Primary Health Care Limited v Giakalis

[2013] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0154

PRIMARY HEALTH CARE LIMITED	Plaintiff
	V
ARTHUR GIAKALIS	Defendant

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JUDGES	WEINBERG JA AND KAYE AND VICKERY AJJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 March 2013
DATE OF JUDGMENT	12 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 75
JUDGMENT APPEALED FROM	Reserved question of law and statement of case for determination by the Court of Appeal made by Judge Misso, County Court of Victoria, 27 July 2012

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ACCIDENT COMPENSATION — Transport accident in which worker injured — Self-insured employer paying compensation to worker — Worker not entitled to recover damages against negligent driver pursuant to s 93(1) of Transport Accident Act 1986 (Vic) — Whether employer entitled to recover compensation payments from other driver pursuant to s 138(1) of Accident Compensation Act 1985 (Vic) — Whether worker injured in circumstances creating a liability in other driver to pay damages — Accident Compensation Act 1985 (Vic) ss 134AA, 134AB, 134A, 135, 138 – Transport Accident Act 1986 (Vic) s 93.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M F Wheelahan SC with Ms L M Glass	Wisewould Mahony
For the Defendant	Mr P H Solomon SC with Mr P Herzfeld	Solicitor to the Transport Accident Commission

WEINBERG JA:

1. I agree, for the reasons given by Kaye AJA, that the question stated for this Court should be answered as his Honour proposes.

KAYE AJA:

1. This matter comes before the Court by way of a case stated by a judge of the County Court in a claim by the plaintiff against the defendant pursuant to s 138 of the Accident Compensation Act 1985 (Vic). The issue raised by the case stated concerns, essentially, the interaction between s 138 of the Act and s 93(1) of the Transport Accident Act 1986 (Vic).

1. The facts, on which the case has been stated for the court, are not in dispute, and may be shortly stated.  On 7 February 2006, Ms Rusti Davies was injured when a motor vehicle driven by her came into collision with a vehicle driven by the defendant in Bell Street, Preston.  At the time of the collision, Ms Davies was performing work in the course of her employment with the plaintiff, Primary Health Care Limited, as a courier.  The plaintiff is a self insurer for the purposes of the Accident Compensation Act.  Consequently, the plaintiff became liable to make, and has made, payments of compensation to and on behalf of Ms Davies in the sum of $214,291.07.

1. The plaintiff has commenced this proceeding against the defendant, pursuant to s 138 of the Accident Compensation Act, to recover those payments, and any future compensation paid to or on behalf of Ms Davies.  The defendant has admitted that the collision was caused solely by his negligence, but has denied that the plaintiff is entitled to recover from him the compensation payments made by it to and on behalf of Ms Davies. 

1. It is common ground in the proceeding that Ms Davies’ injuries were caused as a result of a ‘transport accident’ for the purposes of s 93(1) of the Transport

Accident Act. Ms Davies has not sought to commence common law proceedings against the defendant, and therefore the Transport Accident Commission (‘the Commission’) has not determined the degree of impairment of Ms Davies for the purposes of s 93(2) of that Act. By its defence to the proceeding, the defendant has pleaded that, as a result, any cause of action in Ms Davies was at all relevant times ‘contingently extinguished’. Accordingly, it is pleaded, the injuries to Ms Davies, for which compensation has been paid, were not caused ‘under circumstances creating a legal liability’ in the defendant to pay damages, for the purposes of s 138(1) of the Accident Compensation Act.  Thus, the defendant alleges that the claim by the plaintiff under s 138 of the Act cannot be maintained.

1. Accordingly, the question, stated for the court by the trial judge, is whether, on the basis of those facts, the plaintiff’s claim is maintainable. Stated more specifically, the question is whether, for the purposes of s 138(1) of the Act, the plaintiff is able to establish that the injuries to Ms Davies were caused under circumstances ‘creating a liability’ in the defendant to pay damages, in the absence of a determination, by the Commission, of the degree of Ms Davies’ impairment for the purposes of s 93(2) of the Transport Accident Act.

1. Before summarising the competing submissions by the parties in relation to that issue, it is convenient, first, to set out the relevant parts of s 138 of the Accident Compensation Act and s 93 of the Transport Accident Act.

Accident Compensation Act 1985 (Vic)

1. Subsections (1) and (2) of s 138 of the Act provide:

(1)Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for s 134A, create such a liability in respect of the injury or death, the Authority, self insurer or employer is entitled to be indemnified by the third party in accordance with this section.

(2)In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Divisions 8A and 9 of Part 4 must not be taken into account.

1. Section 138(3) of the Act provides that the amount which a third party is required to pay as indemnity, under subsection (1), is the lesser of: (a) the amount of compensation paid or payable under the Act in respect of the injury or death; and (b) an amount calculated in accordance with a particular formula. That formula requires the application of a percentage (the ‘X factor’), consisting of the extent to which the third party’s act default or negligence caused or contributed to the injury or death, to another factor (‘Factor A’), which consists of the amount of damages which the third party is or would have been liable to pay the injured worker in respect of the injury or death. Relevantly, s 138(3)(b) provides that that amount is to be calculated as the amount ‘were it not for the provisions of this Act, the Transport Accident Act 1986’ and specific parts of the Wrongs Act 1958 (Vic).

Transport Accident Act 1986 (Vic) s 93

1. Section 93(1) of the Transport Accident Act provides:

(1)A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of s 34 except in accordance with this section.

1. The succeeding subsections of s 93 provide three methods by which a person, injured as a result of a transport accident, may become entitled to recover damages in respect of that injury. Those three methods have been described, in authorities to which I shall later refer, as the ‘gateways,’ through one of which an injured person must ‘pass,’ in order to be entitled to recover damages in respect of injuries resulting from a transport accident. In summary, the three gateways are: first, a determination by the Commission that the degree of impairment of the injured person is 30 per cent or more (subsections (2) and (3)); secondly, where the commission has determined the degree of impairment as less than 30 per cent, but is satisfied that the injury is a ‘serious injury’ and issues a certificate consenting to the bringing of proceedings (subsection (4)); and, thirdly, the grant by a court of leave to the injured person to bring such proceedings, such leave being conditional upon the satisfaction of the court that the injury is a ‘serious injury’ as defined by s 93(17) (subsection (6)).

Submissions

1. On behalf of the defendant, it was submitted that the claim by the plaintiff is not maintainable, because the injured worker, Ms Davies, has not accessed any of the three gateways prescribed by s 93 of the Transport Accident Act. As a consequence, any cause of action, which she might have had against the defendant, was at all relevant times extinguished. Thus, it was submitted, her injuries were not ‘caused under circumstances creating a legal liability in (the defendant) to pay damages’ pursuant to s 138(1) of the Accident Compensation Act. 

