Wilson v State Rail Authority of New South Wales - [2010] NSWCA 198

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Wilson v State Rail Authority of New South Wales [2010] NSWCA 198

HEARING DATE(S): 27 May 2010

JUDGMENT DATE:
16 August 2010

JUDGMENT OF: Allsop P at 1; Giles JA at 196; Hodgson JA at 197; Tobias JA at 202; Macfarlan JA at 203

DECISION: 1. The appeal be allowed.
2. The orders of the Court made on 17 June 2009 be set aside and in lieu thereof, the questions be reformulated and answered as follows:
(a) Do the provisions of Part 5 of the WC Act (including ss 151G and 151H) apply to the plaintiff’s claim for damages?: No.
(b) Do the provisions of Chapter 7 of the WIM Act require the plaintiff to demonstrate that he has suffered a 15 per cent permanent impairment before he is entitled to commence proceedings for damages?: No.
(c) Are the plaintiff’s proceedings maintainable?: Yes.
3. Submissions on costs be filed within 14 days.

CATCHWORDS: WORKERS COMPENSATION – entitlement to compensation – claim for damages at common law – injury received prior to 30 June 1987 – consideration of the application of Part 5 of the Workers Compensation Act 1987 and Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 – Part 5 does not apply – work injury damages as defined in Chapter 7 is limited to claims in respect of injuries received on or after 30 June 1987 - STATUTORY INTERPRETATION – workers compensation legislation – effect of 2001 amendments – Workers Compensation Legislation Amendment Act 2001 – Workers Compensation Legislation Further Amendment Act 2001 – introduction of definitions into the Workplace Injury Management and Workers Compensation Act 1998 – “existing claim”, “new claim”, “new claim matter” and “work injury damages” - WORDS AND PHRASES – “work injury damages”

LEGISLATION CITED: Interpretation Act 1987 (NSW), ss 33, 34, 35(1)(a)
Limitation Act 1969 (NSW)
WorkCover Administration Act 1989 (NSW)
Workers Compensation Act 1926 (NSW), ss 18(1), 27-29, 195, 196(1), 197(1)(a)
Workers Compensation Act 1987 (NSW), Pt 5, Pt 5 Div 3, Pt 5 Div 4, Pt 7, ss 2A, 3(1AA), 60AA, 149, 150, 151, 151AA, 151E, 151F, 151G, 151H, 151U, Sch 6 Pt 14, Sch 6 Pt 18C cll 2, 8, 9
Workers Compensation (Benefits) Amendment Act 1989 (NSW)
Workers Compensation Legislation Amendment Act 2001 (NSW)
Workers Compensation Legislation Further Amendment Act 2001 (NSW), s 2(2)(b), Sch 1.1, 1.2, 3, 5.1[3]
Workplace Injury Management and Workers Compensation Act 1998 (NSW), Ch 2, Ch 5, Ch 7, Ch 7 Pt 2 Div 1, Ch 7 Pt 2 Div 2, Ch 7 Pt 3 Div 1-5, Ch 7 Pt 6, ss 4, 60, 250, 251, 252, 253, 259, 260, 261, 262, 263, 264, 280A, 281, 281(2), 281(2A), 281(2B), 311, 312, 313, 314, 315, 316, 317, 318, 319, 321, 322, 323, 324, 325, 327, 328, 329, 330, 331

CATEGORY: Principal judgment

CASES CITED: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1
Attileh v State Rail Authority of New South Wales [2005] NSWCA 64; 62 NSWLR 439
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Bropho v Western Australia [1990] HCA 24; 171 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384
Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318
East West Airlines Ltd v Turner [2010] NSWCA 53
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309
Kimberley-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264; 67 NSWLR 187
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Leonard v Smith (1992) 27 NSWLR 5
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Pye v Butterfield Cheese Factors Pty Ltd (1996) 39 NSWLR 425
Maxwell v Murphy [1957] HCA 7; 96 CLR 261
Minister for Immigration and Citizenship v SZJGV [2009] HCA 40
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273
Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326; 74 NSWLR 229.

