Virgin Blue International Pty Ltd v Edwards

[2021] HCATrans 102

[2021] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2020

B e t w e e n -

VIRGIN BLUE INTERNATIONAL PTY LTD

Applicant

and

KAREN EDWARDS

Respondent

Application for special leave to appeal

GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 21 MAY 2021, AT 12.48 PM

Copyright in the High Court of Australia

MR M.J. RODER, QC:   If the Court pleases, I appear with MR P.A.B. BLACK for the applicant.  (instructed by HWL Ebsworth Lawyers)

MR A.L. TOKLEY, QC:   May it please the Court, I appear with MR H.M. HEUZENROEDER for the respondent.  (instructed by Grope Hamilton Lawyers)

GORDON J:   Mr Roder.

MR RODER:   Thank you, your Honour.  Your Honours, this case involves a point of statutory construction, involves a question of whether the Full Court correctly construed section 58AA of the repealed WRC Act, which has now been replicated in later South Australian legislation, the Return to Work Act, and essentially is replicated in substantially identical terms throughout all the laws of the various States of the Commonwealth.

GORDON J:   The respondent seemed to take issue with that.

MR RODER:   Yes, the respondent does seem to take issue with that, but, your Honours, the only difference that we are able to identify in terms of the relevant provisions is this, is that the terms of section 58AA of the Workers Rehabilitation and Compensation Act are replicated in identical terms in all provisions except the New South Wales and Queensland legislation, but when one looks at the New South Wales and Queensland legislation, which are in the book, the differences are of no consequence. 

Your Honours, the difference is simply this – I can do it by reference to the provisions of section 58AA as they are set out at page 33 of the book in paragraph 41 of the judgment of Justice Stanley.  The only difference is this.  The introduction, the chapeau of subsection (1), in the South Australian legislation and the legislation in the States other than New South Wales and Queensland, reads:

If there is an entitlement to compensation under the statutory workers’ compensation scheme –

whereas the New South Wales and Queensland legislation is introduced by the chapeau, “If compensation is payable” under the statutory workers’ compensation scheme of a State, but those concepts, in my submission, are relevantly the same.  What follows in terms of the national scheme as to how the substantive law ought be applied is, as far as I can tell from a comparison of the provisions, identical.

GORDON J:   I thought it was the insertion of the word “worker’s” before “injury” in (a).  Is that not one of the issues?

MR RODER:   Yes.  Is that in the New South Wales legislation, your Honour?

GORDON J:   No, in comparison with what is in the repealed section 58AA of the South Australian – anyway, there are some differences and you say those differences are not material to your argument. 

MR RODER:   I do, your Honour.  I say they are not material at all to our argument.

GORDON J:   Yes.

GLEESON J:   Mr Roder, what work do you give to the words “for damages” in 58AA(1)(a)?

MR RODER:   Your Honour, we say, with respect, that the Full Court gave too much weight to it and that the words “for damages” in section 58AA of the Act are intended to identify the nature of the claim.  In other words, it would have been odd, to say the least, if the provision had just simply said, I think as Chief Justice Kourakis said at paragraph 7, that if it had just provided a claim with respect to the worker’s injury or death, then this claim would have been a claim in respect of the worker’s injury or death but the Chief Justice’s reasoning, I think, to some degree followed at least by Justice Doyle, was that it was not a claim for damages in respect of that injury or death.

We say that section 58AA, when it is referring to a claim for damages, is seeking to identify the nature of the claim, that is that it is a common law claim or statutory claim for damages, as opposed to some other form of claim that included the kind of claim that might be made under the relevant Act.

GORDON J:   So, I think the contrast, or the contradistinction has been, for example, liability in respect of the death of a worker or that sort of more – what might arguably be broader languages and concepts.

MR RODER:   Yes, that might be broader language, your Honour, but we say, with respect, that the concept of a claim – in the context of this particular provision and looking at what the object of this provision is, and remembering that it is – its starting premise is that it is dealing with claims by persons who have an entitlement to compensation under the scheme. 

It is not like cases like Technical Products which the Chief Justice referred to which was dealing with something different, and if the argument had been accepted in that case it would have meant that complete strangers to the scheme – persons not entitled to compensation would have been subject to the claim of insurance.  In other words, it would have applied to not just a dependant of an injured worker because of the context of that particular case.  That was a case where the appellant – the claimant in that case in fact had no right to compensation.  It was not a case of a workplace death, it was a case of a workplace injury and a claim brought by the worker.