1. In support of that submission, senior counsel for the defendant noted that the phrase ‘creating a liability’, or the cognate phrase ‘creating a legal liability’, has been used, in the United Kingdom, and interstate, in provisions in workers’ compensation legislation, similar to s 138, for more than one century.  Counsel submitted that, by employing the same phrase in s 138 it is presumed that the provision is to be given the same construction as is given to like provisions in the United Kingdom and interstate legislation.

1. In particular, counsel submitted that two propositions emerge from the authorities.  First, the question whether the injury was ‘caused under circumstances creating a liability in a third party to pay damages’ is to be determined according to the circumstances existing at the time of the particular incident.  In support of that proposition, counsel referred to Victorian WorkCover Authority v Kenman Kandy.[1]  Secondly, it was submitted that the decision of the High Court in Tooth & Co Ltd v Tillyer[2] is authority for the proposition that, in that statutory context, the phrase ‘liability … to pay damages’ refers to an actual liability in respect of the injury at the time of the incident.

   [1](2002) 6 VR 666, 671 [13] ff; Tooth & Co Ltd v Tillyer (1956) 95 CLR 605 (‘Tooth v Tillyer’).

   [2]Tooth & Co Ltd v Tillyer (1956) 95 CLR 605.

1. In that case, compensation was paid by the employer to a worker in respect of injuries sustained by her, in a motor vehicle accident, as a result of the negligence of her husband.  Under the existing law at that time, no action lay in tort between a wife and a husband.  The majority of the court stated:

it seems impossible to treat section 64(b) as not depending for its application on the incurring by a person other than the employer of an actual legal liability in respect of the injury.

… the right which is given to the employer who is paid compensation rests on the existence for however brief a time of a true liability to pay damages to some person or persons in respect of the injury for which compensation was payable and has been paid. … But it is the existence of a liability which section 64(b) postulates, not a remedy, nor as has already appeared, the continuance or persistence of the liability. English law draws a distinction between right and remedy which makes it possible to say that there may be a liability sufficient to satisfy the opening words of section 64 although there may be a defect of remedy.[3]

[3]Ibid 611-2.

1. Senior counsel for the defendant submitted that, as the worker in this case had not accessed any of the three gateways prescribed by s 93 of the Transport Accident Act, at no time has there been any actual liability of the defendant to pay damages to her.  Counsel referred to the decisions of this Court in Wilson v Nattrass[4] and Swannell v Farmer,[5] in which the court held that the effect of s 93(1) is to contingently extinguish an injured person’s right of action, in respect of a transport accident. The court held that the extinguishment was not absolute, but ‘contingent’, because it may be removed by satisfaction of one of the three gateways specified at s 93. Based on those principles, it was submitted that, as the worker has not accessed any of the three gateways specified in s 93, she has no right of action, at common law, in respect of the injury sustained by her as a result of the motor vehicle collision with the defendant. Thus, it was submitted, the injury to the worker was not caused in circumstances creating a liability in the defendant to pay damages.

   [4](1995) 21 MVR 41.

   [5][1999] 1 VR 299.

1. In support of that proposition, counsel also referred to the decision of the Full Court of the Supreme Court of Tasmania in Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd.[6] In that case, the injured employee had not sought to comply with the requirements of s 138AB of the Workers Rehabilitation Compensation Act 1988 (Tas), which prescribed preconditions to the worker commencing proceedings for damages against a third party. The worker’s employer (Skilled Engineering Ltd) sought to recover compensation payments, which it had made to the worker, pursuant to s 134(1) of the Act, which was in similar form to s 138(1) of the Victorian Act. The Full Court concluded that s 138AB precluded the existence of a cause of action in the worker for his injuries against the third party. The right of indemnity, provided by s 134, rested on the existence of a true liability to pay damages. In the absence of any such liability, s 134 did not apply.

   [6](2005) 15 Tas R 88.

1. Counsel further submitted that, if subsection (1) of s 138 could, on its terms, be satisfied by a contingent liability rather than an actual liability, subsection (2) would be otiose. For, if s 138(1) applied to circumstances in which there was a contingent liability in the third party to pay damages, such as in the present case, the direction, in subsection (2), that Divisions 8A and 9 of Part 4 of the Act not be taken into account, would be unnecessary. The fact that those provisions were inserted is, he submitted, an important key to the correct construction of the phrase ‘caused under circumstances creating a liability in a third party to pay damages’ in subsection (1).

1. Finally, counsel for the defendant submitted that, in s 137(5A) and (5B) of the Act, the legislation has specifically addressed the question as to the distribution of liability to pay compensation to an injured worker, in the circumstances of a transport accident.  Subsection (5A) provides that where the Victoria Workcover Authority (‘the Authority’) is required to pay compensation in respect of the death or injury of a worker arising out of a transport accident, and the Commission would have been liable to make payments in respect of the death or injury under the Transport Accident Act if no compensation were payable under the Accident Compensation Act, the Commission shall be liable to pay to the Authority an amount equal to the compensation paid by the authority to the injured employee.  Subsection (5B) provides a similar right of recovery to a self-insurer, which has appointed the Commission as its agent under s 143A of the Act.  It was submitted that it is significant that where the employer is a self-insurer, and the employer has not appointed the Commission as its agent, s 137 does not provide for any right of recovery by the self-insurer against the Commission of payments made to an injured worker for injury arising out of a transport accident.  It was submitted that the function of s 137(5A) and (5B) is to regularise the relationship between the Authority and the Commission, and to reflect the intention of Parliament as to which entity is to bear ultimate liability for the compensation payments. 

1. In response, senior counsel for the plaintiff submitted that any claim by a worker, who is injured in a transport accident, is governed by s 134AA and s 134AB(1) of the Accident Compensation Act.  He submitted that it is those provisions which impose the requirement, on the worker, that such a claim be made in accordance with the provisions of the Transport Accident Act, including s 93 of that Act. Section 134AA and s 134AB are each contained in Division 8A of Part 4 of the Accident Compensation Act. Thus, it was submitted, s 138(2) of the Act has the effect that, for the purposes of determining, pursuant to subsection (1), whether an injury was caused under circumstances creating a liability in a third party to pay damages, the provisions of the Transport Accident Act, including s 93, must not be taken into account. In that way, and for that reason, it was submitted that it was not necessary for s 138(2) to refer, expressly, to the Transport Accident Act. Rather, it was submitted, the provisions of that legislation were ‘picked up’ by the reference, in subsection (2), to the provisions of Division 8A of Part 4 of the Accident Compensation Act.