TEXTS CITED: New South Wales, Commission of Inquiry into Workers Compensation Common Law Matters: Report (Justice Terry Sheahan), 31 August 2001
New South Wales Government Gazette, No 152, 5 October 2001, at 8487
New South Wales Government Gazette, No 195A, 21 December 2001, at 10175
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001 at 14772
New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2001 at 15281
New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 November 2001 at 18961
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 November 2001 at 18895

PARTIES: Michael Alan Wilson (Appellant)
State Rail Authority of New South Wales (Respondent)

FILE NUMBER(S): CA 2009/40299

COUNSEL: Mr S G Campbell SC, Mr M L Snell (Appellant)
Mr G M Watson SC, Mr R Gambi (Respondent)

SOLICITORS: Carroll & O'Dea Lawyers (Appellant)
Astridge & Murray Solicitors Hunters Hill (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2007/20443

LOWER COURT JUDICIAL OFFICER: Hidden J

LOWER COURT DATE OF DECISION: 17 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Michael Alan Wilson v State Rail Authority of New South Wales & Anor [2009] NSWSC 537

2009/40299

ALLSOP P
GILES JA
HODGSON JA
TOBIAS JA
MACFARLAN JA
Monday 16 August 2010

WILSON v STATE RAIL AUTHORITY OF NEW SOUTH WALES

Headnote

[This headnote is not part of the reasons.]

The appellant (Mr Wilson) was an employee of the respondent (the SRA) from August 1981 until January 1983. During that period, Mr Wilson was sexually assaulted by another SRA employee who was later convicted of offences arising out of this criminal conduct. On 21 February 2006, Mr Wilson lodged a workers compensation claim against the SRA. On 1 December 2007, he filed a statement of claim in the NSW Supreme Court claiming common law damages, having been granted leave to proceed out of time by Malpass AsJ. Mr Wilson claimed that the sexual assaults had occurred in circumstances constituting a breach of the SRA’s duty to him as an employee.

On 17 June 2009, a Judge of the Common Law Division (Hidden J) made orders dismissing Mr Wilson’s claim for damages consequentially upon the answers his Honour gave to separate questions formulated by the parties and put to him for determination. Mr Wilson appeals against those orders.

The questions posed, and the answers given by the primary judge, were as follows:

(a) Do the provisions of Pt 5 Div 3 of the Workers Compensation Act 1987 (“the WC Act”), including ss 151G and 151H, apply to Mr Wilson’s claim for damages?: No need to answer.

(b) Irrespective of the answer to (a), do the provisions of Div 2 of Pt 2 and Divs 2 to 5 of Pt 3 (except s 284) of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”) apply to Mr Wilson’s claim for damages so as to require him to demonstrate that he has suffered a 15 per cent permanent impairment before he is entitled to commence proceedings for damages, and if so, which of them?: Yes, Div 2 of Pt 2 of the WIM Act requires Mr Wilson to demonstrate 15 per cent permanent impairment.

(c) If the answer to either (a) or (b) is yes, what follows?: The proceedings should be dismissed.

Held, allowing the appeal and setting aside the orders of the primary judge (per Allsop P, Giles, Hodgson, Tobias and Macfarlan JJA agreeing):

1. The questions should be reformulated and answered as follows:

2. The Court of Appeal decision in Attileh v State Rail Authority of New South Wales [2005] NSWCA 64; 62 NSWLR 439 should be departed from in respect of the conclusion that causes of action for injuries received before 4pm on 30 June 1987 are constrained by the limitations in Ch 7 of the WIM Act, at least insofar as that depends upon the phrase “work injury damages” in s 250 of the WIM Act extending to cover damages for such causes of action.

2009/40299

ALLSOP P
GILES JA
HODGSON JA
TOBIAS JA
MACFARLAN JA
Monday 16 August 2010

WILSON v STATE RAIL AUTHORITY OF NEW SOUTH WALES

Judgment

The appellant, Mr Wilson, appeals from orders made by a Judge of the Common Law Division (Hidden J) dismissing his claim for damages against the respondent (the “SRA”) consequentially upon the answers that his Honour gave to separate questions that were formulated by the parties and put to him for disposition.

Separate questions posed and answered by the primary judge

2 The three questions were as follows:

(a) Do the provisions of Part 5 Division 3 of the Workers Compensation Act 1987 (NSW) [to the form of which Act from time to time I will refer as the “WC Act”], including ss 151G and 151H, apply to Mr Wilson’s claim for damages?

