Robert Porter v Workcover Authority of New South Wales

[2011] NSWDC 108

District Court

New South Wales

Medium Neutral Citation:	Robert Porter v Workcover Authority of New South Wales [2011] NSWDC 108
Decision date:	07 July 2011
Jurisdiction:	Civil
Before:	Cogswell SC DCJ
Decision:	Verdict and judgment for the defendant
Catchwords:	CIVIL LAW - plaintiff claims entitlement to both worker's compensation and damages - plaintiff suffered injury after attending State Emergency Service conference - paid compensation by WorkCover as a result of injury under Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 - also sued State Emergency Service for damages in negligence - claim settled - insurer for the defendant paid to Workcover from the settlement money the amount the plaintiff had received in compensation - whether WorkCover and the State of NSW both the Crown - interpretation of s 151Z Workers Compensation Act 1987 - identity of "person other than the worker's employer" liable to pay damages in respect of an injury
Legislation Cited:	Crown Proceedings Act 1988 s 3, s 5(a) Environmental Trust Act 1988 s 5 Interpretation Act 1987 State Emergency Services Act 1989 s 7(1) Sydney Olympic Park Authority Act 2001 s 5 Workers Compensation Act 1987 s 151A, s 151Z Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 s 32 Workplace Injury Management and Workers Compensation Act 1988 s 14
Cases Cited:	Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SAS Trustee Corporation v Budd [2005] NSWCA 366 State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 Tamerji v Rhee (2008) 73 NSWLR 1 Turner v George Weston Foods Limited (2007) 4 DDCR 571
Category:	Principal judgment
Parties:	Robert Porter Workcover Authority of New South Wales
Representation:	Mr BG McManamey for the plaintiff Mr NE Chen for the defendant
File Number(s):	2010/243682

Judgment

1. Robert Porter was injured in circumstances where he argues that he is entitled both to worker's compensation and to damages. That double entitlement would make his case different to the vast majority of workers who are injured in New South Wales. Mr Porter however, through his counsel Mr B.G. McManamey, has presented a very plausible argument to support the proposition that he is entitled to keep both his compensation and his damages. The purpose of this judgment is to resolve whether or not that argument should be accepted.

2. In this case Mr Porter is suing WorkCover Authority of New South Wales which I will call WorkCover. He is suing for money had and received.

3. Mr Porter claims that he was injured on 4 March 2006 after attending a conference at the State Emergency Service. He was himself, to his credit, a volunteer with the State Emergency Service. As a result of his injury Mr Porter was paid compensation. The compensation was paid under particular legislation concerning volunteers working for such agencies. In this case, the legislation was the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. He was paid over $94,000 in compensation.

3. As a result of the injury Mr Porter also sued the State Emergency Service for damages in negligence. That claim was settled. What then happened was that the insurer for the defendant in the common law proceedings paid over to WorkCover from Mr Porter's settlement money the $94,000 which Mr Porter had received in compensation from WorkCover as the result of the same injury.

4. Mr Porter says that that payment did not have a legal basis so that WorkCover which he sues in this case should pay back the money as money had and received by WorkCover. WorkCover by its defence acknowledges that the money was paid but argues that the monies were paid correctly by operation of certain legislation and that it is not liable to pay the money back to Mr Porter.

5. The factual basis for the plaintiff's claim was helpfully agreed between the parties and became exhibit A. Exhibit B comprised some correspondence which indicated that the insurer which had paid over the $94,000 did so in reliance on the same legislation as was referred to in the defence.

6. There are two legal aspects of this case which involve what might be regarded as necessary legal fictions for the purposes of facilitating responsibility for payment of compensation and facilitating litigation.

7. The first legal fiction is this. Because Mr Porter was a volunteer, probably appointed under the State Emergency Services Act 1989 to work for the SES, he is not likely to be regarded at law as an employee. That may mean of course that workers' compensation legislation may not apply to him so that if he was injured in the course of his commendable voluntary activities, he may not be compensated. That is probably one of the explanations for the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. It provides for compensation to be paid to fire fighters and emergency service workers. It adopts by s 32 much of the relevant workers' compensation legislation. The legal fiction emerges in that instead of regarding in Mr Porter's case the State Emergency Service as his employer s 32(2)(b) of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act provides that in any relevant workers' compensation legislation " a reference to the employer of a worker " should be read as a reference to WorkCover. Hence, provisions in that Act refer to fire fighters or emergency service workers being entitled to receive compensation rather than an employer being obliged to pay compensation.