1. In support of that submission, it was argued that where a worker had suffered injury during the period between 12 November 1997 and 20 October 1999, s 134A of the Accident Compensation Act (which abolished common law rights during that period) would preclude any proceeding by the worker claiming damages. Thus, it was submitted that the worker was thereby precluded from claiming damages at common law in respect of the transport accident in which the worker was injured. In such an event, the Commission would not have the power to conduct an impairment assessment, in respect of the injured worker, pursuant to s 47(7) of the Transport Accident Act. In that way, it was submitted, s 93 would not be ‘engaged’ for any claim by a worker, in respect of a transport accident, which occurred during that two year period (often referred to as ‘the black hole’ period). Thus, it was submitted, if the submissions on behalf of the defendant were correct, the plaintiff would be precluded from seeking recovery, under s 138(1), of compensation paid to a worker during the ‘black hole’ period.

1. Counsel for the plaintiff further submitted that the construction, contended for by the defendant, would produce other anomalous consequences, which could not have been intended by Parliament. In particular, it was submitted that the construction of s 138(1), contended for by the defendant, would have the effect that the ability of a self-insurer, to recover compensation payments made to an injured worker under s 138(1), will depend upon whether the worker chooses to access any of the three gateways provided under s 93 of the Transport Accident Act, and, if so, whether the worker was successful in navigating one of those gateways.  It was submitted that such a construction is contrary to the intent of s 138, which is to provide a right of recovery to the self-insurer, independent of the worker.  In that respect, counsel referred to statements by Barwick CJ in Tickle Industries Pty Ltd v Hann.[7] 

   [7](1974) 130 CLR 321, 326-7, 330.

1. In addition, senior counsel for the plaintiff pointed out that, under s 93(7) of the Transport Accident Act, a plaintiff is only entitled to damages, for pain and suffering, or for pecuniary loss, if such damages are more than $30,520. Thus, if a plaintiff should fail to gain an award of damages exceeding that amount, the plaintiff’s claim would fail, because damages are the gist of the action in tort. In that sense, it was submitted, any claim by a plaintiff, and hence the liability of the defendant, would be ‘contingent’ on the ultimate assessment, by the judge or jury at trial, of the damages of the plaintiff. Thus, it was submitted that if, as the defendant contends, s 138(1) does not cover contingent liabilities, its application, to a particular claim for recovery, might ultimately depend on the verdict or award of damages in a common law proceeding brought by the worker.

1. Senior counsel submitted that those anomalies would not occur, if s 138(1) is construed as being concerned with liabilities which are assessed at the time of the accident, and which are not affected by subsequent events.[8] In any case in which a worker is injured in a transport accident, the existence of a liability or a third party to the worker must depend, necessarily, on whether the worker ultimately accesses one of the three gateways, prescribed by s 93 of the Transport Accident Act, successfully. It was submitted that a construction of s 138(1), which depended on the occurrence of such a later event, would be inconsistent with the principle that the liability of the third party is to be determined at the time of the transport accident.

   [8]Transport Accident Commission v Murray (2005) 12 VR 314.

1. Counsel for the plaintiff further submitted that essentially s 138 is concerned with a hypothetical liability of a third party to the injured worker. He submitted that each of subsections (1), (2) and (3) of s 138 are concerned with hypothetical liabilities, which themselves may not rise above a particular contingency. Thus, he submitted that s 138(1), on its proper construction, encompasses contingent liabilities, of the kind which a third party would bear to a worker injured in a transport accident.

1. In this respect, counsel sought to distinguish the decision of the High Court in Tooth & Co Ltd v Tillyer,[9] relied upon by the defendant. He submitted that the legislation in that case, and in particular s 64 of the New South Wales Workers’ Compensation Act 1926, was relevantly different to the provisions of the Accident Compensation Act.  In particular, he submitted that the New South Wales legislation provided that if a worker recovers damages in respect of an injury sustained in the course of employment, the worker would not be entitled to recover compensation.  Thus, it was submitted that, under the New South Wales legislation, the recoverability by the employer, of compensation payments already made, necessarily depended upon the existence of an actual (as distinct from a contingent) liability of a third party to pay damages. 

   [9](1956) 95 CLR 605.

1. In addition, counsel for the plaintiff submitted that the decision of the Full Court of Tasmania in Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd[10] should be distinguished.  He submitted that there are six relevant differences between, on the one hand, the Tasmanian Workers’ Rehabilitation and Compensation Act 1988 and the Accident Compensation Act. 

   [10](2005) 15 Tas R 88.

1. In addition, counsel referred to the history of the relevant provisions in the Accident Compensation Act.  In particular, he relied on the amendment to s 138 by s 47 of the Accident Compensation (WorkCover) Act 1992, which provided that ‘the liability of the third party under this section shall not exceed the amount which, but for this Act or the Transport Accident Act 1986, the third party would be liable to pay to the worker’. 

1. Counsel submitted that that amendment, to s 138, manifested a legislative intention that the provisions of both the Accident Compensation Act and the Transport Accident Act were inapplicable, in determining whether the third party was, hypothetically, liable to the injured worker for damages in respect of the injury, in relation to which compensation payments had been made.  It was further submitted that that amendment was, in effect, retained by s 67 of the Accident Compensation (Amendment) Act 1994, which substituted a new section 138 of the Act. That amendment, and succeeding versions of s 138, have retained, in substance, the provision which is now found in s 138(3)(b) of the Act, namely, that the amount payable by the third party is to be calculated by disregarding the provisions of the Accident Compensation Act, the Transport Accident Act, and specified parts of the Wrongs Act. Thus, it was submitted that each of the successive versions of s 138, since 1992, have been directed to disregarding the provisions of the Transport Accident Act, in determining whether the worker was injured in circumstances creating a liability in the third party to pay damages in respect of those injuries. 

1. In response, senior counsel for the defendant submitted that, where a worker is injured as a result of the transport accident, the worker’s claim for common law damages is not governed, solely, by the provisions of Division 8A of Part 4 of the Accident Compensation Act, but also, independently, by s 93 of the Transport Accident Act. Thus, he submitted that it is erroneous for the plaintiff to submit that the effect of s 138(2) of the Accident Compensation Act is to preclude the operation of s 93 of the Transport Accident Act, in determining whether, for the purposes of s 138(1), the worker’s injuries were caused in circumstances creating a liability in a third party to pay damages to the injured worker.

1. Secondly, counsel for the plaintiff submitted that the amendment to s 138 of the Accident Compensation Act, enacted by s 47 of the Accident Compensation (WorkCover) Act 1992, was not directed to the issue whether the third party was under a hypothetical liability to the injured worker; rather, it was directed to the assessment of the quantum of damages which might, in those circumstances, be awarded to the injured worker. Counsel submitted that, accordingly, s 138(3)(b) of the Accident Compensation Act, as it applies to this case, is, on its clear terms, referable to the calculation of the quantum of the damages payable by the third party to the injured worker; it is not, by its terms, referable to the question whether the injuries of the worker were caused under circumstances creating a liability in the third party to pay damages.

