Telstra Corporation Ltd v Flynn

[2002] NSWCA 315

Reported Decision: (2002) 55 NSWLR 303

New South Wales

Court of Appeal

CITATION:	Telstra Corporation Ltd v Flynn [2002] NSWCA 315
FILE NUMBER(S):	CA 40868/01
HEARING DATE(S):	7 August 2002
JUDGMENT DATE:	26 September 2002
PARTIES :	Telstra Corporation Limited (Appellant) Troy Michael Flynn (Respondent)
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 47; Santow JA at 52

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9456/00
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	A: A Robertson SC/B Kelly R: C Stevens QC/B O'Sullivan
SOLICITORS:	A: Henry Davis York R: Brydens Law Office
CATCHWORDS:	whether strike out statement of claim - injury sustained during course of employment - workers compensation - whether entitled to bring claim for common law damages - administrative decision - whether legislative pre-conditions satisfied - construction of legislation
LEGISLATION CITED:	Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 11, 14, 19, 24, 25, 26, 27, 28, 44, 45, 64 Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 29, 42, 42A, 43
CASES CITED:	Janssen v The Commonwealth [1994] 2 Qd R 596 Walsh v The Commonwealth (1988) 155 ALR 182 Minister for Immigration and Ethnic Affairs v Daniels (1981) 61 FCR 354 Commonwealth v Sciacca (1988) 17 FCR 476 Midland Metals Overseas v Customs (1991) 30 FCR 87 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 483
DECISION:	Appeal allowed

CA 40868/01
DC 9456/00

BEAZLEY JA
HODGSON JA
SANTOW JA

26 SEPTEMBER 2002

TELSTRA CORPORATION LIMITED v TROY MICHAEL FLYNN

FACTS

The respondent claimed common law damages under s 45 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (SRC Act) for injuries he sustained during the course of his employment with the appellant. The appellant had previously rejected the respondent’s application for lump sum compensation under s 24 of the SRC Act. Section 45 of the SRC Act allows an employee to elect to bring an action for common law damages against the appellant where compensation is payable under s 24 of the SRC Act.

The appellant submitted that the respondent’s statement of claim should be struck out, as he was not entitled to bring an action under s 45 because a determination had been made under s 24. Sidis DCJ refused to strike out the respondent’s statement of claim.

HELD per Beazley JA (Hodgson JA and Santow JA agreeing)

(i) As there was a determination under s 24 the respondent had lost his right to make an election to claim common law damages under s 45: Walsh v The Commonwealth (1998) 155 ALR 182, per Sheppard AJA, Janssen v The Commonwealth [1994] 2 Qd R 596 considered.

(ii) The trial judge was incorrect in holding that there needs to be ‘at least a final tribunal decision before a court is prevented from making a determination as to whether an employee is entitled to damages under s 45’.

Held per Hodgson JA

(i) As the appellant determined the amount of compensation under s 24 to be nil, a necessary pre-condition to a claim for damages under s 45 was not satisfied.

ORDERS

(i) Appeal allowed;

(ii) Judgment of Sidis DCJ set aside and in lieu thereof an order striking out the respondent’s statement of claim;

(iii) Respondent to pay the appellant’s costs of the appeal and the application for leave to appeal but is to have a certificate under the Suitors’ Fund Act 1951 (NSW).

CA 40868/01
DC 9456/00

BEAZLEY JA
HODGSON JA
SANTOW JA

26 September 2002

TELSTRA CORPORATION LIMITED v TROY MICHAEL FLYNN

JUDGMENT

1 BEAZLEY JA: This is an appeal, by leave, from a decision of Sidis DCJ in which her Honour refused to strike out the respondent’s statement of claim in which he claimed damages for injuries he sustained during the course of his employment with the appellant. The essential issue raised on the appeal involves the construction of of ss 24, 27, 44 and 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

2 The respondent sustained an injury to his lumber sacral spine in the course of his employment with the appellant on 17 April 1996. He was paid compensation under s 14 of the SRC Act in respect of this injury pursuant to a decision of a delegate of the appellant made on 23 October 1996.

