Victorian WorkCover Authority v Bennett
[2003] VSCA 116
•22 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.7062 of 2001
| VICTORIAN WORKCOVER AUTHORITY | |
| Appellant | |
| v. | |
| ROBERT WAYNE BENNETT | Respondent |
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JUDGES: | PHILLIPS and EAMES, JJ.A. and WARREN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 June 2003 | |
DATE OF JUDGMENT: | 22 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 116 | |
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Accident compensation – Workers compensation – Weekly payments more than 18 months after injury – Payments terminated in reliance upon settlement of common law proceeding – Whether proceeding in respect of relevant injury – Whether termination authorised by statute - Accident Compensation Act 1985 s.135A(18).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. J.H.L. Forrest QC with Mr. P.H. Solomon | Gadens Lawyers |
| For the Respondent | Mr. L.R. Boyes QC with Mr. B. Wright | Connery & Partners |
PHILLIPS, J.A.:
This is an appeal by the Victorian WorkCover Authority against orders made in the County Court on 8 February 2001[1] when, on the application of the present respondent, Robert Wayne Bennett, the Court set aside the decision of the Authority made on 21 January 2000 to terminate weekly payments being made to the respondent for injury he suffered at work on 20 June 1995 and ordered that such payments be resumed. The Authority had sought to justify its decision by reference to s.135A(18) of the Accident Compensation Act 1985 ("the Act"), in consequence of the settlement in December 1999 of common law proceedings brought by the respondent against the employer, but the Court held that subs.(18) had no application in the circumstances. The Authority appeals, contending that that was error. It relies upon an amended notice of appeal filed pursuant to leave which we gave when the appeal was called on for hearing, the respondent raising no objection.
[1]In fact as authenticated the only order made (other than for costs) was "Judgment for the Plaintiff"; but the reasons for judgment make it plain what the judge's intention was and I have considered the appeal accordingly. Whether the authenticated order should be corrected under the slip rule is another matter.
The compensable injuries
The plaintiff is 47 years old, having been born on 9 June 1956. According to evidence he gave at trial, which the judge accepted, for some years before December 1992 he had been employed by Evans Brothers (Bricks) Pty. Ltd. as a contract brick carter. For reasons which do not matter, it is convenient to refer to that employer as “Pioneer”. The respondent owned his own truck and was paid by the load for bricks he delivered to those purchasing from his employer. When delivering bricks, the plaintiff would unload them by hand or with the aid of a trolley. On 29 December 1992, and while in the process of unloading a consignment of bricks, the trolley being used by the respondent suddenly came to a stop. The respondent was catapulted over the handles and landed on the ground on his back. This was "the 1992 accident". As a result of it, he experienced immediate pain in his back and was unable to continue unloading the truck. He sought medical attention and was advised that he was suffering from a prolapsed disc in his lower back. He was treated conservatively with rest, medication and exercise. He made a claim for compensation and it was accepted. He was unfit for work until 27 January 1993 and when he resumed work he was still not free from symptoms.
While at work on 1 February 1994, the respondent again experienced severe pain in his back and legs as he bent over to lift up a gate. As a result of this incident, he was hospitalised for five days and off work until 14 March 1994. He claimed compensation under the Act and again the claim was accepted. Following this incident, the respondent’s general practitioner advised him to seek less strenuous work. When he returned to work with Pioneer, his duties were limited by his employer.
The respondent continued to experience pain and discomfort whilst working and doing other things and, after consulting an orthopaedic surgeon, came to realise that he could no longer continue working as a brick carter at all. With the consent of Pioneer, the respondent sold his truck and carting business. That was in March or April of 1995. In June 1995 he obtained what he described as light work as a driver/labourer with one Basso. (Strictly speaking the employer was, from time to time, either Mr. Basso or Basso Enterprises Pty. Ltd. or one Daryl Piergrosse, but that does not matter: they are conveniently regarded as one and the same and referred to as “the Basso defendants”). On 20 June 1995 in the course of that employment the respondent stepped out of a trench, which was about 30 centimetres deep, and experienced severe pain in his back and legs. I shall call this "the 1995 accident".