8. The second legal fiction is one whose purpose appears to be to facilitate the conduct of litigation. It is provided for in the Crown Proceedings Act 1988. Section 3 of that Act says that any person who has " any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title 'State of New South Wales' in any competent Court ". In this case when Mr Porter sued for damages in negligence for his injuries he named as the defendant the " State Emergency Service ". That Service is itself set up by the State Emergency Services Act 1989, s 7(1) of which provides that there " shall be a State Emergency Service of New South Wales ". The section goes on to provide that the Service is to comprise " the Commissioner, Deputy Commissioner and other staff of the Service " and " the volunteer officers and volunteer members of all SES units ".

9. But for the Crown Proceedings Act the naming of a defendant in Mr Porter's common law proceedings may have had its difficulties. He may have had to sue the Commissioner and Deputy Commissioner and the staff. Indeed, he himself as a volunteer officer was part of the State Emergency Service.

10. The amended defence filed on behalf of the State Emergency Service pleads in paragraph one that the defendant " is liable to be sued as 'State of New South Wales' pursuant to s 5(a) of the Crown Proceedings Act 1988 ." That correctly reflected the provisions of the State Emergency Service Act , whose purpose is obviously to avoid difficulties associated in naming a defendant in proceedings against the Crown.

11. The Crown could be, and is in a case such as this, an individual or a series of persons. It is notable also that the consent judgment entered in the common law proceedings provided that the " name of the defendant be amended to The State of New South Wales."

12. I come now to approach Mr Porter's plausible argument for being able to keep both his compensation and damages. One of the provisions of workers' compensation legislation adopted by the Workers Compensation (Bushfire, Emergency and Rescue Services) Act is s 151Z of the Workers Compensation Act 1987. It is the interpretation of that section which this case is about. It broadly sets out a scheme whereby if a worker is injured in the course of their employment and entitled to receive compensation, but the same injury gives rise to a liability in a person other than the employer to pay damages, then the compensation must be paid back to the employer.

13. The basis for the repayment is set up in the introduction to s151Z(1) which provides as follows-

" Section 151Z(1) : If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury the following provisions have effect ."

The provisions referred to as " following " specify that the worker is " not entitled to retain both damages and compensation " and ways in which that entitlement or lack of entitlement should be worked out.

14. It is those introductory words to s 151Z(1) which Mr McManamey fixes on in order to argue that his client is entitled in this case to keep his compensation as well as his damages. The argument is attractively simple.

15. Mr Porter's employer in this case is deemed to be WorkCover. I have already referred to that. What I have not referred to and which becomes important is the identity of WorkCover. WorkCover is established under the Workplace Injury Management and Workers Compensation Act 1998. Section 14 of that Act constitutes " a corporation with the corporate name of the WorkCover Authority of New South Wales ." The section goes on to provide that WorkCover is, for the purposes of any Act, " a statutory body representing the Crown ." Hence Mr McManamey argues that, by the very terms of that Act, WorkCover can be regarded as the Crown.

16. Not only that, but by the terms of the Crown Proceedings Act, s 3 defines " Crown " as meaning " the Crown in right of New South Wales" and includes "a statutory corporation, or other body, representing the Crown in right of New South Wales ".

17. Thirdly, Mr McManamey argues that WorkCover is clearly the Crown if one looks at its operation, purpose and function as the High Court did with the State Bank of New South Wales in State Bank of NSW v Commonwealth Savings Bank of Australia ( 1986) 161 CLR 639. I think he is right for all of those reasons. It is quite clear, it appears to me, that WorkCover is the Crown.

18. Mr McManamey next focuses on the identity of the " person other than the worker's employer " liable to pay damages in respect of the injury. That is clearly, he argues, the State of New South Wales. So much is obvious by the terms of the consent judgment in the common law proceedings and again the Crown Proceedings Act . Once again I think he is right in that argument.

19. The next step in his argument is the plausible one. Well, he says, the worker's employer is the Crown and the person liable to pay damages is in the Crown. The provisions of s 151Z of the adopted Workers Compensation Act only apply if the compensable injury " was caused under circumstances creating a liability in some person other than the worker's employer to pay damages ." It is not, says Mr McManamey, some other person at all. Both the worker's employer and the person liable to pay damages are the Crown. Hence s 151Z does not apply in his client's case and there was no statutory source of power for the insurance company to remit the $94,000 to WorkCover and WorkCover is liable to pay it back as money had and received.