3 The respondent suffered a further injury to his lower back on 21 June 1997 and, pursuant to a determination by a delegate of the appellant dated 24 September 1997, the appellant was found liable to pay compensation under s 14 in respect of that injury. However, following a specialist orthopaedic examination on 19 August 1998, a delegate of the appellant determined that the appellant was not liable to pay him compensation in respect of the injury on and from 17 July 1998. The respondent applied for a re-determination and, on 5 March 1999, the decision of 18 September 1998 was varied so as to find the appellant liable to pay compensation in respect of the claim up to 14 September 1998.

4 The respondent also claimed lump sum compensation for permanent injury under s 24 of the SRC Act. This claim was rejected by a delegate of the appellant on 6 April 1999 on the ground that “on the available evidence [the respondent] is deemed to suffer no whole person impairment of the lower back, right leg and abdomen in accordance with Section 24 of the SRC Act”. The basis of this finding was that the respondent did not suffer a permanent disability that was equal to or greater than 10% of the whole person as a result of his employment with the appellant.

5 The respondent sought a re-consideration of that determination. On 25 May 1999, a delegate affirmed the decision of 6 April 1999. In his statement of reasons the delegate referred to the requirement in s 24 that the permanent disability be equal to or greater than 10% and found that:

“the Telstra related effects of the claimants lower back condition were deemed to have ceased by 14 September 1998 by determination … dated 5 March 1999. It therefore stands to reason that as the work related effects of the claimants condition have been found to have ceased, the claimant does not suffer any permanent injury related to his employment with Telstra.”

6 The respondent applied for a review of this decision by the Administrative Appeals Tribunal (the AAT) under s 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). However, on 16 August 2000, the respondent, with the consent of the appellant, withdrew his application for review.

7 On 22 November 2000, the respondent commenced the subject proceedings in the District Court claiming that the injuries sustained on 17 April 1996 and 21 June 1997 were caused by the negligence of the appellant. The appellant, by Notice of Motion dated 1 June 2001, moved the court for an order that the proceedings be struck out, essentially on the basis that the respondent was not entitled to non-economic loss damages at common law because by reason of the determination of the delegate made on 25 May 1999 (see para 5 above) he had not satisfied the provisions of s 45(1)(a) of the Act.

Trial Judge’s Decision

8 The trial judge rejected the appellant’s application to strike out the statement of claim. She considered that, in the absence of a final judicial or tribunal determination under s 24 of the SRC Act, an employee was entitled to bring a claim for common law damages under s 45 and it was for the court hearing that claim to determine whether s 45(1)(a) was satisfied. Her Honour considered that the consent dismissal of the AAT proceedings did not amount to a final judicial or administrative determination of the respondent’s s 24 entitlement as there had been no decision on the merits. All that had happened was that the Tribunal was taken, under s 42(IB) of the AAT Act, to have dismissed the application without proceeding to review the decision. Her Honour stated:

“In my view this is the outer limit of the point at which a plaintiff may elect to proceed with a claim for common law damages and to ask the Court that deals with that claim to determine whether he had pursued his rights under the Act compensation would have been payable under section 24.”

9 Her Honour considered her conclusion was reinforced by what was said in Janssen v The Commonwealth [1994] 2 Qd R 596 and Walsh v The Commonwealth (1988) 155 ALR 182.

The Safety, Rehabilitation and Compensation Act 1988 (Cth)

10 It is convenient at this point to turn to the provisions of the SRC Act and the AAT Act.

11 The SRC Act is an act relating, inter alia, to workers compensation for employees of the Commonwealth and certain corporations. The scheme and purpose of the Act has been well ventilated in the authorities and does not need discussion here: see generally Walsh v The Commonwealth.

12 The appellant was a licensed corporation and a relevant authority within the meaning of the Act and the respondent was an employee for the purposes of the Act.

13 The liability of Telstra to pay compensation to an employee is specified by s 11:

“The liability of a relevant authority to pay compensation to a person under this Act is the liability of that authority to pay to the person such amount or amounts as are determined by that authority to be payable to the person under this Act.”

