, may have to interplead in an action by the claimant to enforce the charge or, if no such action is brought, may have to institute inter-pleader proceedings.
[18] At page 70.
The co-extensivity between the claimant’s entitlement to recover compensation with the liability to pay compensation is at the heart of the operation of s54(7) and in particular the ability of the Corporation to provide notice of a charge: s54(7)(e). As occurred in the case at bar, from time to time, EML gave notice to the parties of its claimed recovery amounts. On 5 August 2013, the trial of the assessment of the damages of the plaintiff commenced and at that time EML claimed a recovery amount of $28,249.56. After the assessment of damages and before the appeal amount was agreed, by letter of 3 February 2014 Workcover claimed a recovery amount of $43,557.34: the constituent parts of that claim were the compensation amount of $26,917.34 and the future amounts of $16,640.00.
After the resolution of the appeal issue (quantum of damages), by application of 26 February 2014 Workcover intervened in the proceedings under Rule 89 of the District Court Rules. Following that intervention, the judgment amount was paid into the Suitors Fund. Nothing that I have seen in the decision of the Full Court in Paglia v Trice or in the wording of the Act would indicate that only one notice of claim to the wrongdoer of an entitlement to recover compensation may be given up to and including the time of the finalisation of any such claim by the claimant as has occurred here. That would be a claim (of a charge) in respect of the amounts paid and payable in the future. The position that seems to have been reached, although I have not been able to find any authoritative discussion on the point, is that if the claimant gives a final notice of its claim for recovery (as appears to have occurred in this case on 3 February 2014) and no contest is raised by any party in relation to the amount of claimed compensation and the estimate of compensation payable in the future then it would be appropriate to treat that as the claim for payment of the claimant. This thought process seems to be guided by public policy considerations that there has to be a finality of these matters. Issues of practicality suggests that once damages amounts are dealt with there is little profit and even less utility in attempting to raise a further charge under s54(7)(e) of the Act.
At one level I am slightly uneasy about that position. The assessment of amounts “payable” may be a fraught exercise due to circumstances that sometimes arise and cannot be anticipated. This is part of the aspect of coexistency referred to by King CJ in Paglia v Trice. But if something unanticipated occurs giving rise to an entitlement that would otherwise be recoverable, is it to be said that there is no right of recovery under a second charge? (The important words here obviously are “that would otherwise be recoverable”). This approach would seem to give the words of s54(7)(d)(iii) little work to do, but regardless of my tentative views I do not need to decide that matter here.
In this case, the first letter from EML to the defendant was dated 7 October 2011 and the assessment by EML that the amount of compensation paid to that date was $28,249.56. The letter identified that in the opinion of EML, there had been a stabilisation of the worker’s injuries and it was not anticipated that further costs would be incurred but if those costs were incurred, then EML was obliged to reimburse the worker. The letters of 28 June 2012 and 9 May 2013 indicated no change to the claim for $28,249.56. On the information available to me, it is impossible to reconcile how that amount changed to the figure of $26,917.34 in the letter of 3 February 2014 but again it is not necessary for me to resolve that matter. It is sufficient to say that from no later than 7 October 2011 EML were giving notices to the defendant of a claim (in respect of amounts paid) upon the damages that may be assessed as between plaintiff and defendant. Upon the finalisation of that process (which here ended in the resolution of the appeal before hearing) then the final letter of claim being the notice for s54(7)(e) was delivered on 3 February 2014. There is no contest as to the calculation of the amount paid or payable under the Act from the wrongdoer.
In that further background and on the basis of the assumption I have made about that application of s54(7)(d)(iv) to the case at bar it becomes necessary to consider again the operation of this part of the Act. The rights prescribed in s54(7)(a), (b) and (c) must be established (as in the case at bar) and in that event the provisions of s54(7)(d) and (e) apply. There is no prerequisite that those provisions must all be satisfied, separately or together.
The sub-placita (i) through (iv) of s54(7)(d) are subject to the chapeau which may be broken down into the following propositions:-
1.   The claimant here being the Corporation
2.   Has an entitlement to recover compensation paid or payable: (to the plaintiff) (my underlining)
3.   From the defendant as the wrongdoer; or from the plaintiff
4.   That right of recovery is then subject to a series of qualifications. They are:-
a.      The Corporation may recover no more from the defendant than the equivalent of the defendant’s unsatisfied liability to the plaintiff. Otherwise the claim or a charge must be made directly against Norton.
b.      The Corporation must exhaust its rights against the defendant before recovering against the plaintiff. But the right to recover against the plaintiff is absolute if there is no unsatisfied liability in the plaintiff, so that this provision may be understood as a timing provision: it behoves the Corporation to give its notice of claim for the charge to the wrongdoer as early as may be, but subject of course to the finalisation of the common law claim.
c.      The third contemplates and to an extent amplifies the meaning of the first two: the Corporation nay not recover from the plaintiff any more than the plaintiff recovers from the wrongdoer.
