Rogers v State of Victoria
[2011] VSC 298
•30 June 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 756 of 2011
| ELLEN VERONICA ROGERS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2011 | |
DATE OF JUDGMENT: | 30 June 2011 | |
CASE MAY BE CITED AS: | Rogers v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 298 | |
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ACCIDENT COMPENSATION – Occupiers liability – Personal injury arising out of or in the course of jury service – Juries Act 1958, s 50H – Juries Act 1967, s 59 – Juries Act 2000, s 55 – Workers Compensation Act 1958, ss 5, 30, 62 and 79 – Accident Compensation Act 1985, s 134AB.
STATUTORY INTERPRETATION – Words and phrases – “Same legal effects as follow from the payment of compensation” – Juries Act 2000, s 55(10).
PRACTICE AND PROCEDURE – Trial of a preliminary question – Whether a person who suffers personal injury arising out of or in the course of jury service needs to comply with the serious injury requirements of s 134AB of the Accident Compensation Act in order to be entitled to recover damages – Application for summary judgment by defendant – Supreme Court (General Civil Procedure) Rules 2005, rule 47.04.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.J. Keogh SC with Mr A.D. Clements | Ryan Legal |
| For the Defendant | Mr J.P. Gorton | Victorian Government Solicitors Office |
HIS HONOUR:
Introduction
On 18 November 2008, Ellen Veronica Rogers, the plaintiff, was present at the Mildura Court Complex (“the premises”) performing jury service. The State of Victoria, the defendant, is the owner and occupier of the premises. Additionally, at all relevant times, the premises were managed and controlled by employees of the defendant.[1]
[1]See paragraphs 2, 3 and 4 of the plaintiff’s statement of claim and paragraphs 2, 3 and 4 of the defendant’s defence.
In this proceeding, the plaintiff claims damages from the defendant for injuries she alleges she sustained when she fell off the edge of a concrete ramp at the premises on 18 November. Subsequent to the alleged accident, the plaintiff has claimed and received compensation for her injuries pursuant to the provisions of the Juries Act 2000.
By its defence the defendant puts a number of matters in issue and pleads, amongst others, an affirmative defence in relation to the plaintiff’s receipt of compensation under the Juries Act. Specifically, the defendant contends that by reason of the payment of compensation to the plaintiff, the plaintiff must comply with the serious injury requirements of s 134AB of the Accident Compensation Act 1985.[2] Further, the defendant pleads that the plaintiff is not entitled to recover damages in this proceeding because of what the defendant contends is a failure by the plaintiff to comply with these serious injury requirements. Under the heading “Failure to comply with serious injury requirements” in paragraph 9 of its defence, the defendant pleads:
[2]For proceedings to which s 134AB applies, a plaintiff can satisfy the serious injury requirements of that section in one of three ways: first, by obtaining a relevant impairment assessment of 30% or more; secondly, by obtaining the consent to the issuing of common law proceedings from the Victorian WorkCover Authority or the relevant self-insurer; and thirdly, by obtaining the leave of a court, other than the Magistrates’ Court, to the bringing of proceedings.
“9.1By s 55(10) of the Juries Act, if a payment of compensation is made to or in respect of a person pursuant to Part 8 of the Juries Act, such payment has the same legal effects as follow from the payment of compensation under the Accident Compensation Act 1985 (Vic) (the ACA).
9.2By s 134AB(1) of the ACA, if a payment of compensation is made to or on behalf of a person pursuant to the provisions of the ACA, that person shall not recover damages for pecuniary or non-pecuniary loss except in accordance with s 134AB of the ACA.
9.3Payments of compensation in respect of medical and like services have been made to and on behalf of the plaintiff pursuant Part 8 [sic] of the Juries Act.
9.4The degree of impairment of the plaintiff resulting from the injuries alleged therein has not been assessed under s 104B of the ACA.
9.5The Victorian WorkCover Authority has not issued to the plaintiff a certificate in writing consenting to the bringing of proceedings for the recovery of damages in respect of the injuries alleged therein.
9.6A court has not given leave to the plaintiff to commence proceedings for the recovery of damages in respect of the injuries alleged therein.
9.7The plaintiff has not suffered a serious injury within the meaning of s 134AB of the ACA.