14 Section 14, relevantly, provides:

(1) Subject to this Part, [Telstra] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment.
…”

15 Weekly compensation for incapacity is provided for by s 19.

16 Compensation for impairment is provided for in ss 24-28. Section 24, which is central to the issues raised on this appeal, provides, relevantly:

“(1) Where an injury to an employee results in a permanent impairment, [Telstra] is liable to pay compensation to the employee in respect of the injury.
…
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by [Telstra] under subsection (4), being an amount not exceeding the maximum amount at the date of assessment.
(4) The amount assessed by [Telstra] shall be an amount that is the same percentage of the maximum amount as the percentage determined by [Telstra] under subsection (5).
(5) [Telstra] shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where [Telstra] determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
…
(9) For the purposes of this section, the maximum amount is $80,000.”

The maximum amount prescribed in subs (9) is subject to indexation.

17 Part IV of the SRC Act deals with “liabilities arising apart from this Act” and is directed to limiting common law actions against the Commonwealth. This is achieved through the provisions of ss 44 and 45. Those sections 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; …
…
whether that injury, loss or damage occurred before or after 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 amount of $110,000 is not subject to indexation.

Administrative Appeals Tribunal Act

18 Under the Administrative Appeals Tribunal Act an application for review of a determination under s 24 of the SCR Act may be made to the AAT: s 64 of the SRC Act and s 25 of the AAT Act. As I have indicated, the respondent made such an application. That application was withdrawn by the applicant. The effect of the withdrawal was that the Tribunal was taken to have dismissed the application without proceeding to review the decision: s 42A(1A and 1B). The application is thereby taken to be concluded: s 42A(6).

19 It was submitted by the appellant and not contested by the respondent that the effect of the dismissal of the application is that the decision of the primary decision maker stands. The AAT Act does not specifically so provide. To the extent it makes provision for the effect of a determination by the AAT, s 43(6) provide that if the AAT varies the decision or substitutes its own decision, that decision is deemed to be the decision of the person who made the decision (that is, the delegate of the relevant authority).

20 Although there is no provision in the AAT Act which directly deals with this circumstance, the appellant’s submission must be correct. If an application is dismissed, the effect of the dismissal must by its nature, leave untouched that which went before. In this case, that means that the decision of the delegate of 25 May 1999, that there was no permanent impairment, is the operative decision in this case.

Appellant’s Argument

21 The appellant submitted that it is not liable to pay compensation to the respondent in this case because, as a result of the determination of 25 May 1999 by the delegate, the provisions of s 45(1)(a) of the SRC Act were not satisfied. The respondent contended, however, that the fact of such a determination is irrelevant and that the question whether or not compensation is payable under s 24, in circumstances where an election under s 45(1) has been made, is a matter for determination by the trial judge in common law proceedings.

22 It should be noted at the outset that, in its argument on the appeal, the appellant did not assert that its position was protected by an estoppel in relation to the administrative determination and for its part the respondent denied that any estoppel was available: see Minister for Migration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 359; Commonwealth v Sciacca (1988) 17 FCR 476 at 480; Midland Metals Overseas v Customs (1991) 30 FCR 87 at 96-99. Rather, the appellant submitted that as a matter of the plain meaning of the words of s 45, where there was a valid determination by a delegate of the appellant, that determination operated to preclude an election under s 45 if the valid determination was that no compensation was payable under s 24.

23 Both parties relied upon the decision of this Court in Walsh v The Commonwealth in support of their respective arguments.

