Quigg v Northend Carpentry
[2017] VMC 13
•14 June 2017
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
G13376487
| KELLY ANN QUIGG | Plaintiff |
| v | |
| M. SIPTHORP & C.A. D'AMBRA (t/a NORTHEND CARPENTRY) | Defendants |
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MAGISTRATE: | Magistrate B.R. Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2017 |
DATE OF DECISION: | 14 June 2017 |
CASE MAY BE CITED AS: | Quigg v Northend Carpentry |
MEDIUM NEUTRAL CITATION: | [2017] VMC013 |
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Dependency Claim – Weekly Pension – Pre-Injury Average Weekly Earnings – End-Date for calculation- Accident Compensation Act 1985 ss 5A, 82(2), 86, 92B, 100(2B)(a), “pre-injury average weekly earnings”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Pillay | Maurice Blackburn Lawyers |
| For the Defendant | Mr J Gorton QC and Mr M Clarke | Wisewould Mahony |
HIS HONOUR:
1 The late Mr Justin Quigg (“the worker”) died as the result of a melanoma on his right calf leading to the development of metastases. His widow and three children made dependency claims arising out of his death pursuant to the Accident Compensation Act 1985 (“the Act”).
2 He had been employed by the defendants, trading as Northend Carpentry (“Northend”) as a carpenter from about 2001 to 2003. The VWA admitted liability for the claim and nominated the relevant injury date as being 17 December 2001. In his submission Counsel for Mrs Quigg accepts that date as being "the relevant date of injury for the purposes of assessing the claim", such date being when the worker first noticed the mole on his calf was changing. That date was used to calculate the appropriate full amount of lump sum compensation to the dependents and accepted by them.
3 The dispute in this case is the calculation of pre-injury average weekly earnings (“PIAWE”) for the purpose of weekly pension payments to the dependents pursuant to s.92B of the Act. In particular, the real dispute is the end-date of the period of such calculation.
4 Counsel for Mrs Quigg submits it should be the appropriate 12 month period up to August 2015 when he last worked, being unable to work beyond that date because of his melanoma injury and the subsequent development of metastases.
5 Counsel for North End says that the appropriate end-date for such calculation is the nominated date of injury being 17 December 2001.
6 As stated, the worker last worked for Northend in about 2003. He had taken some time off work from Northend to have the melanoma excised in about 2002. After ceasing with Northend he worked for a number of other employers and had further treatment again by way of further excision of the lesions in 2012, 2013 and 2015 at least. These lesions were consequential on the original melanoma and had nothing to do with any later sun exposure after his cessation of employment with Northend.
7 The present problem concerns the situation where the death of a worker is not the result of a single traumatic episode occurring at about the same time as death. Neither Counsel referred to any decisions on this weekly pension point in the Act.
8 Counsel for Mrs Quigg referred to the fact that North End had accepted the dependency claim in this case made pursuant to the general entitlement provision in s.82 and the “industrial disease” provision in s.86.
9 The weekly pension payment amounts in s.92B are expressed to be certain percentages of a "worker's pre-injury average weekly earnings", which phrase is relevantly defined in s.5A of Reprint 15 as :-
"In this Act the worker's pre-injury average weekly earnings means:
(a) the average weekly earnings during the 12 months preceding the relevant injury if the worker has been continuously employed by the same employer for that period; or
(b) the average weekly earnings for the period less than 12 months preceding the relevant injury for which the worker has been continuously employed by the same employer –
calculated at the worker's ordinary time rate of pay for the worker's normal number of hours per week."
10 Mrs Quigg's Counsel focuses on the words "relevant injury" in s.5A and states that the date of such "relevant injury" for the purposes of calculation of PIAWE is not the accepted date, namely 17 December 2001. He submits that s.82(2) requires an injury arising out of or in the course of the employment as well as "death of the worker". As the death did not occur until 28 June 2016, it is that date which should be used as a start to calculate the entitlement. When death occurs it is necessary to calculate the weekly pension back from the date when the worker last worked.
11 Similarly, s.86(b) refers to when "death is caused or was materially contributed to by a disease." He submits that this also reinforces his argument the relevant injury was the metastatic spread of the cancer leading to the death. He refers to the well-known workers compensation case in the High Court of Ogden Industries v Lucas (1967) 116 CLR 537. In particular he refers to the judgments of Taylor J at p.571, and Owen J at 597. In the latter citation Owen J stated :-
"I am of the opinion that it is when the death of the worker occurs that the liabilities incurred by the employer to compensate those, if there be any, who are found to be his dependants and the right to compensation vests and that it is the law in force at the time of the death that is to be applied in measuring the extent of that liability and of the corresponding rights."
