Shabib v Green Formwork Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shabib v Green Formwork Pty Ltd [2022] NSWPIC 260
APPLICANT:	Nadia Shabib
RESPONDENT:	Green Formwork Pty Ltd
MEMBER:	Jane Peacock
DATE OF DECISION:	31 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; no dispute about injury; claim for lump sum compensation; whether applicant precluded from recovering compensation by reason of section 151A(1) of the Workers Compensation Act 1987 (the 1987 Act) because she had received payment under a deed in the context of proceedings taken under the Fair Work Act 2009 (Cth); Court of Appeal authority in Gardiner v Laing O’Rourke Australia Constructions Pty Ltd (Gardiner) applied; the Fair Work Act 2009 provides for statutory protections under a discrete and independent statutory scheme; the legislative purpose of section 151A is to ensure that a worker does not get workers’ compensation and damages with respect to the one injury; the Fair Work Act 2009 allows for damages for pain and suffering resulting from adverse action based on sex; even if the sexual harassment resulted in personal injury which it did here, this does not disentitle the applicant’s claim for workers compensation; rather the proper construction of both section 151A(1) and the deed, is that the applicant has received payment under an independent statutory scheme (the Fair Work Act) for adverse action based on sex and she is not disentitled from claiming workers compensation; this conclusion reinforced by the parties specifically excluding from the release the applicant’s claim for workers compensation by identifying the specific workers compensation claim number; award for the applicant and matter remitted for referral to a Medical Assessor.
DETERMINATIONS MADE:	1. The matter be remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 28 May 2021. 2. The Application to Resolve a Dispute and all documents attached admitted. 3. The Reply and all documents attached admitted. 4. The matter be relisted, in respect of the claim for weekly benefit and medical expenses, for a telephone conference before me once the Medical Assessment Certificate issues.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), as amended, filed by the applicant,
Ms Nadia Shabib (Ms Shabib) seeks lump sum compensation, weekly compensation and compensation for medical expenses as a result of psychological injury deemed to have occurred on 28 May 2021.
The respondent is the Green Formwork Group Pty Ltd. The respondent was insured for the purposes of workers compensation.

ISSUES FOR DETERMINATION

At the arbitration hearing, Ms Shabib sought to amend the Application to rely on a deemed date of injury of 28 May 2021 and the respondent consented to this amendment.
There is no dispute that Ms Shabib suffered, in the course of or arising out of her employment with the respondent, a psychological injury which is agreed deemed to have occurred on 28 May 2021.
There is no dispute that Ms Shabib suffered psychological injury as a result of being sexually harassed at work.
Ms Shabib previously brought proceedings in the Federal Court under the Fair Work Act 2009 (Cth). During mediation ordered to take place as a part of those proceedings the parties resolved their dispute and entered into a deed of release.
By reason of the provisions of section 151A of the Workers Compensation Act 1987 (the 1987 Act), the respondent submits that Ms Shabib is precluded from obtaining relief in the Personal Injury Commission (Commission) by virtue of having received payment pursuant to the terms of that deed.
Injury is not disputed. Whether Ms Shabib is precluded from recovering workers compensation is the only dispute that requires determination by me.
If the respondent is successful, there will be an award for the respondent.
If Ms Shabib is successful, the parties agree, in accordance with the authority of Jaffari v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) that, in the first instance and in respect of the claim for lump sum compensation, the matter is to be remitted for referral to a Medical Assessor (MA) to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 28 May 2021. Once the Medical Assessment Certificate (MAC) issues, the parties agree that the matter would then be relisted for a telephone conference in respect of the claim for weekly benefits and medical expenses.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

I note the following documents were admitted into evidence before the Commission by consent:
(a) Application and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross-examine.

FINDINGS AND REASONS

The dispute requiring determination is whether Ms Shabib is precluded from recovery of compensation in the Commission by virtue of the provisions of section 151A by reason of having received payments pursuant to a deed of settlement in the context of the proceedings taken under the Fair Work Act 2009.
The respondent says Ms Shabib has recovered damages within the meaning of section 149 of the 1987 Act and by reasons of the provision of section 151A(a) she is not entitled to receive further compensation.
Counsel for the respondent submitted that the question for determination is whether by signing the deed of release Ms Shabib has recovered damages under section 151A. In summary, counsel for the respondent submitted that I would find that Ms Shabib has recovered damages because it is clear that she has received damages for pain and suffering in respect of a personal injury being a psychological injury which is identical to the injury subject of these proceedings and accordingly Ms Shabib is precluded from recovering workers compensation. The respondent relied on the Court of Appeal in Adams v Fletcher International (2008) NSWCA 238 (Adams) and the decision of President Keating in SUPER IP PTY LIMITED V MIJATOVIC [2016] NSWWCCPD 33 (MIJATOVIC).
In summary, counsel for Ms Shabib submitted that I would find that Ms Shabib is not caught by the provisions of section 151A(1) because she has entered into a deed of release in the context of proceedings for statutory entitlements available to her under a distinct statutory scheme being the Fair Work Act 2009 and a proper interpretation of both section 151A and the deed itself preserves her rights to recover workers compensation. Ms Shabib relied principally on the decision of the Court of Appeal in Gardiner v Laing O’Rourke Australia Constructions Pty Ltd [2020] NSWCA 151 (Gardiner) and referred also to the decision of Deputy President Wood in Neuroscience Research Australia v de Rome [2019] NSWWCCPD 13 (DE ROME).
Each counsel took me at length through each of the cases that they submitted supported their respective arguments and hence I have had very careful regard to each of the authorities to which I was referred.
This case must be decided on its own facts and in accordance with the law.
The 1987 Act provides a definition of damages in section 149 and the effect of the recovery of damages on compensation in section 151A. Sections 149 and relevantly section 151A(1) provide as follows:
“149 Definitions
(1) In this Part—
‘damages’ includes—
(a) any form of monetary compensation, and

(b) without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),

but does not include—
(c) compensation under this Act, or
(d) additional or alternative compensation to which Division 8 of Part 3 applies, or
(e) an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or
(f) a sum required or authorised to be paid under a State industrial instrument, or
(g) any sum payable under a superannuation scheme or any life or other insurance policy, or
(h) any amount paid in respect of costs incurred in connection with legal proceedings, or
(i) damages of a class which is excluded by the regulations from this definition.

(2) A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made.
151A Effect of recovery of damages on compensation
(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3), (4) or (5) covers the case)—
(a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and
(b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and

(c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.”

It is not in dispute before me that Ms Shabib was sexually harassed at work by Ms El-Chami, a director of the respondent and that as a result, she suffered psychological injury. She lost her job. She was given notice that her employment would be terminated by reason of redundancy.
Ms Shabib first took proceedings in the Federal Circuit Court of Australia under the Fair Work Act 2009 against the respondent and Mr El-Chami. She commenced proceedings on 1 April 2019. She alleged failure to pay entitlements due under the Fair Work Act 2009 and adverse action because of sex which caused financial loss and pain and suffering and psychological injury.
The parties were directed to mediation and reached an agreement without admission of liability.
The parties entered into a deed of release which appears at page 33 of the Application.
The deed starts with the following recitals:
“A.     In or about 2008, Shabib commenced employment with the Employer as a financial controller (Employment).
B.      At various points during the Employment, Shabib made complaints about sexual harassment in the workplace which sexual harassment she alleges caused her personal injury being psychological damage (Complaints).
C.      On or about 25 October 2018, the Employer gave notice that the Employment would be terminated with effect from 6 December 2018 by reason of redundancy (Termination).
D.      On 1 April 2019, Shabib commenced proceedings against the Employer and El Chami in the Federal Circuit Court of Australia alleging, inter alia, failure to pay entitlements due under the Fair Work Act 2019 and adverse action because of sex which adverse action caused her financial loss and pain and suffering and psychological injury (Proceedings). The Proceedings were defended by the Employer and El Chami.