24 The issue which arose for determination in Walsh was whether it was an essential pre-condition of a valid election for the purposes of s 45 for there to have been an administrative determination by Comcare (or other relevant authority or the AAT) under, relevantly, s 24 of the SRC Act. This issue was stated as a separate question for determination which was removed, by order of the Master, into the Court of Appeal. Mason P, with whom I agreed, held that a determination by the relevant authority that compensation is payable under s 24 was not an essential pre-condition of a valid election for the purposes of s 45 of the Act. In so determining, Mason P agreed with and applied the reasoning of the Queensland Court of Appeal in Janssen v The Commonwealth. In that case, Fitzgerald P and Pincus JA in a joint judgment considered that the expression “is liable to pay compensation” in s 14(1) was used in a broad sense and did not mean a crystallised obligation. Their Honours held, at 603, that the expression “is payable” in s 45(1)(a) had the same meaning:

“… ’payable’ in s 45(1) refers to liability subject to compliance with the procedural requirements, including making a claim. There would be no more sense in a reading which necessitates that a claim for compensation under the Act be made by anyone who wants to sue than in a requirement that the claim be pursued and determined.”

25 In reaching this conclusion their Honours had noted at 600 that s 24(1):

“uses the expression ‘liable to pay’ without including any express qualification with respect to procedural requirements; that is, the expression in s 24(1) plainly means ‘liable, subject to compliance by the claimant with procedural requirements, to pay’”.

26 Their Honours added:

“To our minds ‘liable to pay’ when used in isolation has no less implication of crystallised liability than ‘payable’ has.”

27 McPherson JA in a separate judgment agreed with the joint reasons of the President and Pincus JA. He added at 603:

“The pivotal provision of the … Act is s 14(1). It makes the Commonwealth ‘liable to pay’ compensation in accordance with the Act in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment. The expression ‘liable to pay’ in the comparable context of s 5(1) of the Workers Compensation Act 1958 (Vict) was said by Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537, 584 to refer to ‘a situation in which a duty or obligation can arise as the result of the occurrence of some act or event’.
I consider that also to be its meaning in s 14(1).”

28 His Honour concluded at 604 that the expression “where … compensation is payable under s 24 …” in s 45(1)(a) did not mean that compensation must first have been determined in accordance with the Act and that this must have taken place before the employee became entitled under s 45 to elect to institute an action against the Commonwealth for damages.

29 In Walsh, Sheppard AJA agreed with Mason P that the separate question should be answered in the negative. He did so in circumstances where he felt obliged to follow the decision in Janssen as a matter of judicial comity in respect of substantially identical legislation in both states: see Australian Securities Commission v Marlborough Gold Mines Ltd (1933) 177 CLR 485. But for that decision his Honour would have dissented. However, in the course of his consideration of the legislation he made the following observation at 195:

“… on the face of the language of the section, there can be no action until there is an effective election and there can be no effective election unless the conditions provided for in the earlier part of the section are fulfilled. The language of s 45(1)(a) of the Act is such that it will not permit an effective election unless compensation is payable under s 24 … In order to determine whether it is payable under … [that section] one has to have regard to [it]. In my opinion, the stumbling block for the plaintiff’s submission is s 24(7) which provides that, where [Telstra] determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under the section. So it is [Telstra], subject to the review provided for in the Act, which must determine whether the amount of permanent impairment of the employee is less than 10%. If it does make that determination, no compensation is payable. … It follows that s 45 cannot, in that event, apply because compensation will not be payable and one of the conditions of an effective election will not be made out.” (emphasis added).

30 The appellant submitted that this approach by Sheppard AJA was correct and should be followed.

31 I will return to the appellant’s argument again shortly.

32 The respondent submitted that the ratios in Janssen and Walsh were equally applicable to a case where a determination under s 24 had in fact been made by the relevant authority, as had happened here. It was said that those judgments were intended to ensure that it would not be necessary for employees who had no real interest in the relief available under the SRC Act to pursue that relief fully before being entitled to make an election under s 45 to pursue common law rights.

33 The practical consequence of the respondent’s submission is that it is for the common law court to determine whether an employee ‘qualified’ for compensation under s 24, regardless of whether an administrative determination under the SRC Act had been made. Senior counsel for the respondent, in making this submission, did not grapple with its logical consequence, namely, that an employee can choose whether to accept or ignore an existing determination under s 24 when making an election. In my opinion, to state the logical consequence serves to highlight its very difficulty.

