Sutherland v Federal Airports Corporation No. DCCIV-96-1173 Judgment No. D3822

[1998] SADC 4011

SUTHERLAND V FEDERAL AIRPORTS CORPORATION

Judge Lee
Civil

The plaintiff injured his left knee on 23 September 1993 when he fell into a hole in the grounds of the Adelaide Airport.  Although he claims damages against the defendant as the occupier, at this stage the proceedings are before me for determination of a point raised in paragraph 5 of the defence, namely:-

"The defendant says that by virtue of section 44 and 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) the plaintiff is unable to maintain his claim insofar as it relates to past and future economic loss".

A number of facts and matters have been agreed:

1. The plaintiff’s employer was Australian Air Express Pty Limited (the employer).

1. The employer was a Commonwealth authority within the definition of that expression in section 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act").

1. The plaintiff was in the course of his employment with the employer at the time that he sustained his injury.

1. The defendant is a corporation established by the Federal Airports Corporation Act 1986 (Cth), and as such was also a Commonwealth authority within the abovementioned definition.

1. The defendant was the occupier of the grounds of the airport where the plaintiff sustained his injury. 

1. The plaintiff has received compensation for his injury under sections 19, 24 and 27 of the Act.

1. The plaintiff has not made an election in writing as provided for by section 45 (1) of the Act.

Sections 44 and 45 of the Act read as follows:-

"44. (1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a)  an injury sustained by an employee in the course of his or her       employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

(b) the loss of, or damage to, property used by an employee resulting from  such an injury;

whether that injury, loss or damage occurred before or after the commencement of this section.

(2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.

45. (1) Where:

(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and

(b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44 (1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.

(2) Where an employee makes an election:

(a) subsection 44 (1) does not apply in relation to an action or other       proceeding subsequently instituted by the employee against the       Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and

(b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.

(3) An election is irrevocable.

(4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee".

The word "employee" is defined in section 5 to mean a person who is employed by the Commonwealth, or by a Commonwealth authority, or by a licensed corporation. It will be sufficient for present purposes to use the short-hand expression "Commonwealth employee". The word "employer" is not used anywhere in the Act.

Sections 44 and 45 combine to curtail a Commonwealth employee’s right to sue a Commonwealth authority for an employment injury if that authority was the employer at the relevant time. This much is common ground between the parties. But what if, as is the case here, the Commonwealth authority was not the employer?

Neither counsel was able to cite an authority directly in point, and I have not been able to find any. Obviously enough, the answer must lie in the Act itself, subject to the rules of statutory construction including the rule that an Act will never be construed as taking away an existing right unless its language is reasonably capable of no other construction: Sargood Bros v Commonwealth . It seems to me that the words "the Commonwealth, a Commonwealth authority, a licensed corporation" naturally mean, in the case of the latter two bodies, any Commonwealth authority and any licensed corporation, irrespective of whether the authority or corporation was the employer at the relevant time. If any narrower meaning was intended, the drafter could easily have used appropriate words of limitation. I can find no reason in the sections and the Act as a whole, nor in logic, why the words should be construed to imply the limitation contended for by the plaintiff.

Counsel for the defendant referred to comments on the Bill in the explanatory memorandum and in the second reading speech. Those comments show that the policy of the Act is to substitute a scheme of comprehensive benefits in lieu of common law actions by Commonwealth employees, because "the common law negligence action which bases its entitlement on proof of fault is a costly, inefficient and inappropriate mechanism for compensating injured workers". In Georgiadis v Australian and Overseas Telecommunications Corporation , McHugh J described the policy in these words:-

"The 1998 Act simply provides for a new and comprehensive scheme of compensation for employment injuries in substitution for the earlier scheme which depended on the interaction of the 1971 Act and the common law.  The social philosophy of the 1988 Act is that a scheme of statutory compensation is more likely to promote the rehabilitation of injured employees than a scheme which involves an unlimited common law right of an action for damages for employment injury".

Section 15AB of the Acts Interpretation Act 1901 (Cth) authorises the use of an explanatory memorandum and the second reading speech to assist the interpretation of an Act. Although those sources may not confirm, they certainly do not contradict, the view that I have expressed.

Counsel for the plaintiff argued that the defendant’s construction would create the anomaly of his client’s right to sue at common law being dependent upon whether he was or was not  a Commonwealth employee in the course of his employment at the time of his injury.  I think that the answer is that any curtailment in worker’s compensation legislation of an employee’s common law rights will operate to the disadvantage of that employee when compared with a third party who is injured in similar circumstances.

In the result, the point raised in paragraph 5 of the defence is determined in favour of the defendant.