(b) Irrespective of the answer to (a), do the provisions of Division 2 of Part 2 and Divisions 2 to 5 of Part 3 (except s 284) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) [to the form of which Act from time to time I will refer as the “WIM Act”] apply to Mr Wilson’s claim for damages so as to require him to demonstrate that he has suffered a 15 per cent permanent impairment before he is entitled to commence proceedings for damages, and if so, which of them?

3 The primary judge answered the questions as follows:

(a) No need to answer.

(b) Yes, Division 2 of Part 2 of the WIM Act requires Mr Wilson to demonstrate 15 per cent permanent impairment.

(c) The proceedings should be dismissed.

Reformulation of the questions and answers to them allowing the appeal

4 For the reasons that follow, in my view, the appeal should be allowed, the orders of the primary judge set aside and the questions reformulated and answered as follows:

(a) Do the provisions of Part 5 of the WC Act (including ss 151G and 151H) apply to the plaintiff’s claim for damages?: No.

(b) Do the provisions of Chapter 7 of the WIM Act require the plaintiff to demonstrate that he has suffered a 15 per cent permanent impairment before he is entitled to commence proceedings for damages?: No.

Background facts

5 The background facts are as follows. From August 1981, when he was 15 years old, until January 1983, Mr Wilson was employed by the SRA. During that period, Mr Wilson was sexually assaulted by another employee of the SRA, a Mr Reardon, who was the second defendant in the proceedings in the Common Law Division. Mr Reardon was later convicted of various offences arising out of this criminal conduct and sentenced to a term of imprisonment.

6 On 21 February 2006, Mr Wilson lodged a workers compensation claim against the SRA in relation to the assaults. On 1 December 2007, he filed a statement of claim in the Supreme Court claiming common law damages, leave to proceed out of time having been granted by Associate Justice Malpass on 13 November 2007. Mr Wilson claimed that the sexual assaults had occurred in circumstances constituting a breach of the SRA’s duty to him as an employee.

Issue put broadly

7 Put broadly, the issue to which the separate questions were directed was whether or not the claim of Mr Wilson had to comply with, or was subject to, some or all of the statutory changes that were made to common law claims arising from employment from 1987 onwards, in particular, whether after 2001, Mr Wilson’s cause of action and right of suit became subject to Pt 5 of the WC Act and/or Ch 7 of the WIM Act, or parts thereof such that he was required to demonstrate a degree of permanent impairment of 15 per cent in order to be entitled to proceed with a claim at common law.

Approach to the resolution of the controversy

8 Notwithstanding the simplicity of the question, the controversy and the appeal raise difficult and intricate questions as to the proper construction of the WC Act, the WIM Act and various Acts that amended them. The appeal also raised the correctness of some previous decisions of this Court. Thus, a five judge bench was constituted to hear the appeal. As the argument eventually fell out, only one decision of the Court was challenged, Attileh v State Rail Authority of New South Wales [2005] NSWCA 64; 62 NSWLR 439, a decision which was at the commencement of the appeal accepted to be correct by the appellant. For the reasons that follow, I would, with the utmost respect, depart from the conclusion in Attileh that causes of action for injuries received before 4 pm on 30 June 1987 are constrained by the limitations in Ch 7 of the WIM Act, at least insofar as that depends upon the phrase “work injury damages” in s 250 of the WIM Act extending to cover damages for such causes of action. Thus, Mr Wilson’s claim is not precluded by any requirement for a degree of permanent impairment of 15 per cent.

9 It is essential to understand the enactment history and context of the Acts that make up the work injury damages recovery regime if one is to give proper content to any provision of a relevant Act in the development of that regime since 1987. The regime has developed over time, and not without considerable complexity.

10 I will take the course of setting out the enactment history and context before discussing the relevant provisions of the legislation in 2001 or the approach of the primary judge or the arguments of the parties. I have done so in order that the correct approach and, with respect, the errors of the learned primary judge can be understood most clearly. It will be convenient, however, from time to time, to interpolate some views in order that an unfortunately long judgment is readily understandable.

11 May I say at the outset, that the struggle with the intricate legislation was greatly assisted by the clear, succinct and helpful submissions of counsel, Mr S Campbell SC and Mr M Snell who appeared for Mr Wilson and Mr G Watson SC and Mr R Gambi who appeared for the SRA. I am very grateful for their skill and assistance.