At first glance it may be thought that these sub-placita establish a code for dealing with amounts recoverable by the Corporation under the charge as between the Corporation, the plaintiff and the defendant, and as between the plaintiff and the defendant (or the insurance interests that stand behind one or both of them) themselves. The plaintiff relied upon that summary of position to contend that sub-placita (iv) must stand separately from them and have different work to do. Otherwise why would Parliament seek to legislate a further sub-placitum operative from 1 July 2012 onwards?
As I have earlier set out in Paglia v Trice, King CJ held that the “…claimant’s entitlement to recover compensation is coextensive with the liability to pay compensation.” That right is not to be circumscribed by an artifice that limits claims to those amounts due and quantified at the date of the issue of proceedings – or at any other particular time. The word ‘… payable …’ is to be given its natural and ordinary meaning.
That approach is consistent with the approach generally taken in relation to charges created in other contexts such as security charges as I have earlier explained. The forms of expression within this part of the Act are not to be read down in some artificial way. Consistent with authority, the Act may be read as a whole in order to assist in the interpretation of the provisions within it.[19]
[19] Amalgamated Society of Engineers v Adelaide Steamship Co Limited (1920) 28 CLR 129 at 161-162; Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355 at [384]; Mills v Meeking (1990) 169 CLR 214 at 235; Repatriation Commission v Vietnam Veterans Association of Australia, NSW Branch Inc (2000) 48 NSWLR 548 at 577-8; New South City Council v GIO General Limited (1997) 191 CLR 85 at 113; Burch v SA (1998) 71 SASR 12 at 18; s22 Acts Interpretation Act 1915 (SA).
There has been no recent amendment to the law of contributory negligence despite the enactment of the Law Reform Act 2001. That Act was significant for a variety of reasons, but those reasons did not include any epiphany about the law relating to contributory negligence. Sub-placitum s54(7)(d)(iv) is directed to a case involving contributory negligence on the part of the worker. The first three sub-placita do not mention the topic of contributory negligence. They are directed first to a recovery by the Corporation directly against the wrongdoer and second to a recovery by the Corporation directly against the injured party.
Sub-placitum s54(7)(d)(iv) is directed to an amount to be recovered by the Corporation from the wrongdoer when there has been contributory negligence on the part of the worker. In that circumstance, the amount to be recovered directly by the Corporation against the wrongdoer must be adjusted, justly and equitably, to reflect the level of contributory negligence of the worker. The adjustment to the extent that it is just and equitable may be informed by the approach generally taken for s7 of the Law Reform Act.[20]
[20] Section 7. Apportionment of liability in cases where the person who suffers primary harm is at fault:
(1) if contributory negligence contributes to (but is not the sole cause of) the harm for which a claimant seeks damages, the claim is not to be defeated on the ground of the contributory negligence.
(2) if a claimant’s harm is caused partly by another’s negligent wrongdoing and partly by contributory negligence, the court must proceed as follows:
(a) the court must determine (and record) the amount of the damages to which the claimant would have been entitled assuming there had been no contributory negligence; and
(b) the court must then reduce the amount so determined to the extent the court thinks just and equitable having regard to the extent the contributory negligence contributed to the harm.
(3)…
(4)…
The recovery under this sub-placitum is not distinguishable from or, at the least, may be seen as complementary to and not inconsistent with sub-placita (i), (ii) and (iii). The first sub-placitum is directed to what amount may be recovered from the wrongdoer if, for example, there is an action directly against the wrongdoer or as an intervener between plaintiff and defendant such as in the case at bar. The third sub-placitum assumes satisfaction of the requirements of the second and is directed to the limits on the amount to be recovered directly from the injured party.
Although it is true that an amount achieved by an injured worker from a common law claim will have already been adjusted for contributory negligence, that fact is not necessarily completely determinative. The first and third sub-placita are directed at amounts that may be recovered but the first is directed to an unsatisfied liability and the third to an amount of damages received. An unsatisfied liability owed to an injured party may or may not take account of contributory negligence but that would usually be the case. That statement contemplates the usual situation of an action by the injured worker against the wrongdoer, the ultimate result of which will have been adjusted for contributory negligence. That in turn depends upon the pleadings in that common law action.