9.8By reason of the facts alleged in paragraphs 9.3 to 9.7 above, by s 55 of the Juries Act and ss 134AB(1) and (16) of the ACA the plaintiff may not bring proceedings for the recovery of damages in respect of the injuries alleged therein.”
On 10 June 2011, pursuant to rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005, the Court ordered there be a trial of the following preliminary question:
“Does the plaintiff need to comply with the serious injury requirements of s 134AB of the Accident Compensation Act in order to be entitled to recover damages in this proceeding?”
The defendant contends that the preliminary question should be answered “Yes” and, that as a result of the plaintiff’s failure to comply with the serious injury requirements, there should be summary judgment for the defendant. Whilst the plaintiff admits that she has not complied with the serious injury requirements, she contends that the preliminary question should be answered “No” and that paragraphs 9.1 to 9.8 of the defendant’s defence should be stuck out. Before proceeding further, it is necessary to examine the relevant legislative provisions.
The Juries Act 2000
The provisions dealing with the compensation of jurors who suffer injury arising out of or in the course of jury service are contained in Part 8 (ss 54 to 59) of the Juries Act. Section 55(1) provides for the payment of compensation to a person who suffers personal injury arising out of or in the course of jury service. Section 55(10) provides that if compensation is paid under Part 8 of the Juries Act, “the payment has the same legal effects as follows from the payment of compensation under the Accident Compensation Act”. Specifically, ss 54 to 59 of the Juries Act are in the following terms:
“54. Definition
In this Part, Authority means the Victorian WorkCover Authority under the Accident Compensation Act 1985.
55. Compensation for injury during jury service
(1) If a person suffers personal injury arising out of or in the course of jury service, compensation is to be paid in accordance with this Part.
(2) An injury is deemed to arise out of or in the course of a person’s jury service if the injury occurs while the person-
(a) is in attendance at a pool of jurors or at a court or place, in response to a summons or other lawful direction; or
(b) having been present at a pool of jurors, court or place on a day, is temporarily absent on that day from the pool, court or place during an adjournment of the court or with the express permission of the court or the Juries Commissioner and, during the absence, does not voluntarily subject himself or herself to any abnormal risk of injury;
or
(c) is travelling between his or her place of residence, business or employment and the pool, court or place where the person is required to attend for jury service, but not during or after a break in the person’s journey which the Authority, the County Court or the Magistrates’ Court considers would ordinarily have materially added to the risk of injury.
(3) For the purposes of this section, service as a juror includes attendance at a pool of jurors or at a court or place in response to a summons to attend for jury service, whether or not the person so attending-
(a) is qualified and liable for jury service; or
(b) is excused by the court or Juries Commissioner from further attendance; or
(c) is sworn as a juror; or
(d) is empanelled on a jury-
but does not include attendance by a person who has knowingly made an untrue or misleading statement in a questionnaire in respect of which the person has been recorded as liable for jury service.
(4) The person to whom or for whose benefit compensation is payable are those persons to whom or for whose benefit compensation would be payable under the Accident Compensation Act 1985 if-
(a) the person attending for jury service were a worker within the meaning of that Act; and
(b) the personal injury were caused in the person's employment arising out of or in the course of the employment.
(5) A claim for compensation under this section must be made to the Authority in accordance with this Part.
(6) All matters relating to compensation must be determined in accordance with this Part by the Authority, the County Court or the Magistrates’ Court, as the case requires.
(7) In making a determination in relation to any matter referred to in subsection (4), the Authority, the County Court or the Magistrates’ Court must, as far as practicable, be guided by reference to the applicable provisions of the Accident Compensation Act 1985 governing the corresponding matter in that Act.
(8) A person is not debarred from compensation in respect of personal injury caused to a person attending for jury service by reason only that the person attending for jury service was not, at the relevant time, a worker within the meaning of Accident Compensation Act 1985.
(9) For the purpose of assessing compensation, the average weekly earnings of a person attending for jury service is to be computed by the Authority, the County Court or the Magistrates’ Court-
(a) by reference to his or her employment by any employer or employers during the relevant period before the accident; or
(b) if he or she was not then working under a contract of service, on any basis that, in the opinion of the Authority, the County Court or the Magistrates’ Court, is best calculated to give the appropriate compensation for his or her loss of earning capacity-
but so that any relevant maximum limits imposed by the Accident Compensation Act 1985 are not exceeded.
(10) If compensation is paid under this Part, the payment has the same legal effects as follow from the payment of compensation under the Accident Compensation Act 1985.