34 In support of his submission, the respondent also placed reliance upon the passage at 188 in Mason P’s judgment where his Honour said that the question to be determined was:

“… whether parliament expressed an intention that Comcare [here Telstra] (or the AAT, on review) should be the body that determines that matter (pre-election) or whether the court hearing the damages claim is to decide what the determining authority would have done in the particular case if it is asserted that compensation would not have been payable under s 24 …”

35 His Honour then commenced his consideration of this question with the observation:

“There is nothing unusual in a statute conferring a conditional right to institute an action, where the court deciding the action must determine if the conditions were fulfilled.”

36 In my opinion, Mason P’s formulation of the relevant issue does not support the respondent’s submission. In the first place, by its very wording the question formulated only addresses the question where there has been no determination. In this sense, Sidis DCJ’s view that there at least be a final tribunal decision before a court was not entitled to embark upon a determination as to whether an employee was entitled to compensation under s 45(1) cannot, in my view, be correct. Secondly, the question recognises the role of the relevant authority – in this case Telstra – in determining liability to pay under s 24.

37 The respondent next supported its submission by listing the factors relevant to the determinations in Janssen and Walsh which, it was said, applied equally to the factual circumstances of the matter under appeal. Those factors were:

(i) the requirement that “compensation is payable” in s 45 does not necessitate that entitlement being satisfied only after a prior (and necessarily favourable) determination in conformity with ss 24, 25 and/or 27;

(ii) “payable” has a different meaning in the two parts of the Act;

(iii) the construction pressed in (i) is in keeping with the beneficial objective of the statutory scheme;

(iv) the construction pressed by the appellant would be productive of highly unreasonable results which border upon absurdity;

(v) the Court’s construction did not overlook the ‘informed choice’ rationale;

(vi) the legislative history supported the construction for which the respondent contended;

(vii) a plaintiff might become statute barred in relation to the common law action by a perverse administrative decision which would have to be reviewed by the AAT or perhaps challenged in judicial review proceedings before a common law claim could be commenced.

38 Although analogy and comparison can be useful tools, I do not find it particularly helpful in this case to analyse the extent to which these various factors apply to the matter in issue for the very reason they were factors relevant to the determination of a different question. The matter, in my opinion, is better determined as a matter of construction of the section.

39 Finally, the respondent argued that he has not had the benefit of a determination on the merits before an external body. It was said that the determination of the delegate of 25 May 1999 was not a determination based upon the medical evidence. Rather, it was a conclusion drawn from the fact that as there had already been a determination that the “Telstra related effects of the claimant’s lower back condition were deemed to have ceased by 14 December 1998”.

40 I do not consider that this submission is relevant to the construction of the section, which, by its terms, as Mason P pointed out in Walsh, entrusts the s 24 determination to (in this case) Telstra or the AAT on review. Nor do I necessarily accept the accuracy of the underlying assertion of the submission. The delegate stated in his reasons of 25 May 1999, that he had read the medical evidence in the case and he referred, in summary form, to the opinions advanced in that medical evidence. Having considered that material, in conjunction with the existence of an unchallenged administrative finding that the “Telstra effects” of the injuries had ceased, he concluded there was no permanent impairment. It is not an issue before us as to whether the delegate’s reasoning process was open to him. He may have been saying no more than that, having reviewed the evidence as a whole, he agreed with the conclusion of another delegate that there were no continuing effects from the injury. It is, of course, possible that his reasoning may have been flawed in that he considered himself bound by the earlier determination, but that of itself does not invalidate the determination. It remains a binding determination unless set aside or varied following a review by the AAT.

Conclusion

41 Janssen and Walsh are authority for the proposition that the existence of an administrative determination is not a necessary pre-condition to an election under s 45. However, they are not authority for the converse – namely, that the existence of an administrative determination is irrelevant and should or can be ignored. The essential question is whether the determination of the delegate can be ignored for the purposes of making an election under s 45. That requires me to return to the provisions of the SRC Act.