20. Mr N.E. Chen of counsel who appeared for the defendant resisted this argument on a number of bases. One basis was to argue that Mr Porter does not have available to him the cause of action of money had and received. Another basis is that Mr McManamey's interpretation would clearly defeat the purposes of s 151Z. Those purposes he correctly pointed out have been referred to a number of times in the Court of Appeal. One of the more recent references is in Tamerji v Rhee (2008) 73 NSWLR 1, where at [38] Campbell JA, with whom Beazley and Ipp JJA agreed, said as follows:

" In Turner v George Weston Foods Limited ; (2007) 4DDCR 571

I considered the construction of section 151Z(1) and concluded (at 580 [37]):

'The whole of section 151Z(1) can be seen as the means of achieving two objectives. The first is that, where an injured worker has a right to receive compensation from his or her employer, and also has a right to receive damages from some other person whose fault has caused the injury, it should be the person whose fault caused the injury that ultimately bears the cost of providing a remedy to the worker for that injury, up to the full amount of the damages for which that wrongdoer is liable. The second is that the injured worker should not be able to retain both the compensation and the damages, and thereby be doubly compensated. '"

His Honour pointed out that in Turner v George Weston Foods , Beazley and Hodgson JJA agreed with him.

21. Mr Chen referred me to another decision of the Court of Appeal in SAS Trustee Corporation v Budd [2005] NSWCA 366, where Mason P, with whom Handley and McColl JJA agreed, said in the context of another statute that a particular interpretation " would be destructive of its evident purpose of preventing double compensation " (at [31]).

22. Mr Chen reminded me of what McHugh, Gummow, Kirby and Hayne JJ had said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 ([69])-

" The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute ."

A purposive construction is also provided for by this State's Interpretation Act .

22. As plausible and attractive as Mr McManamey's argument is, I do not accept it. He is in a sense right. Both WorkCover and the State of New South Wales are the Crown. But s 151Z operates, in my opinion, at a level of fixing liability to pay damages and compensation. It seems to me that there can be different persons within the Crown. The Crown Proceedings Act acknowledges as much in its definition of Crown in s 3. Although both may be regarded as the Crown, a minister and a statutory corporation are different persons.

23. Where the focus of the legislation differentiates between a person whose liability is to pay compensation and a person whose liability is to pay damages the existence of different persons within the Crown becomes important. For example, if an employee of the Environmental Trust, a statutory body representing the Crown constituted by s 5 of the Environmental Trust Act 1998, is injured in circumstances creating a liability in the Environmental Trust to pay compensation and a liability in, say, the Sydney Olympic Authority, a statutory body representing the Crown constituted by s 5 of the Sydney Olympic Park Authority Act 2001, to pay damages, then although both can be regarded as the Crown to my mind the purpose of the legislation would be defeated if the injured employee were able to keep both damages and compensation.

24. Mr McManamey's argument understandably fixes on a general identity which certain persons share, whereas, in my opinion, the legislation fixes on particular identities which differentiate those persons. It is those particular identities which become the subject of the different liabilities and which are the focus of this legislation. The acceptance of Mr McManamey's argument would create, in my opinion, a large pool of workers who would become entitled to a windfall double compensation contrary to the purposes of the provision, because they happened to be injured in the course of their employment for some emanation of the Crown in circumstances which created a liability in some other emanation of the Crown to pay them damages. I do not see any statutory intention to create such a pool nor can I see any policy reasons for such a pool.

25. In this case the particular identities may be viewed in this way. The plaintiff was working for the SES which appears to be a service comprising, as I have said, a Commissioner, Deputy Commissioner, other staff as well as volunteers. It is, or they are, sued under the title " State of New South Wales ". The service is not a statutory corporation. WorkCover is a statutory corporation. The only way that the State of New South Wales can be a defendant in the common law proceedings and therefore liable to damages is because the SES is not a statutory corporation - see s 5(1) of the Crown Proceedings Act. It is the SES which, under the title State of New South Wales for the purposes of litigation, is liable to pay damages. It is a different person from the statutory corporation WorkCover which is liable to pay compensation. The fact that they are different persons is hardly surprising. They were created by different statutes and for different purposes.

26. Finally I should make mention of one other argument which Mr McManamey advanced. He said that Parliament had adopted into the Workers Compensation (Bushfire, Emergency and Rescue Services) Act s 151Z of the Workers Compensation Act , but not s 151A which provides for circumstances where " a person recovers damages in respect of an injury from the employer liable to pay compensation ". That indicates a Parliamentary intention, Mr McManamey argues, to differentiate between the circumstances. In my opinion the reason that s 151A was not adopted was because the employer in this case, by the statutory fiction, is WorkCover whereas the person injured would be working for the State Emergency Service or one of the other agencies.

27. For those reasons I am of the opinion that Mr Porter cannot succeed in his proceedings and I dismiss the proceedings. I enter a verdict and judgment for the defendant.

HIS HONOUR: Where do we go from there? Yes, Mr Dolan?

DOLAN: Your Honour, I think costs would follow the event.

HIS HONOUR: I think you are right.

Ms King is there any reason why costs should not follow the event?

KING: No, your Honour.

HIS HONOUR: I can't think of any.

28. The plaintiff should pay the defendant's costs of the proceedings.

ADJOURNED

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Decision last updated: 26 August 2011