Following upon this latest incident, the respondent lodged a claim for compensation under the Act against Pioneer. That was rejected by the insurer on the ground that, according to orthopaedic opinion, a new injury had been suffered in June 1995 and the then "current employment is the significant contributing factor". The respondent then lodged a claim for compensation under the Act against one or other of the Basso defendants, as his current employer, and that claim was accepted. Thereafter he was in receipt of weekly payments of compensation until those weekly payments were terminated on 5 February 2000 by notice dated 21 January 2000. That notice was given after the conclusion of common law proceedings brought by the respondent and, as I have said, in reliance upon s.135A(18) of the Act.
The common law proceedings
On 26 August 1997 the Authority gave to the respondent a “serious injury” certificate under s.135A of the Act, consenting to his bringing common law proceedings for the recovery of damages in respect of the injury sustained in the 1995 accident. The respondent, having been refused a like certificate in respect of the 1992 accident, commenced a proceeding in the County Court in August 1998 against Pioneer, alleging an accident at work "on or about 29 December 1992" resulting in "serious injuries" to him, and seeking leave under s.135A "to institute proceedings for damages against the defendant in respect of the accident". Leave was granted on 9 May 1999 and a few weeks later, on 18 June, the respondent delivered a statement of claim pursuant to an order made on 10 May.
According to that statement of claim, the respondent (as plaintiff) was claiming damages against the defendant, Pioneer, for personal injury arising out of the accident that occurred while he was in the employ of Pioneer "on or about 29 December 1992". It was alleged that "the accident occurred by reason of the negligence of" Pioneer or alternatively "by reason of the breach by the defendant of one or more of its duties to the plaintiff as his employer". According to paragraph 6, "as a result of the accident" the plaintiff was injured and suffered, and would continue to suffer, loss and damage.
In the body of the pleading there was no mention of the Basso defendants, or indeed of any subsequent injury in June 1995. The only claim made was against Pioneer as the relevant employer at the time of the accident in December 1992. The particulars of "loss of earnings and loss of earning capacity", however, included the following allegations (in which "the accident" refers to the 1992 accident because of the definition in paragraph 4):-
"As a result of his injuries from the accident he was unable to continue in his employment with the defendant other than on an intermittent and irregular basis. In early May 1995 because of his injuries he ceased his employment as a brick carter with the defendant and obtained employment as a driver/labourer with Ken Basso. However, because of his injuries from the accident he was unable to continue in this employment and ceased such employment on 20 June 1995 and because of his injuries he has been unable to resume employment since that date."
On 10 August 1999, Pioneer served a third party notice on the Basso defendants claiming contribution under the Wrongs Act 1958 on the ground that "if the respondent suffered injury, loss or damage as a result of the first incident" in December 1992, then such "was caused by the negligence of the third parties, their servants or agents as a result of [sic] the second incident", being that which occurred "on or about 20 June 1995" when the respondent was working for the Basso defendants. (The "particulars of negligence" included reference to certain statutory duties.)
In November 1999, a judge ordered that the Basso defendants be added as defendants to the proceeding brought by the respondent against Pioneer. The respondent's statement of claim was then amended to allege, in addition to the 1992 accident, the 1995 accident which was dealt with discretely in added paragraphs 5A, 5B and 5C. Paragraph 5B asserted that in the second accident the respondent had "suffered an exacerbation of pain in the lumber spine" and, according to paragraph 5C:-
"If the second accident resulted in injury to the plaintiff [it] arose as a result of the negligence of the Basso defendants, their servants or agents."
The conditional introduction of this paragraph is somewhat odd, perhaps reflecting the fact that these allegations found their source in the third party notice. As in that notice, the Particulars of Negligence given under paragraph 5C included reference to statutory duties.
Subject to the awkward condition introducing paragraph 5C, it appeared that the respondent was relying now upon the negligence or breach of statutory duty of Pioneer as the cause of the 1992 accident and as well upon the negligence (and I suppose the breach of statutory duty) of the Basso defendants. It was alleged in paragraph 6 of the amended pleading that the plaintiff was injured and suffered loss and damage "by reason of the accidents" (that word at least had been changed to the plural); but the particulars that followed - of injury, of special damages, and of loss of earnings and earning capacity - were not changed at all. Thus, they referred only to "the accident" (which had earlier been defined, in paragraph 4, to be that which occurred in December 1992) and they still contained no explicit reference to any accident in June 1995. The particulars referred only to the respondent's ceasing employment on 20 June 1995 and his inability to resume employment thereafter "because of his injuries from the accident". Perhaps it was left to inference that "if the second accident resulted in injury to the plaintiff" (as posited by paragraph 5C) and the losses particularised in paragraph 6 were attributable to "the accidents" (as pleaded in paragraph 6), the word accident in the particulars should be read distributively, referring to the one or the other, or both, as the case required. The claim remained, as before, for past loss and for future loss until the age of 65, and damages were claimed, as before, against the defendant or defendants indiscriminately.