The fourth sub-placitum first concerns a case involving contributory negligence on the part of the worker. That situation may involve the Corporation proceeding directly against the wrongdoer. The Corporation possesses that right under the chapeau of subparagraph (d) of subsection (7). The wrongdoer answering such a claim either in an action by the injured worker or by the Corporation is always entitled to seek a reduction in the quantum of the Corporation’s claim for the wrongdoing to take account of the contributory negligence of the injured worker. That is both just and equitable and is intuitively correct. The provision does not operate in some further way to reduce the amount that may be sought to be paid from the judgment sum achieved by the worker upon the same or a similar basis as that used to calculate the level of contributory negligence of the same worker. To borrow a phrase used by King CJ in Paglia, there is no reason in logic or justice why it should do so when it is known that the amount claimed is to be paid from the judgment sum achieved by the worker which takes into account an assessment for contributory negligence.
One concern that arises is the issue of the costs of the worker in the common law action. That issue may arguably pervade the considerations relevant to the other sub-placita, although it may also be assumed that if there was no or no sufficient material benefit for the worker to take proceedings against the wrongdoer (and so to avoid the unnecessary incurring of costs which may or may not stultify any benefit of a judgment) then the choice is left with the Corporation to bring proceedings directly against the wrongdoer. If those proceedings are brought by the Corporation (claimant) against the wrongdoer, it will be for the Corporation to determine the advisability of doing so on a cost benefit analysis. This issue has not been addressed by counsel in argument and I am content to raise it as an issue for consideration but it is not a matter that would change the process of my decision making in this case. If that situation pertained then it logically follows that the Corporation would be required to deal with the claim of the wrongdoer (if it arose) of any contributory negligence of the workers.
The case may alternatively be a case that involves a recovery by the Corporation against the wrongdoer ((d)(i), (ii) and (iii)) or against the injured party. If one or these alternatives is applicable, the recovery of the claimant must (if it be shown that there was wrongdoing on the part of the worker) be adjusted to the extent that is just and equitable in accordance with what are well understood principles of contributory negligence ((d)(iv)) connected with the occurrence of the injury (my underlining). Different from the others, under this sub-placitum there is a mandatory obligation to take the level of contributory negligence into account.

The question of contributory negligence is therefore not left to the whim or decision of those pleading on behalf of the wrongdoer. It is a mandatory obligation. It is directed specifically to the protection of the wrongdoer on the assessment of damages arising from the plaintiff’s chose for which the Corporation now makes a claim.
Those arrangements will operate in such a way that a wrongdoer is not required to remit to the Corporation as claimant any more that the wrongdoer could be called upon to pay to the injured worker. Similarly, the injured worker could not be called upon to remit any more to the Corporation as claimant any more than after the amount the worker has recovered is adjusted for contributory negligence.
Section 54(7)(e)
The operation of s54(7)(e) is first dependent upon the claimant having an entitlement to recover compensation under the combined operation of s54(5) and s54(7). In order for s54(7)(d) and following to have any operative effect it is necessary to satisfy s54(7)(a), (b) or (c). Subparagraphs (7)(b) and (c) speak of damages paid or payable and entitlements to (receive) damages or recover amounts of compensation paid ((7)(c)).
The charge (established under statute and arising no later than when notice is given) secures this entitlement to recover compensation. The charge secures only that entitlement or damages payable by the wrongdoer to the injured party. That amount secured by the charge can never be greater than the liability to pay damages which, if it be applicable, will be reduced to the extent that the contributory negligence of the injured party. Once the amounts presumed under that charge is satisfied, there is a matching reduction of any damages payable by the wrongdoer to the injured party (s54(7)(e) and (f)).
The charge under s54(7)(e) cannot be a charge for more than an entitlement of the claimant. That entitlement can be no greater than the liability of the wrongdoer to pay damages or the right of the injured party to receive the damages. Those rights may be adjusted including for the wrongdoer’s right to require the worker’s claim to be adjusted for the contributory negligence of the worker. In a common law action that requires the wrongdoer to plead and prove contributory negligence. Apart from s54(7)(d)(iv) there is no provision that requires contributory negligence to be taken into account in the situations covered by the other subparagraphs. In short, if no contributory negligence is pleaded, then a Court would not (usually) take it into account in the assessment that it makes. The funds available to the Corporation under its charge would be that much the greater.