E.      On 9 September 2019, the parties attended a mediation of the Proceedings.
F.      The parties have agreed to settle, without admission of liability, all liabilities to Shabib by the Employer (or its related bodies corporate), their officers, agents or employees, or El Chami arising out of the Employment, the Complaints, the Termination or the Proceedings in accordance with the terms of this Deed.”
The deed provided for the payment of a settlement sum of $125,000 which comprised payment of various sums specified for personal leave, unpaid annual leave, unpaid long service leave, redundancy as well as general damages of $15,294.15.
There is no dispute that Ms Shabib has recovered the settlement sum.
The releases are set out in clause 2 of the deed as follows:
“2.1 Shabib acknowledges that the Employer pays the Settlement Sum in full and final settlement of all matters related to the Proceedings, the Employment, the Termination and the Complaints
2.2    Shabib releases absolutely and discharges the Employer and any related bodies corporate…,its or their officers, agents and employees and El Chami from all Claims, arising in any way from the Proceedings, the Employment, the Termination, or the Complaints that she has now or may have had in the future if she had not executed this Deed.
2.3    The Employer releases and warrants that its related bodies corporate release absolutely and discharges Shabib from all Claims arising in any way from the Proceedings, the Employment, the Termination or the Complaints that it or they have now or may have had in the future if the Employer had not executed this Deed.
2.4    El Chami releases and discharges Shabib from all claims arising in any way from the Proceedings, the Employment, the Termination or the Complaints that he has now or may have had in the future if he had not executed this Deed.
2.5 In this clause and in this Deed, “Claims” means any action, complaints, claims, demands, suits proceedings and liability (whether at common law, in equity, or to the extent permitted under any statute) including (without limitation) claims for damages, personal injury, unpaid salary, unfair dismissal, workers compensation, superannuation, payments in lieu of leave, severance payments, bonus payments , allowances or expenses, claims under the Fair Work Act 2009 (CTH), Federal or state anti-discrimination legislation but excluding Shabib’s claim for workers compensation with claim number 1737600.
.….
2.7    The parties agree that this Deed may be pleaded by the other as a bar to any actions, suits, claims, demands or legal proceedings instituted by or on behalf of a party in respect of any matter arising out of or in connection with the subject matter of this Deed.”
Counsel for the respondent took me through the provisions of the deed. He submitted that the deed sets out that Ms Shabib at various points in her employment suffered sexual harassment which caused her personal injury being psychological injury. He submitted that the injury identified in the deed is the same as the injury claimed in these proceedings. Ms Shabib commenced proceedings in the Federal Court against the respondent and another employee Mr El Samari who perpetrated the harassment or the adverse action which caused the psychological injury. Counsel for the respondent emphasised that this is the repeat of the same claim for injury in the Application in this Commission. He pointed out that the settlement sum of $125,000 included damages of some $15,000. Counsel for the respondent highlighted the release contained in Clauses 2.2 and 2.5 and the bar in 2.7.
Counsel for Ms Shabib highlighted the specific exclusion in clause 2.5 where “Shabibs’s claim for workers compensation with claim number 1737600” is specifically excluded from the release. It was not in issue between the parties that this claim number refers to the claim for psychological injury with which these proceedings are concerned.
Both parties took me at some length through the authorities on which they rely.
Counsel for the respondent first took me to the Court of Appeal authority in Adams. This was an appeal from a decision of acting Deputy President O’Grady in the Workers Compensation Commission (WCC) who upheld the employer’s argument that the worker was precluded from recovering workers compensation under the 1987 Act because he had recovered damages of $2,500 pursuant to an unsigned deed of release. The Court of Appeal found that it was clear “that the worker recovered the sum of $2500 and the only question under s 151A(1)(a) is whether this amount was ‘damages in respect of an injury’”. The court of appeal referred to the definition of damages under section 149 of the 1987 Act and went onto find that the worker had received damages in respect of an injury as follows:
“Damages for this purpose is defined in s 149 of the 1987 Act as follows:
‘Damages includes:
(a)any form of monetary compensation, and
(b)without limiting (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted), but does not include:
(c)compensation under this Act …’.
It cannot be denied that the $2500 was monetary compensation within para (a) of this definition. It is not clear that the worker had made "a claim for damages" which would bring the deed within para (b) although the recitals suggest that this may have happened. It is not necessary to decide this question because para (b) does not limit para (a).
The remaining question is whether the payment of $2500 damages, as defined, was ‘in respect of an injury’ so that s 151A(1)(a) applied and the worker ceased to be entitled to ‘any further compensation under this Act in respect of the injury concerned.’ The character of the payment is governed by the deed and the letter of 17 January 2005 which accompanied the cheque.
Recital C refers to allegations by the worker that he had sustained work injuries as a result of the nature and conditions of his employment ‘including but not limited to an injury to his left hand and wrist.’ Recital E refers to possible claims for damages, clause 1 contains the employer's agreement to pay $2500 ‘in respect of general and other damages’ and clause 3 contains the worker's agreement, in consideration of that payment, to release ‘any entitlement to work injury damages’.
The deed singled out, without limitation, the injury to the worker's left hand and wrist. The application to resolve the dispute lodged on 19 January 2005 also identified this as the most significant injury, and it appears from Recital C that the earlier application which was discontinued must have done the same. Moreover the award of Arbitrator Duncombe, which was revoked on appeal, was based on this injury alone. The claims for other injuries were dismissed.
The amount of $2500 was also paid in respect of other claims, but this cannot matter. The deed and the letter, construed on their face, or in the light of the surrounding circumstances, establish that the payment was made ‘in respect of’ the injury to the worker's left hand and wrist. Accordingly he ceased to be entitled to compensation "in respect of the injury concerned", that is the injury to his left hand and wrist.
The decision of Acting Deputy President O’Grady to apply s 151A(1)(a) and set aside the award of Arbitrator Duncombe was therefore correct. It is a most unfortunate result for this worker who gave away rights of substantial value for an immediate payment of a mere $2500. However the 1987 Act in its present form is intractable and the Court has no option but to give effect to the clear language of Parliament.”
Counsel for the respondent then referred me to the decision of President Keating in the case of MIJATOVIC.
Counsel for the respondent took me through the decision of President Keating. He referred relevantly to the following paragraphs of the decision:
“Although the facts in Adams may be distinguished from the facts in this case, nothing turns on the distinction. It is of no moment that the deed in this matter purports to exempt from the releases Ms Mijatovic’s entitlement to statutory benefits. That is because, as Handley AJA pointed out in Adams (at [17]), the deed could not have affected the worker’s rights to compensation because s 234 of the 1998 Act provides that the two acts, namely the workers compensation acts, apply ‘despite any contract to the contrary’. His Honour said (at [17]):
‘the worker’s difficulties flow not from the deed as such but from his acceptance of the payment of $2,500.’
It is not controversial that Ms Mijatovic was paid and accepted the sum of $8,700, in accordance with the terms of deed. Given the wide definition of damages in s 149, namely ‘any form of monetary compensation’, it was open to the Arbitrator to find that the payment constituted “damages” within the meaning of s 149. That finding was correct. The fact that the deed does not refer in terms to ‘damages’ is not determinative given the width of the definition of damages in s 149.
The application in these proceedings records the injury to be a ‘psychological injury’ as a result of employment related factors occurring between January 2011 and 6 March 2012 (see [13] above). The initiating claim for permanent impairment compensation was made on 19 January 2015. It sought compensation ‘for psychological injury’ with a deemed date of injury of 6 March 2012. The claim was supported by a report of Dr Canaris dated 10 December 2014. The history recorded by Dr Canaris in support of the worker’s claim, which is referred to at [11] of this decision, is almost identical to the history recorded by Dr Albassit in support of the complaint to the Australian Human Rights Commission. Both doctors concluded that the events described led to the depressive disorder from which Ms Mijatovic now suffers. It follows that the injury identified by Dr Albassit and Dr Canaris is the same.