(11) For the purposes of enabling the return to work of a person who suffers a personal injury while attending for jury service, the Authority may-
(a) plan the worker’s return to work under the Accident Compensation Act 1985;
(b) approve a provider of occupational rehabilitation services for the purposes of planning the worker’s return to work under paragraph (a);
(c) provide alternative assistance or programs to the worker or in respect of the employment of the worker.
(12) Any costs and expenses incurred as a result of subsection (11) are to be paid by the Authority under section 59(2) as if the costs and expenses were a payment of compensation and section 59(3) applies accordingly.
56. Compensation otherwise payable
If a person is entitled to compensation in respect of personal injury otherwise than in accordance with this Part, there is payable to that person the amount, if any, by which the amount of compensation in respect of the injury determined under this Part exceeds the amount to which the person is entitled.
57. Jurisdiction
If any question or matter arises under this Part, the County Court and the Magistrates’ Court have, under this Act, the same jurisdiction to hear and determine the question or matter as if it were a question or matter arising under the Accident Compensation Act 1985 and that Act applies with the necessary adaptations and modifications.
58. Authority to represent Crown
In all proceedings under this Part, the Authority represents the Crown and has the same powers, rights and authorities as the Authority has under the Accident Compensation Act 1985 in regard to the corresponding matter relating to a worker under that Act.
59. Payments
(1) The Authority is entitled to the reimbursement of its reasonable costs and expenses incurred in representing the Crown under section 58.
(2) The Authority must make any payment of compensation under this Part out of the WorkCover Authority Fund under the Accident Compensation Act 1985.
(3) There is to be paid into the WorkCover Authority Fund out of the Consolidated Fund, which is to the necessary extent appropriated accordingly-
(a) the amounts to be reimbursed under subsection (1); and
(b) the amount of any payments under subsection (2).”
The Accident Compensation Act 1985
Section 134AB governs the entitlement of workers who are or may be entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999, to recover damages. Sections 134AB(1) and (2) relevantly provide:
“(1) A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999-
(a) shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except-
(i) in accordance with the Transport Accident Act 1986 and subsections (25)(b), (26) and (36)(b) of this section; or
(ii) in proceedings of a kind referred to in section 134AA(b) and in accordance with subsections (25)(b), (26) and (36)(b) of this section;
or
(iii) if subparagraphs (i) and (ii) do not apply, as permitted by and in accordance with this section; and
(b) shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except-
(i) in proceedings of a kind referred to in a paragraph of section 134AA and in accordance with subsections (25)(a), (26) and (36)(a) of this section; or
(ii) if subparagraph (i) does not apply, as permitted by and in accordance with this section.
(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.”
The expression “worker” is defined in s 5 of the Accident Compensation Act to mean:
“(a) a person (including a domestic servant or an outworker) who has entered into or works under a contract of service or apprenticeship or otherwise with an employer whether by way of manual labour, clerical work or otherwise and whether the contract is express or implied, is oral or is in writing;
(b) a person who under this Act is deemed to be working under a contract of service;
(c) a person who under this Act is deemed to be a worker;
(d) if a student at a school within the meaning of Part 5.4 of the Education and Training Reform Act 2006 is employed under an arrangement under that Part-that student whilst so employed; or
(e) if a student of a TAFE provider is employed under a practical placement agreement under Part 5.4 of the Education and Training Reform Act 2006-that student whilst so employed-“
Section 134AB(3) requires a determination of the worker’s degree of impairment to be made under s 104B of the Accident Compensation Act. If the degree of impairment of the worker is 30% or more (as assessed under the Accident Compensation Act), then the plaintiff has a serious injury within the meaning of s 134AB, and can commence proceedings in accordance with the Accident Compensation Act. If the degree of impairment of the worker is less than 30%, then s 134AB(16) permits the commencement of common law proceedings if the Victorian WorkCover Authority or a self-insurer issues a certificate consenting to the bringing of proceedings; or a court, other than the Magistrates’ Court, gives leave to the bringing of proceedings (these provisions and s 134AB(2), collectively, being called “the serious injury requirements” of s 134AB of the Accident Compensation Act).