Analysis

1. The competing positions of the parties raise three principal issues for determination by the court.  Those issues are:

(1)Whether, on its proper construction, s 138(2) of the Accident Compensation Act has the effect that s 93 of the Transport Accident Act is to be disregarded in determining whether, for the purposes of s 138(1), a worker was injured in circumstances creating a liability in a third party to pay damages.

(2)If the answer to the first issue is in the negative, in a case in which a worker, injured in a transport accident, has not accessed one of the gateways in s 93 of the Transport Accident Act, whether the ‘rights’ of the worker to recover damages against a third party, and the ‘liability’ of the third party who caused that injury, are properly characterised as ‘contingent’ for the purposes of s 138(1) of the Accident Compensation Act.

(3)If such rights and liabilities are characterised as ‘contingent’, whether, nevertheless, s 138(1) encompasses such a contingent liability of the third party.

1. The first issue, which I have summarised above, is raised by the submission by the plaintiff that, where a worker is injured in a transport accident, any claim for damages by that worker is governed by s 134AA and s 134AB of the Accident Compensation Act. It was submitted that it is those provisions which, in such a case, engage the operation of s 93 of the Transport Accident Act in respect of such a claim. 

1. In my view, there is no support to be found, either in the Accident Compensation Act, or the Transport Accident Act, for the proposition that the provisions of the Accident Compensation Act, and in particular s 134AA and s 134AB, are the dominant provisions, in a case in which a worker sustained injury in a transport accident occurring in the course of the worker’s employment. Rather, in the absence of provisions such as s 134AA and s 134AB, it might be argued that an injured worker would need to access each of the gateways, specified in both Division 8A of the Accident Compensation Act, and in s 93 of the Transport Accident Act, in order to be entitled to institute proceedings in respect of the injury sustained arising out of the transport accident. That potential argument is foreclosed by the specific terms of s 134AA and s 134AB(1) of the Accident Compensation Act, which provide that the operative legislative provisions, in those circumstances, are contained in the Transport Accident Act.

1. In that way, it is evident that the purpose of s 134AA and s 134AB(1) is to avoid any uncertainty, and to make it clear that, in the case of a transport accident, an injured worker is only required to comply with the provisions of the Transport Accident Act, in order to be entitled to recover damages from a third party who was responsible for the worker’s injuries. Thus I do not accept the proposition, advanced by senior counsel for the plaintiff, that s 93 of the Transport Accident Act is only engaged, in the case of a worker suffering injury in a transport accident in the course of the worker’s employment, because of the operation of s 134AA and s 134AB(1) of the Accident Compensation Act. Rather, as I have stated, in such a case, those provisions have the effect that s 93 of the Transport Accident Act applies, to the exclusion of s 134AB of the Accident Compensation Act, in the event of a worker suffering injury in a transport accident in the course of the worker’s employment. 

1. That conclusion is supported by the history of the relevant provisions in each Act.  The ‘serious injury’ regime was first introduced, in respect of transport accidents, by the Transport Accident Act 1986, which commenced operation on 1 January 1987.  At that time, the Accident Compensation Act 1985 had commenced operation. Section 135 of that Act, at that stage, precluded an injured worker recovering common law damages for pecuniary loss. The ‘serious injury’ regime was first introduced into the Accident Compensation Act by the Accident Compensation (WorkCover) Act 1992.  At that time, the Accident Compensation Act was amended to entitle an injured worker to claim non-pecuniary loss damages and pecuniary loss damages, upon satisfying the ‘serious injury’ gateways prescribed in s 135A of that Act. In 1997, s 45 of the Accident Compensation (Miscellaneous Amendment) Act 1997 inserted s 134A into the Accident Compensation Act.  That provision abolished the right of a worker to claim common law damages for any injury sustained in the course of employment on or after 12 November 1997.  Two years later, the right of an injured worker to claim common law damages was reinstated by the Accident Compensation (Common Law and Benefits) Act 2000. Section 18 of that Act introduced s 134AA and s 134AB, which reintroduced, albeit in different form, the ‘serious injury’ regime applicable to such claims.

1. The brief historical excursus, which I have just undertaken, demonstrates that, for the greater part of the last two decades, a serious injury regime has operated side by side in the Transport Accident Act, and the Accident Compensation Act.  In that context, it is understandable that, when the regime was reintroduced into the Accident Compensation Act by the 2000 amending Act (which was operative from 20 October 1999), it contained s 134AA and s 134AB(1), in order to ensure that there should be no conflict as to which statutory regime should operate, in the event of a worker suffering injury in a transport accident in the course of employment.

1. For those reasons, I reject the submission by the plaintiff that, in the case of a worker injured in a transport accident in the course of employment, s 93 of the Transport Accident Act is only engaged by the operation of s 134AA and s 134AB(1) of the Accident Compensation Act. Accordingly, I do not accept the submission that the effect of s 138(2) of the Accident Compensation Act is to preclude, from consideration, s 93 of the Transport Accident Act, in determining whether, for the purposes of s 138(1) of the Accident Compensation Act, the worker’s injury, in a case such as this, occurred in circumstances giving rise to a liability by a third party to pay damages to the worker. 

1. The second issue, raised by the submissions of the parties, concerns the appropriate characterisation of the ‘rights’ of a worker injured in a transport accident, which has been caused by the negligence of a third party, where the worker has not successfully accessed any of the three gateways prescribed by s 93 of the Transport Accident Act.

1. The question of the characterisation of the ‘rights’ of the injured worker, and the correlative ‘liability’ of the third party, has been considered, in different contexts, in previous decisions of this Court, to which counsel referred in their submissions.  The two leading decisions, on that point, are the decision of the Full Court of the Supreme Court in Wilson v Nattrass[11] and the decision of the Court of Appeal in Swannell v Farmer.[12] 

   [11](1995) 21 MVR 41.

   [12][1998] VSCA 104; [1999] 1 VR 299.

1. In Wilson v Nattrass, two passengers, who resided in Victoria, were injured in a motor vehicle collision in South Australia. The other vehicle involved in the collision was registered and insured in South Australia. The two passengers commenced proceedings in Victoria to recover damages against the driver of the other vehicle. Neither of the two plaintiffs had obtained from the Commission a determination, under s 93 of the Transport Accident Act, as to the degree of their respective impairments, or the existence of a serious injury as required by that section. The defendant contended that the action was not justiciable in Victoria, because the plaintiffs had failed to obtain a determination of their respective impairments by the Commission pursuant to s 93. On the other hand, the plaintiffs contended that s 93 did not apply to their action, as it concerned an accident occurring interstate. The trial judge rejected the contention of the defendant, and ruled that the action was justiciable in Victoria. The defendant successfully appealed against that ruling to the Full Court.

