Transport Accident Commission of Victoria v Yarham

[2018] HCATrans 74

[2018] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S8 of 2018

B e t w e e n -

TRANSPORT ACCIDENT COMMISSION OF VICTORIA

Applicant

and

LESLIE ROSS YARHAM

First Respondent

ANDREW GORMAN

Second Respondent

STATE INSURANCE REGULATORY AUTHORITY

Third Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 APRIL 2018 AT 10.24 AM

Copyright in the High Court of Australia

MS M.N. ALLARS, SC:   May it please the Court, I appear for the applicant.  (instructed by Carroll & O’Dea Lawyers)

MR A.J. STONE, SC:   May it please the Court, I appear with my learned friend, MS M.L. HOLZ, for the first respondent.   (instructed by Ryan Legal)

KIEFEL CJ:   Yes, Ms Allars.

MS ALLARS:   Thank you, your Honour.  Your Honours, the general importance and significance of this case is that the answer to the first special leave question determines what law is applicable to a claim for damages brought against a worker’s employer in respect of an injury for which compensation is payable under the statutory workers compensation scheme of another State or Territory. 

The context is a statutory choice of law rule in Division 1A of Part 5 of the New South Wales Workers Compensation Act 1987. The central provisions identifying when the choice of law provisions in Division 1A apply are sections 150A and 150B of the1987 Act.

The first respondent seeks to claim damages under the Motor Accidents Compensation Act 1999 (NSW) in respect of an injury where it is plain that compensation is payable to the claimant under the Victorian statutory workers compensation scheme. The applicant says that this is a claim for damages which falls within Division 1A and to which the choice of law rule applies. The consequence of that is that Victorian substantive law is applicable.

While encased in some complexity derived from the provisions of the 1987 Act and the Workplace Injury Management and Workers Compensation Act 1998 (NSW), at the end of the day the issue turns upon the construction of sections 150A and 150B of the 1987 Act, within the context of that Act and the 1988 Act.

There are two alternative constructions.  One is that the literal meaning of the expression “claims for damages”, as it is enlarged in section 150B(1), and the enlarged reference is a reference to negligence and tort actions, including breaches of statutory duty and actions for breach of contract.  That is one alternative.  The alternative construction adds a limitation to those words referring to tort and contract actions, which I will come to in a moment.

KIEFEL CJ:   Are not the critical words in 150B(1), so far as concerns the reasons below, in the majority, the words “damages against a worker’s employer”?  That is, the claim has to be against the employer in that capacity.

MS ALLARS:   It is to some extent via “against a worker’s employer” that the limitation is introduced, but the limitation effectively is on the scope of the tort actions that may be brought.

EDELMAN J:   Is that right, Ms Allars?  If you have a look at page 146 of the book, that sets out the definition of “injury” in the 1998 Act.  The definition of “injury”:

means a personal injury arising out of or in the course of employment –

Section 2(2), which is referred to in the reasons in the Court of Appeal, says that those two Acts need to be read together.

MS ALLARS:   Yes.

EDELMAN J:   So why would not one then read the definition of “injury” into section 150B so it is a claim for damages against a worker’s employer in respect of an injury arising out of or in the context of employment?

MS ALLARS:   Certainly, we accept, your Honour, that that definition of “injury” in section 4 of the 1998 Act is one of the limitations of the choice of law provision.  The other limitations are that the action is against the worker’s employer, and that is given an expanded meaning, bringing in vicarious liability.

EDELMAN J:   Why does not that definition mean that, as the Chief Justice put to you, it must be an employer qua employer, an employer in the capacity as employer, that the claim is brought?

MS ALLARS:   The definition indicates the temporal context within which the injury arose, or the physical context within which it arose, but it says nothing about the cause of action or the elements of the cause of action; it says something about the injury.

EDELMAN J:   What I cannot understand is how could a claim that is arising out of or in the context of employment be one where employment under the MAC Act need not even be mentioned because the person who owns the vehicle may be an employer or may not be?

MS ALLARS:   Your Honour, the claim itself is not required to arise out of the course of employment; rather, the injury does.

EDELMAN J:   It is a claim for damages in respect of an injury, and then one reads in the definition, which is “arising out of or in the context of employment”.

MS ALLARS:   It is certainly true of the injury, but, as his Honour Justice Meagher in dissent in the Court of Appeal said, this is a definitional provision which identifies the injury.  Indeed, it would be somewhat surprising if it were not an injury arising in the course of employment, given the precondition in section 150A that requires that compensation is payable under the workers compensation legislation of another State.

That limitation on the injury is not surprising.  One would not expect a choice of law provision to apply to any injury at all suffered by the worker at any time; rather, the choice of law provision is limited.  That limitation of the injury is not a limitation as to the nature of the cause of action.  That is expressed in very broad terms in section 150B(1), so broad as in order to remove any doubt there is additional reference to including breach of statutory duty.  There is no suggestion in paragraphs (a) and (b) of 150B(1) that there is some kind of limitation on those causes of action.