12 He submits that the majority referred to the Workers Compensation Act 1958 as looking forward in its operation to contemplate the occurrence of events after the time of injury (in particular, see the judgment of Taylor J at p.577). He submits that there is support for this from the Victorian Supreme Court of Appeal in a Transport Accident Commission case, TAC v Lanson & Dale [2001] VSCA 84 at [39-41], in which reference was made to Ogden Industries v Lucas in the following terms :-
"In Ogden the High Court held by a majority (of three to two) that when death followed upon injury in compensable circumstances, liability in the employer to pay workers compensation to dependents arose at the death and not earlier, thereby attracting the rates of compensation in place at that later time, and the majority view was upheld on appeal to the Privy Council."(emphasis added)
13 Further, the indexation provisions in s.100 evidence the Act seeks to ensure that the compensation bears the same relationship to the earnings that a deceased had at the time of death, rather than the time of the contraction of the disease (see, Turnbull v North Eastern Ready Mixed Concrete [2008] VCC 1711 esp. at para 27, per Judge Coish).
14 In that case His Honour was dealing with a worker who developed silicosis after last being exposed to hazardous dust in 1989. He worked in other jobs until 2004 when the silicosis incapacitated him. In that case His Honour held that the "requisite date of injury" was November 2004.
15 In his oral submissions before me, Counsel largely repeated the matters that I have set out. However, he also referred to the decision of Ashley JA in Grech v Orica (2006) 14 VR 602, especially at paras. 74 and 77.
16 He submits that decision, involving a s.134AB application for a serious injury certificate, adds support for his contention that “injury” has a different meaning depending on where it appears in the Act, for example, the impairment provisions in s.98C (on stabilization) and weekly payments (when incapacity arises).
17 At para. 74 Ashley JA stated :-
"Pre-injury average weekly earnings have always been calculated by reference to the worker's earnings at the time of the incapacitating symptoms."
18 That completes my summary of the submissions on behalf of Mrs Quigg.
19 Counsel for Northend also tendered written submissions and spoke further to those submissions before me.
20 He noted that if the worker had in fact made a claim for treatment expenses and any resulting incapacity at the time of noticing the changes to the mole, he would have been entitled to claim weekly payments based on the PIAWE as at 17 December 2001.
21 It was not disputed that the metastases were secondary, arising from the primary melanoma. Thus, they were not fresh compensable injuries. He submitted that any claim for weekly payments made in the worker’s lifetime would have been assessed on the basis of PIAWE for the 12 month period to 17 December 2001.
22 He submitted the calculation of weekly payments pursuant to s.93C and the weekly pension payments pursuant to s.92B are both calculated with regard to the worker's PIAWE. There is only one such definition in the Act in s.5A to the effect that such is "the average weekly earnings during the 12 months or lesser period preceding the relevant injury" (emphasis added). As neither the death nor the secondary metastases were separate compensable injuries, PIAWE are limited to his earnings prior to 17 December 2001.
23 The submission by Mrs Quigg's counsel that there are two separate PIAWE calculations, one for weekly payments and one for pension payments has no basis in the legislation. He submits that the Second Reading Speech in respect of the legislation introducing the weekly pension payments for dependency death claims (in about 1997), confirmed that the pension is payable based on PIAWE (as defined) rather than on earnings in the period up to the date of death.
24 He submitted there were powerful policy arguments against the decision taken by Mrs Quigg's counsel as to calculating pension payments on the basis of the period leading up to the death. In the present case the deceased had continued working for other employers at a higher wage. Other deceased workers who may not have worked for a lengthy time in the relevant period up to some fatal complication or death or worked at a lower wage for other employers. If counsel's argument was accepted, the dependents of those deceased workers may be significantly disadvantaged.
25 He submits that the decision in Ogden Industries v Lucassupports the defendant's argument confirming the distinction between compensable injury and the subsequent complication of that injury leading to death as not being a new compensable injury. Otherwise, it merely deals with the issue of retrospectivity in relation to an amendment increasing entitlement between injury and death.
26 In relation to opposing counsel's reference to Turnbull, he submitted that case was distinguishable. Unlike in the present case, that worker had no symptoms entitling him to compensation up to 2004 which became the declared state of injury. In the present case, all the factors giving rise to an entitlement to some compensation under the Act were known by 2002 when the melanoma was diagnosed.
27 He submitted Turnbullwas wrongly decided anyway and that I should prefer the judgment in Stevens v Alcoa [2002] VCC 7, per Judge Hicks. I will discuss that case later in the course of my decision.
28 He also referred to ACC v Tilley [1992] 2 VR 499 a "gradual process" case involving a back injury, as to which the material date of injury was held to be the last date of the implicated employment.
29 More recently in Alcan Gove v Zabic(2015) 325 ALR 1, the High Court considered the issue as to when the cause of action arose in a mesothelioma case. The court determined this was when the initial mesothelial changes occurred, being shortly after inhalation of asbestos, rather than the later date of complication. This case supports the proposition the date of injury as being 17 December 2001 in the present case.