1. Brooking J decided the case on a different basis than the other two members of the court, Ashley J and Hedigan J. Brooking J held that the proceedings were directly precluded by the operation of s 93(1), which, his Honour held, was not confined to transport accidents which occurred in Victoria.

1. On the other hand, Ashley J and Hedigan J, in their separate judgments, each held that s 93 of the Transport Accident Act operated indirectly to bar the proceeding as part of the law of the forum, which was to be applied in accordance with the then principles of private international law, as defined by the Court of Exchequer Chamber in Phillips v Eyre.[13] Both Ashley J and Hedigan J reached that conclusion, because they considered that the effect of s 93 of the Transport Accident Act was to ‘contingently’ extinguish the common law right of action of each of the plaintiffs, subject to those plaintiffs satisfying one of the three preconditions prescribed in s 93 of the Transport Accident Act.[14]  Thus Ashley J stated:

Once this structure of section 93 is understood, the proper construction of subsections (1), (2) and (4) appears to me to be that, subject to a condition or contingency being established, the common law right of action previously enjoyed by persons injured in transport accidents in this State is extinguished – except to the extent that such a person might fall within subsection (18)(b) or (c). …

Whilst, in my opinion, section 93(1), (2) or (4) should be considered contingently to extinguish such rights of action for damages at common law as were hitherto enjoyed by persons injured in transport accidents in this State … that is not to say that some new element has been added to any cause of action when it becomes available. There is imposed a requirement which, except perhaps in unusual circumstances, must be met prior to commencement of a proceeding. Availability of right of action depends upon the prospective plaintiff having passed through any one of three gateways. But once a gateway has been accessed the traditional elements of the cause of action relied upon, and nothing more, need be established.[15]

[13](1870) LR 6 QB 1, 28-9.

[14]Wilson v Nattrass (1995) 21 MVR 41, 55 (Ashley J), 59 (Hedigan J).

[15]Ibid 54-55; see also at 59 (Hedigan J).

1. It is important to note that the Full Court in Wilson v Nattrass was not concerned with the characterisation of the potential rights of an injured person, in a transport accident, in a particular statutory context.  Rather, the issue considered by the majority of the court concerned the characterisation of those ‘rights’, as a matter of correct legal analysis, for the purposes of determining whether the claim was of a kind which could be brought in Victoria, if the collision had occurred in the forum.

1. In Swannell v Farmer, the Court of Appeal adopted and applied the analysis, undertaken by Ashley J and Hedigan J, in Wilson v Nattrass.

1. In that case, John Farmer suffered injury in a transport accident in December 1989. He subsequently died from unrelated causes in 1994. At the time of his death, he had not taken any steps to establish that his injuries were ‘a serious injury’ within s 93(17) of the Transport Accident Act. The plaintiff, who was the administrator of the will of his estate, by originating motion in the County Court, sought leave to bring proceedings for the recovery of damages in respect of Mr Farmer’s injuries, pursuant to s 93(4)(d) of the Transport Accident Act.  The County Court judge found in favour of the plaintiff.  The defendant successfully appealed from that decision to the Court of Appeal.

1. The critical issue, for determination of the Court of Appeal in Swannell v Farmer was whether, at the time of Mr Farmer’s death, there was a cause of action vested in him which, pursuant to s 29 of the Administration and Probate Act 1958, survived for the benefit of his estate. The Court of Appeal held that the effect of s 93 of the Transport Accident Act was to conditionally extinguish any right of action by Mr Farmer to claim damages arising out of the injuries sustained by him in the course of the 1989 transport accident.  Accordingly, at his death, there was no cause of action vested in him which survived for the benefit of his estate.

1. In the course of their joint judgment, Batt and Buchanan JJA (with whom Callaway JA agreed) referred to, and applied, the reasoning of Ashley J and Hedigan J in Wilson v Nattrass.  After quoting the passage from Ashley J, which I have set out above, their Honours stated:

The condition or contingency [referred to by Ashley J] was satisfaction of the requirements of a determination by the Commission of a degree of impairment and the sustaining of a serious injury within the meaning of the Act. The extinguishment referred to by Ashley J was not one which would occur on the fulfilment of a contingency, but one which presently existed and would continue until the happening of a contingency. The same concept might be expressed in terms of an extinguishment that is defeasible. It is probably not accurate to speak of the Act extinguishing causes of action, for section 93(1) is expressed to operate only in respect of transport accidents occurring on or after the commencement of s 34 of the Act. Unless the Act operates to extinguish causes of action at the moment they spring into life, which we think hardly likely, the Act does not extinguish causes of action but rather extinguishes a field of potential rights and liabilities. No longer can causes of action arise in respect of transport accidents in Victoria, unless the

twin requirements are met.  However, if those requirements are met, the extinguishment ceases to operate.[16]

[16][1999] 1 VR 299, 306 [19]; see also 307 [22].

1. Their Honours then turned to a subsidiary submission made on behalf of the plaintiff, namely that the effect of s 93 was to render inchoate a cause of action which would have been available at common law but for s 93 of the Transport Accident Act.  Their Honours rejected that submission, stating:

we do not consider that a person injured in a transport accident who has not satisfied the requirements of s 93 has an incipient, undeveloped or immature cause of action. The person is barred from recovering damages for a cause of action which needs no further elements, and one which will be available to found suit once the requirements of the section are met. In any event we do not think that an undeveloped, incomplete cause of action can survive for the benefit of a deceased person’s estate. The legal position of a person to whom some only of the elements of a cause of action are available is the same as that of a person to whom no element is available.[17]

[17]Ibid 309 [32].

1. Those passages, from the judgment in Swannell v Farmer, demonstrate that the analysis, undertaken by the court, was not specific to s 29 of the Administration and Probate Act. Rather, that analysis was directed to identifying the precise status of any potential ‘rights’ of a person injured in a transport accident, where that person has not accessed one of the gateways prescribed by s 93 of the Transport Accident Act. The decision in that case is clear authority for the proposition that, in those circumstances, a person, who is injured in a transport accident, has no right, and no cause of action, unless that person has accessed one of those gateways. A fortiori, a third party, who might have negligently caused the accident, as such has no ‘liability’. Any such ‘liability’ is contingently extinguished, and does not come to life unless and until the injured party is able to access one of the gateways prescribed by s 93 of the Transport Accident Act.

1. The principles, stated by the court in Wilson v Nattrass and Swannell v Farmer, have been applied in a number of succeeding cases.  In Dodoro v Knighting,[18] the issue was whether a decision by a judge of the County Court, refusing leave to an applicant under s 93 of the Transport Accident Act, was interlocutory for the purposes of appeal. In holding that such a decision is interlocutory, Callaway JA noted that an application for leave, under s 93, is a preliminary step; as there is no cause of action alive at the time, such an application ‘has an even more preliminary character; not only is there, as yet, no principal cause, but there is not even a cause of action’.[19]

   [18](2004) 10 VR 277.