Although the deed seeks to distinguish between the workers compensation claim (Recital I) and personal injury claim (Recital K) that is not to the point. What is relevant is whether Ms Mijatovic received damages in respect of the injury the subject of the present proceedings, namely, the injury identified by Dr Canaris. For the reasons discussed above, I am satisfied that the injury the subject of the present proceedings is the same injury, namely, the psychological injury, caused by Ms Mijatovic’s perception of events in the course of her employment described in Recitals A to H.
The fact that within a few weeks after sustaining the psychological injury complained of, Ms Mijatovic lodged both the workers compensation claim and the discrimination claim on 27 March 2012, each alleging a psychological injury, reinforces the conclusion I have reached, namely, that the injury the subject of the complaint and the injury the subject of the workers compensation claim are the same psychological injury.
It follows that as Ms Mijatovic had recovered damages in respect of the injury the subject of these proceedings, the effect of s 151A of the 1987 Act was to disentitle her to any further compensation under the Act.
As discussed in Adams (at [27]) the fact that the payment to Ms Mijatovic may also have been paid in respect of other claims is irrelevant. The deed construed on its face in the light of the surrounding circumstances established that the payment was made in respect of the worker’s psychological injury. Accordingly Ms Mijatovic ceased to be entitled to compensation ‘’n respect of the injury concerned’, that is, the psychological injury, when she accepted the payment of $8,700.
I reject Ms Mijatovic’s submission that a proper construction of the deed demonstrates that it was the contractual intention of the parties to keep Ms Mijatovic’s workers compensation entitlements open. That is because the meaning of the deed cannot be determined by the parties’ subjective beliefs. As was explained by Mason J in Codelfa (at [24]):
‘Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.’
It follows the contractual intention of the parties cannot be determinative of the question of whether Ms Mijatovic recovered damages in respect of an injury (s 151A).
The appellant submits and I accept, as I have indicated, that the Arbitrator erred in considering the construction of the deed rather than the effect of the payment of $8,700 made to Ms Mijatovic. In light of the principles discussed in Adams, that analysis was not only unnecessary but erroneous.”

Counsel for the respondent referred to President Keating’s conclusion as follows:
“Although the Arbitrator commenced his analysis of the issues by identifying the correct question, namely whether damages had been paid in respect of an injury, he failed to come to a conclusion in answer to that question. The Arbitrator erred by seeking to resolve the issue by a construction of the deed rather than to consider the legal effect of the payment it evidenced. The Arbitrator failed to discharge the statutory task with which he was presented. For the reasons given the appeal must succeed and the Arbitrator’s determination must be revoked.
As I have found that the payment and receipt of $8,700 pursuant to the deed constituted damages for the same injury the subject of these proceedings, Ms Mijatovic ceases to be entitled to any further compensation under the 1987 Act by the operation s 151A(1). As Handley AJA said in Adams (at [28]) ‘the 1987 Act in its present form is intractable’ and the Commission has no option but to give effect to the clear language of Parliament. Although this is an unfortunate result there must be an award for the respondent.”
Counsel for the respondent submitted that this is exactly what has happened here, namely Ms Shabib has received damages in respect of a personal injury being a psychological injury which is the subject of this claim. Accordingly the clear terms of section 149 and section 151A are invoked and Ms Shabib cannot recover workers compensation.
Counsel for Ms Shabib submitted that the subject matter of the deed is entirely related to entitlements under the Fair Work Act 2009 which is a statutory scheme which entitles workers to claw back entitlements such as unpaid wages and leave entitlements and to recover general damages for pain and suffering for adverse action based on sex. It is an independent statutory scheme and the payments recovered by Ms Shabib under the terms of the deed of release do not come within the definition of damages on section 149 of the 1987 Act and Ms Shabib is not precluded by the provisions of section 151A from recovering workers compensation.
Counsel for Ms Shabib finds support for her argument in the reasoning process of Basten JA who gave the lead judgment in the Court of Appeal decision in Gardiner. She took me at length through this decision.
Counsel for Ms Shabib submitted that sections 149 and 151A are concerned to prevent double recovery under workers compensation legislation. This is not what happened here. Ms Shabib recovered damages for pain and suffering as a result of adverse action based on sex and compensation for pain and suffering is not available under Workers Compensation legislation. She also recovered various leave entitlements and redundancy entitlements. Counsel for Ms Shabib submitted that sections 149 and 151A do not preclude Ms Shabib from recovering her workers compensation entitlements because based on the analysis of the Court of Appeal in Gardiner you arrive at an end position where you limit the reach of section 151A to common law or modified common law remedies under the legislation.
Counsel for Ms Shabib referred me to [15]-[52] of the leading judgment of Basten JA as follows: (footnotes as per the original)
“15 The respondent placed weight upon the breadth of the definition of damages as including ‘any form of monetary compensation’. The exclusions in the definition lend support to that submission. They suggest that each of the matters set out in (c)-(h) might, if not denied inclusion, have been understood to fall within the breadth of par (a).
16    There are, however, contrary indications within the legislative scheme. Thus, the heading to Pt 5 suggests that the subject matter of the Part is limited to ‘common law remedies’; by inference, statutory remedies having no basis in the common law would not be covered. That inference is supported by the limitation on entitlement to commence ‘court proceedings for damages’ until six months after notice of injury has been given to the employer: s 151C. To similar effect, a specific limitation period is imposed with respect to ‘court proceedings for damages’ pursuant to s 151D. As will be noted shortly, this Division is subject to the procedural requirements set out in the Workplace Injury Act (referred to in s 151DA(1) as ‘the 1998 Act’). Neither s 151C nor s 151D apply to a claim under the Anti-Discrimination Act which, if not resolved by the President, will be heard by a tribunal, not a court: although the identity of the tribunal has changed, the principle has applied since 1977.
17    Division 3 in Pt 5, headed ‘Modified common law damages’, is said to apply ‘to an award of damages in respect of … an injury to a worker … caused by the negligence or other tort of the worker’s employer’: s 151E(1). Further, the Division applies to an award of damages ‘caused by the negligence or other tort of the worker’s employer even though the damages are recovered in an action for breach of contract or in any other action’: s 151E(3). As noted by the appellant, s 151H provides:
151H   No damages unless permanent impairment of at least 15%
(1)   No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.
Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.
…
(4)   The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
18 Two propositions flow from a consideration of this scheme with respect to the interrelationship of workers’ compensation and awards of damages. First, the legislative purpose of s 151A is to ensure that a worker does not get workers’ compensation and damages with respect to the one injury. If in receipt of workers’ compensation when damages are recovered, the compensation payment will cease and past payments will be recouped from the award of damages. Similar provisions have a long history in workers’ compensation Acts. For example, s 63 of the Workers’ Compensation Act 1926 (NSW), under the heading “Remedies at common law”, was in the following terms:
63(1)   Nothing in this Act shall affect any civil liability of the employer where 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.
(2)   In such case the worker may, at his option, proceed under this Act or independently of this Act, but he shall not be entitled to compensation under this Act, if he has obtained judgment against his employer independently of this Act.
However, to state the general purpose of s 151A(1) as, in part, a bar to double recovery is not to identify what constitutes double recovery, a point developed below.
19    Secondly, the regulation of common law damages awards under Pt 5, Div 3 is clearly intended to be comprehensive. It does not envisage that there can be proceedings to recover damages from a worker’s employer on some basis not regulated by Div 3. Further, the regulation of the commencement of the proceedings which are found in Div 2 bears the same complexion. It follows that, if ‘damages’ are recoverable under the Anti-Discrimination Act with respect to an injury suffered by a worker, they will be subject to the same constraints as those imposed on common law remedies. Yet it was not suggested by the respondent that the complaint to the President of the Anti-Discrimination Board was subject to a requirement that the appellant establish a degree of permanent impairment that is at least 15%, in accordance with the provisions for such an assessment under Pt 7 of Ch 7 of the Workplace Injury Act, in accordance with s 151H.