30 He submitted parliament had determined whether indexation should be applied to weekly pension payments. Clearly, parliament applied indexation to lump sum payments payable on death but not to the weekly pension (see, s.100(2B)(a) of the Act). He submitted this court should not go beyond the clear intentions of, and enacted by, parliament.
31 Finally, he emphasised the difference between a compensable injury and the sequelae of such. He submitted that the sequelae of a compensable injury forms part and parcel of the original injury. Although an injured worker is entitled to receive compensation benefits for the sequelae of an injury, that entitlement is not separate to the original injury. This can be particularly seen in 130 week termination cases. In a back injury case the development of later referrable sciatic symptoms does not give rise to a separate 130 week entitlement, but rather is considered as part and parcel of the entitlements from the original back injury.
32 Further support for this principle can be seen in the “black hole” serious injury cases, for example Altona Bus Lines v Lococo [2002] VSCA 159.
33 In his oral submissions he referred in some detail to opposing counsel's reference to the dicta in Ogden Industries v Lucas. The High Court considered a case involving a death due to pulmonary oedema arising from cardiac disease in the context of the definition of “disease”. The court rejected the notion that the pulmonary oedema should be treated separately from the larger disorder for the purpose of considering a disease. In fact, they were at times scathing of that proposition (see, per Barwick J at p.569 and Windeyer J at p.592).
34 In his Reply, Counsel for Mrs Quigg noted that there was no definition in the Act of the words "relevant injury" in the definition of PIAWE. Also, the definition of “disease” in s.5 states that it treats disease, "as if" it were an injury rather than "is an injury."
35 Although there was some temporary incapacity in 2001, once that incapacity receded the criteria capable of fulfilling a s.92B entitlement could not be met until such time as the condition remanifested in 2014, causing what he referred to as "the terminal incapacity”.
36 He rejected the notion stated by opposing Counsel that he submitted there was a “new injury” at or about the time of death. Rather, he submits that the sequelae constitute the gradual development of the disease and the entitlements that go with that gradual development only "crystallise" at the time of the “terminal incapacity”. That is in accordance with the definition of disease in the Act.
37 He refers to the definition of “dependent partner” in s.92A (which is adopted in s.92B) as "a partner who is, or would be but for the incapacity of the worker due to injury, wholly or mainly dependent on the worker's earnings."
38 He says that by reason of this definition the fact of dependency is calculated as at the date the worker became “terminally incapacitated”. This supports the interpretation that the rate of pension calculated in accordance with s.92B refers to the rate of earnings at the time the worker became “terminally incapacitated”.
39 He submits the words "relevant injury" were used deliberately to allow the adaptation of the PIAWE rate to the circumstances of a worker and his/her injury or disease.
40 He submits that Ashley JA in Grech v Orica (supra) at para.71 held that "injury" has a multiplicity of earnings within the meaning of the Act stating:-
"It would be wrong in principle to necessarily equate injury with the development of symptoms."
41 He submits that this is relevant in the present case where the worker experienced only transitory effects at the time of the "initial injury", but more significant effects in 2015.
42 He refers to Ashley JA's statement at para. 77 that :-
"It has long been the law that the effect of such provision is not to be read down by difficulty in applying the provisions to do with quantification."
43 And further at para. 74 that :-
"Practical provisions should be found to the problem presented by the circumstances of the individual case."
44 Finally, he submitted that Zabic is wholly different to the present case.
45 As to Grech v Orica, Counsel for Northend points out that Ashley JA did make the point that compensable injury can occur but may not have present consequences yielding an entitlement. In fact, an injury may never have such consequences (see, paras. 57 and 62).
46 That completes my summary of both Counsels' submissions.
47 Before going to my reasons for decision, I should comment on a principle of statutory interpretation as put by Counsel for Mrs Quigg. He submitted that as the Act was remedial legislation, any ambiguities should be resolved in favour of an injured worker, probably referring to such cases as Dodd v Executive AirServices [1975] VR 668, at 679 and 682.
48 However, a court first need be satisfied that there is such an ambiguity (see, Bird v Commonwealth (1988) 78 ALR 469 at p.472.
49 Further, more recently in DLZ v TAC [2017] VSC 176 at para.88, Kaye J stated in relation to the Transport Accident Act that :-
"Certainly the remedial nature of the legislation does not provide any warrant for the court to rewrite the provisions in the Act or to adopt a construction which is artificially or unduly strained. Insofar that there may be deficiencies in the legislation the remedies for those deficiencies must be a remedy for parliament not for the court."
50 As I have stated, the dependency weekly pension provisions were introduced into the Act some 20 years ago. Neither Counsel referred to any previous decision involving this point as to the calculation of PIAWE in these circumstances. The lack of any such decisions may well be for good reason.