That is not the situation arising under s54(7)(d)(iv) where a claimant recovers from the wrongdoer in a case involving the contributory negligence of the worker. In those circumstances, the amount to be recovered (from the wrongdoer) must be adjusted to the extent that it is just and equitable having regard to the contributory negligence on the part of the injured worker.
It follows that contrary to the submissions of the plaintiff, this provision has no operative effect upon the amount to be recovered by the claimant Corporation from the damages to be payable to the injured worker. I am unable to accept the plaintiff’s submission.
One further argument was canvassed before me. The Return to Work Act 2014 (RTW Act) which came into effect on 1 July 2015 and a question is whether it has retrospective operation, the effect of which is that the RTW Act applies to and in relation to the existing circumstances of this case. It is argued that the injury under consideration here was an existing injury.
In light of the views that I have formed, it is not strictly necessary for me to resolve this question. Submissions have been made and I think I should express a view, in the event that I am incorrect about the other views that I have formed.
The Return to Work Act
Following the reservation of judgment in this action, s66 of the Return to Work Act (RTW Act) came into operation on 1 July 2015.[21] The parties sought and obtained permission to make further submissions having regard to that fact. Section 66 is largely in the same terms as s54 with the exception that sub-placitum s54(7)(d)(iv) is not reproduced. The effect of the views that I have earlier expressed is that in the overall scheme of the Act, the absence of that sub-placitum has little if any significance.
[21] Section 2(1) of the RTW Act states as follows:-
2—Commencement
(1) Subject to this section, this Act will come into operation on a day to be fixed by proclamation.
Schedule 9 of the RTW Act sets out the repeal, amendments and transitional provisions. The 1986 Act is repealed under Part 2 of Schedule 9. Schedule 9 combined with s2(1) of the RTW Act means that the operation of the 1986 Act ended at midnight on 30 June 2015 and the RTW Act commenced immediately thereafter. The transitional provisions are contained within Part 10 of Schedule 9. The interpretation provision is clause 27. It defines an existing injury and a new injury by reference to clause 29(1)(b) and clause 29(1)(a) respectively of that Part.
Clause 29 in Division 3 of Part 10 of Schedule 9 is entitled “General Provisions”. It is necessary to set out the whole of that clause:-
29—General provision
(1)Subject to the other provisions of this Part, this Act applies to and in relation to—
(a)     an injury that is attributable to a trauma that occurred before the designated day and that is a compensable injury under the repealed Act (an existing injury); and
(b)     an injury that is attributable to a trauma that occurred on or after the designated day (a new injury).
(2)For the purposes of subclause (1), an injury that is partially attributable to a trauma that occurred before the designated day and partially attributable to a trauma that occurred on or after the designated day will be taken to be a new injury within the ambit of subclause (1)(b).
(3)     Subject to the other provisions of this Part—
(a)     a reference in this Act to a work injury will be taken to include a reference to a compensable injury under the repealed Act; and
(b)     this Act will apply to a compensable injury under the repealed Act as if this Act had been in operation before the injury occurred.
(4)Nothing in this Part is intended to give rise to an entitlement under this Act and the repealed Act so as to give rise to double entitlements.
The plaintiff’s argument (that I have rejected) about the operation of s54(7)(d)(iv) was that it reduced the amount to be recovered and not the amount to be assessed when calculating the defendant’s unsatisfied liability to the plaintiff. The plaintiff contends on this basis that the unsatisfied liability should be reduced by 90%. Although those arguments have been rejected by me, the plaintiff argues that whichever approach is taken, the situation is not affected by the commencement of the RTW Act.
The plaintiff contends that the charge created had already crystallised and was enforceable by 22 January 2015 and therefore there was no work to do for any retrospective operation of any new Act. The plaintiff also relied upon s16 of the Acts Interpretation Act which reads as follows:-
16—Saving of operation of repealed, amended or expired Act
(1)Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not—
(a)     revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b)     affect the operation of the repealed, amended or expired Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or
(c)     affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or
(d)     affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry; or
(e)     affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
(2)Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).
(2a)Where any office, court, tribunal or body would, apart from this section, cease to exist by reason of the repeal, amendment or expiry, then, for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy, the office, court, tribunal, or body continues in existence (and, if necessary, new appointments may be made to it) as if the repeal or amendment had not been effected, or as if the expired Act or enactment had not expired (as the case may be).
(3)Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion.
(4)     In this section—
legal proceeding includes any proceeding pursuant to an Act, enactment or law whether of a judicial or administrative nature.
