Watkins, Watkins & Watkins v Lee, Hervey Bay City Council
[1996] QSC 119
•11 July 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
No. 14 of 1994
[Watkins, Watkins & Watkins v Lee, Hervey Bay City Council & Ors]
BETWEEN:
ROSEMARY WATKINS (suing both on her own behalf
and as Administratrix of the Estate of Russell Wesley Watkins)
Plaintiff
AND:
KRISTY LEE WATKINS
(an infant by her next friend ROSEMARY WATKINS)
Second Plaintiff
AND:
WADE WESLEY WATKINS
(an infant by his next friend ROSEMARY WATKINS)
Third Plaintiff
AND:
CRAIG WILLIAM LEE
First Defendant
AND:
THE COUNCIL OF THE CITY OF HERVEY BAY
Second Defendant
AND:
THE WORKERS' COMPENSATION BOARD OF QUEENSLAND
First Third Party
AND:
MUNICIPAL MUTUAL INSURANCE LIMITED
(ARBN 007509873)
Second Third Party
JUDGMENT - DERRINGTON J.
Delivered:11 July 1996
CATCHWORDS: INSURANCE - Workers' Compensation policy - Common law cover - Injury to worker on way home from work - Negligence of employer not related to worker's employment - Whether cover applies.
Counsel:Mr J Griffin QC, with him Mr A Williams, for the First Third Party.
Mr S Williams QC for the Second Third Party
Mr J Given for the Second Defendant
Solicitors:Baker O'Brien & Toll for the First Third Party
Sparke Helmore for the Second Third Party
Morton & Morton for the Second Defendant
Hearing date : 29 April 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
No. 14 of 1994
BETWEEN:
ROSEMARY WATKINS (suing both on her own behalf
and as Administratrix of the Estate of Russell Wesley Watkins)
Plaintiff
AND:
KRISTY LEE WATKINS
(an infant by her next friend ROSEMARY WATKINS)
Second Plaintiff
AND:
WADE WESLEY WATKINS
(an infant by his next friend ROSEMARY WATKINS)
Third Plaintiff
AND:
CRAIG WILLIAM LEE
First Defendant
AND:
THE COUNCIL OF THE CITY OF HERVEY BAY
Second Defendant
AND:
THE WORKERS' COMPENSATION BOARD OF QUEENSLAND
First Third Party
AND:
MUNICIPAL MUTUAL INSURANCE LIMITED
(ARBN 007509873)
Second Third Party
JUDGMENT - DERRINGTON J
Judgment delivered 11 July 1996
This application for declarations concerns the scope of the common law liability cover of a policy issued pursuant to the Workers' Compensation Acts 1990 ("the Act"), which has since been superseded. It will determine which, if any, of two insurers, the Workers' Compensation Board ("the Board") or a private insurer, Municipal Mutual Insurance Ltd ("Municipal") is liable under their respective policies to indemnify the Second Defendant ("the Council"). Its employee was killed on his direct way home from work as the result of an accident assumed, for the purposes of the application, to have been caused by its negligence, not connected with its employment of him but with its unrelated functions as a local authority in carrying out road-work.
The Board refuses to indemnify it, claiming that the indemnity under its policy is limited to the insured's liability for fault related to the employment and that the liability in this case does not relate to that. Whether such a limitation exists is the first issue. The Act provides for an extension of the cover to injury sustained by a worker while travelling between his place of abode and work, but the Board argues that this cover is confined to the employer's liability for workers' compensation. This is the second issue. Municipal also denies any obligation to indemnify it on the ground that the cover provided by the Board's policy agitates an exclusion in its policy. This is the final issue, which of course will depend on the answer to the others.
The First Issue
The Council's assumed negligence is said to arise from the presence of screenings on a road under repair. These caused the driver of a car to lose control of it so that it veered to the wrong side of the road and collided with the Council's employee who was approaching on his motor cycle from the opposite direction. The presence of the car driver in these events is irrelevant in principle to this discussion and may be disregarded as being only the instrument through which the Council's negligence gave rise to its liability. The relative weight of the Council's duty of care in different circumstances is equally irrelevant. The only feature of importance is that the foundation of the Council's liability is not related to its role as employer of the worker and that this could be the case in circumstances of injury arising out of and at the place of the employment.
The parties agree that because no policy was issued by the Board, it should be assumed that one was issued in the standard form prescribed by Regulation 8 of the Act that in turn complied with the cover required by the Act as it then stood. It will be necessary to have reference to the legislation as an aid in defining the scope of that cover. Usually, subject to the primacy of the clear words of the policy, this approach is fully justified (State Mine Control Authority v. GIO (NSW) (1964) 65 SR (NSW) 258, 261; Dillingham Engineering Pty Ltd v. National Employer's Mutual General Insce Assn Ltd [1971] 1 NSWLR 578, 585; Miltenburg v. AMP Fire & General Insce Co Ltd (1981) 1 ANZIC 60.442); but in addition in this case the policy itself says that it is issued under the provisions of s.6 of the Act and is made subject to the provisions of the Act and Regulations, all of which are deemed to be incorporated in and form part of it.