51 I believe the relevant legislative provisions are relatively clear and straightforward. I see no ambiguity or need to go into secondary dicta in such cases as Ogden Industries v Lucas, that case being primarily concerned with the issue of retrospectivity in amending legislation.
52 In this case I agree with most, if not all, of the arguments advanced by Counsel for Northend in this case.
53 Counsel for Mrs Quigg accepts that the date of injury in this case is 17 December 2001. In those circumstances the definition of PIAWE should then be applied and the pre-injury average weekly earnings be calculated for the 12 months or relevant lesser period prior to that date.
54 Counsel for Mrs Quigg points to the unfairness of this interpretation in his client’s case given the fact that her late husband died some 15 years after the date of injury. That may well be fair comment.
55 However, as Counsel for Northend points out, that if in fact a worker had not worked at all for a very long period prior to some fatal complication or death or worked at a much lower wage, on opposing Counsel's argument the dependants may be significantly disadvantaged. As Kaye J has pointed out, any deficiencies are a matter for parliament and not for the court.
56 Counsel for Mrs Quigg advances a number of arguments and raises some concepts which I believe have no basis in the legislation. Substantially, I believe he confuses a number of established concepts in the Act, especially the separate concepts of injury, its consequences (for example incapacity, impairment or death), the concept of entitlement and the time and calculation of that entitlement.
57 In some cases all those concepts will arise and be relevant at the same time, for example in circumstances where a worker dies in a fall at work. However in such cases involving a “gradual process” or “industrial disease”, by their very nature the relevant concepts do not arise at the same date.
58 Counsel accepts that the "initial injury" occurred on 17 December 2001, but the court should consider the development of the sequelae metastases leading to the death. I agree with that statement. However, there is no warrant in the Act that the consequential "terminal incapacity" to use his own words, allows calculation of actual earnings at a date prior to, or at the date of, death. The notion of “terminal incapacity” has no basis in the Act in these circumstances or indeed at all.
59 Simply, I believe he confuses the date of entitlement to s.92B payments with the date/dates of quantum and calculation of such entitlement. He submits that the use of the words "relevant injury" in the definition of pre-injury average weekly earnings allows for the notion that disease or injury may change over time, deteriorate and possibly lead to death.
60 I see no basis for that submission. In any event the development of sequelae does not mean that the date of injury stretches or changes beyond that date of the primary injury. Gradual process or disease-type injuries have their own deeming provisions. This is for good reason.
61 Obviously, it will often be difficult to establish a work injury using the normal provisions of the Act, for example proving that exposure to asbestos in a particular employment did in fact result in a specific injury at a particular time. Alternatively, a person exposed to a deleterious substance every day in a specific employment may in fact have a separate work-related injury on each such date of employment.
62 The “gradual process” and “industrial disease” provisions get around these problems by deeming a date of injury as at a particular date and in particular circumstances.
63 It is quite another matter to say that the symptoms or sequelae of diseases extend the end-date to or at which the entitlement to a weekly payment is calculated. There should be no confusion between the later occurrence of sequelae of an accepted injury and the date of injury giving rise to those sequelae and subsequent death.
64 As I stated, Counsel's reference to a concept of “terminal incapacity” has no basis in the Act. Also, he submits that the entitlement to weekly payments do not "crystallise" until death. Again, I cannot see the basis of that concept in the Act.
65 He then uses the "average weekly earnings" in a different employment as at a date ten months prior to the death for the calculation of PIAWE on the basis the “relevant injury” refers to and includes incapacity. Again, I see no basis for such a proposition in the Act.
66 Similarly, his reference to the definition of “dependent partner” being calculated as at the date the worker became “terminally incapacitated” has no basis in the Act as well.
67 He submits that pursuant to that definition, the fact of dependency is calculated as at the date the worker became "terminally incapacitated". I have major reservations on that submission. In any event, I do not accept that such submission, even if correct, supports the interpretation that the rate of pension calculated in accordance with s.92B refers to the rate of earnings as at the time of the worker became “terminally incapacitated”.
68 Overall, I believe that the Counsel for Mrs Quigg submission tries to bend and contort the provisions of the Act to this particular case, rather than address the relatively clear and straightforward provisions in the Act.
69 Finally, I respectfully agree with the analysis by Judge Hicks in Stevens v Alcoa (supra) in a case involving bladder cancer being due to the nature of employment. His Honour held that the deemed date of injury was the last date of the implicating employment occurring in about early 1988, and not on any later date including the date of diagnosis of that bladder cancer in March 2000.
70 Overall, I determine that the PIAWE for weekly pension purposes should be calculated over the relevant period prior to the nominated date of injury, namely 17 December 2001.
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