Sutherland v Federal Airports Corporation No. Scgrg-98-798 Judgment No. S6903

[1998] SASC 6903

SUTHERLAND v FEDERAL AIRPORTS CORPORATION
[1998] SASC 6903

Full Court:  Millhouse, Olsson and Debelle JJ

1. MILLHOUSE J  I agree that the appeal should be allowed for the reasons given by my brother Debelle.

2. OLSSON J  I also agree.

3. DEBELLE J (ex tempore).         This is an appeal from a judge of the District Court.  The appellant was the plaintiff in the District Court and the respondent was the defendant.  I will refer to the parties as “plaintiff” and “defendant” respectively.

4. On 23 September 1993 the plaintiff injured his left knee when he fell into a hole in the grounds of the Adelaide Airport.  The defendant is the occupier of the airport.  The plaintiff claims damages against the defendant as occupier.  His claim includes damages for past and future economic loss.  In its defence the defendant pleaded:

   “The defendant says that by virtue of section 44 and 45 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) the plaintiff is unable to maintain his claim insofar as it relates to past and future economic loss”.

The question whether the plaintiff was barred from prosecuting his claim for past and future economic loss was heard as a preliminary point. The learned judge held that the claims were barred by ss44 and 45 of the Act.

1. The facts are in narrow compass and 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 ss19, 24 and 27 of the Act.

1. The plaintiff has not made an election in writing as provided for by s45(1) of the Act.

Sections 44 and 45 of the Act limit, among other things, the capacity of employees of a Commonwealth authority to sue to recover damages at common law for an injury sustained in the course of employment if the authority was the employer at the time of the injury. Given that the plaintiff was not employed by the defendant, the question in this case is whether his claim for damages at common law is subject to ss44 and 45.

1. Sections 44 and 45 of the Act provide:

   “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 term “employee” is defined in s5 of the Act in these terms:

“‘employee’ means:

(a).... a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or

(b).... a person who is employed by a licensed corporation.”

It is unnecessary in this case to stay with paragraph (b). Section 5 contains other provisions deeming certain persons to be employees of a Commonwealth authority. None assists in the resolution of the question now before the Court.

1. When viewed as a whole, the Act operates only where the injured employee is employed by the very Commonwealth authority against whom the employee brings his action. The Act does not evince an intention to operate where the injured employee brings an action against a Commonwealth authority other than his employer. That is consistent with the fact that the Act does not seek to prevent persons who are employed by persons other than the Commonwealth, a Commonwealth authority or a licensed corporation from bringing an action against any of those bodies in respect of injuries sustained in the course of employment. For that reason, I do not think that the operation of ss44 and 45 prevents the plaintiff from bringing this action or from recovering damages for past and future economic loss.

2. There is a further reason for this conclusion.  An Act of Parliament will not be construed as taking away an existing common law right unless its language is reasonably capable of no other construction: Sargood Bros v Commonwealth (1910) 11 CLR 258 per O’Connor J at 279. O’Connor J expressed the same principle in Potter v Minahan (1908) 7 CLR 277 at 304, approving a passage in Maxwell on Statutes (4th edition)  at page 121.  He said:

   “It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness;  and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

The principle has been consistently followed and applied since: see, for example, Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609 at 617 where Mason ACJ, Wilson and Dawson JJ referred to “the general principle that a statute will not be construed to take away a common law right unless the legislative right to do so clearly emerges, whether by express words by necessary implication.” The principle has been recently expressed in Coco v The Queen (1994) 68 ALJR 401 per Mason CJ, Brennan, Gaudron and McHugh JJ at 404:

“The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them.  The courts should not impute to the legislature an intention to interfere with fundamental rights.  Such an intention must be clearly manifested by unmistakable and unambiguous language.  General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.”

In the same decision at page 409 Deane and Dawson JJ expressed the principle in these terms:

“It is settled law that a court should not impute to a legislature an intention either to abolish or to modify a fundamental common law right or privilege unless the relevant legislation makes such an intention unambiguously clear.  Obviously, the most satisfactory means of manifesting a legislative intent to that effect is by express and specific words.  There can, however, be circumstances where such a legislative intent is made unambigiously clear notwithstanding the absence of express words.”

The capacity to bring an action for damages for negligence has long been established as a common law right. The Safety, Rehabilitation and Compensation Act seeks to limit the operation of that right but only where the employee brings an action against his employer and that employer is a Commonwealth authority. In this respect, it is relevant to note that the Act does not abolish proceedings against a person other than the employer. There is nothing in the Act which discloses an intention to abrogate the right of an employee of a Commonwealth authority who is injured in the course of his employment by the negligence of a person other than his employer, even if that person is a Commonwealth authority. In other words, the Act does not clearly evince an intention to abrogate the right of an employee of a Commonwealth authority to bring an action against another Commonwealth authority which is not his employer. To adopt the language used in Coco v The Queen, there is nothing in the Act which unambiguously discloses that intention. Had that been the intention, the drafter would have framed ss44 and 45 in different terms. For example, s44 would have included a provision to the effect that it operates even if the employee brings an action against a Commonwealth authority other than the Commonwealth authority which is his employer.

1. Relying on s15AB of the Acts Interpretation Act 1901 (Cth), counsel for the defendant referred to comments on the Bill contained in the Explanatory Memorandum and 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 Giorgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 329, McHugh J described that policy in these terms:

   “The 1988 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”.

There is nothing in either of these passages which deals with an action brought by an employee of a Commonwealth authority against a Commonwealth authority which is not his employer.  The comments apply only to actions by employees against the Commonwealth authority which employs them.  In no respect do they affect the conclusion I have reached.

1. For these reasons, I would allow the appeal.  It follows that para 5 of the Defence does not raise a defence to the plaintiff’s claim.