   [19]Ibid 283 [23].

1. In Millard v State of Victoria,[20] the court was concerned with an appeal against refusal to grant an application to extend the limitation period pursuant to s 23A of the Limitation of Actions Act 1958.  Mandie AJA (with whom Chernov JA and Ashley JA agreed) held that it was a material error for the judge to have taken into account that the plaintiff had taken no steps to extend time to bring a common law proceeding from the time of the incident, since, at that time, the plaintiff had ‘no cause of action at all’ until he satisfied the gateway requirements of either the Accident Compensation Act or the Transport Accident Act.[21]

   [20][2006] VSCA 29.

   [21]Ibid [32]; see also Hayes v Transport Accident Commission [2010] VSCA 104, [11], [16]-[19] (Neave JA).

1. From the foregoing, it is, in my view, well established that, unless and until a party, injured in a motor vehicle collision, has accessed one of the three gateways prescribed by s 93 of the Transport Accident Act, such a person does not have any cause or right of action against the person who might have caused the injury. As a corollary to that proposition, unless and until the injured party has accessed one of the gateways prescribed by s 93 of the Transport Accident Act, the third party, who was otherwise responsible for the injury, does not bear any liability at law in relation to it.

1. That conclusion brings me to the third issue, namely, whether the ‘liability in a third party to pay damages’, specified in s 138(1) of the Accident Compensation Act, includes a ‘contingent’ liability of the kind described by this Court in Wilson v Nattrass and Swannell v Farmer. More accurately, in the circumstances of this case, the question is whether the injury of Ms Davies was caused in circumstances ‘creating a liability’ in the defendant to pay damages, notwithstanding that, unless and until Ms Davies accesses one of the three gateways prescribed by s 93, the defendant is not subject to any liability in respect of Ms Davies’ injuries.

1. The short answer to that issue is that s 138(1) cannot, on its terms, apply, unless the circumstances, in which the injury occurred, were such as to give rise to a legal liability in the putative third party to pay damages. The authorities, to which I have just referred, make it plain that no liability, for Ms Davies’ injuries, could be asserted against the defendant, unless and until Ms Davies satisfied one of the three preconditions, specified in s 93 of the Transport Accident Act, for instituting proceedings against the defendant. In argument, counsel referred to the defendant as, currently, being subject to a ‘contingent liability’ to Ms Davies. That description, while useful, is to some extent, misleading. Rather, the appropriate analysis, on the authorities, is that the liability of the defendant to Ms Davies, which would have otherwise existed at common law, has been extinguished by s 93(1) of the Transport Accident Act, subject to a contingency, namely, that the liability may ‘spring to life’ in the event that the injured worker, Ms Davies, should access one of the three gateways in s 93 of the Transport Accident Act. Unless and until that occurs, any proceeding against the defendant by Ms Davies would not be justiciable, because of the extinguishment, by s 93(1), of any common law liability which the defendant would otherwise have for Ms Davies’ injuries.

1. The plaintiff has sought to avoid the force of that proposition by submitting that the scheme of s 138 is to provide for ‘hypothetical’ liabilities of the third party. In particular, it was submitted that s 138 is based on a number of hypotheses, including a liability of a third party, in the event that the injured worker had sought to claim damages against that third party. That argument, while attractive, obscures the distinction between, on the one hand, a liability of a third party if (hypothetically) the injured worker were to commence proceedings against that third party and, on the other hand, the absence of any such liability, unless and until the injured worker has first accessed one of the gateways under s 93. In other words, the ‘contingency’, described in Wilson v Nattrass and Swannell v Farmer, may not logically be equated with the type of hypothesis, which is the basis of the putative liability, of the third party to the injured worker, described in s 138(1) of the Accident Compensation Act.

1. That distinction is made plain by the decision of the High Court in Tooth & Co Ltd v Tillyer.[22] In that case, Doreen Tillyer, an employee of the plaintiff, was injured in a motor vehicle accident as a result of the negligence of her husband, who was the defendant. The plaintiff paid Workers’ Compensation payments to Mrs Tillyer, and brought proceedings against the defendant, claiming that he was liable to indemnify it under s 64 of the Workers’ Compensation Act 1926-1954 (NSW). Section 64, so far as is relevant, provided:

Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof - …

(b)  if the worker has recovered compensation under this Act, the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.

[22](1956) 95 CLR 605.

1. The defendant resisted the claim by the plaintiff, on the basis of the common law principle, which was effectively preserved by s 16 of the Married Women’s Property Act 1901 (NSW), that no action in tort lies between a husband and a wife. The plaintiff sought to evade the application of that principle by contending that the words ‘under circumstances creating a legal liability’ were descriptive, that is, that they referred to the kind of circumstances which must exist, and as not requiring that there be an actual liability.[23]  That proposition was rejected by the High Court.  In their joint judgment, Dixon CJ, Williams, Webb and Fullagar JJ, noted that English law draws a distinction between a right and a remedy.  Their Honours referred to the decision of the Court of Queen’s Bench Division in Phillips v Barnet,[24] that, at common law, no liability exists between a husband and a wife, because, for legal purposes, a husband and a wife are one and the same person. Thus, their Honours held that the common law denied the existence of a liability of a husband, in the circumstances of the defendant, to his wife. Accordingly, they held that s 64 did not apply, because the wife’s injuries were not caused under circumstances ‘creating a legal liability’ in the defendant to pay damages in respect of them.[25]

   [23]Ibid 609.

   [24](1876) 1 QBD 436, 438-9 (Blackburn J), 440 (Lush J), 441 (Field J).

   [25]Tooth & Co Ltd v Tillyer (1956) 95 CLR 605, 611-12, 617-18.

1. Senior counsel for the plaintiff sought to distinguish the decision of the High Court in Tooth & Co Ltd v Tillyer, on the basis that the workers’ compensation legislative regime in New South Wales at that time was relevantly different to the compensation regime contained in the Accident Compensation Act. At that time, s 64 of the New South Wales Act contained a remnant of the earlier legislative provisions, which required an injured worker to elect between statutory benefits and common law remedies. In particular, s 64(a) provided that if a worker firstly recovers common law damages, the worker shall not be entitled to recover the compensation benefits payable under the Act. It was submitted that, as such, the decision in Tooth  v Tillyer reflected what counsel described as the coexistence of alternative remedies for the worker.  He submitted that in that way it was necessary for the High Court, in Tooth v Tillyer, to focus on actual, rather than contingent, liabilities of the third party who was otherwise responsible for the injury to the worker. 