The history of s 55(10) of the Juries Act 2000
As pleaded and argued, significant reliance was placed by the defendant on s 55(10) of the Juries Act 2000. Specifically, it was contended that if a juror is paid no fault benefits in accordance with Part 8 of the Juries Act then s 55(10) has the effect of importing, with the payment of such benefits, the restrictions on common law damages set out in the Accident Compensation Act. Before proceeding further, it is necessary to examine the legislative history of s 55(10).
Provisions providing for the compensation of injured jurors were first enacted in Victoria by s 4 of the Juries (Amendment) Act 1961. Section 4 of that Act inserted ss 50G to 50L into the Juries Act 1958. Section 50H(9), as originally enacted, provided:
“Where compensation is paid under this Part such payment shall have the same legal effects as follows from the payment of compensation under the Workers Compensation Act.”
In the Second Reading Speech for the Bill which became the Juries (Amendment) Act 1961, the Attorney-General described the matters dealt with by the Bill as being “two different and completely unrelated matters, namely, the determination of challenges to jurors for cause and the payment of compensation to jurors for personal injury”.[3] In explanation of the new provisions that would provide compensation to jurors, the Attorney-General said:[4]
“The second matter I have mentioned, namely the provision of compensation to jurors for personal injuries is dealt with in clauses 3 and 4 of the Bill, which insert a new part –Part VIIIB- in the Juries Act. At the present time jurors are not entitled during their period of service to be paid workers compensation under the Workers Compensation Act because, as jurors, they are carrying out a duty imposed on them by law and are not working under a contract of service. They are therefore not workers within the meaning of the Workers Compensation Act. For the time they are acting as jurymen and for the time they are travelling to and from their place of jury service they are not workers in the terms of the Workers Compensation Act.”
[3]Legislative Assembly Hansard Volume 263, 7 March 1961, p 2156.
[4]Ibid, p 2157.
In answer to a question as to whether jurors were covered in the case of death while serving, the Attorney-General said:[5]
“I do not think there would be a cover unless it could be proved that there was a right against the Crown in tort. If a cleaner left some grease on the stairs to the jury room and a juror was injured or died as a result there might be a case against the Crown in tort, because of the negligence of a servant of the Crown.”
[5]Ibid.
A little further on in the Second Reading Speech, the Attorney-General noted that the Bill would make provision for the payment of compensation to jurors “on the same lines as that made by the Country Fire Authority Act 1958 in relation to casual fire fighters”.[6] However, whilst the Attorney-General noted that as far as possible the provisions of the Workers Compensation Act applied to casual fire fighters as if they were workers within the meaning of that Act when they were fighting a fire, the provisions of the Country Fire Authority Act had not been “slavishly followed” in the Bill. The Attorney-General then dealt with a number of clauses in the Bill. Whilst sub-sections 50H(1) to (8) were each dealt with individually, there was no specific reference made to s 50H(9) in the Second Reading Speech or debate.
[6]Ibid, p 2158.
Section 50H(9) was subsequently enacted in identical terms in s 59(9) of the Juries Act 1967. Section 59(9) remained in that form until 4.00pm on 31 August 1985. At 4.00pm on 31 August 1985, the expression “Accident Compensation Act 1985” was substituted for the expression “Workers Compensation Act 1958” in s 59(9) of the Juries Act 1967.[7] Subsequently, s 59(9) of the Juries Act 1967 became s 55(10) of the Juries Act 2000. The Second Reading Speeches in relation to the Juries Act 1967 and the Juries Act 2000 are not of great assistance. If anything, they show that the purpose of the successor sections to s 50H(9) (s 59(9) of the Juries Act 1967 and s 55(10) of the Juries Act 2000) was not changed when the new versions were passed. Indeed, in relation to the 1967 Act, the Attorney-General, in the Second Reading Speech, said that “In the main it [the new Act] consolidates the existing law”.[8]
[7]See s 276 of the Accident Compensation Act 1985 and Schedule 2 of that Act as originally enacted.
[8]Legislative Assembly Hansard Volume 288, 31 October 1967, p 1477 and 1482. In relation to the Juries Act 2000, see Legislative Assembly Hansard Volume 445, 16 December 1999, p 1245.