Further, because the terms of the policy are imposed from without, there can be no occasion for the application of the contra proferentem rule: Kodak (Aust.) Pty Ltd v. Retail Traders Mutual Indemnity Insce Assn (1942) 42 SR (NSW) 231; Green v. Windman (1964) VR 297; Dairy Farmers Co-operative Pty Ltd v. CIC Insurance Ltd (1991) 7 ANZ Insce Cas 61.093; Squire (Senko) v. Insurance Corpn of British Colombia 69 DLR (4th) 300.
The terms of the policy read as follows:"In consideration of (the Council) , the Employer, having:-
(a)made application for a Policy of Accident Insurance in accordance with the requirements of the Workers' Compensation Act 1916-1986 in respect of workers . . . employed by him during the (relevant) period . . . ;
and
(b)paid the premium required for the said period,
the Workers'' Compensation Board of Queensland issues this Policy of Accident Insurance indemnifying the Employer against all sums for which, in respect of workers . . . employed by him, he may become legally liable by way of -
(a) compensation under the Workers' Compensation Act 1916-1986
and
(b) in the case of injury . . . , damages arising under circumstances creating also, independently of this Act, a legal liability in the Employer to pay damages in respect of that injury.
This Policy is issued on the faith of the said application and under the provisions of Section 6 of the Workers' Compensation Act 1990 and is subject to the provisions of the said Act and the Regulations made thereunder, all of which shall be deemed to be incorporated in and to form part of this Policy."
This complied with s. 4.9(2) of the Act, which required the same two distinct heads of liability to be covered. The present enquiry does not concern workers' compensation but the scope of that cover is relevant to the scope of the common law cover, so it is necessary to see how the Act provided for both.
The right of a worker to receive compensation from the Fund was controlled by s 5.1 which said:"A worker who suffers an injury arising out of or in the course of the worker's employment is entitled (and, in the case of the worker's death being or resulting from the injury, the worker's dependants are entitled), subject to this Act, to be paid from the Fund, compensation in accordance with this Act."
This then led logically to sections 4.9(1) and 4.9(2) which, where relevant, read as follows:
"4.9(1)An employer is legally liable to pay the compensation prescribed to be payable from the Fund in respect of an injury suffered by a worker employed by the employer.
4.9(2). . . (E)very employer is to insure and remain insured with the Board under a policy in respect of -
(a)the employer's legal liability to pay compensation under this Act;
and
(b)the employer's legal liability existing independently of this Act to pay damages in respect of injury to a worker employed by the employer, being a liability within the cover of accident insurance as defined in section 2.1."
By s.2.1, "Accident Insurance" was defined to mean
"insurance by which an employer was indemnified against all sums for which the employer may become legally liable, in respect of injury to a worker employed by the employer, in respect of -
(a)compensation under this Act; and
(b)damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay such damages . . .".
This would seem to add nothing to the description of the liability to be covered as provided for by s. 4.9(2). However, it should be noted how the two heads of liability referred to had a common element, that is, they had to be "in respect of injury to a worker employed by the employer". This common element was referred to only once in a way that encompassed both. It was not mentioned in respect of one and then repeated in respect of the other. This makes it even more difficult than otherwise to apply different constructions to the same expression where it is used throughout the Act, which will be referred to later:
This has significance because s. 4.9(2), which was the primary provision defining the scope of the cover, referred to the "injury suffered by a worker employed by the employer" and "injury to a worker employed by the employer' in respect of the workers' compensation cover and the common law cover respectively, the former coming from the implied incorporation of that expression as used in s. 4.9(1). The virtual identity of the two expressions with each other and with that used in common in the definition of "accident insurance" is plain, and it may be assumed that at least they all have the same meaning unless there is a good reason to the contrary. This suggests an intended identity of the cover, so far as possible, as to the two forms of liability covered, and the introduction of any unnecessary distinction between the two in the definition of the respective covers would be inconsistent, and unlikely.
The terms "employer" and "worker" appear in the description of the cover of the policy. "Employer" was defined to mean in effect someone (in a variety of legal forms) who employs a worker; and with some extensions for special purposes, a worker was defined to mean someone who works under a contract of service with an employer. Consequently, the use of the terms in the cover limited it to apply only to those cases where the employer\worker relationship between the insured and the injured party existed. The terms were also a useful and appropriate means of identification of the respective parties in the drafting of the Act and the policy.