1. In my view there are two answers which may be made to that proposition.  First, I do not consider that the legislative provision, under consideration in Tooth v Tillyer, was relevantly different to the provisions of the Accident Compensation Act, and in particular s 134AB(36)(a), which provides that where pecuniary loss damages are awarded, the Authority is not liable to make any further weekly payments of compensation to the injured worker. Secondly, and more importantly, I do not consider that the distinction, sought to be drawn by counsel, between the two legislative regimes, played any role in the decision of the High Court. The focus of the judgment was not on the rights of the worker under the Workers’ Compensation Act; rather, the court focused on the correct characterisation of the liability asserted against the third party who caused the injury to the worker.  In that way, the reasoning of the High Court, in Tooth v Tillyer, is, in my view, directly applicable to the issue raised by the case stated.

1. That conclusion is reinforced by the subsequent decision of the High Court in Tickle Industries Pty Ltd v Hann.[26]  In that case, the employer, in the Northern Territory, paid workers’ compensation payments, to the dependants of an employee who was killed in a motor vehicle collision with another vehicle in the course of his employment.  The dependants did not commence proceedings under the Compensation (Fatal Injuries) Ordinance 1938 against the person responsible for the worker’s death.  The employer sought indemnity against the driver and owner of the other vehicle, pursuant to s 22(1) of the Compensation Ordinance, which, for present purposes, is in the same form as s 138(1) of the Accident Compensation Act.  The High Court, by a majority, held that the employer was entitled to indemnity in respect of the compensation payments, notwithstanding that the dependants were statute barred from commencing proceedings against the defendant.  Barwick CJ (with whom McTiernan J agreed) held that the word ‘liable’, in s 22 of the Ordinance, was used as meaning ‘legally responsible, that is to say, it describes the person who by his act or omission caused the compensable injury and thus was legally responsible for it and for the payment of damages appropriate to it’.[27]  His Honour referred to Tooth v Tillyer, and described that case as ‘a case in which the wrongdoer could not have been legally responsible for the compensable injury because he was the husband of the injured employee’.[28]

   [26](1974) 130 CLR 321.

   [27]Ibid 331.

   [28]Ibid 332.

1. The conclusion, that s 138(1) only applies to a case where the third party has incurred an actual liability to the injured worker, is further supported by the decision of the Full Court of the Supreme Court of Tasmania in Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd.[29]  In that case, s 134(1) of the Workers’ Rehabilitation and Compensation Act 1988 was, for present purposes, in equivalent form to s 138(1) of the Accident Compensation Act.  Section 138A, of the Act, provided that before commencing proceedings for an award of damages, an injured worker must first lodge with the Worker’s Compensation Tribunal an election to claim damages.  Subsection (2) provided that a worker is not entitled to make such an election, unless the degree of the worker’s permanent impairment, either agreed between the worker and the employer, or determined by the tribunal, was not less than 30 per cent of the whole person.

   [29](2005) 15 Tas R 88.

1. In Skilled Engineering, an employee of the appellant sustained injury in the course of his employment. It sought to recover compensation payments from the respondent, a contractor, on the basis that the respondent’s negligence had caused the worker’s injury. The worker had not, at any relevant time, made an election under s 138AB. The Full Court held that, as a consequence, it could not be maintained that the worker’s injury was caused in circumstances creating a legal liability in the respondent to pay damages, within the meaning of s 134 of the Act. In reaching that conclusion, Evans J (with whom Tennent J and Hill AJ agreed) stated:

To my mind the liability referred to [in section 134(1)] is one that goes beyond a contingent remedy and refers to a true remedy to pay damages.  There is a significant difference between requirements that before proceedings are commenced, an election must be made or leave to proceed must be obtained and one of the requirements to be derived from s 134AB(1) and (2) which is that before the commencement of proceedings, the degree of the claimant’s permanent impairment must be agreed or determined to be not less than 30 per cent.  The former are procedural requirements which, in the case of a notice is wholly within the power of the claimant, and in the case of leave is partly within the control of the claimant.  The latter is akin to a substantive requirement, the satisfaction of which involves far more than a choice on the claimant’s part.  It requires an agreement or a favourable determination by the Tribunal.  In the absence of the satisfaction of this requirement, in my view, it cannot be said that the worker’s injury was caused in circumstances creating a liability in Glaxo.[30]

[30]Ibid 99-100 [21].

1. In concluding that there was no liability in the respondent to pay damages to the injured worker, Evans J noted the decision of the Full Court in Wilson v Nattrass and of this Court in Swannell v Farmer, and stated that, notwithstanding the differences between the legislation in question in each case, he drew ‘some comfort from those decisions …‘[31]

   [31]Ibid 101 [25].

1. Senior counsel for the plaintiff is correct in pointing to relevant differences between, on the one hand, the requirements of s 138AB of the Tasmanian legislation, and the requirements of s 93 of the Transport Accident Act.  However, the significance of the decision in Skilled Engineering is the adoption and application by the Full Court of the principle, stated by the High Court in Tooth v Tillyer, that recovery provisions, such as s 138(1), are premised on the existence of a legal liability in the third party to pay damages, and are not engaged by the existence of a ‘contingent’ liability of the third party.

1. The plaintiff also sought to support its construction of the phrase ‘creating a liability in a third party to pay damages …’ in s 138(1) of the Accident Compensation Act, by referring to the next phrase which occurs in that subsection, namely, ‘or that would, but for section 134A, create such a liability in respect of the injury or death …’ Senior counsel for the plaintiff contended that the inclusion of that phrase in section 138(1), indicated that the legislature contemplated that s 138 would apply to circumstances in which the worker did not have a cause of action in his or her own right.

1. The submission, thus made on behalf of the plaintiff, overstates the purpose which was served by the inclusion of the phrase, to which I have just referred, in s 138(1). That phrase was first inserted in s 138(1) by s 50 of the Accident Compensation (Miscellaneous Amendment) Act 1997. That statute introduced s 134A, which abolished common law rights of workers, injured in the course of their employment, from 12 November 1997. (As I have earlier noted, those rights were subsequently reinstated as from 20 October 1999). In the absence of the amendment made by s 50 of the 1997 Act, s 134A would have precluded an employer from recovering compensation payments from third parties in circumstances in which the worker was injured, in the course of employment, through the fault of the third party.[32]  The amendment did not contemplate s 138 otherwise applying to circumstances in which the law, for some other reason, denied the worker a cause of action against a third party who was responsible for the worker’s injury.

   [32]Eg Kidman v Sefa [1996] 1 VR 86; Farrar v Western Metropolitan College of TAFE [1999] 1 VR 224.

1. Thus, the amendment to s 138(1), introduced by s 50 of the 1997 Act, was not directed to a broad legislative intention of the type contended for on behalf of the plaintiff. In particular, it is clear that it was not intended to encompass, by implication, ‘liabilities’ of third persons which had been contingently extinguished by s 93 of the Transport Accident Act.