20    When the Workers Compensation Act was enacted in 1987, s 149 came under the heading “Abolition of common law remedies against employer, fellow workers etc”. It read as follows:
149(1)   A worker is not entitled to recover damages, otherwise than under this Act—
(a)   from the worker's employer;
(b)    from any person who is vicariously liable for the acts or omissions of that employer; or
(c)   from any person for whose acts or omissions that employer is vicariously liable,
in respect of an injury to the worker for which compensation is payable under this Act by that employer.
…
(4)   In this section—
"damages" includes any form of monetary compensation, but does not include—
(a) compensation payable under the Transport Accidents Compensation Act 1987 or damages payable out of the Third-party Fund under the Motor Vehicles (Third Party Insurance) Act 1942;
(b) any sum ordered or directed to be paid under the Crimes Act 1900 by way of compensation for an injury;
(c) any sum required or authorised to be paid under an award or industrial agreement within the meaning of the Industrial Arbitration Act 1940;
(d)   any sum payable under a superannuation scheme or any life or other insurance policy; or
(e)   damages of a class which is excluded by the regulations from this section.
21 Although the abolition of common law remedies was reversed in 1989, it is significant that the definition of ‘damages’ in subs (4) corresponded to the definition in the present s 149. Further, s 149(1) was not confined in its terms to common law remedies but was, on one view, broad enough to cover statutory entitlements. Yet s 149(1) was enacted a decade after the Anti-Discrimination Act, and continued to operate until repealed by the Workers Compensation (Benefits) Amendment Act 1989 (NSW), the repeal being retrospective to 30 June 1987.[1] It does not appear to have been contended that the effect of s 149 as enacted in 1987 was to preclude complaints under the Anti-Discrimination Act in respect of employment where an injury had occurred which might entitle a worker to compensation. If the language of these provisions as enacted did not have that effect, there is no firm basis to suggest that the very similar language in s 149 and s 151A(1) now has that effect.
[1] See 1987 Act, section 151U.
22    Although not referred to by counsel in the course of the hearing, there is a similar definition of ‘damages’ in the Civil Liability Act 2002 (NSW). The definition in s 3 reads as follows:
3   Definitions
In this Act—
...
damages includes any form of monetary compensation but does not include—
(a)   any payment authorised or required to be made under a State industrial instrument, or
(b)   any payment authorised or required to be made under a superannuation scheme, or
(c)   any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.
23 In Pt 2 of the Civil Liability Act, constraints are imposed on awards of ‘personal injury damages’, a phrase defined to mean ‘damages that relate to the death of or injury to a person.’ (The Civil Liability Act does not apply to claims brought under the Anti-Discrimination Act or the Workers Compensation Act.[2]) However, the apparent breadth of the definition of damages, and the curious list of excluded payments was discussed in Dionisatos v Acrow Formwork & Scaffolding Pty Ltd.[3] That case addressed a limitation on damages for loss of capacity to provide domestic services to a dependant where the dependant had ‘previously recovered damages in respect of that loss of capacity’: Civil Liability Act, s 15B(6). The question was whether the widow of a deceased worker who had received compensation pursuant to the Workers’ Compensation (Dust Diseases) Act 1942 (NSW) was required to deduct from any damages payable to the worker’s estate, the statutory benefits received by her. The Court held that no such deduction was required. The answer turned upon whether the payment by the Dust Diseases Board was ‘in respect of’ the loss of capacity for which compensation was provided under s 15B.[4] Because the payment was required to be ‘reasonable and proportionate to the injury’, and was calculated as a portion of a rate of compensation, the prescribed amount had no particular relationship to the value of gratuitous domestic services.[5]
[2] Civil Liability Act (year missing), section 3B(1)(g).
[3] (2015) 91 NSWLR 34; [2015] NSWCA 281.
[4] Dionisatos at [25].
[5] Dionisatos at [27].
24    Clearly the critical issue, and thus the focus of the analysis of the interrelationship between two statutes of the same legislature, will turn on the individual statutory provisions. However, in dealing with the definition of ‘damages’ in the Civil Liability Act, I observed in Dionisatos:
“[21]   The form of the definition is curious in a number of respects. First, being inclusive and not exclusive, the phrase ‘any form of monetary compensation’ must be given a broad meaning. Further, the exclusions are themselves curious. They include a range of matters which would not normally be considered damages in the sense that they are not amounts awarded by a court, although they might be payments to be taken into account in considering what damages should be awarded.[6] The exceptions do not include subventions such as sickness or disability benefits payable under social security schemes.
[6] Compare the Compensation to Relatives Act 1897 (NSW), section 3(3).
[22]   In order to make sense of the definition, it is difficult to avoid the conclusion that, despite its apparently expansive form, it cannot in a practical sense extend beyond the heads of damages capable of being awarded by a tribunal dealing with a claim in, for example, negligence or breach of contract.[7] That conclusion is confirmed by the definition in s 11 in Pt 2 (which contains s 15B) that personal injury damages means damages that relate to the death of or injury to a person.’ Section 11A then provides that ‘[a] court cannot award damages, or interest on damages, contrary to this Part.’[8] The question is, therefore, whether in s 15B(6) the term damages is used in two different senses. When first used to prohibit the claimant being awarded ‘damages’ it must be used in the ordinary general law sense, whereas when asking if ‘the dependant has previously recovered damages’ it is being used in a broader sense to include such things as compensation payments under statute.
[7] See, eg, Civil Liability Act year missing, section 5, negligence and section 5A(1).
[8] Civil Liability Act, section 11A(3).
[23]   Ordinarily, the same word used in a single provision would not be construed so as to have differing meanings. Although on occasion, the same word may have different meanings in a single provision or in related provisions, it has been said that ‘[t]here ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.’[9] There is no clear basis for giving the word other than the same meaning in each part of this provision. On that approach, the payments of compensation by the board did not constitute damages, not being damages awarded by a court or tribunal for breach of duty. Accordingly, the exclusion in s 15B(6) did not apply.”
[9] Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 (Hodges J); Pearce and Geddes [Statutory Interpretation in Australia (8th ed, 2014, Butterworths)] at [4.6].
25 Further, s 15B(7) of the Civil Liability Act provides:
15B   Damages for loss of capacity to provide domestic services
…
(7)   A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant’s loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity.
26    In considering Acrow’s submission that the damages available under s 15B should be reduced by the statutory payments received by the widow from the Dust Diseases Board, Gleeson JA stated:
“[284] There are a number of difficulties with Acrow’s construction of s 15B(6). First, read in context, and particularly with the related provision in subs (7), the reference to ‘previously recovered damages’ is better understood as a reference to damages recovered from a tortfeasor against whom the dependant of the claimant had a cause of action consequent upon the claimant’s death. The paradigm example would be the claim of a dependent widow under the Compensation to Relatives Act.
[285] Secondly, although ‘damages’ in subs (6) is broadly defined to include ‘compensation’, the statutory benefits to which a worker’s dependant is entitled under the Dust Diseases Act do not answer the description of damages ‘in respect of that loss of capacity’. The ‘loss of capacity’ referred to in s 15B(6) is the impairment of the claimant’s capacity to provide gratuitous domestic services to any dependant. That loss is different from the injury to a person who is, relevantly, partially dependent on the worker for support as at the date of his death under s 8(2B)(d). The award made to the partially dependent widow is a proportion of the defined benefits which may be awarded under s 8(2B)(b) to a dependant who is wholly dependent.
[286] Thirdly, on the construction advanced by Acrow, subs (7) would need to be read as having the effect of preventing the Board awarding any compensation to Mrs Dionysatos if s 15B damages had already been recovered by Mr Dionysatos or his Estate. But counsel for Acrow accepted that s 15B(7) did not operate so as to preclude the Board from awarding compensation under s 8 of the Dust Diseases Act, and that there was no provision in the Dust Diseases Act, including as s 8(6), which would have that effect.