GORDON J:   In addition to those construction questions, how do you address the absurd complexity arguments that are put at Justice White at paragraphs 141 and 142 when you accept, as I understand it, there is complexity either way?  But, if your construction is right, it seems to lead to very difficult issues about contribution.

MS ALLARS:   I am sorry, is your Honour referring to paragraphs 131 and 132?

GORDON J:   Paragraphs 141 and 142.

MS ALLARS:   Paragraph 141, I am sorry, your Honour.  Yes, this was an aside by his Honour Justice White.

GORDON J:   It is not really an aside.  It is about practical realities of life in the context of two very well‑established statutory schemes where you have uniformity in one area and non‑uniformity in another.

MS ALLARS: Yes. His Honour acknowledges in paragraph 141 that there will be complexity if the construction that his Honour favoured is in place. On the other hand, in 142, he does refer to other issues of contribution, and the like. There are specific provisions dealing with such matters in the relevant legislation in each State. But one of the objects set out in the second reading speech for the provisions in the New South Wales Act in Division 1A was to improve certainty for workers as to their common law rights.

GORDON J:   But that is achieved on the construction adopted by the majority. 

MS ALLARS:   In some ways it is not, with respect, your Honour, because the majority read into the literal words of 150B and 150A a limitation which does not appear there.  In addition the second reading speech refers very generally to common law claims without suggesting there is any limitation on the scope of the claims. 

EDELMAN J:   The only reason, and it comes back to the earlier point – the only reason you say they are reading in a limitation that is not there is because you read “injury” as defined as only referring to the damages and not referring to the claim for damages because if the limitation that is included in the definition of “injury” is read as a whole then it is a limitation that must be a limitation on the claim and not just on the injury itself.

MS ALLARS:   It is a limitation as to which injury is caught by the choice of law provisions rather than a limitation as to the causes of action which are caught.  His Honour Justice White accepted that the literal meaning was as is advanced by the applicant but relied on extrinsic material.  If your Honours were to go to first of all paragraph 135, application book 103 at line 10, his Honour says that he proposes to depart from the ordinary and literal meaning of the words in 150B. 

On page 104, paragraph 138, in the sentence commencing at line 29, “When read contextually”, his Honour moves to the construction that he has adopted inserting the limitation requiring that the claim be based on a claim that the injury was caused by the worker’s employer.  He clarifies that in the next, much shorter sentence:

Div 1A applies where the claim is based upon that employment relationship.

This effectively restricts the choice of law provisions to what have been termed work injury damages claims in the workers compensation legislation, rather than allow it to operate with respect to negligence, other torts, breach of statutory duty, breach of contract.

His Honour says that this does not substantially depart from the literal text.  Our submission is that it does.  In referring to the context his Honour relies on extrinsic material from Queensland legislation and Victorian legislation, some of which is quite different from the New South Wales legislation, in particular the Victorian legislation contains a subsection that allows the choice of law provisions to apply to actions brought against non‑employers and that was considered in Di Paolo, the

Victorian Court of Appeal decision to which his Honour Justice White refers.

So that, in itself, indicates that the Victorian extrinsic material upon which his Honour Justice White relied was material that did not support the limitation of causes of action to those which contain an element of employment relationship.  Your Honours, our submission is that the reference to context involved error and led to an erroneous construction inserting words into 150B which are not there. 

Your Honours, the second special leave question is concerned with the functions of a claims assessor under section 92(1)(b) of the Motor Accidents Compensation Act in determining whether a claim is not suitable for assessment.  It is a jurisdictional error type of question.  It is also a question of construction of the guidelines made under the MAC Act which further explain the nature of the function of the claims assessor.

It is a significant question in that its answer determines who has the function of determining whether the choice of law rules are applicable.  Is it the claims assessor, as occurred in this case, or is a question like that, which may indeed be a complex legal issue, properly to be determined by a court.  That is the intent of section 92(1)(b) and the guidelines that where there is a complex legal issue a certificate should be issued to enable that to be determined by a court rather than by the assessor.

So we say that that special leave question as well involves an issue of general significance for the administration of justice.  Unless there is anything else, those are our submissions.

KIEFEL CJ:   Thank you, Ms Allars.  We need not trouble you, Mr Stone.

In our view there is no reason to doubt the correctness of the conclusion reached by the majority in the Court of Appeal.  Special leave is refused.

Do you seek costs?

MR STONE:   We do.

KIEFEL CJ:   With costs.

MS ALLARS:   If the Court pleases.

KIEFEL CJ:   The Court will adjourn to 10.15 am on Tuesday, 8 May in Canberra.

AT 10.40 AM THE MATTER WAS CONCLUDED