By s. 2.1 "injury" was defined to mean, among other things, "personal injury arising out of or in the course of employment". This expression was very significant, and because the word "injury" was used in the definition of both covers, the extended meaning should have applied to both. Its most obvious feature is that it imposed a limitation on the cover in that the injury to which the liability attached had to arise out of or in the course of the employment.
Thus although it comes about by different and indirect means, the limitation of cover for both heads of liability required that there be an employer/worker relationship and that the relevant injury to the worker attracting that liability must have arisen out of or in the course of employment. These are serious limitations, both related to the employment.
On its strict meaning the latter might be thought to have excluded an injury occurring during the worker's journey between his abode and place of work from a cause unassociated with his work, but s.5.4 provided otherwise. It extended the meaning of the expression,"arising out of or in the course of the employment" to such circumstances, among others. It is common ground that it applied to workers' compensation cover. The major issue turns on whether it had general application, extending also to the common law cover of liability for such an injury. This question may be postponed till later, pending the disposal of the primary issue.
The Board's proposition is that the cover is also limited to a liability for a default that is associated with the employment. It says that the general purpose of the Act is only to protect workers and employers in that relationship, and that this means that only injury caused by the fault of the employer related to the work should be covered. Conformable with that, because the insuring clause of the policy refers to the "legal liability in the employer to pay damages in respect of (the) injury to the worker", it argues that the references to "the employer" and "the worker" should be construed as meaning or implying that the liability should be confined to that incurred through some breach of duty as an employer.
The simple answer is that the words of the policy and the Act, read in their context, do not connote the meaning attributed to them. Those words make no reference to the way the injury is caused other than that it must arise out of or in the course of the employment. Nor, as it has been demonstrated, is there any support for the implication suggested from the use of the terms, "employer" and "worker". Together, the purposes explained earlier provided good and sufficient reasons for the use of this terminology without the need for the suggested implication in order to give it meaningful content. The Board's argument is correct in identifying its connotation as including the element of employment, but this is fully satisfied without the further implication suggested.
The basis of the employer's breach of duty is not relevant unless it is made so by the definition of the cover. The critical point is not the source or legal foundation upon which the liability rests, but whether the liability answers the stipulated description: cf. Suncorp Insurance & Finance v. Workers' Compensation Board [1990] 1 Qd R. 185, 194; Young Harness Racing Club Inc v. The New Zealand Insurance Co Ltd (1991) 6 ANZ Insce Cas 61-047. The liability must relate to an injury to an employee that arises out of the employment, but that does not mean that the employer's fault causing the injury must derive from the same source.
The limitations that are in place are substantial and sufficient to satisfy the general expectation that a policy of this kind would have some limitation associated with employment, so it is unnecessary to look further in order to meet that expectation. It may be that the Board's knowledge of a limitation in the former compulsory motor vehicle insurance cover requiring that the liability of the insured be "in respect of the vehicle" has persuaded it that some analogy should be expected in employment insurance; but even in the more recent motor vehicle insurance legislation, apart from a nexus between the injury and the vehicle, no connection is required between the liability and the vehicle in order to attract the cover.
If it existed, the suggested additional limitation would give rise to some tension. Notwithstanding that an injury arose out of or in the course of the employment, the worker and employer would not have been protected unless a further criterion associated with the employment, the nexus of the employer's fault, were established. There would have been no need for the former limitation which would have been subsumed into it. Such substantive tautology will not easily, as a matter of construction, be created by the implication of a term or by the finding of a concealed meaning. In particular, it would be unusual to adopt it where it would result in the imposition of two different measures relating to the same subject matter.
As with all the forms of liability insurance, in order to determine the scope of the cover it is necessary first to identify the feature to which the expression of limitation of the cover was directed. Under the Board's policy that was, as it correctly submits, employment. However, again as with other forms of liability insurance, the next step is to determine how the limitation is defined in relation to that feature. In the present cover the two limitations relevant to employment are clearly made out as described above. In neither case is the fault causing the injury a factor.
They do not even contain any causal element between the employment and the injury. The need for an employer/worker relationship has no causal feature. As for the need that the injury (as distinct from the negligent act or omission causing it) must arise out of or in the course of the employment, the expression, "arising out of", in insurance policies has been often held to require no more than some "non-coincidental nexus" between the two nominated factors: Government Insurance Office (N.S.W.) v. R.J.Green & Lloyd Pty Ltd (1965) 114 CLR 437; Transport Accident Commission v. Treloar (1992) 1 VR 447; Samick Lines Co Ltd v. Owners of the Antonius P Lemos (1985) 1 AC 711; Warley Pty Ltd v. Adco Constructions Pty Ltd (1992) 8 BCL 300; Forsayth N.L. v. Australasian Gold Mines N.L. (1992) 8 WAR 176; Peter Isaacson Publications Pty Ltd v. Victorian Workcover Authority [1996] 1 VR 49, 60. And the expression, "in the course of the employment", is even more remote from any causal element. This same limitation was construed in this context in Hatzimanolis v. ANI Corporation Ltd (1992) 173 CLR 473. Among other things, the majority of the court said: "The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work". It is clear that the limitation does not in any way refer to the cause of the injury or, a fortiori, the basis of the employer's liability.