[287] Acrow ultimately acknowledged in oral argument that its construction of subs (6) could not be easily carried through into subs (7). This is a further reason for doubting Acrow’s construction of subs (6), as subs (6) and subs (7) are complementary provisions and should be construed so far as possible to operate in harmony and not in conflict: Commissioner of Police (NSW) v Eaton.[10]”
[10] (2013) 252 CLR 1; [2013] HCA 2 at [98] (Gageler J) and [78] (Crennan, Kiefel and Bell JJ).
27    These conclusions have no direct application to the present case; nevertheless, the process of reasoning, which required the reading down of the apparent breadth of the definition of “damages” and the principles on which that process of construction was undertaken, lends support to the approach set out above.
28 It is also important to note that provisions like s 151A(1) of the Workers Compensation Act, which have an apparent purpose of preventing double recovery of compensation for loss resulting from the one injury, should not be approached on an assumption that all kinds of payments which relate to the injury necessarily involve double recovery. Northern Sydney Local Health District v Amaca Pty Ltd (Under NSW Administered winding up)[11] concerned the right of a plaintiff to retain common law damages in addition to compensation payments received under Queensland workers’ compensation legislation. As explained at [70], “[t]he critical question was how the payment to the plaintiff should be characterised.” Similar issues were addressed in Redding v Lee,[12] and National Insurance Co of New Zealand Ltd v Espagne.[13] The present case also depends upon characterisation of the relevant payment, in accordance with the statutory scheme under which it was obtained. Before turning to that legislation it is convenient to complete the review of statutes regulating workers’ compensation rights.
[11] [2017] NSWCA 251.
[12] (1983) 151 CLR 115 at 125 (Gibbs CJ); [1983] HCA 16.
[13] (1961) 105 CLR 569 at [599]-[600] (Windeyer J); [1961] HCA 15.
(b)   Workplace Injury Act
29    Chapter 7 of the Workplace Injury Act sets out a detailed and prescriptive regime for making claims for workers’ compensation and work injury damages. The regime is comprehensive. Definitions applicable to the whole Act are found in Pt 1. The term ‘claim’ is there defined to mean ‘a claim for compensation or work injury damages that a person has made or is entitled to make’; the term ‘compensation’ is defined to mean ‘compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts’.[14]
[14] Workplace Injury Act (wrong and incomplete citation), section 4(1), claim and compensation.
30    The term ‘damages’ and the phrase ‘work injury damages’ are defined in Pt 1 of Ch 7:
250   Interpretation
(1)   In this Chapter—
damages has the same meaning as in Part 5 (Common law remedies) of the 1987 Act.[15]
[15] The legislation refers to the Workers Compensation Act as “the 1987 Act” and the Workplace Injury Act as “the 1998 Act”.
...
work injury damages means damages recoverable from a worker’s employer in respect of—
(a)   an injury to the worker caused by the negligence or other tort of the employer, or
(b)   the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,
whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.
31 Part 2 of Ch 7 is headed “Giving notice of injury and making a claim”. Consistently with the definition of “damages”, s 253 provides:
‘253  Interpretation
Words and expressions used in this Part have the same meaning as in Part 5 (Common law remedies) of the 1987 Act.’
32 Although subject to exceptions, s 254 provides that ‘[n]either compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible…’. Section 255 prescribes how notice is to be given. Division 2 of Pt 2 provides for the making of claims for compensation and damages. A claim must be made in accordance with Workers Compensation Guidelines issued under s 376, which regulate the form in which the claim is to be made, the manner in which it is to be made, and the information it is to contain.[16]
[16] Workplace Injury Act, section 260.
33 The heading and the first two provisions in Pt 2, Div 4 read as follows:
Division 4 Claims for lump sum compensation and work injury damages
280A   Claim for lump sum compensation a pre-condition to damages claim
A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages.
280B   Lump sum compensation to be paid before damages recovered
(1)   An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.
(2)   This section does not prevent a claim for damages from being made before any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.
Note. This section ensures that an injured worker receives the compensation to which the worker is entitled before damages are recovered (because section 151A of the 1987 Act would prevent the payment of compensation after damages are recovered).
34 There are issues in relation to the precise scope and operation of these two provisions which do not need to be determined for present purposes. However, if the respondent’s argument were correct, and the payment under the settlement of the discrimination complaint constitutes the recovery of ‘damages’ for the purposes of s 151A(1) of the Workers Compensation Act, then the payment of that amount would appear to be a contravention of s 280B(1). The connection between the two provisions is expressly recognised in the note to s 280B.
35    An alternative reading of the term ‘damages’ in s 280B is that it is limited to ‘work injury damages’, being the phrase used in s 280A. It is possible that the definition of ‘damages’ does not operate in s 280B, although the note tends to undermine that possibility; it should also be observed that the two provisions were not introduced at the same time. On the other hand, the existence of an alternative reading is itself posited on an assumption that work injury damages constitute a subset of the broader term ‘damages’, as defined in s 250. That assumption must be questioned.
36    As already noted, there are powerful arguments in favour of the view that the Workers Compensation Act is concerned with ‘damages’ payable in respect of an injury caused by the negligence or other tort of the employer, and not amounts recoverable in satisfaction of a liability created by an extraneous statutory scheme. That conclusion is consistent with the definition of work injury damages, namely damages recoverable from a worker’s employer in respect of an injury to the worker caused by the ‘negligence or other tort’ of the employer. That approach allows for the harmonious operation of the two interrelated workers’ compensation statutes, as the statutes themselves require. (Section 2A of the Workers Compensation Act requires that it ‘is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.’)
(c) Anti-Discrimination Act
37    On the preferred construction of the workers’ compensation legislation, recovery of damages pursuant to a complaint under the Anti-Discrimination Act will not engage the operation of s 151A of the Workers Compensation Act. That conclusion is confirmed by a consideration of the terms of the Anti-Discrimination Act generally, but may be illustrated by reference to the provisions relevant to the present case.
38 The appellant made a claim against the respondent alleging discrimination on the ground of disability. The complaint was in respect of conduct rendered unlawful by s 49D of the Anti-Discrimination Act dealing with such discrimination in relation to work. Section 49D provides as follows:
49D   Discrimination against applicants and employees
…
(2)   It is unlawful for an employer to discriminate against an employee on the ground of disability—
(a)   in the terms or conditions of employment which the employer affords the employee, or
(b)   by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c)   by dismissing the employee, or
(d)   by subjecting the employee to any other detriment.
…
(4)   Nothing in subsection … (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability—
(a)   would be unable to carry out the inherent requirements of the particular employment, or
(b)   would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
39    The concept of discrimination on the ground of disability is defined in s 49B, which relevantly provides:
49B   What constitutes discrimination on the ground of disability
(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator—
(a)   on the ground of the aggrieved person’s disability …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability …, or
(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, … comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2)   For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
40 Although such discrimination may give rise to a personal injury, including a psychological injury, which would fall within the definition of “injury” in s 4(1) of the Workers Compensation Act, such an injury is not an element of a contravention of s 49D (nor of other heads of discrimination under the Anti-Discrimination Act). It is sufficient that the aggrieved person can establish less favourable treatment, or the imposition of a requirement which has a discriminatory effect.
41    Complaints of discrimination are not made by instituting proceedings in a court or tribunal; they are made by lodging a complaint with the President of the Anti-Discrimination Board.[17] There is no limitation period applying to complaints; rather, the President is given a discretionary power to ‘decline a complaint’ if ‘the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint’.[18] Part 9 of the Act (ss 87-122) provides a detailed code regulating who may make a complaint, how a complaint is made and addressed, including by way of conciliation directed by the President (s 91A) and, in the event that the complaint cannot be resolved by the President, referral to the Civil and Administrative Tribunal (NCAT). The powers of the Tribunal are set out in s 108 and include, where the Tribunal finds the complaint substantiated, making an order that the respondent pay the complainant damages not exceeding $100,000 ‘by way of compensation for any loss or damage suffered by reason of the respondent’s conduct’: s 108(2)(a). There are a range of other orders available in appropriate circumstances, including an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by the Act, an order that the respondent perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, an order that the respondent publish an apology or a retraction, and an order declaring void any contract or agreement made in contravention of the Act: s 108(2)(b), (c), (d) and (f).