In due course the common law proceeding came on for trial. After seven days, and more precisely on 17 December 1999, the matter was disposed of by the joint approach of all counsel. Quite deliberately, counsel for the plaintiff (the present respondent) asked first for leave to discontinue against the Basso defendants. That leave was granted and counsel for the Basso defendants then sought an order for costs against the plaintiff. In response to a request from plaintiff's counsel, a Sanderson order was made, granting the Basso defendants their costs directly against the first defendant, Pioneer. Pioneer's counsel accepted that that was an appropriate order "in the circumstances". It was only then that plaintiff's counsel moved to the settlement, announcing that that “the proceedings between the existing parties, the plaintiff and the first defendant, have been resolved". Counsel sought only an order by consent "that the first defendant pay the plaintiff’s costs, to be taxed on Scale D". That order was made and, save for some discussion of the detail affecting costs, that was the end of the common law proceeding.
So far as the orders go, they indicate that the Basso defendants were not required by the settlement that had been achieved to make any payment to the respondent; they simply got their costs. And that any payment of damages came only from Pioneer is borne out by the terms of the Deed of Release that was put in evidence in this proceeding. Although undated, the deed is described as having been executed by the respondent “on or about 17 December 1999”. It is true that the first recital refers to the proceeding commenced by the respondent in the County Court against Pioneer “and other Defendants”, but the recitals that follow speak only of injury in the course of employment with Pioneer. (As I have said, I am using the term "Pioneer" to encompass the employer at the time of the 1992 accident). The body of the deed then describes the consideration in detail as being:-
"... the sum of $320,000 plus costs on County Court Scale D with appropriate certificates for refreshers plus the other Defendants’ costs on County Court Scale D ... paid by Pioneer .... to the Plaintiff (the receipt whereof is hereby acknowledged) ...”
That sum is said then to have been paid by Pioneer “in full satisfaction of settlement of the action and any associated claim ....” and in consideration thereof the respondent released Pioneer:-
“... from all liability under the action and associated claims and for all suits, damages, costs claims and demands of whatsoever kind ... which the Plaintiff now has or but for these presents could have or may have had against Pioneer ....”.
It was declared that the plaintiff acknowledged that the payment by Pioneer was made “with an express denial of liability”. There was no mention in the deed of the Basso defendants by name and no other reference to them save in passing as already described.
The consequences of settlement
In this proceeding it is the contention of the Authority that by virtue of the settlement of the common law proceeding and s.135A(18) there is no further liability in the Basso defendants, or (standing in place of them) the Authority, to make weekly payments of compensation to the respondent for the injury he sustained in the 1995 accident. Section 135A(18) reads as follows:-
"(18)If judgment is obtained, or a compromise or settlement made in proceedings referred to in sub-section (1) in respect of an injury, the Authority, the employer or self-insurer is not liable-
(a)where pecuniary loss damages are awarded, to make payments under section 93A, 93B or 93C in respect of the injury; or
(b)where pain and suffering damages are awarded, to make payments under section 98 or 98A in respect of the injury.”
In the County Court the Authority contended that on or about 17 December 1999 there was “a compromise or settlement made in proceedings referred to in sub-section (1) [of s.135A] in respect of an injury”, including the injury sustained by the respondent in the 1995 accident; that “pecuniary loss damages" were "awarded” within the meaning of sub-s.(18)(a); and that therefore, neither the Authority nor the employer for the time being (the Basso defendants) was liable thereafter to make weekly payments of compensation in respect of that injury (weekly payments being the form of compensation regulated by ss.93A, 93B and 93C). It was by such reasoning that the Authority sought to justify the notice of termination which it gave the respondent on 21 January 2000 and it was that argument which the County Court judge rejected. In his Honour’s opinion, the injury sustained in the 1995 accident was quite separate and discrete from the injury sustained in the 1992 accident and he was not satisfied, on the balance of probabilities, that “pecuniary loss damages” were obtained in respect of that injury, or indeed at all, by virtue of the settlement of the common law proceeding.