For the sake of completeness, I should note that the Parliament of Victoria has enacted a number of pieces of legislation over the years giving compensation to various classes of people, and which provisions make differing references to the Workers Compensation Act and or the Accident Compensation Act.[9] Most of these provisions were enacted at different times. Some have been amended, and all differ from each other in varying respects. Whilst some sections are repeated in some Acts, the differences in each scheme prevent one from drawing any real conclusion, from any analysis of these various enactments, as to the meaning of s 55(10) (or Part 8) of the Juries Act 2000 (or their predecessors). Indeed, whilst some reference was made in submissions to these Acts, ultimately, the parties agreed that consideration of the relevant provisions in these Acts[10] was not helpful in resolving the question in dispute in this proceeding. Having considered those Acts, I accept this submission.[11] I turn now to the defendant’s submissions concerning the proper construction of s 55(10).
[9]For example, see ss 62 to 74 of the Country Fire Authority Act 1958, as originally enacted (and now ss 62 to 65); ss 47 to 54 of the Victoria State Emergency Service Act 2005; ss 5.6.1 to 5.6.9 of the Education and Training Reform Act 2006; ss 2 to 6 of the Police Assistance Compensation Act 1968; s 110 of the Corrections Act 1986, before its repeal (and now ss 104ZO to 104ZW); and ss 25 to 35 of the Emergency Management Act 1986.
[10]The Country Fire Authority Act and the other Acts referred to in footnote 9 above.
[11]However, note:
The defendant’s submissions concerning the construction of s 55(10)
The defendant submits that an analysis of the legislative history of s 55(10) establishes an intention to give jurors the option of claiming no fault benefits and thereby being subject to associated restrictions on common law rights, or not claiming such benefits and staying outside the restrictions that come with the receipt of benefits. It was submitted that this construction prevents “what might be seen as an unfair or unintended situation where jurors who receive no fault benefits as if they were workers are treated more favourably than actual workers”, and that this construction “also continues to permit jurors to stay outside the system if they so wish”.[12]
[12]Defendant’s written submissions dated 20 June 2011 at paragraph 6.
The genesis of this construction, contended for by the defendant, comes from the terms of the Workers Compensation Act 1958 as they were at the time when s 50H(9) was introduced into the Juries Act 1958, in 1961. In 1961 (when the Juries (Amendment) Act 1961 was enacted), there were no restrictions on common law damages. Section 5(1) of the Workers Compensation Act provided that compensation would be payable, by an employer, in accordance with the provisions of that Act “if in any employment personal injury arising out of or in the course of employment is caused to a worker”. However, s 5(2) provided:
“When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible … nothing in this Act … shall affect any civil liability of the employer, but in any such case the worker may at his option either claim compensation under this Act … or take proceedings independently of this Act … but the employer shall not be liable to pay compensation for injury to a worker arising out of or in the course of the employment both independently of and also under this Act …”.
The defendant submits that when s 50H(9) was first enacted, its intention was to impose on a juror the same obligation to make an election as was imposed on workers – that is, if the juror claimed no fault benefits, then the receipt of those benefits had the “legal effect”[13] that a common law claim could not be brought. The defendant then submits that in re-enacting s 50H(9) in substantially the same terms in s 59(9) of the Juries Act 1967 and s 55(10) of the Juries Act 2000 (only changing the expression “the Workers Compensation Act 1958” to “the Accident Compensation Act 1985” on 31 August 1985) there “should be seen [to be] an intention to maintain the consequence of receipt of no fault benefits, namely that they come with the associated restrictions on common law rights that workers face”.[14] Ultimately, the defendant submits that the construction it advances gives s 55(10) meaning and effect (work to do), whereas other constructions do not. These submissions were made, notwithstanding the repeal, in 1970, of s 5(2) of the Workers Compensation Act.[15]
[13]Cf s 50H(9) of the Juries Act 1958, s 59(9) of the Juries Act 1967 and s 55(10) of the Juries Act 2000.
[14]Defendant’s written submissions dated 20 June 2011 at paragraph 25.
[15]Which repeal was noted in paragraph 22 of the defendant’s written submissions dated 20 June 2011.