[17] Anti-Discrimination Act , section 89A.
[18] Anti-Discrimination Act, section 89B(2).
42    The operation of this statutory scheme is coherent and self-contained. It is not possible to read it as subject to or limited by implied constraints arising from the separate and distinct provisions of the workers’ compensation legislation described above.
43 Section 123 of the Anti-Discrimination Act provides as follows:
123   Effect of contravention of Act or regulations
This Act is in addition to, and not in derogation of, any other law in force in New South Wales that provides for the protection of a person from conduct that is or would be unlawful under this Act or the regulations.
Whilst, of course, it is possible for later legislation to derogate from the protections provided by the Anti-Discrimination Act, the basic principles of the workers’ compensation legislation (other than the modification of common law damages in tort) pre-dated the Anti-Discrimination Act. To the extent that the Anti-Discrimination Act provides remedies in addition to those available under the Workers Compensation Act, that protection should be given full force and effect, according to its terms.
(d) characterising the liabilities created by the Anti-Discrimination Act
44    The importance of treating the statutory protections provided by the Anti-Discrimination Act as a discrete and independent statutory scheme has long been recognised in this Court. In Commissioner of Police v Estate of Russell,[19] a question had arisen as to whether the State was vicariously liable for the acts of a police officer pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW), or whether vicarious liability was controlled by s 53 of the Anti-Discrimination Act. The issue did not need to be determined in the appeal, but Spigelman CJ, with whom Davies AJA agreed, stated:[20]
[19] (2002) 55 NSWLR 232; [2002] NSWCA 272.
[20] Prior to 2004, the forms of relief now set out in section 108 were set out in section 113.
“[69]   Although it is not necessary for purposes of the decision, I should indicate that I do not share the opinion expressed by McHugh JA, and adopted by Lee J and Sully J, that a complaint leading to an order of payment of damages … by way of compensation” under s 113(1)(b)(i) constitutes a ‘tort’ within the meaning of s 8 of the Law Reform (Vicarious Liability) Act.
[70]   There is no doubt that statutes can create new torts and have done so. There is no simple definition of a tort. The elements that can be said to characterise torts are able to be stated at different levels of generality. The fact that all or most torts can be described in a particular way does not mean that everything that can be described in that way constitutes a tort. Even s 52 and s 82 of the Trade Practices Act 1974 (Cth) have been said not to create liability in tort for purposes of contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (Hampic Pty Ltd v Adams (2000) 22 ATPR 41,737 (40,545) at [61]).
[71]   I note that the definition of tort in Halsbury, relied on in the prior authorities, refers to civil rights of action and ‘rights of action in tort’. In my opinion, it is not accurate to describe proceedings by way of complaint before a Tribunal as a ‘right of action’. That terminology is reserved for proceedings in a court of law.”
45    The Chief Justice then referred to cases dealing with workers’ compensation and the indemnity available from a negligent third party in which the courts declined to treat such payments as the recovery of a debt or damages.
46    There had been intimations of such an approach in an earlier case, Australian Iron & Steel Pty Ltd v Najdovska.[21] Priestley JA stated, with respect to the assessment of damages under the Anti-Discrimination Act:[22]
[21] (1988) 12 NSWLR 587.
[22] Najdovska at [619F][-620].
“The submission made to the Tribunal was that the question should be approached not by reference to the date which the Tribunal worked out on the materials available to it but on a loss of chance basis…. The Tribunal rejected the submission as being somewhat speculative, saying that it did not take into account all relevant factors.
For AIS the same submission was put to this Court. It was said that it was a principle of the giving of damages in tort cases that situations of the kind appearing in the present appeals should be dealt with on a loss of chance basis and that the Tribunal erred in law in not following that method.
I do not see how this question can be turned into a question of law as that term is used in the Act. Section 113 says that the Tribunal may — ‘… (b) find the complaint substantiated and … (i) … order the respondent to pay to the complainant … by way of compensation for any loss or damage suffered by reason of the respondent's conduct …’. Whether or not the principles of the assessment of damages in tort should be applied in an assessment under s 113(b) it seems to me that the assessment is essentially a matter of fact. I see no reason why the Tribunal in attempting to make the assessment required of it under the section should be required as a matter of law to adopt a Chaplin v Hicks approach to the issue of compensation in the present case.”[23]
[23] Street CJ and Mahoney JA agreed with Priestley JA.
47    In Hall v A & A Sheiban Pty Ltd[24] the Full Court of the Federal Court considered the measure of damages under s 81 of the Sex Discrimination Act 1984 (Cth), being the equivalent of s 108 of the Anti-Discrimination Act. Lockhart J stated:[25]
[24] (1989) 20 FCR 217.
[25] Hall at 239.
‘Generally speaking, the correct way to approach the assessment of damages in cases under s 81 of the Act is to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent.’
To similar effect, French J stated:[26]
[26] Hall at [281].
‘Having found the complaint substantiated, the President was empowered by s 81(1)(b)(iv) to make a declaration that Sheiban pay to each of the women ‘damages by way of compensation for any loss or damage suffered by reason of’ his conduct. The damage which may be so compensated extends by force of s 81(4) to ‘injury to the complainant's feelings or humiliation suffered by the complainant’. Its measure is to be found, not in the law of tort, but in the words of the statute which require no more to attract the exercise of the Commission's discretion than that the loss or damage be ‘by reason of’ the conduct complained of. …
There are decisions on anti-discrimination legislation which treat its contravention as a species of tort and approach the measure of damages accordingly…. Whether that classification is strictly correct or not, the measure of damages is to be governed by the statute and the rules applicable in tort can be of no avail if they conflict with it.’
48    The approach of Spigelman CJ in Russell and of French J in Hall was followed by an Appeal Panel of the Administrative Decisions Tribunal in Commissioner of Police, NSW Police v Mooney (No 3).[27] The Panel stated:
[27] [2004] NSWADTAP 22 (M Chesterman ADCJ (Deputy President); N Rees (Deputy President) and L Taksa (Member).
‘[27]   We believe that the views of Spigelman CJ and French J should be followed. The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) of that Act vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent’s conduct, but they are not controlling.’
49    In Spencer v Dowling[28] the Victorian Court of Appeal considered the assessment of damages under the Equal Opportunity Act 1995 (Vic) in respect of a claim of sexual harassment by an employer. Winneke P stated (Callaway JA agreeing):[29]
‘[A]n analogy between the measure of an award of damages in tort and an award of compensation under the Equal Opportunity Act must be an imperfect one. An award of damages under the latter Act is a creature of statute. The measure of damage for tortious conduct has been carefully crafted by the common law for over a century and has been confined by principles which, so far as I can see, would have no place in a law which seeks to eliminate discrimination in defined relationships.’
The President gave examples of common law principles which did not find reflection in the statutory scheme.
50    The Anti-Discrimination Act operates in many areas of public activity, including employment, goods and services, accommodation, education and clubs. Approximately half of all complaints arise in the area of employment.[30] Although the Anti-Discrimination Act has been in force in this State for more than 40 years, the parties were not able to identify any case in which the issue of its interrelationship with the workers’ compensation legislation had been determined, or even raised. Each being a self-contained statutory scheme which allows for the payment of compensation with respect to aspects of an employment relationship, the possibility that compensation has been paid for discriminatory conduct which has resulted in personal injury to an employee cannot be a novel situation.
51 While it may be conceded that the primary purpose of s 151A(1) of the Workers Compensation Act is to avoid double compensation, it is also apparent that its main area of operation is the interrelationship of workers’ compensation and what is now referred to as work injury damages. Prior to the Workplace Injury Act, it was the interrelationship between workers’ compensation and damages for a personal injury arising out of or in the course of employment. That interrelationship long predated the existence of the statutory scheme creating unlawful discrimination and providing for relief for contraventions. A purposive construction of the two separate and independent schemes of regulation does not support the proposition that a payment resulting from a complaint of discriminatory conduct, even if the discrimination gave rise to a personal injury within the meaning of the workers’ compensation legislation, should foreclose any claim for workers’ compensation or work injury damages. (There is not even an arguable basis for the foreclosure of relief for discriminatory conduct if workers’ compensation were to be obtained first.)