If it had been desired to introduce such a limitation as the Board suggests, as in the former motor insurance legislation it would have been simple to say so in s.4.9(2) in clear terms, such as "a legal liability in respect of the employment to pay damages in respect of injury to a worker": cf. Wardley Australia Ltd v. Western Australia (1992) 66 ALJR 839, 842. One possible implication is that its omission was intentional. Accordingly, this foundation of the construction by reference to the words used is flawed.
However, in the alternative it argues that the further limitation should be implied because of the policy behind the legislation. That policy, according to s.1.4 was to provide insurance protection to the worker and the employer, but, it is suggested, only in respect of harm caused by the employer as such. But no such qualification appears in the broad terms of that section. Further, as it has been explained, the specific terms of the operative provisions relied on to justify this do not do so. This makes it necessary to search elsewhere for any such discernible policy, but that will be difficult to find for its result would be to restrict the scope of the protection afforded to the worker and the employer.
Several authorities were cited by the Board as examples of the policy of the legislation to protect the worker and his dependents on the one hand and the employer on the other but to limit that protection to those ends. They primarily concerned the liability of the employer to persons other than the injured worker. That is not relevant in this case, but the principle of confinement of the protection to the defined cover referred to is relevant. However it is difficult to understand how this avails the Board's case. If the protection as defined is given a fulsome application in the present circumstances, quite plainly this would favour the finding of cover of the employer's liability in the event of ambiguity. Certainly, it cannot act as a restrictive factor in the provision of such protection.
A liberal construction should attend on such a remedial piece of legislation so that it will provide the most complete remedy consistent with the actual language employed and to which the words are fairly open (Khoury v. G.I.O. (NSW) (1984) 58 ALJR 502, 508; Butler v. Fyfe Coal Co Ltd (1912) AC 149, 178). Consequently there is a fundamental objection in principle why as a matter of policy such a restriction on the remedy should be presumed. On the contrary, such a liberal and remedial purpose would justify a wide formulation of the cover in this respect so as to avoid any further limitation connected with the employer's liability and the employment beyond those expressly stated. Provided it related to an injury to a worker of the insured arising out of or in the course of his employment, it could well have been intended by the legislation that the cover should apply to all liability whether the fault was connected with the employment or not.
Conversely the purpose of protecting the worker and the employer would have been inconsistently attenuated by such a further limitation for it would have failed to take into account the infrequent but real chance of harm to the worker at work in such circumstances. The inclusion of this risk in the cover is therefore entirely consonant with the general policy of the Act, and, it might be thought, its non-inclusion would be discordant with the tenor of that policy.
Because the workers' compensation cover has no element relating to the employer's liability, it is not possible to refer to it for a direct analogy. It is meaningless to look for any provision connecting fault with the employment, for fault is not a factor in that scheme. But it is possible to demonstrate an approach there that is comparable in principle. It is uncontroverted that this cover applies to injury sustained by the worker on a journey between his abode and work, when it is unlikely that the injury will have any relationship with his work. This manifests the same remedial policy that is inimical with the notion of exclusion of the employer's cover when the breach of duty is unrelated to the work except incidentally in conformity with the limitations mentioned.
It is here that the general identity or commonality in form in the definition of the cover of the worker's compensation and common law damages attains most significance. An identity in policy in this respect is consistent with the scheme adopted which, as it has been seen, adopts such a common mode in respect of the two. Nowhere is any distinction made by reference to an element relating the employer's liability to the employment. This factor is far from conclusive or necessary to the result, but it is at least consistent with the view adopted.
For these reasons, the limitation suggested by the Board cannot be justified in any respect upon the proper construction of the Act through its text and policy; nor is there any reason why it should be implied.
Before leaving this subject, it is desirable to deal with a submission by Municipal which should not be adopted. It was argued that some incidental provisions of the Act show that the limitations on the cover of the employer's respective liabilities were identical. It was pointed out that s.10.1 provided for the deduction from any damages, awarded to any worker against his employer and recoverable from the Fund, of the amount of compensation already paid from the Fund. It was argued that this protection of the Fund would have been lost if the common law cover did not extend to the employer's liability unconnected with the employment, for the provision for such a deduction would have been made only when the common law cover operated. This is a rather strange argument, for its validity would mean that the Fund would usually have had to pay a far larger amount for the common law damages than the smaller amount of workers' compensation it would have been entitled to take into account. This cannot support any argument for a legislative policy of protection of the Fund.