Mr. Forrest, who appeared for the Authority, acknowledged before us that, while it was not in dispute that a "compromise or settlement" had been reached in December 1999 in "proceedings referred to in sub-section (1)" within the meaning of s.135A, he could succeed on this appeal only by establishing, first, that “pecuniary loss damages” were in fact “awarded” to the respondent under and by virtue of that settlement and, secondly, that such damages had been awarded "in respect of the injury" sustained by the respondent in the 1995 accident while in the employ of the Basso defendants. (That the damages be awarded in respect of the relevant injury is not provided expressly by s.135A(18), but it is certainly implied.) The word “awarded” is not seen to cause a problem: as I followed it, there is no dispute but that, in the context of sub-s.(18), the word means paid or agreed to be paid to the worker under and by virtue of the compromise or settlement first mentioned in the sub-section; and both counsel focussed instead upon the expressions in sub-s.(18)(a) "pecuniary loss damages" and "in respect of the injury".
(a) Pecuniary loss damages
As to "pecuniary loss damages", Mr. Forrest’s argument was that the parties had proceeded below upon the footing that the settlement achieved of the common law proceeding, as revealed in the Deed of Release that was put in evidence, included something for “pecuniary loss damages”. He contended that the amount of $320,000, which was paid by Pioneer to the respondent, was so large that it could not be simply for pain and suffering - and that was enough to make the point. It did not matter, he said, if the sum paid was for total or partial economic loss, or for past or future economic loss, so long as it was not simply for pain and suffering.
On this aspect, Mr. Forrest relied not only upon the pleadings to demonstrate the nature of the claim that was made by the respondent and then compromised at settlement, but also upon "a concession” made below by respondent's counsel in the course of his final address. The transcript of addresses was made available to us without objection and Mr. Forrest pointed in particular to what appeared at p.89. There, respondent’s counsel, declaring his position to be that at the time of the 1995 accident the respondent had become totally incapacitated for work after previously being but partially incapacitated, had submitted that the figure (contained within the settlement amount) for future economic loss must have been considerably more if granted for total incapacity until reaching 60 or 65 years of age; which led, he said, to this:-
"... it cannot be said, on the facts as we know them, that this man has been compensated for ongoing total incapacity into the foreseeable future by reason of the settlement of his claim for damages.
We would concede, Your Honour, that a component of that $320,000 would be for some future economic loss, and it would be our submission that the material would indicate on the basis of partial incapacity only. We’d submit that if [counsel for the Authority] wants to say it is something different, the onus is on him to show what it was.” [Emphasis added]
Mr. Forrest characterised as a concession the statement "that a component of that $320,000 would be for some future economic loss” and submitted that that in itself justified the conclusion for present purposes that, by virtue of the settlement, “pecuniary loss damages” were “awarded” (and without the need to consider whether the "concession" also implied that some other part of the settlement sum must have been for past economic loss). In my opinion, there is considerable force in his submission.
For his part, Mr. Boyes pointed out that the so-called concession was but part and parcel of a submission for the respondent that the amount won by settlement, being for partial incapacity only, was in respect of the 1992 injury and not the 1995 injury: but for the moment that aspect does not matter. More important, I think, is what the judge said in his reasons for judgment in relation to “pecuniary loss damages”:-
"Secondly, nothing has been advanced by the defendant to prove that the plaintiff’s settlement monies comprised ‘pecuniary loss damages’. As I have already indicated, there was no evidence relating to the way the settlement sum was made up. In that event, it is not certain what part, if any, the settlement sum relates to ‘pecuniary loss damages’. It is possible, although I concede it unlikely, that all the settlement sum comprised ‘pain and suffering damages’. Obviously, if the plaintiff’s settlement did comprise only ‘pain and suffering damages’, section 135A(18)(a) would have no application to him. ... If a defendant insurer wishes to invoke either or both of paragraphs (a) or (b) of s.135A(18), then it seems to me that the defendant has to establish that a plaintiff has already received either ‘pecuniary loss’ or ‘pain and suffering’ common law damages in respect of the relevant injury.” [Emphasis added]
Mr. Forrest relied upon the judge's opinion that it was “unlikely” that all of the settlement sum comprised damages for pain and suffering; for that, he contended, was tantamount to a finding that it was likely (i.e., more probable than not) that the settlement sum did include something for economic loss, a finding which he submitted he was entitled to rely upon. Again, I am disposed to agree.