Analysis
An immediate problem with the defendant’s submissions is that even in 1961 the provisions of the Workers Compensation Act 1958 were not so clear as to absolutely disentitle a worker from pursuing common law damages where workers compensation payments had been made. Section 79(1) of the Workers Compensation Act provided:
“Notwithstanding anything to the contrary in this Act, where weekly payments of compensation under this Act have been paid to a worker but no award has been made by the Board in relation thereto, the acceptance of those weekly payments by the worker shall not be deemed to be taken to be –
(a)an exercise of his option under sub-section (2) of section 5 of this Act so as to bar subsequent proceedings commenced within two years of the injury by the worker against the employer independently of this Act; or
(b)the recovery of compensation within the meaning of section 62 of this Act so as to bar proceedings commenced within two years of the injury by the worker against any person other than the employer -
but the worker shall be as free to take and prosecute any such proceedings as if such weekly payments had not been made.”[16]
However, for the sake of argument, I will accept that in 1961 (when the predecessor to s 55(10) was first enacted), the Workers Compensation Act required an injured worker to elect between either receiving workers compensation benefits or pursuing common law damages.
[16]See also s 62 of the Workers Compensation Act as in force in 1961. See further Gaede v Central Automatic Sprinklers Pty Ltd [1963] VR 631 and Portaro v Schmitt & Son Pty Ltd [1967] VR 666.
The defendant submits that in enacting s 50H(9) of the Juries Act 1958, the Parliament intended to give injured jurors an entitlement to claim no fault benefits – but at the expense of any ability they might have had to claim common law damages. This intention is then said to permeate the re-enactments of s 50H(9) in ss 59(9) of the Juries Act 1967 and 55(10) of the Juries Act 2000. With respect, the fallacy in this argument is in attributing to Parliament an intention which is too narrow and too specific. Construed in its context, s 50H(9) was, as its words suggest, intended to attach the same legal consequences to a payment of compensation under the Juries Act as were attached (and might in the future be attached) to a payment of compensation made under the Workers Compensation Act. It is that intention which has not changed both over the years s50H(9) operated, and then when s 50H(9) was re-enacted in the same terms in s 59(9) of the Juries Act 1967 and later, when re-enacted in s 55(10) of the Juries Act 2000.
In my view, there is no reason to give s 50H(9), as it was first enacted, any construction other than that which its words bear. The same should also be said in relation to s 59(9) of the Juries Act 1967 and s 55(10) of the Juries Act 2000. That is, even if the operation of s 50H(9) between 1961 and 1970 would have required an injured juror to make an election between no fault benefits on the one hand, or common law damages on the other hand, there is no warrant for permanently affixing s 59(9) of the Juries Act 1967 and s 55(10) of the Juries Act 2000 with a meaning that requires an injured juror to choose between staying out of the system (not receiving no fault benefits under the Juries Act) and being entitled to unrestricted common law damages, on the one hand, and entering the system and being entitled to no fault benefits with an ability (subject to satisfying the relevant serious injury requirements) to obtain restricted common law damages on the other hand.
The legal effects of payments of compensation under the Workers Compensation Act, and later under the Accident Compensation Act, have changed over time as various Acts, Regulations and law have changed. In my view, s 55(10) (and each of its predecessors) operates so as to attach from time to time the then current legal effects of a payment of compensation under the Accident Compensation Act (or Workers Compensation Act, in the case of the predecessor sections) to a payment of compensation under the relevant Juries Act. The language of s 50H(9) (and its successor provisions) is both general and ambulatory. This is consistent with a purpose of attaching the same legal consequences to a payment of compensation under the Juries Act as those which are attached from time to time to a payment under the Workers Compensation Act or Accident Compensation Act.[17] The question, so far as this trial is concerned, is whether s 134AB of the Accident Compensation Act has application to the plaintiff’s claim, and provides the determinative answer to the plaintiff’s claim, as pleaded in paragraphs 9.1 to 9.8 of the defendant’s defence.
[17]Cf R v Gee (2003) 212 CLR 230, 241 (per Gleeson CJ). See further, Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 145 [138] and following (per Spigelman CJ).
The defendant submitted that it was “difficult to conceive” a meaning, other than the meaning contended for by it, that would give work to the words of s 55(10). One can immediately accept the defendant’s submission that a construction which gives work to the words of s 55(10) is to be preferred to a construction that does not give the section work to do. However, insofar as the defendant submitted that its construction was to be preferred as being the construction that gave s 55(10) (and its predecessors) work to do, as compared to any other construction, I reject that submission. On the construction I have found, s 55(10) has (and its predecessors had) work to do in relation to a number of issues, not the least of which includes (and has included) issues of taxation and social security entitlements. For example, if a payment of compensation under the Workers Compensation Act was taxable according to law, then if the same payment was made under the Juries Act, it would also be taxable. Similarly, if the receipt of a payment under the Workers Compensation Act qualified some entitlement to a social security benefit or entitlement, then the receipt of the equivalent payment made under the Juries Act would have the same effect.