52    The only basis for such a suggestion is the broad definition of damages in the workers’ compensation legislation as including ‘monetary compensation’. However, whatever the potential breadth of the meaning of that term in ordinary usage, its meaning in the workers’ compensation legislation may be more confined. Read in the context of the legislation as described above, it should not be understood to cover payments by way of compensation under a statutory scheme which is self-contained and independent of the workers’ compensation legislation and which was expressly stated to provide additional rights (by way of protection) to those who might be the victims of unlawful discrimination in various areas of public activity, including employment.
53    The reasoning of both the Arbitrator and the President was inconsistent with that conclusion. Because the conclusion rests on the construction of three statutes, it involves a question of law. Accordingly the appellant is entitled to succeed.”
[28] [1997] 2 VR 127; [1996] VSC 51.
[29] Spencer at [144].
[30] Anti-Discrimination Board, Annual Reports 2017-2018 and 2018-2019, sch 1.

Counsel for Ms Shabib submitted that the deed clearly characterises the payments to her as payments under Fair Work Act 2009. That is, it deals with a statutory entitlement that is available to the worker which is self contained and independent of workers compensation. As such it doesn’t come within the definition of section 149 and section 151A which needs to be read down to relate to modified common law damages and not damages obtained under an independent statutory scheme such as for adverse action based on sex under the Fair Work Act 2009.
Counsel for Ms Shabib submitted that her second argument relates to the construction of the deed itself. Again counsel for Ms Shabib relied on the analysis of Basten JA in Gardiner.
Counsel for Ms Shabib referred to Basten JA’s reasoning as follows:
’54. If the foregoing analysis is correct, nothing turns on the terms of the deed, except to characterise the deed as involving the settlement of a complaint brought under the Anti-Discrimination Act. That particular characterisation was not contested. However, if it be necessary to characterise the payment made under the deed, in order to say whether it constitutes recovery of damages for the purposes of section 151A(1) of the 1987 Act, it becomes necessary to identify the structure, purpose and content of the deed.”
Basten JA then went through the deed which contained specific exclusion of Mr Gardiner’s workers compensation claim and found as follows:
“61. The proper construction of the deed negates any possibility that the payment by way of ‘General Damages’ was intended to settle any claim for workers’ compensation or work injury damages which might be available subject to the controls imposed by the 1987 Act and the following of the procedures set out in the Workplace Injury Act. The characterisation of the payment made as consideration of the release from liability and the discontinuation of the complaint to the Anti-Discrimination Board follows from the proper characterisation of the deed. That involved a question of law. The conclusions of the Arbitrator and the President were inconsistent with that conclusion and therefore involved an erroneous resolution of the question of law.”
Basten JA made clear that characterisation of the payment to Mr Gardiner as a payment of damages for the purpose of section 151A (1) had been rejected by the Court of Appeal:
“The primary position of the respondent did not cavil with the construction of the deed set out above, but rather relied upon the payment constituting a payment of ‘damages’ for the purposes of section 151A(1) of the Workers Compensation Act, regardless of its proper characterisation under the deed. That submission depended upon an understanding of the scope and operation of section 151A(1) which, as a matter of law, has been rejected.”
Counsel for Ms Shabib also referred to Leeming JA as follows:
“I agree with the orders proposed by Basten JA, and his Honour’s reasons enable me to explain my reasons for doing so concisely.
The first question is this Court’s jurisdiction. The Workers Compensation Commission had dismissed the appellant’s claim for weekly benefits, medical expenses and lump sum compensation because it found that section 151A was engaged by the payments made pursuant to a deed of settlement. Section 151A is reproduced in Basten JA’s judgment. It relevantly provides that if a person “recovers damages in respect of an injury from the employer liable to pay compensation” under the Workers Compensation Act, then the person ceases to be entitled to compensation in respect of the injury, and has to repay any weekly payments of compensation already paid in respect of the injury. Section 151A is thus disentitling in respect of future payments of compensation in respect of the injury, as well as imposing an obligation to repay compensation already paid in respect of the injury.
The respondent’s threshold submission in response to the appeal was that whether the payment made to the appellant was a payment of damages in respect of the injury was a question of fact falling outside the scope of the appeal confined to cases where a party is aggrieved “in point of law” conferred by section 353 of the Workplace Injury Act. It is fair to say that its oral submissions were more diffident than those advanced in writing.
The entry into the deed, and the making of two payments totalling some $34,000 by LORAC to the appellant and his solicitors were (non-contentious) questions of fact. But whether those transfers of money amounted to the appellant “recover[ing] damages in respect of an injury from the employer liable to pay compensation under this Act” necessarily involves an analysis of (a) the legal character of the bargain struck between the parties and (b) the construction of section 151A. Both are questions of law. Only when both questions have been answered can it be determined whether the payments engaged the disentitlement effected by section 151A, and thus whether the Workers Compensation Commission constituted by the President was correct to dismiss the appeal on the basis that section 151A applied. It follows that I reject the challenge to jurisdiction.
Entry into the deed created various rights and obligations between the parties, including releases, but LORAC relied merely upon the payments made by it to engage section 151A. The question then is a very narrow one. Was the payment ‘damages’, and if so was it ‘in respect of’ an injury?
There is a general principle in law that a payment made pursuant to a compromise of a claim bears the same nature as the amount which would have been payable if the claim had been vindicated. That may be seen in the operation of taxation legislation upon settlements. Thus a lump sum payment in compensation for the payment of income retains the character of income. See for example Commissioners of Taxation (NSW) v Meeks (1915) 19 CLR 568 at [580] and [592]; [1915] HCA 34 and Heavy Minerals Pty Ltd v Federal Commissioner of Taxation (1966) 115 CLR 512 at [516]-[517]; [1966] HCA 60. As Hill J put it in Henry Jones (IXL) Ltd v Commissioner of Taxation (1991) 31 FCR 64 at 78, “Amounts received as compensation for an income right, amounts which thus fill the [hole] of income, have the character of income.” Indeed, this is a premise of the principle associated with McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381; [1961] HCA 9 that an undissected lump sum payment by way of settlement of distinct unliquidated claims must be considered as a whole, and cannot be apportioned amongst the various claims, some of which may income, and others of a capital nature.
The same general principle may be seen in the reasons of Sheppard J in Patrick Stevedores No. 2 Pty Ltd v the proceeds of sale of vessel MV ‘Skulptor Konenkov’ (1997) 75 FCR 47 at [60] that a claim under a settlement deed retained its essential character as a claim for loss or damage to goods carried by a ship and therefore a general maritime claim within the jurisdiction of the Federal Court.
The same general principle underlies the reasoning whereby a contract to settle a federal claim arising under federal law can be enforced in a federal court: the contractual rights nonetheless are a matter arising under federal law: Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773; Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [16].
The same general principle also gave rise to the dispute in Koutsourais v Metledge & Associates [2004] NSWCA 313 as to whether recovery by a solicitor of amounts payable under an agreement settling a dispute as to costs was itself a proceeding “for the recovery of costs by a solicitor” regulated by section 192 of the then Legal Profession Act 1987 (NSW). The general principle is not of course unqualified, but it is unnecessary to consider the position any further, because the Workers Compensation Act is explicit on this point.
The definition of ‘damages’ in section 149 is self-referential. ‘Damages’ is defined to include “any amount paid under a compromise or settlement of a claim for damages”. Thus, consistently with the general principle mentioned above, the fact that a ‘claim for damages’ has been settled and money is paid under the settlement does not deny the receipt of the contractual entitlement the character of ‘damages’.