Given the colour of the proceeding as revealed by the pleadings and the significance of economic loss to the respondent's case overall and given what was said by counsel by way of submission to the judge and his Honour's own expression of opinion on what was unlikely, I think that on the material before him his Honour ought to have concluded on the balance of probabilities that the settlement sum of $320,000 did include something for pecuniary loss so that, to that extent at least, the requirements of paragraph (a) of s.135A(18) were satisfied. There was no need, in my view, for further evidence although, as Mr. Forrest frankly conceded, it would have been better had there been further evidence. Interestingly perhaps, the respondent, who gave oral evidence in this proceeding, was not asked, either in chief or in cross-examination, about the ambit of the settlement. Both sides, it seems, were content to argue from what was known otherwise.
(b) “In respect of the injury”
As to the expression "in respect of the injury", that occasions rather more difficulty in the circumstances of this case. As a matter of construction it is clear, I think that the injury which is mentioned more than once in s.135A(18) is the same injury on each occasion. Thus the injury "in respect of" which payments under earlier sections of the Act are precluded is the same injury as that "in respect of" which there was brought the proceeding which has led to judgment, compromise or settlement. And, I would add, by implication it is the same injury as that in respect of which pecuniary loss damages are awarded (when paragraph (a) is relevant). The question in this instance is whether the relevant injury was only that suffered in December 1992 or whether it included, the injury suffered in June 1995.
Before us Mr. Forrest accepted readily enough that, for the purposes of workers compensation, an aggravation of a pre-existing injury may be regarded as a separate injury: so much is established by the definition of “injury” in s.3. Below the respondent gave evidence about his injuries, his weekly payments and the termination of those payments in February 2000. A great number of medical reports were put in evidence and the judge found (and there was no dispute about this finding) that the 1995 accident occasioned an aggravation of the injury sustained in the 1992 accident. Overwhelmingly that was the view taken by the doctors whose reports were in evidence and indeed the judge said in his reasons for judgment that in so far as any medical report did not take that view “I reject it”. It was plain, then, that, at least for the purposes of workers compensation, the plaintiff sustained one injury in the 1992 accident and another injury in the 1995 accident - two injuries that were "separate and distinct" as the judge said. Thus the employer for the time being at the time of the 1992 accident was liable for weekly payments of compensation in respect of the injury sustained in that accident; and the employer for the time being at the time of the 1995 accident was similarly liable for weekly payments of compensation made for injury sustained in that accident. And so much was not in dispute on this appeal.
What Mr. Forrest emphasised, however, was that at common law the plaintiff was perfectly entitled to seek damages from the employer at the time of the 1992 accident for all relevant injuries sustained, both at the time of that accident and subsequently. He said that, being an aggravation of the earlier, the injury suffered in June 1995 was not only causally linked to the earlier, it was also a foreseeable consequence of the earlier and, as such, the plaintiff was entitled to damages from the original tortfeasor (here, the first employer, Pioneer) not merely for the earlier injury but also for the later. So much, he submitted, was well established at common law: see, for example, Mahoney v. J. Kruschich (Demolitions) Pty. Ltd.[2] and Thomas Borthwick & Sons Aust. Ltd. v. Samco Meats Pty. Ltd.[3]). He pointed also to the not dissimilar position reached for the purposes of workers compensation when there is subsequent injury supervening on earlier work-related injury: see for example Lindeman Ltd. v. Colvin[4] and Kidman v. Sefa[5]. Again, I did not understand Mr. Boyes to contest this, so that thus far the parties were in agreement.
[2](1985) 156 C.L.R. 522 at 528-9.
[3][1995] 2 V.R. 474 at 480 per Hayne, J.A.
[4](1946) 74 C.L.R. 313 at 321.
[5][1996] 1 V.R. 86 at 89.
Where the parties were in dispute was over whether the settlement had been, even in part, "in respect of" the 1995 injury. Mr. Boyes was not concerned to argue that the compromise or settlement achieved in December 1999 could not have extended to the injury sustained in the 1995 accident: he submitted simply that it had not been shown to so extend, and in default of proof, he submitted, the Authority had to fail. For his part, Mr. Forrest relied upon the pleadings, the medical reports and the Deed of Release as sufficient to establish by inference that the settlement sum had indeed been paid "in respect of" the 1995 injury and he contended that, if the respondent wished to gainsay that, it was up to him to lead evidence in support. The dispute was therefore over what could properly be inferred from what was known, in the absence (the unexplained absence) of any direct evidence about the ambit of the settlement.