Further, in 1961, there were a number of provisions in the Workers Compensation Act that dealt with the payment of compensation under that Act. For example, s 30(1) provided that a weekly payment of compensation paid under the Workers Compensation Act “shall be absolutely inalienable whether by way or in consequence of sale assignment charge execution insolvency attachment legal process or by operation of law or otherwise howsoever nor shall any claim be set off against the same”. Clearly, this is a “legal effect”[18] which would, by the operation of s 50H(9), also have applied to a payment of compensation made under Part VIIIB of the Juries Act 1958.
[18]Cf s 50H(9) of the Juries Act 1958.
I turn now to consider whether (notwithstanding my rejection of the defendant’s construction of s 55(10)) s 134AB(1) and (2) of the Accident Compensation Act have application to the plaintiff’s claim – either by the operation of their own terms alone, or by operation of s 55(10) (or more generally, Part 8) of the Juries Act 2000.
Does s 134AB(1) and (2) apply to the plaintiff?
For s 55(10) of the Juries Act to operate, there must be a payment of compensation. By its very terms, s 55(10) only applies “where compensation is paid” – such compensation being paid under the Juries Act. By contrast, s 134AB operates where a “worker … is … or may be … entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.[19]
[19]Cf the defendant’s plea in paragraph 9.2 of its defence that “[b]y section 134AB(1) …, if a payment of compensation is made to or on behalf of a person pursuant to the provisions of the [Accident Compensation Act], that person shall not recover damages for pecuniary or non-pecuniary loss except in accordance with s 134AB …”.
The plaintiff is not a worker who is or may be entitled to compensation under the Accident Compensation Act in respect of an injury arising out of or in the course of or due to the nature of employment on or after 20 October 1999. Indeed, as the defendant’s submissions note, the provisions of the Juries Act do not even deem jurors to be workers for the purpose of the Accident Compensation Act.[20] More particularly, s 55(4) of the Juries Act 2000 provides that the person to whom compensation is payable under the Juries Act is the person to whom it would be payable under the Accident Compensation Act if the juror was a worker within the meaning of the Accident Compensation Act and if the injury was caused in the juror’s employment arising out of or in the course of the employment.
[20]See paragraph 12 of the defendant’s written submissions dated 20 June 2011.
The short answer to the defendant’s defence that the plaintiff has not satisfied the serious injury requirements contained in s 134AB of the Accident Compensation Act, is that those requirements do not apply to the plaintiff. First, by the terms of s 134AB(1) and (2), the serious injury requirements are only engaged in cases where a worker is or may be entitled to compensation under the Accident Compensation Act in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999. That description does not apply to the plaintiff in this case.
Secondly, s 55(10) of the Juries Act only attaches to payments of compensation actually paid under the Juries Act, the same legal consequences as are attached to payments of compensation paid under the Accident Compensation Act. If Parliament had intended that a payment of compensation paid under the Juries Act would oblige the recipient of that payment to comply with the serious injury requirements of s 134AB of the Accident Compensation Act, then it could have said so.[21] The fact that injured jurors might be regarded as being treated more generously under the Juries Act than injured workers are treated under the Accident Compensation Act, is no basis for torturing the language of either s 55(10) of the Juries Act or s 134AB of the Accident Compensation Act so as to give s 134AB(1) and (2) of the Accident Compensation Act a construction or operation not borne by the text of the relevant sections.[22]
[21]And this could have been done without using deeming provisions of the kind which the Parliament eschewed in amending the Corrections Act 1986 when it enacted the Justice Legislation Further Amendment Act 2009 (see further, the Second Reading Speech in relation to this Act: Legislative Assembly Hansard Volume 485, 11 August 2009, p 2576- 2577).
[22]Cf paragraph 6 of the defendant’s written submissions dated 20 June 2011.