While that argument will not succeed, attention must be paid to s.10.8(2) lest it be thought to be overlooked. In respect of payments of workers' compensation from the Fund, it provided for a charge in favour of the Fund against damages awarded against, among others, his employer who was not indemnified by the Board . This could imply that the scope of the cover of workers' compensation and common law liability was not identical in every respect. The section read as follows:"10.8(2) An amount paid as compensation under this Act to or on account of a person in respect of an injury to which this section applies, at a time or in respect of a period before the person becomes entitled to payment of damages by -
•the worker's employer who is not indemnified by the Board against liability therefor;
•any person other than the worker's employer;
constitutes a first charge on those damages.
Such an employer, or other person, from whom such damages are recoverable is to pay to the Board the amount of such first charge or, if such damages do not exceed the amount of such first charge, the whole of such damages.
Payment to the Board in accordance with this subsection, to the extent thereof, satisfies the liability of such employer or other person for payment of such damages."
It is possible that workers' compensation may have been paid from the Fund but that the employer was not entitled by the common law cover to be indemnified. This could obviously have obtained where the employer had defaulted in taking out a policy as required by the Act. The worker was also entitled under s. 10.1 to recover any award of common law damages direct from the Fund, which then had a statutory right of recovery from the defaulting employer. Where the worker took this course, there was also provision for the deduction of any workers' compensation payments from any amount that he was entitled to receive from the Fund.
Despite these alternative remedies, it is still clear that in order to cover all circumstances, provision had to be made for the recovery of the compensation payments in the rare cases where the damages may have been recovered against such a defaulting employer. That being so, there is no reason to draw an implication from the section that the cover was differently defined for the respective heads of liability; but if they were shown by other means to be different, then this provision could have had application in an appropriate case.
The Second Issue
It is now necessary to refer to the secondary and more specific question, whether s. 5.4(2), which had the effect of extending the cover to various circumstances not directly arising out of or in the course of the employment, including any direct journey between the worker's abode and place of work, was confined to the workers' compensation cover. It read as follows;
"5.4 Injuries that arise out of or in the course of employment.
(1) This section does not operate so as to limit the circumstances in which an injury to a worker arises out of or in the course of the worker's employment.
(2) An injury to a worker is taken to arise out of or in the course of the worker's employment if it occurs -
(a)on a day on which the worker has attended at the place of employment as required pursuant to the terms of the worker's employment or apprenticeship -
(i)while the worker is at that place and is engaged in an activity for the purposes of or in connexion with the employer's trade or business;
(ii)while the worker is temporarily absent from that place during an ordinary recess if the injury is not due to
•the worker voluntarily being subjected to an abnormal risk of injury during the recess; or
•the worker's wilful misconduct of a serious kind;
(iii)while the worker is away from that place in the course of the worker's employment or apprenticeship or under the instructions of the worker's employer or other person having, for the time being, control of the worker's service;
(b)while the worker -
(i)is travelling between the worker's place of abode and place of employment;
(ii)is travelling between the worker's place of abode or place of employment and any trade, technical or other training school that the worker is required by the terms of employment or as an apprentice to attend, or that the employer expects the worker to attend;
(iii)is in attendance at a school such as is referred to in paragraph (ii);
(iv)is travelling between the worker's place of abode or place of employment and any other place for the purpose of the worker's -
•rehabilitation;
•obtaining a medical certificate, or medical or hospital advice, attention or treatment;
•submitting to examination by a registered person pursuant to a provision of this Act or to a requirement under this Act;
•receiving payment of compensation;
in respect of an injury for which the worker is entitled to compensation under this Act;
(v)is in attendance at a place for a purpose referred to in paragraph (iv);
(vi)is travelling between the worker's place of abode and place of employment for the purpose of receiving payment of wages or other moneys due to the worker under the terms of employment that, pursuant to those terms, or any agreement or arrangement between the worker and the employer, are available, or the worker reasonably expects to be available, for collection at the place of employment;
(vii)is travelling between the worker's place of employment with one employer and the worker's place of employment with another employer.
(3) A person who for the purposes of being selected for employment, attends at any place that, in respect of the person and the person's attendance at that place, is a place of pick-up is, for the purposes of this Act, taken to be working under a contract of service with an employer while the person -
(a)is travelling between the person's place of abode and the place of pick-up;
(b)is in attendance at the place of pick-up before being selected for employment;
(c)is travelling between the place of pick-up and the person's place of abode, if the person is not selected for employment, or the engagement for employment for which the person is selected is to commence on a later day.
(4)In this section -
'place of abode' includes the place where the worker in question . ." etc.
The result depends on whether the extension of meaning given to the expression, "arising out of or in the course of the ... employment" applied to that expression where it was incorporated, through the definition of "injury", into the common law cover as expressed in S. 4.9(2), or whether s. 5.4 was intended to apply only to s.5.1 where those words were used relating to workers' compensation.