In my opinion Mr. Boyes's submission is to be preferred, essentially because, for the purposes of s.135A(18), the proceeding in which settlement was announced on 17 December 1999 was, on the face of it, no longer a proceeding "in respect of" injury (within the meaning of sub-s.(18)) other than the injury suffered by the respondent in the 1992 accident. If and in so far as the proceeding was to be taken as being also (at the relevant time, being that of settlement) "in respect of" the injury sustained in 1995, that required evidence in support. Without such evidence, it followed that the proceeding was not a proceeding within the meaning of s.135A(18) which was relevant to the Authority's claim that it was absolved from liability to make weekly payments in respect of the injury suffered in the 1995 accident.
The reasoning is as follows. First, it may be accepted readily enough that, once the Basso defendants were joined as defendants (as distinct from being merely third parties) and the statement of claim amended, the proceeding brought by the respondent was indeed "in respect of" two injuries, not one: the injury suffered in the 1992 accident and the injury suffered in the 1995 accident. The amended statement of claim made the claim for damages against not only Pioneer but also the Basso defendants and, on the pleading in that form, there can be no doubt but that the proceeding was in respect of, inter alia, the 1995 injury: there was no basis for suing the Basso defendants otherwise. The difficulty for Mr. Forrest is that the proceeding against the Basso defendants was discontinued before the settlement was announced between the respondent and Pioneer (then plaintiff and first defendant).
As pointed out in paragraph [12], counsel appears to have acted deliberately in that regard and, by virtue of the discontinuance, the Basso defendants were no longer parties. At that point the allegations made by the respondent against the Basso defendants in his amended pleading surely became irrelevant; and as already described it was only in those parts of the pleading that were added upon the joinder of the further defendants that any reference was made to the 1995 accident. Before the amendments made to the pleading in 1999, the plaintiff was not, on the face of it, suing for injury suffered in 1995, but only for injury suffered in 1992. And, as I see it, that was the position which was restored when on 17 December 1999 (and before formal announcement of the settlement between the worker and the first employer) the proceeding was formally discontinued as against the later employer, the Basso defendants.
The only allegation of any relevance in the expanded pleading that might have remained live for present purposes despite the discontinuance was, perhaps, the allegation in paragraph 6 that it was "by reason of the accidents [plural]" that the plaintiff suffered loss and damage and claimed damages. I am not clear that that is how the pleading should be read and understood once the proceeding was discontinued against the Basso defendants, but let it be supposed that it is so. Let it be supposed that, for one reason or another, the respondent should be taken, despite the recurring reference in the pleading to "the accident" (which was defined) as still relying, in making his common law claim against Pioneer, upon not only the injury he sustained in the 1992 accident but also, by reason of aggravation, such disability as arose from the 1995 accident. The question remains, however, whether such a proceeding (and in the absence of the Basso defendants) can be properly characterised (within the meaning of s.135A(18)) as “in respect of” the injury suffered in 1995, as well as in respect of the injury suffered in 1992. I think not.
In my opinion, it is not enough that the plaintiff in a proceeding for damages for work-place injury sustained in December 1992 relies also upon such disability as was produced by subsequent aggravation occurring in the later employ of another. Such aggravation could just as well have occurred while not in employment at all; it might, for instance, have been brought about by the surgeon's knife; it might have been the product of fault or of no fault. (In this instance it occurred as the respondent was stepping out of a trench only 30 centimetres deep). The aggravation is relied upon simply as a consequence of the work place injury that occurred in December 1992, it being (as Mr. Forrest put it) both causally linked to the earlier injury and a reasonably foreseeable consequence of it. At common law the respondent was entitled to recover damages not only for the immediate and direct consequences of the 1992 accident (assuming that that is actionable), but also for such vulnerability as was produced thereby, including the risk of further injury and any disability that that might be expected to bring about; and where such further injury has in fact occurred before trial and the extent is known to which the plaintiff is further disabled thereby, the tribunal assessing damages would obviously have regard to the fact rather than just the prediction. But to my mind, that emphasises rather than denies that the proceeding is brought only "in respect of" the initial injury (being that sustained in 1992) in as much as any reference to the later injury (the aggravation suffered in June 1995) is but by way of consequence of the earlier.