12 I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ), 398-403 [158]-[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. The foregoing principles can be taken from the following: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424, specifically approved by the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ), 112-113 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381-382 [69]-[71] and 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at 23 [49] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 322 [1] (Gleeson CJ agreeing with Heydon J) 330 [32] (Gummow J agreeing with Heydon J), 331 [34] (Kirby J agreeing with Heydon J), 331 [35] (Hayne J agreeing with Heydon J), 331 [36] (Callinan J agreeing with Heydon J) and 368 [140] and fn 99 (Heydon J); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at 280-281 [10]-[11] (McHugh ACJ and Gummow and Hayne JJ), 305-306 (Kirby J, in dissent, though not in expression of principle); Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [8]-[9] (French CJ and Bell J), [47]-[48] (Crennan and Kiefel JJ), cf [19]-[20] (Hayne J), though compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [33]-[34]; and see also the Interpretation Act 1987 (NSW), ss 33 and 34.

13 Particularly relevant to the task at hand, in this appeal, is what was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381-382 [69]-[71]:

“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [See Taylor v Public Service Board (NSW) [1976] HCA 36 ; 137 CLR 208 at 213 per Barwick CJ]. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’ [ Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617 per Lord Scarman, ‘in the context of the legislation read as a whole’.) In Commissioner for Railways (NSW) v Agalianos [ [1955] HCA 27 ; 92 CLR 390 at 397], Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed [ Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41; 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 ; 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J].

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [ Ross v The Queen [1979] HCA 29 ; 141 CLR 432 at 440 per Gibbs J]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [See Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574 per Gummow J]. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’ [ Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision

The Commonwealth v Baume

;

Chu Kheng Lim v Minister for Immigration

The Commonwealth v Baume

R v Berchet

14 Also relevant to the task at hand is what was said by Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315. Though his Honour was in dissent, the following passage can be taken to have been expressly approved by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 at fn 48:

Prince Ernest Augustus of Hanover,

Re Bidie

Ross v The Queen

Statutory Interpretation

15 For reasons that will become apparent, the crucial statutes to understand are those passed in 2001, being the Workers Compensation Legislation Amendment Act 2001 (NSW), Act No 61 of 2001 (the “First 2001 Amending Act”), enacted in July 2001 and the Workers Compensation Legislation Further Amendment Act 2001 (NSW), Act No 94 of 2001 (the “Second 2001 Amending Act”), enacted in November 2001. To understand the purpose of those crucial Acts, and the mischief to which they were directed, one needs to appreciate, however, the statutory changes that had taken place since 1987 to the law concerning compensation (using that term generally) for injuries that occurred in the workplace. This understanding is to be obtained from an examination of the relevant statutes since 1987, from relevant case law, from the relevant Second Reading Speeches in Parliament in 2001 and from an important inquiry in 2001 led by the Hon Justice Terry Sheahan (then a Judge of the Land and Environment Court, and a former Attorney-General of New South Wales). I will refer to the inquiry as the “Sheahan Inquiry”. The undertaking and terms of reference of the Sheahan Inquiry were known by Parliament at the time of the passage of the Bill that became the First 2001 Amending Act. The report of the Sheahan Inquiry (to which I will refer as the “Sheahan Report”) was dated 31 August 2001 and was before Parliament in November 2001 and parts of it were referred to in the Second Reading Speeches to the Bill that became the Second 2001 Amending Act.

16 The history of the changes from 1987 are set out in a number of cases: for example, Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at 384-385 [72]-[74] per Kirby J; Pye v Butterfield Cheese Factors Pty Ltd (1996) 39 NSWLR 425 at 427 ff; Kimberley-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264; 67 NSWLR 187; and Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326; 74 NSWLR 229.

Statutory change: 1987 – abolition of common law claims

17 In 1987, the WC Act was passed as Act No 70 of 1987. (I will refer to the WC Act as originally passed as the “1987 Act”.) Part 5 of the 1987 Act abolished the common law right of a worker to recover damages from the employer in respect of an injury for which the employer was liable to pay workers compensation under the 1987 Act: see the 1987 Act, ss 149 and 150. Schedule 6 to the 1987 Act dealt with savings and transitional provisions. Part 14 of Sch 6 was in the following terms:

“Provisions Relating to Common Law Remedies

Abolition of common law actions not to apply to existing injuries

1 (1) Sections 149 and 150 do not apply to a cause of action in respect of -

(a) an injury received by a worker before the commencement of those sections; or

(b) the death of a worker resulting from or caused by such an injury.