1. Based on the foregoing, it is clear, both as a matter of principle, and as a matter of authority, that the liability of the third party to the injured worker, prescribed by s 138(1) of the Act, may not be constituted by a ‘contingent’ liability. More accurately, s 138(1) does not apply, where, as here, the proper analysis is that the third party (here the defendant) is not under any legal liability to the injured worker, but that, hypothetically, such a liability may later spring into existence, if the worker elects to access, and successfully accesses, one of the prescribed gateways in s 93 of the Transport Accident Act.

1. It was submitted on behalf of the plaintiff that such a conclusion would lead to capricious or arbitrary consequences, in three respects, which could not have been intended by Parliament.

1. First, counsel submitted that, taken to its logical conclusion, that position must necessitate the consequence that, where a worker injured in a transport accident has issued proceedings against a third party responsible for the worker’s injuries, the question, whether s 138 permitted a claim by the worker’s employer against the third party, would depend upon whether the worker was able to establish a claim for damages in excess of the minimum amounts prescribed by s 93(7) of the Transport Accident Act. I do not accept that argument. The effect of s 93(7) is that, if a person injured in a transport accident does not succeed in establishing a claim for damages in excess of the minimum amount prescribed, the claim will fail. However, that consequence does not mean that the claim was not justiciable. On the other hand, unless and until a worker, injured in a transport accident, has accessed one of the gateways prescribed by s 93(1) of the Transport Accident Act, the decisions in Wilson v Nattrass and Swannell v Farmer make it plain that the worker, injured in a transport accident, does not have a justiciable right of action against the third party.  In those circumstances, unless and until the injured worker has accessed one of those gateways, the third party had no corresponding liability to the injured worker. 

1. Secondly, counsel for the plaintiff submitted that any injury, caused by a transport accident, that ‘engages’ s 134A of the Accident Compensation Act, could never be the subject of an actual liability to pay damages, for the purposes of s 138 of the Act. It was submitted that that was so, because no ‘common law’ cause of action arises in respect of such injury. In those circumstances, it was submitted, the Commission would not have the power to determine the ‘degree of impairment’ of the injured person pursuant to s 47(7) of the Transport Accident Act, in which circumstances, s 93 of the Transport Accident Act would not be operative. 

1. The submission, thus made on behalf of the plaintiff, is based on the premise that, where a worker is injured in the course of the worker’s employment, in a transport accident, the worker’s common law rights are solely governed by the Accident Compensation Act, to the exclusion of the Transport Accident Act.

1. Certainly, s 134A(1) of the Accident Compensation Act (which abolishes common law rights of action between 12 November 1997 and 20 October 1999) does not contain similar provisions to s 134AA(a) and s 134AB, which make it plain that, where a worker is injured as a result of a motor vehicle accident on or after 20 October 1999 in the course of the worker’s employment, the provisions of the Transport Accident Act apply. Nevertheless, and notwithstanding that difference between the regime in Division 8A (which contains ss 134AA and 134AB) and the regime in Division 9 (which contains s 134A), I am not persuaded that the fundamental premise to the submission made on behalf of the plaintiff is correct. As I have already stated, there is nothing in the Accident Compensation Act which would render the provisions of that Act, and in particular s 134A, as the dominant or exclusive provisions, in a case in which a worker has sustained injury in a transport accident occurring in the course of the worker’s employment. In particular, I reject the premise to the submission, by the plaintiff, that the effect of s 134A is to deprive a worker, injured in a transport accident between 12 November 1997 and 20 October 1999, of the right to commence common law proceedings against the party responsible for the worker’s injuries pursuant to the provisions of the Transport Accident Act. Section 134AB(1) does not, by its express terms, exclude such a common law right on behalf of an injured worker. As a matter of the application of the ordinary principles of statutory construction, the general language of s 134A(1) would not be sufficient to exclude the continued existence of the common law rights of the worker, to sue the other party responsible for the transport accident, pursuant to the provisions of the Transport Accident Act.

1. The third consequence, which the plaintiff has submitted would flow if s 138(1) does not apply to a case such as this, is that any recovery right, under s 138, of a self-insurer, which has paid compensation to a worker injured in a transport accident, would be subject to the individual decision of the particular worker whether or not to access one of the gateways prescribed by s 93 of the Transport Accident Act for the commencement of common law proceedings against the party responsible for the worker’s injuries.

1. I acknowledge that such a consequence does result from what I consider to be the correct application of principle and authority to the construction of s 138.  However, that consequence does not produce such an arbitrary or capricious result as to justify a departure from the plain language of s 138, nor the application of proper principle and authority.  Further, s 137(5A) provides that if the Authority is required to pay compensation in respect of the death or injury of a worker arising out of a transport accident, the Commission is liable to pay to the Authority an amount equal to the total amount of compensation paid or payable by the Authority in respect of a death or injury.  In a similar manner, s 137(5B) provides that if a self-insurer has appointed the Commission as its agent under s 143A, and the self-insurer is required to pay compensation in respect of the death or injury of a worker arising out of a transport accident, the Commission is liable to pay to the self-insurer an amount equal to the amount of compensation paid in respect of the death or injury.  In that way, those two provisions reflect a legislative intention as to the distribution of liabilities in the case of injuries sustained by a worker as a result of a transport accident.  The conclusion as to the correct construction of s 138, which I have arrived at, is, in my view, consistent with that legislative intention.

1. In those circumstances, I reject the submission made on behalf of the plaintiff that s 138(1) of the Accident Compensation Act encompasses a liability of a third party, which has been contingently extinguished by the operation of s 93 of the Transport Accident Act. 

Conclusion

1. Based on the foregoing, I summarise the conclusions, which I have reached, in relation to the three issues which I outlined earlier:

(1)Section 138(2) of the Accident Compensation Act does not have the effect that s 93 of the Transport Accident Act is to be disregarded in determining whether, for the purposes of s 138(1) of the Accident Compensation Act, a worker injured in a transport accident, was injured in circumstances creating a liability in a third party to pay damages.

(2)In a case in which a worker, injured in a transport accident, has not accessed one of the gateways prescribed by s 93 of the Transport Accident Act, the common law liability of the third party, who caused

that injury, has been contingently extinguished for the purposes of s 138(1) of the Accident Compensation Act.

(3)Section 138(1) does not apply in a case where the only ‘liability’ of a third party, to an injured worker, is such a liability of a third party, which has been contingently extinguished by s 93 of the Transport Accident Act. 

1. It follows, from those conclusions, that the answer to the question, stated for the court by the trial judge, is that the claim by the plaintiff in the present proceeding is not maintainable. 

VICKERY AJA:

1. I agree, for the reasons given by Kaye AJA, that the question stated for this Court should be answered as his Honour proposes.

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