Accordingly, the legal character of the $34,000 which was paid to the appellant and his solicitors is not sufficiently identified merely by observing that they were amounts payable under a settlement. The effect of the definition of “damages”, which accords with the general principle governing the character of payments made pursuant to a settlement, is to require an analysis of what was being compromised.
One therefore asks whether the claims compromised by the deed were ‘in respect of an injury’. That requires an evaluation of the legal relationship between the payment of money and the claim that is made in respect of any injury. These sorts of questions can be most vexed, as Windeyer J’s luminous judgment in The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15 illustrates. The law has not infrequently asked whether a government pension, or a donation, or a payment from an insurance company, any of which is only payable by reason of an injury suffered by a plaintiff, is to be taken into account by way of reduction of the damages for personal injury payable by a defendant whose negligence caused the injury.
The answer to the question does not turn on the meaning of ‘in respect of’ considered in isolation. Although those words encompass a wide range of relations, the meaning of such a ‘relational term’ (to use the description given by French CJ in The Queen v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [31]) is inevitably inexact and necessarily requires regard to context in any particular case, as Meagher JA recently observed, by reference to authority, in Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82 at [135].
But the present case is, to my mind, straightforward. The parties must be taken to have agreed that the payments were not in respect of the injury for which there was a pending claim for workers compensation, which was expressly preserved in no fewer than five of the substantive clauses (clauses 3, 4, 6.3(f), 6.4 and 7.1) as well as recital P.
True it is that there are limits upon the extent to which parties may agree as to the characterisation of payments between them. For example, an employer who has wrongfully withheld wages from an employee cannot in settling that dispute agree with the employee that a payment is of a capital nature and by that device defeat the operation of income taxation legislation. But there is no suggestion of any such artifice here. There is no suggestion that the appellant’s claims aside from the workers compensation claim were anything other than genuine. All indications point to the conclusion that the parties are to be taken to have compromised the long-standing complaints based on alleged discrimination and misuse of intellectual property, but to have preserved the claims arising under workers compensation legislation. There is nothing wrong with parties with multiple disputes agreeing to settle some but not all of them. And indeed, in the United Kingdom it has ‘long been a common practice to exempt from the scope of a ‘full and final settlement’ between an employer and employee any claim that the employee has or may have in regard to personal injury’: D Foskett, Foskett on Compromise (9th ed, Sweet & Maxwell, 2020), page 427.
When one looks at the recitals in order to identify the underlying dispute which was compromised, and the substantive provisions in the deed which constitute the consideration for the payment, all point in the same direction. Each of recital P and clauses 3, 4, 6.3(f), 6.4 and 7.1 expressly excludes proceedings under ‘workers compensation legislation’. It follows that the payments made pursuant to the deed were not in respect of the injury that was the subject of the pending claim for compensation under the Workers Compensation Act.
Although not raised before the Workers Compensation Commission, section 280B of the Workplace Injury Act confirms that conclusion. That section is necessarily to be read with section 151A, not merely by reason of section 2A(2) of the Workers Compensation Act, but also because of the note in section 280B. At the time the deed was entered into, the employer had received Dr Hong’s report which was, in due course, relied on in support of the appellant’s claim for lump sum compensation. Reading section 280B harmoniously with section 151A, there is no reason to impute to the parties an intent that the payment be one which would contravene that section.”
Counsel for Ms Shabib submitted that, similarly in this case, it is very clear at clause 2.5 that the parties were excluding the workers compensation claim to the extent of identifying the specific claim number. The purpose of the deed was to provide final resolution of the fair work claim and adverse action but to exclude the workers compensation claim.
Counsel for Ms Shabib also referred to the decision of Deputy Resident Wood in Neuroscience Research Australia v De Rome [2019] NSWWCCPD 13 (De Rome) which predates the decision of the Court of Appeal in Gardiner. In De Rome the arbitrator at first instance had determined questions of the disputed psychological injury in the workers favour and held that section 151A did not preclude recovery of workers compensation entitlements in circumstances where the worker in the context of a fair work application had entered into a deed and recovered damages. In that case the appeal was limited to whether the worker was excluded by operation of section 151A of the 1987 Act from workers compensation entitlements because she had received damages in respect of the Fair Work application. The arbitrator’s findings were upheld on appeal.
Each case must be determined on its own facts and in accordance with the law.
The Court of appeal in Gardiner has provided an extensive and instructive analysis of the purpose of section 151A which is to prevent double compensation.
In this case Ms Shabib suffered sexual harassment in the employ of the respondent causing psychological injury.
She was terminated from her employment and sought relief under the Fair Work Act 2009 by commencing proceedings against the respondent in the Federal Court of Australia.
The parties entered into a deed of release pursuant to the terms of which Ms Shabib specific sums for various unpaid entitlements, a redundancy payment and she received also received an amount specified as “general damages” in the sum of $15,294.15.
The respondent says this constitutes damages within the meaning of section 149 of the 1987 Act and by virtue of the provisions of section 151A Ms Shabib is precluded from recovering workers compensation in the Commission for her work injury. The respondent’s primary submission is that I would find that Ms Shabib has received damages in respect of a personal injury which is the subject of this claim.
55. Batsen JA in Gardiner pointed out that the purpose of section 151A is to preclude double compensation being paid to an aggrieved worker.
The question for determination is whether the entry into the deed and the receipt of the settlement sum under the deed disentitled the Ms Shabib from recovering compensation or damages under the 1987 Act . This involves an analysis of the construction of section 151A(1) and the operation of the deed. The operation of section 151(A)(1) has to be addressed first. The Court of Appeal in Gardiner has provided an instructive analysis of how section 151A(1) is to be construed which I have set out in detail above. I am bound by Court of Appeal authority.
Counsel for the respondent says that because the deed referred to a personal injury in the form of psychological damage which is the same as the injury pleaded in the present proceedings, Ms Shabib is caught by the provisions of section 151A(1) because she received damages.
The clear purpose of section 151 is to prevent a worker being doubly compensated, that is, to ensure that a worker does not get damages and workers compensation with respect to the one injury.
The Court of Appeal in Gardiner has held the workers’ compensation legislation is concerned with “damages” payable in respect of an injury caused by the negligence or other tort of the employer, and not amounts recoverable in satisfaction of a liability created by an independent statutory scheme.
In Gardiner the Court of Appeal found that the Anti-Discrimination Act with which that case was concerned provided for statutory protections under a discrete and independent statutory scheme. The Court of Appeal held that a purposive construction of the two separate and independent schemes of regulation does not support a payment resulting from a complaint of discriminatory conduct, even if the discrimination gave rise to a personal injury, should disentitle a worker from making any claim for workers’ compensation or work injury damages.
I am persuaded that similarly, in the circumstances of this case, the Fair Work Act 2009 provides for statutory protections under a discrete and independent statutory scheme. The legislative purpose of section 151A is to ensure that a worker does not get workers’ compensation and damages with respect to the one injury. The Fair Work Act 2009 allows for damages for pain and suffering resulting from adverse action based on sex. Even if the sexual harassment resulted in personal injury which it did here, this does not disentitle Ms Shabib’s claim for workers compensation. Rather the proper construction of both section 151A(1) and the deed, is that Ms Shabib has received payment under an independent statutory scheme (the Fair Work Act) for adverse action based on sex and she is not disentitled from claiming workers compensation. This conclusion is reinforced by the parties specifically excluding from the release Ms Shabib’s claim for workers compensation by identifying the specific claim number 1737600 and which is not disputed to be the claim with which these proceedings are concerned.
Accordingly I find that Ms Shabib is not precluded from the recovery of workers compensation and the matter will proceed by consent to assessment by a MA in respect of the lump sum claim and then be relisted for a telephone conference once the MAC issues.
I therefore order as follows:
(a)     The matter be remitted for referral to a MA to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 28 May 2021.
(b)     The Application and all documents attached admitted.
(c)     The Reply and all documents attached admitted.
(d)     The matter be relisted, in respect of the claim for weekly benefit and medical expenses, for a telephone conference before me once the MAC is issued.

[2022] NSWPIC 260

31 May 2022