On its face it is equally applicable to both covers, because the definition of "injury" containing the expression clearly had application to both. The argument that the section applies equally to both covers is simple and direct. By s. 4.9 (2), the policy is to cover common law liability "in respect of injury to a worker"; "injury" is defined in s. 2.1 as "personal injury arising out of or in the course of employment"; and by s. 5.4 (2) "an injury to a worker is taken to arise out of or in the course of the worker's employment if it occurs while the worker .... is travelling between his work and his abode". The chain is unbroken.
Prima facie an expression will be accorded the same meaning where it appears throughout a statute, and though this may be displaced by such as a contextual factor, it would need reasonable strength: Police v. Thompson (1966) NZLR 813, 818, Craig Williamson Pty Ltd v. Barrowcliff (1914) VLR 450, 452; (cf. North British & Mercantile Insce Co Ltd v. Smith (1960) VR 78; Oei v. Foster (1982) 2 Lloyd's Rep 170, 176; Trident General Insce Co Ltd v. McNiece Bros Pty Ltd (1987) 4 ANZ Insce Cas 60.771). The structure of the Act in this respect that tends to support the application of the same meaning to the expression wherever it is used has already been noticed. Unfortunately the Act is badly drafted. The difficulty is that s.5.4 (2) appeared in a Part of the Act described in its title as referring to, and in fact dealing substantially with, entitlement to workers' compensation. Further, in providing for the worker's right to receive compensation, s. 5.1 used the specific expression that was extended by s.5.4, so that the extension of it might seem to have been intended to be confined to that.
The section is contained in Part 5 of the Act which has the heading, "ENTITLEMENT TO COMPENSATION", and which is at least substantially devoted to matters relevant to workers' compensation. This may be contrasted with Part 10 which bears the title, "ENTITLEMENT TO DAMAGES INDEPENDENTLY OF ACT", and which in turn is exclusively devoted to the matters referred to in that title. And it was not inserted in Part 4, which is entitled "ACCIDENT INSURANCE" and contains s. 4.9, which deals with the matters that are common to both forms of cover.
All of this certainly suggests an intended distinction for the section, but it is far from conclusive, and it is necessary to pay regard to its nature and contents as well as to the plain meaning of the words used and the influence of any considerations of legislative policy.
Some of the range of circumstances to which it refers are equally applicable to both covers, but others have only a limited practical relevance to the common law one. That relating to the worker's journey between his place of work and his abode is an example of this, for rarely would the employer's common law liability arise in those circumstances. But, as in the present case, it could happen sometimes. So too where the injury occurs while the worker is travelling to or from or is present at the other places mentioned in the section. It even applies while the worker is temporarily absent from his workplace during an ordinary recess, which could include a shopping expedition during a lunch-hour.
That some features could comfortably lead to common law liability as well as to a claim for workers' compensation does not of itself mean that the section should apply to both. It is the totality of the range of the extension that identifies its character, and if it were intended that it should apply to workers' compensation cover only, it would still have been necessary to refer to some circumstances that could incidentally have common law application as well.
Equally, if it were intended that it should apply to both, it would not matter that it refers to some circumstances that have little or no relevance to the common law cover, for the use of a common provision for such a purpose can lead to such drafting. However, in each of the circumstances referred to in the section, the employer's common law liability could arise, and although these may be remote in some cases, it would still be necessary to provide for them if that cover were intended.
There are no features that would apply exclusively or more appropriately to the common law cover, but this has no significance because there is no conceivable occasion for common law cover where the workers' compensation cover would not apply also.
For these reasons, the nature and subject matter of the extension are equivocal.
Superficially, the Board's principal argument for restriction of the extension, based on its location in a Part dealing particularly with compensation, is enhanced by the use in that Part of the expression to which the extended meaning is given. It is in s. 5.1 that the entitlement to workers' compensation from the Fund is invested in "a worker who suffers injury arising out of or in the course of the ... employment". This is the first source of that limitation of the cover relating to that form of liability. It is followed consistently by s.4.9(1), which says that an employer is legally liable to pay the compensation payable from the Fund "in respect of injury suffered by a worker employed by the employer". While this does not refer to "an injury arising out of or in the course of the worker's employment", that is incorporated by the definition of the word, "injury". Section 4.9(2) then provides that every employer is to insure with the Board in respect of the liability to pay workers' compensation.
The force of this argument is somewhat attenuated because, as it has been observed, s.4.9, which deals with both covers identically, also refers to "injury", with its defined extended meaning, in respect of the common law cover. This suggests that in the definition of the scope of their respective covers, both should be treated in the same way in the influence of any provision that applies to such an expression.
