State of Tasmania v Clements
[2009] TASSC 114
•11 December 2009
[2009] TASSC 114
COURT: SUPREME COURT OF TASMANIA
CITATION: State of Tasmania v Clements [2009] TASSC 114
PARTIES: STATE OF TASMANIA
v
CLEMENTS, Darren Scott
JUDGMENT
APPEALED FROM: Clements v The State of Tasmania (Dept of Justice)
[2009] TASWRCT 20
FILE NO/S: 863/2009
DELIVERED ON: 11 December 2009
DELIVERED AT: Hobart
HEARING DATE: 11 December 2009
JUDGMENT OF: Blow J
CATCHWORDS:
Workers' Compensation – Alternative rights against employer and/or third parties and consequences thereof – Action for damages against employer – Statutory constraint on actions for damages – Procedural matters – Other matters – Tasmania – Election to claim damages – Extension of period within which to make election – Whether power to grant second extension.
Workers Rehabilitation and Compensation Act1988 (Tas), s138AB(6).
Aust Dig Workers' Compensation [242]
REPRESENTATION:
Counsel:
Appellant: P Turner
Respondent: R J Phillips
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Phillips Taglieri
Judgment Number: [2009] TASSC 114
Number of paragraphs: 18
Serial No 114/2009
File No 863/2009
STATE OF TASMANIA v DARREN SCOTT CLEMENTS
REASONS FOR JUDGMENT BLOW J
(Edited version of reasons delivered orally) 11 December 2009
This is an appeal from a decision of the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"). It concerns the proper construction of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s138AB(6). The Act some years ago was amended by inserting new provisions, s138AA to s138AJ, that restricted injured workers' rights to sue for damages at common law. A central provision in those sections is a requirement that the worker be prohibited from suing for damages for personal injuries unless the worker has suffered a degree of impairment that is not less than 30 per cent of the whole person: s138AB(2). Also there is a requirement imposed by s138AB(1) that, before commencing proceedings for damages, a worker must lodge with the Tribunal an election to claim damages. Under s138AB(5), a time limit for doing that is imposed. That subsection provides that an election is to be lodged within two years after the date on which the claim for compensation is given to the employer, or a person designated by the employer under s34.
The subsection that I am concerned with today is an ameliorative provision that enables the Tribunal to extend the two year period. Section 138AB(6) provides that,
"The Tribunal may extend the period within which an election is to be made if —
(a) there is a dispute as to the level of the worker's impairment; or
(b) the injury is not stable and stationary."
In this case the worker and the employer agreed that there was to be such an extension of time. The worker made a claim for compensation in late 2003. The two year period expired in late 2005. But in 2009 the worker sought an extension and the employer agreed to it. The Tribunal made an order by consent on 17 June 2009, granting an extension until 14 September 2009. Subsequently the worker sought a further extension of the period limited by s138AB(5) and, after hearing argument from counsel for both the worker and the employer, the Tribunal ordered that the time within which the worker should be entitled to make an election under s138AB(1) was extended to 14 September 2009.
The employer contends that the Tribunal had no power to make such an order. It contends that s138AB(6) empowers the Tribunal only to extend the period for making an election once. The worker contends that that subsection should not be interpreted that way, and that it places no limit on the number of times that the Tribunal may extend the period for a worker to make such an election.
The starting point in determining what the subsection means is that the ordinary and grammatical sense of the words of the subsection should be interpreted having regard to their context and their legislative purpose. That is clear from the judgment of French CJ in the recent case of Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 83 ALJR 1152 at par4.
I think it is useful in considering the ordinary and grammatical sense of the words to approach them from the point of view of the Tribunal when it was considering the application for the second extension. If the Tribunal was in any doubt as to what it had the power to do, the question for it was, "May this tribunal extend the period?" Subsection (6) says the Tribunal "may extend the period within which an election is to be made", subject to one of two prerequisites being met. There is no dispute today as to whether the prerequisites were satisfied.
The subsection does not say that the Tribunal may grant "an extension" of the period. Even then, of course, the singular might be interpreted as including the plural. But the subsection uses words that are neutral as to frequency. The Tribunal "may extend the period".