The context of this, in my submission, is that the section is premised on the basis that we are dealing with a person who has either been paid compensation under the scheme of New South Wales, in this case, or has an entitlement to be paid compensation, who falls within the extended definition of “worker”, in other words a person who is no stranger to the scheme at all, a person who takes the benefits, as it were, or is entitled to take the benefits of that scheme.

The context of all of this is that the benefits under the workers’ compensation scheme involve a conferral of benefit, legislative choice about what rights might be modified or taken away as a result of that conferral of benefit and the context of this is that if you obtain a benefit under the workers’ compensation scheme of a State, then the other consequences apply under the legislation of that State.

GORDON J:   Can I raise three points which may be additional counterfactuals to that context, as I understand the respondent’s position?

MR RODER:   Yes, your Honour.

GORDON J:   The first is, is it the position that New South Wales is the only jurisdiction where this would be excluded?

MR RODER:   No.  At the time, your Honour, and in respect of this case, the answer to that is yes, but the Return to Work Act in South Australia now contains a provision which is in essentially the same terms as the New South Wales provisions.

GORDON J:   Does that mean, in a sense, that the factual scenario that has to exist for this to arise again is actually quite narrow?  That is the second matter of context.

MR RODER:   No, quite the opposite.

GORDON J:   I think they all go together.

MR RODER:   Yes.

GORDON J:   The third is that you would end up with, in a sense, I think as has been described by the respondent probably in colourful terms in order to improve the strength of the argument, but put bluntly, I think it is, that you end up with adverse and sort of inconsistent results depending upon location.

MR RODER:   Your Honour, in respect of the second matter I would say absolutely not, that it applies in a narrow field.

GORDON J:   Why is that?

MR RODER:   It would only apply in a narrow way to circumstances, your Honour.  I say it is not the case because the intention – section 58AA and its equivalents do not simply apply a provision like the particular New South Wales section 151AD of the Workers Compensation Act.  The effect and intended effect of these provisions is to identify the entire substantive law that would apply to a relevant claim and so ‑ ‑ ‑

GORDON J:   The claim for damages in respect of the injury?

MR RODER:   Yes, indeed, your Honour.  So, it will, aside from substantive provisions in the Workers Compensation Act themselves, it will be the determinative factor as to which of the various Civil Liability Acts of the States are picked up in respect of the claim.  Obviously, we have not set out all of the provisions of each Civil Liability Act of the States, but it is notorious that they all contain their own statutory provisions which deal with issues, not only relating to claims for pure mental harm themselves, but generally in respect of limits as to damages, in respect of defences, contributory negligence, breach, standard of care, duty and all of those sorts of matters.  Every case is assessed by reference to those particular provisions in the Civil Liability Act.

GORDON J:   Then you are driven back to the question that Justice Gleeson asked you and why is it, if we take into account all of those things which you have put to us, one can ignore the phrase “for damages”?

MR RODER:   Your Honour, I am not ignoring it.  My submission is that it should be read as a description of the claim that is being brought and description of the work that this particular provision, section 58AA, is doing which is not necessarily to attach or exclude to a liability but to apply the substantive law of a particular State to a kind of claim which is a claim for damages.

I say, with respect, that the other reason why it cannot be the case that the expression “a claim for damages” just simply means a claim for damages in respect of the injury or, in this case, death to the worker himself, is the effect of the extended provision of section 58AD of the Act which has the effect that this provision, if we come back to section 58AA, would actually be read in this context whether or not a claim for damages in respect of the death to the worker can be made.

Now, the number of points I make about that is that, accepting the context is different, and I do accept the context of South West Helicopters is different, nonetheless Justice Basten in the Court of Appeal and we would say this Court on appeal, noted the difference between the two concepts in respect of an injury as opposed to in respect – a liability in respect of a death caused by injury, and Justice Basten in the court below in the passage which is – sorry, in South West Helicopters in the passage which is set out at paragraph 21 in the Chief Justice’s reasons considered the reasoning of this Court in Technical Products which was dealing with the question of damages in respect of that injury and at paragraph [134] reasoned that:

That reasoning may be relevant to the liability referred to in s 36 which is stated to be “in respect of personal injury suffered by a passenger.”  However, it did not follow . . . that the same reasoning applied to liability “in respect of the death of the passenger” . . .  It is clear that s 35 envisages that the person for whose benefit the liability is enforced is not the deceased person and –

it is not going to be – the damages or the measure of benefit is not to be measured by reference to the loss suffered by that person.