Thirdly, if one examines s 55(10) in the context of the whole of Part 8 of the Juries Act 2000, no different result is achieved. No provision of the Juries Act deems the plaintiff to be a worker within the meaning of the Accident Compensation Act. No provision of the Juries Act deems an injury to a juror to be an injury arising out of or in the course of employment. No provision of the Juries Act deems an injured juror to be entitled to compensation under the Accident Compensation Act. More generally, no provision of the Juries Act brings the plaintiff within the operation of the serious injury requirements of s 134AB of the Accident Compensation Act. Whilst the defendant limited its arguments to a reliance upon s 55(10) of the Juries Act (and its predecessor provisions), even if looked at more widely, the defence in paragraphs 9.1 to 9.8 of the defendant’s defence must fail.[23]
[23]I should say for completeness that in oral argument (at T2.30), the defendant conceded that in the absence of s 55(10) of the Juries Act 2000, the defendant would not be contending that the plaintiff was required to comply with the serious injury requirements of s 134AB of the Accident Compensation Act before being entitled to recover damages.
In further elaboration of his submissions, counsel for the defendant submitted that the construction and operation of s 55(10) and s 134AB contended for by the defendant should be preferred because:
(a)it was the clear intention of Parliament in 1961 to put injured jurors in the same position as injured workers; and
(b)a construction of s 55(10) and/or s 134AB that requires an injured worker who receives compensation to comply with the serious injury requirements of s 134AB, but does not require an injured juror who receives compensation to comply with such requirements is not consistent with this original (and continuing, by virtue of the continued re-enactment of the terms of s 50H(9) of the Juries Act 1958 in the subsequent ss 59(9) and 55(10)) intention.
That is, where it was once the intention of Parliament (and, it is submitted, the continuing intention of Parliament) to treat injured jurors the same as injured workers, unless the defendant’s construction is preferred, injured jurors are now better off than injured workers – in that they may recover the same compensation as an injured worker, and yet have an entitlement to unrestricted common law damages. However, the answer to this argument is that this is what the plain words of s 55(10) and s 134AB mandate. Further, even if it could be said that there was some underlying intention in 1961 that jurors be treated the same as workers, three points may be made:
(a)first, there is nothing in the Juries (Amendment) Act 1961 (or the extrinsic materials relating to it) that suggests it was Parliament’s intention in 1961 to preclude the possibility of subsequent legislation changing the respective positions of injured jurors or injured workers by reference to the existence of criteria different from that set out in s 50H(9) of the Juries Act 1958 (namely, the legal effects of an actual payment of compensation);
(b)secondly, the Parliament has now enacted many pieces of legislation which result in various classes of injured person being treated differently, both for no fault compensation purposes and in respect of common law rights to damages (see for example the different treatment, under different statutory regimes, of transport accident victims, industrial accident victims, victims of medical negligence, victims of dust-related conditions and victims “where the fault concerned is an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct”[24]);[25] and
(c)thirdly, claims by injured jurors and injured workers are now dealt with differently under the insurance law reforms enacted in the Wrongs Act. Specifically, whilst claims for damages by both an injured worker and an injured juror are excluded from the operation of Part X of the Wrongs Act,[26] only the claims of injured workers are excluded from the operation of Part VBA.[27]
[24]See, for example, s 28C(2)(a) of the Wrongs Act 1958.
[25]See generally, the provisions of the Transport Accident Act 1986, the Accident Compensation Act 1985, the Wrongs Act 1958 and the various enactments referred to in footnote 9 above.
[26]See s 45(1)(b) and (d)(v) of the Wrongs Act.
[27]See s 28LC(2)(c) of the Wrongs Act, inserted into the Wrongs Act by s 4 of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003.
Conclusion
For the reasons given above, the preliminary question (“Does the plaintiff need to comply with the serious injury requirements of s 134AB of the Accident Compensation Act in order to be entitled to recover damages in this proceeding?”) must be answered “no”. It then follows from this answer that paragraphs 9.1 to 9.8 of the defendant’s defence should be struck out. I will hear the parties on the appropriate form of order and costs.
(a) section 47(9) of the Victoria State Emergency Service Act 2005 which is in identical terms to section 55(10) of the Juries Act 2000, in a regime that contains another provision (section 53(1)) which specifically disentitles a person under the Victoria State Emergency Service Act from recovering in respect of personal injury, both compensation under that Act and damages; and
(b) section 5.6.2A of the Education and Training Reform Act 2006 which, according to the explanatory memorandum for section 39 of the Education and Training Reform Miscellaneous Amendments Act 2007, picks up section 134AB(36) of the Accident Compensation Act (but in circumstances where the introductory words of section 5.6.2A(1) appear to assume that the various sections in that scheme also engage the operation of section 134AB(1)).
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