It is appropriate to consider the context and purpose of the provision. The starting point is that workers compensation legislation, generally speaking, is beneficial legislation. As a general rule, workers compensation legislation as beneficial legislation ought to be given an interpretation that is favourable to the class of persons intended to be benefited by the legislation, namely workers: McDermott v Owners of SS Tintoretto [1911] AC 35 at 46; Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335; Bird v The Commonwealth (1988) 165 CLR 1 at 9. There are other authorities, but those are the major ones which stand for that proposition.
Generally speaking, ss138AA and 138AB are not sections that are intended to benefit workers. They are sections that are intended to restrict workers' rights. They were inserted by an amendment to restrict the rights of workers injured in work-related accidents to the advantage of insurers and negligent employers, with a view to making insurance premiums more affordable. I said that in Skilled Engineering Limited v Glaxo Wellcome Australia Pty Ltd [2005] TASSC 39 at par30. That case, of course, went to the Full Court, and the appeal from my decision was partly successful, but there was nothing said in the Full Court that was contrary to the view that I took about the underlying legislative purpose at the time of enacting ss138AA and 138AB: Skilled Engineering Limited v Glaxo Wellcome Australia Pty Ltd (2005) 15 Tas R 88.
However, as I remarked earlier, subs(6) is an ameliorative provision. In my view it was not intended to restrict workers' rights. It was intended to operate to the benefit of injured workers wishing to claim damages when their injuries were not stable and stationary, or when there was a dispute as to the level of their impairment. So that particular subsection, in my view, should be treated as a piece of beneficial legislation intended to benefit a worker and, in the event of any ambiguity, given an interpretation favourable to the worker, all other things being equal.
It has been suggested by counsel for the employer that the interpretation urged upon me by his opponent involved "reading in" additional words. He submitted that I was being asked to treat the subsection as saying that the Tribunal "may from time to time extend the period". I think it is equally arguable that the interpretation urged upon me by the employer is one that involves reading in additional words, to the effect that the Tribunal "may once, but only once, extend the period". I do not think that this is a question of construction that can be resolved by reference to the cases about reading in unnecessary words. I think that there are arguments both ways in relation to those principles, and that they are not helpful.
I think it is useful to consider the consequences of the two interpretations that have been urged upon me. If the subsection is interpreted as allowing more than one extension, then such an interpretation can only operate to achieve justice. There will be times when a second extension will be needed in order for a just claim to be facilitated or pursued. There are all sorts of reasons why workers granted one extension might not take advantage of it and make their election within the extended time. Those reasons would include unforeseen circumstances, such as illness or injury, and being let down by others, for example, by negligent solicitors. It is important to remember that if the Tribunal does have a power to grant more than one extension, it can be assumed that the Tribunal will only ever grant a second or subsequent extension if the Tribunal considers that it is in the interests of justice to do so. In the general run of cases, one would not expect it to be in the interests of justice for a worker, having been given one extension, to be reasonably entitled to a second one.
If the interpretation urged upon me by counsel for the employer is adopted, there can be injustice. A just claim might be frustrated by some untoward event, such as a fire in a solicitor's office, or an accident that prevents the worker from giving instructions towards the end of the extended period. It appears from the facts of this case that the parties got into a situation where the first extension was agreed to and a deadline set before the Tribunal had made a determination as to whether there was a 30 per cent impairment. If the Tribunal makes a habit of doing things in that order, and the facts of this case suggest that it well might, then, as Mr Phillips suggested, there can be all sorts of situations in which the determination of the 30 per cent impairment question might be delayed through no fault of the worker, and no fault of anybody, beyond the expiry of the extended period.
I think when one considers the possible consequences of the two different interpretations, it is clear that adopting the interpretation contended for on behalf of the worker would avoid inconvenient and unjust consequences in some cases.
Sometimes, in cases where orders have been made and it is sought to change them, questions of issue estoppel or res judicata arise. No such questions arise in this case.
It is my view, having regard to the wording of the subsection, its context, its history, its purpose, and the consequences of the competing interpretations, that it should be interpreted in the way that counsel for the worker has suggested. I conclude that the subsection empowers the Tribunal to extend the period for the making of an election in a particular case more than once. Of course, that is not to say that it should do so if a second application is an abuse of process, or if it is not in the interests of justice to grant a second application.
Because of the conclusion that I have reached about s138AB(6), it is unnecessary for me to consider the submissions that were made about s62(2). I dismiss the appeal.
I order that the appellant pay the respondent's costs of and incidental to the appeal. I certify for counsel.