Moreover, there is strong authority by analogy that the plain effect of the words used is not easily defeated by their geographical location in the legislation, though implied contextual modifications are not to be ignored. "The fact that the operation of the plain words of a statute extends beyond the requirements of the particular legislative scheme which provided the context and occasion of their enactment provides of itself no sufficient warrant...for refusing to give effect to the words which the legislature has seen fit to use": K & S Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd (1985) 157 CLR 309 per Deane J at 323; cf. Young Harness Racing Club Inc v. The New Zealand Insurance Co Ltd (supra).
The location of the extension in this Part may have been chosen because most of its practical operation would apply to workers' compensation, and that would have been its primary target, but, notwithstanding that choice, it could still have been intended that it should apply to the common law cover as well. The rule of construction that words must be read in the context of the statute as a whole is subject to the qualification that "if, when so read, the meaning of the section is literally clear and unambiguous, nothing remains but to give effect to the unqualified words": Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union (1925) 35 CLR 449, 455; Cooper Brookes (Wollongong)Pty Ltd (1981) 147 CLR 297, 304; applied in K. & S. Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd (supra) at 312. Of course, it may also be found that, as a whole, the context and policy of the statute will support the clear primary meaning of the words though it may appear to be alien to their immediate context.
In the last mentioned case, a section was almost completely alien to its neighbours and the title to the part of the Act in which it was placed, but it was held to have general application without restriction to their subject matter. And the same result would have been found even if the rest of the Part had been exclusively devoted to that other subject matter. As it was, there were other sections in it that were also alien to its general context and its title, and this significantly supported the wider reading in accordance with its primary meaning. Much the same result obtained in Hatzimanolis (supra). The presence, in the same Part, of a section other than the one under scrutiny, that went outside the topic to which the Part was mostly confined, destroyed any pretence of homogeneity and fortified the result.
These same features appear in the present case. The other provision in Part 5, and indeed in this same section, that is not confined to the Part but is of general application is s.5.4(3). This may be of greater significance because it bears indirectly on the meaning of the expression,"arising out of or in the course of employment", but the most important point is that it provides for an extension that has general application and is not confined to the subject matter of the section or that Part. It may be noticed that it is expressed to have application to the whole Act, which does not occur in respect of the provision under discussion where that is implied by the expression adopted. However this is only a difference in the mode chosen to express the same meaning.
Although the construction of a statute cannot usually be influenced by analogy with the construction of another, the principles of construction and the reasoning applied to factors that are so closely analogous in principle to those in this case, recommend themselves for adoption in the absence of any good reason to the contrary.
There are a number of other reasons that would support such a construction in this case, with the result that the extension applied to the common law cover. They may be briefly summarised. First, in every respect the cover relating to both forms of liability is expressed in identical terms, including the expression, "injury arising out of or in the course of the employment" that is the vehicle for the extension in s. 5.2. Secondly, if it had been intended to confine the extension to the workers' compensation cover, it would have been easy to have done so by inserting the words, "In this Part,", at the commencement of s. 5.4(2), just as the words,"In this section", appear at the commencement of s. 5.4(4). Thirdly, the canon of construction applying to remedial statutes adverted to earlier, that they should be read liberally, favours the application of the extension to the wider field. And, cognate with this, fourthly, policy considerations would support such an application. These should now be more fully considered, seriatim.
The first is the total identity otherwise of the range and expression of the scope of the cover of the respective liabilities by identical limitations. This would alone not connote the same identity in the application of this extension, for there could be reasons for departure on this subject. But to make the method of departure the enlargement of an expression that has been otherwise used, deliberately it might be thought, to establish an identical form of limitation for both areas of cover would seem to be inconsistent. Because on its face it so manifestly applies equally to both, it would have been an egregious error of drafting to have used it, without any qualification, as the vehicle for an intended application to one only. As the most significant expression of the limits of the other, its role in that respect could hardly have been overlooked. All of this supports the view that the choice was made with the intention that the ordinary consequences would follow.
The second point speaks for itself and supplements the last one. If the draftsman had wished to limit an expression that otherwise had common application so as to apply it to one part of the cover only, it would have been desirable and easy to say so in any one of a variety of simple ways. That it was not done suggests that that result was not intended.
The third point refers to the liberal construction associated with the remedial nature of the Act. Applied here it means that the protection to the worker and the employer that the Act is designed to provide be enlarged rather than restricted by the construction given to any ambiguous feature and that the section, which after all is intended to extend the scope of the cover, will be construed as widely as the clear and ordinary meaning of the words appear to say.
This accords with the fourth point, for the policy of the Act, so far as it can be discerned from its provisions, supports such a result. As it has been seen in the first part of this discussion, the common law cover was designed to match the compensation cover for injuries arising out of or in the course of the employment, even where the employer's fault was not associated with the employment. There seems to be no good reason in policy why that view should be departed from in the circumstances referred to in s.5.4.