42 Section 11 provides that the liability of Telstra to pay compensation is the liability to pay the amount determined by Telstra. Section 24(1) makes Telstra liable to pay compensation where the employee has suffered “permanent impairment”. The amount of compensation payable is assessed in accordance with subss (3) to (7). Subsection (3) provides that the amount payable is the amount assessed by Telstra. Subsection (7) provides that compensation is not payable where the relevant authority determines that the degree of permanent impairment is less than 10%. The better view in this case is that there has been a determination that no amount is payable under subs (3). But even if the determination made on 25 May 1999 was a determination under subs (7) the effect is the same.

43 Section 45(1)(a) provides that a person is entitled to elect to receive common law damages where compensation is payable under s 24. Here, there has been a determination that there was no permanent impairment. As such, the respondent did not satisfy one of the prerequisites of s 45, unless that determination can be ignored.

44 The question is, therefore, whether the statute permits or requires such a construction. As a matter of plain language it does not. Nor is there anything in the history or the purpose of the Act or the particular provisions under consideration that require or call for such a construction. If anything, all the indicators point in the opposite direction. The entire compensation scheme, upon which s 45(1) depends, is predicated upon there being a determination by the relevant authority: see ss 11, 14 and 24. Even if there has been a fully determined application for review of the decision by the AAT, the effect of such a determination is that it is deemed to be a decision of the delegate.

45 The path that I have just followed through the legislation is that which was considered by Sheppard AJA in Walsh to be correct and is the one advanced by the appellant. In my view, the appellant’s construction is correct. If there is an administrative determination under s 24, that determines whether or not a person is entitled to make an election under s 45. If a person is, by virtue of that determination, entitled to compensation for permanent impairment, it is not open to a relevant authority to challenge that entitlement in a common law claim. Likewise, an employee cannot circumvent such a determination by seeking to have the court determining the common law matter determine the s 24 matter again for itself. This is not to cut across what was said by the majority in Janssen and Walsh. Rather, it gives effect to the clear words of the section in circumstances where there has already been an administrative determination.

46 Accordingly, I would propose the following orders:

(i) Appeal allowed;

(ii) Judgment of Sidis DCJ set aside and in lieu thereof an order striking out the respondent’s statement of claim;

(iii) Respondent to pay the appellant’s costs of the appeal and the application for leave to appeal but is to have a certificate under the Suitors’ Fund Act 1951 (NSW).

47 HODGSON JA: I agree with Beazley JA.

48 In order for the respondent to be entitled to make an election under s 45 of the SRC Act, it was a necessary condition that “compensation is payable under section 24 … in respect of an injury” to him. Although s 24(1) provides that “where an injury to an employee results in a permanent impairment, [Telstra] is liable to pay compensation to an employee in respect of the injury”, s 11 and s 24(3) make it clear that the amount of that compensation is the amount determined or assessed by Telstra. In this case, Telstra determined and assessed the amount to be nil; and accordingly, the combined effect of s 24(1), s 11 and s 24(3) was that no compensation was payable to the respondent under s 24, and so the necessary condition for an election was not satisfied.

49 The provisions of s 11 and s 24(3) are subject to the provisions of the SRC Act providing for appeal to the AAT from the determinations and assessments of Telstra; but that cannot assist the respondent in circumstances where his appeal was withdrawn.

50 This approach is not inconsistent with Walsh v The Commonwealth (1988) 155 ALR 182. Where there has been no determination or assessment by the relevant authority, in this case Telstra, it is open to the Court, in considering whether an employee is entitled to make an election under s 45, to decide that compensation is payable under s 24 because injury to an employee has resulted in a permanent impairment and an amount of compensation would have been determined or assessed for that injury had an appropriate application been made to the relevant authority.

51 The situation has some similarity to that which applies in relation to contribution between tort-feasers under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), where the person from whom contribution is recovered must be a “tort-feaser who is, or would if sued have been, liable in respect of the same damage”. If that person has been sued and held not liable, contribution cannot be recovered; while if the person has not been sued, the matter depends on whether liability would have been established if the person had been sued at any time: Brambles Constructions Pty Ltd v Hilmers (1966) 114 CLR 213, James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1988) 196 CLR 53.

52 SANTOW JA: I agree with Beazley JA and Hodgson JA.

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