Now, the Chief Justice seems to have taken the view that that reasoning, when one goes to paragraph 22, supported the idea that there was a greater analogy between section 35 of the Civil Aviation Act and 58AA of the Workers Rehabilitation and Compensation Act, but in my submission ‑ ‑ ‑

GORDON J:   He seems to have used them by analogy because when you get to paragraphs 29 and 30 of his judgment, his Honour draws the distinction between a claim for damages in respect of the same injury, the injury to the worker, as distinct from the substantive law that the State governs all liability in respect of that injury.

MR RODER:   Yes.

GORDON J:   That is the question of construction.

MR RODER:   Yes, so the question of whether it is being measured by reference to the loss flowing from the injury suffered to the worker, again, your Honour, the point is - and the point made by Justice Basten is that the moment it is recognised that we are dealing with a claim in respect of the death of the worker, then it follows that the claim that we are dealing with is not a claim where the damages are measured by reference to either the injury or the death of the worker.

The only claims that can be brought – and it is common ground that a Lord Campbell’s Act claim can be brought, that is not a claim that is measured by reference to the worker’s injury or to the death from injury.  It is a claim which is based upon the death of the worker, the breach of duty to the worker, and the financial loss suffered by another person, that is the claimant, and a claim for nervous shock or pure mental harm, that is a claim which has all of the same elements except instead of the damage to that person being a financial loss that arises as a result of the death of a worker, the claim is a claim for psychiatric injury which arises as a result of the death of that worker.

That was the point – the commonality between those two causes of action and the fact that they both involved essentially the same elements, but different damage, one being financial and being psychiatric to the person…..was set out very clearly by Justice Basten in South West Helicopters at 118.  It is set out, as it were, side by side in respect of things that might need to be proved in such actions ‑ ‑ ‑

GORDON J:   I think Justice Gleeson would like to ask you a question.

GLEESON J:   Mr Roder, in your submissions you say that the evident aims of the legislation support construction in favour of your client.  Do you rely on anything beyond the text for that submission?

MR RODER:   I do not think I can set out anything other than the text and the national mechanism that seems to have been adopted.  I cannot point to anything extrinsic.  I should say in that respect in terms of inconsistency of outcome, in my submission what is being sought is in fact consistency of outcome in respect of – so the persons who received benefits in accordance with a particular scheme, workers’ compensation scheme, that effectively they have the same rights. 

Their rights are not disproved, depending upon where they lived, and that the insurer and the employer have the certainty that, in effect, if a claim is brought against the workers’ compensation scheme, that there are not different claims which just depend upon where somebody lives, notwithstanding that they have had resort to those claims and that there is a uniformity of treatment.

With respect, in terms of the adverse consequences, because we are dealing generally with the application of the substantive law of a State, not just this particular provision, there will be swings and roundabouts, in my

submission, as there would be inevitably with any particular choice of laws provision is that it will affect the persons who are subject to it differently than if that choice of law provision did not exist.  Sometimes it will be beneficial.  Sometimes it might be mutual.  Sometimes it might be adverse. 

But, in my submission, the adverse effect really focuses on the application of this particular provision, instead of focusing on what is the purpose of the provision, which is to have uniformity of the substantive law which is applying in respect of these claims, so that, for instance, the Lord Campbell’s Act claim, which is often brought and heard at the same time as the nervous shock claim, will not be dealt with by a court under two different substantive laws of the Civil Liability Act and the like, which might lead to significantly different conclusions in respect of all aspects of the claim.  My time must be close to up.

GORDON J:   Thank you, Mr Roder.  We do not need to hear from you, Mr Tokley.

We are of the view that there are insufficient prospects of success to warrant the grant of special leave.  Special leave is refused.  Do you seek costs, Mr Tokley?

MR TOKLEY:   We do, your Honour.  There is no opposition.

GORDON J:   Special leave is refused with costs.

Adjourn the Court to 2.15 pm on Tuesday, 15 June in Canberra.

AT 1.08 PM THE MATTER WAS CONCLUDED