In the same spirit there would be good reason for a continuing match of the covers where one was extended into an area that did not clearly come within the primary meaning of the limitation but where the injury still had some connection with the employment, albeit indirect or somewhat remote. It is accepted by all parties that the extension applies to the compensation cover. If the legislature has seen fit to extend the cover in respect of that liability, why, it can be rhetorically asked, would it not extend it for the other?
There is a danger here that as a matter of impression it might be assumed that it should have application only to workers' compensation cover because it is tacitly understood that most of the occasions of its application in practice will be in that direction. But if the above considerations are seen to support the clear meaning of the words so as to extend the cover for common law liability also, this is a result that cannot be described as inconvenient, improbable or unjust, and still less as absurd or irrational: cf K & S Lake City Freighters Pty Ltd (supra) at 312 per Gibbs CJ and at 323 per Deane J; and indeed "it is far from self-evident that it might not have been the considered legislative policy" that it should be so: ibid.
As in that case, the heading of the Part, so far as it is inconsistent with this result, may be disregarded "as having 'been inserted for the purpose of convenience of reference, and not intended to control the interpretation of the clauses which follow' (Union Steamship Co of New Zealand v. Melbourne Harbour Trust Commissioners (1884) 9 App Cas 365 at 369); or, alternatively, there would exist a plain inconsistency between the heading and the clear words of (the section) to which the heading must give way: cf. Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Ltd (1978) 140 CLR 216, 225" per Stephen J (ibid. at 324).
Summary
The foregoing discussion leads to the following conclusions:
•The limitations that the parties must be in an employer/worker relationship and that the worker's injury must arise out of and in the course of the employment are common to the workers' compensation and common law covers.
•This satisfies the expectation from the nature and purpose of the legislation that some limitation on the cover relating to the employment should appear.
•The basic limitation merely requires a non-coincidental connection between the injury and the employment It does not require that the conduct of the employer causing the injury and giving rise to the liability must be related to the employment.
•There is no other foundation in the Act or the legislative policy behind it for the implication of such a further limitation, and there is no specific provision where such a limitation is either express or implied.
•The general policy of the Act in providing protection for the worker and the employer is not hostile to such a construction. On the contrary, the protection would be attenuated if it were limited to those cases where the liability of the employer arose out of conduct relating to the employment. There is no reason why the cover should not apply to all harm arising out of or in the course of the employment; and there are consistent policy reasons why it should do so.
•The injury in the present case did not arise out of or in the course of employment in the ordinary sense, but it does come within the meaning of that expression as extended by s. 5.4 (2).
•The extension is attached to words that form part of the description of and apply equally to the common law cover as to the workers' compensation cover.
•The terms of the extension, although more relevant to claims for workers' compensation, may also apply sensibly to common law liability and give no indication as to whether it should apply to one or both.
•The context of the Part in which the extension is enacted is not devoted exclusively to workers' compensation, and in any case the clear meaning of the words will prevail so as to apply the extension to cover both forms of liability.
•This accords with the general policy of the Act and its remedial nature.
The factors suggesting that the operation of s.5.4 is confined to Part 5 are not sufficient to override the plain meaning of the words used, and indeed the factors to the contrary are quite strong. In this, I respectfully disagree with the view taken in Farmer v. Brisbane City Council (unreported Dist.Ct. Brisbane 18.4.1996). It follows that the cover of the Board's policy applies in the present case.
The Third Issue
Whether the Municipal policy also provides cover turns upon an exclusion contained in it in the following form:
"Exclusions
The Insurer(s) shall not be liable for . .
(b)Liability:
(i)in respect of injury for which insurance against such liability (whether the Insurance is limited in amount or not) is or would have been provided under:
1.a policy in a form prescribed or approved under or insured in pursuance of any Worker's or Workmen's Compensation legislation applicable to the Insured or any extension of such policy granted on request as a matter of usual practice by Insurer(s) authorised to issue such policies;
2.any scheme created by legislation to provide compensation to person who sustain injuries arising out of or in the course of their employment;"
Because of the above finding, the terms of the exclusion is met: Young Harness Racing Club Inc v. The New Zealand Insurance Co Ltd (supra). Accordingly, the Municipal cover does not apply. There was no argument to the contrary, given the result of the determination of the effect of the Board's policy.
Orders
It is therefore declared that pursuant to the respective policies of insurance referred to in the Agreed Statement of Facts:
(a)the first third party is liable to indemnify the Second Defendant;
(b)the second third party is not liable to indemnify the Second Defendant;
in respect of a finding by the Court that the death of the deceased was caused or contributed to by the negligence and/or breach of duty of the Second Defendant.
The respondent, The Workers' Compensation Board, is to pay the costs of the other parties to the application including reserved costs, if any, to be taxed.
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