The Corporation acknowledges the operation of s16 of the Acts Interpretation Act but argues that all common law presumptions and the statutory presumptions preserved in s16 are subject to the relevant amending or repealing legislation which may reveal a contrary intention.[22]
[22] cf Doyle CJ in Collings.
Relevantly, the settled law appears to be that when an Act is altered during pendency of an action, and absent any clear statutory indication to the contrary, the law as it existed when the action commenced is the applicable law.[23] It is according to that law as it stood that the parties’ rights and liabilities are to be determined. The plaintiff contends that nothing in the repeal of the 1986 Act affected any of the following: the giving of the notice of entitlement (ss(1)(b)); the entitlement to recover (ss(1)(c)); the legal proceedings concerning the rights to recover (ss(1)(e)) or the enforcement of the right to recover.
[23] York Civil Pty Ltd v Workers Rehabilitation and Compensation Corp (SASC Debelle J no 6749 17 August 1998, unreported).
The plaintiff then contends that there is nothing to the contrary in clause 29 of Schedule 9 of the RTW Act. It applies to injuries that were suffered before 1 July 2015 as if it had been in operation before the injury occurred. There is no operative provision that deems a notice of entitlement under s54 of the 1986 Act as a notice for s66 RTW Act; there is no notice of entitlement under the latter Act, only the former.
In the ordinary course, these submissions would be very persuasive and I think that they are all pertinent observations that would ordinarily “carry the day”. However, the submissions put to me require a close scrutiny of clause 29 of Schedule 9. Under that clause, the RTW Act applies to and in relation to an injury that is attributable to a trauma that occurred before the designated day and is a compensable injury under the repealed Act (my underlining). Consistent with the approach of Doyle CJ in Collings, there is nothing within the drafting of that clause to suggest that it should be read down to exclude, for example, recovery matters associated with such injuries. If it were otherwise the case, it would be expected that Parliament would have excluded the retrospective aspect of this part of the Act in particular circumstances (e.g. recovery matters). Within the chapeau of the clause are the words “(1) subject to the other provisions of this Part…” but that expression and the other provisions of this Part do not inform the question of, for example, recovery matters. And the words of this part of the Schedule appear to be quite deliberately drafted in a broad fashion. They are general words of broad application.
Consistent with my earlier expressed views, it is not possible to say on what has been put before me whether there is any interference with vested rights that may be confirmed as the position under s66 RTW Act. For the reasons I have expressed earlier, absent sub-placitum (iv) there is notionally at least (depending on pleadings) the necessity to have regard to the question of contributory negligence of the worker who is injured. The same position pertains for s66 RTW Act as applied under the Act before the 2011 amendments. Clause 29 is quite specific. The RTW Act applies to an injury that is attributable to a trauma occurring before the designated day and where that injury is a compensable injury.
If the injury occurred before 30 June 2015 then the compensable aspect of the injury must have been governed by the 1986 Act; but under this clause it is now governed under the RTW Act. The vested rights of the worker under the 1986 Act now become the vested rights under the RTW Act. I cannot say whether that amounts to an interference with vested rights but in the end that is not to the point.
The reason is that the plain intention of Parliament expressed in Schedule 9 is that the RTW Act now applies to and in relation to any injury occurring prior to 1 February 2015. In turn, that logically means that the statutory scheme under which such injuries are to be dealt is the RTW Act. That statutory scheme includes s66 RTW Act; it also follows logically that under these provisions, Parliament has expressed the position that the RTW Act is to apply to and in relation to any injury to any worker as at its commencement under the scheme promulgated under that Act (my underlining). This must logically include any injury that was previously dealt with under the 1986 Act.
There are other considerations here. There is nothing contained within Schedule 29 to suggest that matters finalised under the 1986 Act could now be reopened or revisited. Any proposition to the opposite effect is unsustainable. And is it to be said that where prior to 1 July 2015 a position is reached under the 1986 Act that for all intents and purposes resolves an issue or claim arising under that Act, that such resolution could now be “undone” as it were? Nothing in Schedule 29 of the RTW Act would suggest this possibility. If it were so, it is likely to produce an unsatisfactory result.
In these circumstances, even though I accept the primary submissions of the Corporation, in my view the RTW Act had no application on the facts of this case. I accept the recital of facts as put forward by the plaintiff and I think that the existence and operation of the RTW Act and Schedule 29 in particular are not intended to interfere with the factual position reached in this case. If it were otherwise factually my decision may have been different.
I will hear the parties as to any consequential orders.