In order to advance his argument that the respondent's proceeding for damages against Pioneer was brought in respect of, inter alia, the subsequent aggravation suffered in June 1995, Mr. Forrest did not shrink from submitting that every common law proceeding brought for damages for injury suffered in the work place should properly be regarded, at least for the purposes of s.135A(18), as having been brought "in respect of" all future injuries which were reasonably foreseeable and causally linked to the initial work-place injury, whether such later injuries occurred before or after the date of trial. But that is a far-reaching proposition and one which I am not prepared to accept. Indeed it would seem to produce a somewhat extraordinary result under sub-s.(18); for the employer at the time of such a future injury, if occurring in employment, would then be absolved, in advance as it were, from the liability to make the payments mentioned in the subsection - presumably on the ground that damages had already been recovered for that subsequent injury, or perhaps more strictly for such disability as it brought about. That seems to me an improbable construction of the subsection and one which I would not adopt in the absence of more compelling language.
Not only is the language of the section not compelling, the context of the section as a whole tends against the submission made by Mr. Forrest. Obviously enough, s.135A, though directed at controlling common law proceedings, is concerned only with injury which is otherwise compensable under the Act: work-place injury (to put it shortly) and thus injury which has already occurred. That is enough in itself to justify rejecting Mr. Forrest's submission if, as I have already suggested, the injury referred to in sub-s.(18) is the same as that referred to in sub-s.(1). Moreover, in context, it seems to me reasonable to conclude that in sub-s.(18) the expression “the employer” means the employer in whose employ the plaintiff worker has suffered the compensable injury and in respect of which he or she brings the common law proceeding, the proceeding referred to in sub-s.(1). That, too, means that sub-s.(18) may absolve Pioneer of any liability to make the payments mentioned in that subsection, but not the Basso defendants. Such a construction of sub-s.(18) seems to me to be relatively simple: the alternative suggested by Mr. Forrest would read sub-s.(18) as referring to “an employer”, no matter whom and no matter when subsequent injury occurs (provided only that the later injury was reasonably foreseeable and causally linked to the earlier), thereby introducing an element of uncertainty and confusion that is altogether unwarranted.
That is not to say, of course, that the proceeding should be characterised simply by reference to the identity of the defendant: for in some cases it will not be the employer who is sued in the common law proceedings brought under s.135A. By way of example, one may refer to the situation in Kidman v. Sefa where the defendant was the negligent surgeon, operating in respect of the work related injury. None the less, in sub-s.(18) reference to “the employer” should be taken as meaning the employer responsible for the “employment” mentioned in s.135A(1). (In Kidman v. Sefa, where the negligent surgeon was sued, “the employer” was the person by reference to whose “employment” the injury was taken to be work related.) In this instance, the injury suffered in the 1995 accident was brought to account in the proceeding against Pioneer because it was but an aggravation of the earlier injury sustained in 1992, and, importantly, the later injury did not itself have to be compensable per se (either under the Act or at common law) in order to be brought to account in the proceeding against Pioneer. Indeed, if it was not compensable per se (as it appears the Basso defendants contended at least at common law), the claim by the respondent against Pioneer became the more important.
Accordingly, and albeit that in some common law claims for damages the plaintiff may be entitled to rely upon a subsequent aggravation as a consequence of the initial injury when such aggravation has occurred before trial, the proceeding will not on that account alone be a proceeding brought otherwise than "in respect of" the initial injury. And that that was so here was borne out by the failure of the respondent's pleading even to mention the 1995 accident, until the Basso defendants were joined. It follows that s.135A(18) had no application in consequence of the settlement reached in 1999 by the parties remaining in the common law proceeding after the respondent discontinued as against the Basso defendants. The weekly
payments being made by the Authority in place of the Basso defendants (who were uninsured) were being made in respect of the injury sustained in the 1995 accident and, for the reasons given, the settlement reached in December 1999 was not “made in proceedings ... in respect of [that] injury”. Therefore the Authority was not relieved of the liability to make the weekly payments, by reason of s. 135A(18)(a).
Conclusion
For these reasons, I think that his Honour was correct in upholding the respondent's challenge to the Authority’s decision to terminate weekly payments. Subject to the possibility of our correcting under the slip rule the authenticated order made in the County Court[6], I would dismiss the appeal.
EAMES, J.A.:
[6]As to which see footnote 1.
I have had the benefit of reading in draft the judgment of Phillips, J.A. For the reasons given by his Honour, I agree that the appeal should be dismissed.
WARREN, A.J.A.:
I agree entirely with the reasons of Phillips, J.A. which I have had the benefit of reading in draft form. I agree that the appeal should be dismissed for those reasons.
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