(2) In the case of any such cause of action, the provisions of sections 63, 64 and 64A of the former Act continue to apply.

(3) In the application of those provisions of the former Act, a reference in those provisions to compensation or proceedings under the former Act includes a reference to compensation or proceedings under this Act.”

18 The abolition of common law rights of suit was both a radical and controversial change. It saw the right of access of workers to the ordinary courts abolished, providing them with a statutory scheme that was, in the words of the Sheahan Report (at p 9) “focused … more on rehabilitation, return to work, and periodical payments by way of income support during incapacity for work, than on the payment of ‘lump sum’ compensation of any kind”. It is plain that Mr Wilson’s cause of action was not affected by the abolition of common law employment claims in 1987, which operated only as to causes of action in respect of injuries received at or after 4 pm on 30 June 1987 (that being, it was common ground, the time of commencement of ss 149 and 150): Pt 14 of Sch 6.

Statutory changes: 1989 – reinstatement of common law claims, though in a modified form

19 In 1989, the Parliament retreated from the position of total abolition of common law claims. The Workers Compensation (Benefits) Amendment Act 1989 (NSW) (the “1989 Amending Act”) (the Bill for which was introduced by the Greiner Government elected in 1988) relevantly amended the WC Act by omitting Pt 5 (which had contained ss 149 and 150 abolishing common law employment injury claims, prospectively from 4 pm on 30 June 1987) and by inserting a new Pt 5 which reinstated the right to sue at common law, but which also provided for modification of common law remedies.

20 Section 151, inserted into the WC Act by the 1989 Amending Act, was as follows:

otherwise expressly provides

21 The structure of the regime for modified damages introduced by the 1989 Amending Act was contained in Div 3 of Pt 5: ss 151E to 151T and dealt with restrictions on damages for non-economic loss (s 151G), on damages for economic loss (ss 151H-151K), with mitigation (s 151L) and other matters.

22 Sections 151E and 151F of the WC Act as introduced by the 1989 Amending Act were in the following terms:

“ Application

(a) an injury to a worker; or

(b) the death of a worker resulting from or caused by an injury,

being an injury caused by the negligence or other tort of the worker’s employer.

Motor Accidents Act 1988

General regulation of court awards

151F A court may not award damages to a person contrary to this Division.”

23 Section 151G, as introduced in the 1989 Amending Act, provided for damages for non-economic loss if the worker’s ability to lead a normal life had been significantly impaired. A regime for identifying that impairment was provided for (otherwise than by medical assessment). The amount of damages to be awarded was a proportion, determined as to the severity of the non-economic loss, of the maximum amount that could be awarded (initially $180,000) in a most extreme case. A threshold of $45,000 was set originally.

24 Section 151H, as introduced by the 1989 Amending Act, dealt with economic loss. No damages were to be awarded for economic loss unless the worker died or received a “serious injury”: s 151H(1). A “serious injury” was defined by s 151H(2) as one for which not less than 33 per cent of the maximum amount was payable under s 66 (the table of maims) or for which non-economic damages were at least $60,000. The definition of “serious injury” was slightly different for injuries received before 4 pm 30 June 1989 (and implicitly after 4 pm 30 June 1987) whereby the percentage in s 151H(2) was 60 per cent, and not 33 per cent, and the sum in s 151H(2) was $100,000, and not $60,000: s 151H(3).

25 Division 4 of Pt 5 of the WC Act introduced by the 1989 Amending Act was entitled “Retrospective restoration of modified common law”. Section 151U (in Division 4) was in the following terms:

Modified common law to apply from 30 June 1987

151U (1) This Part applies to a cause of action in respect of:

(a) an injury received by a worker at or after 4 pm on 30 June 1987; or

(b) the death of a worker resulting from or caused by such an injury.

(2) This Part has effect as if sections 149 and 150, as originally enacted, had never been enacted.”

26 The 1989 Amending Act also amended Pt 14 of Sch 6 to the 1987 WC Act, by omitting cl 1(1) (set out at [17] above) and inserting instead:

“(1) Part 5 of the Act (except section 151AA) does not apply to a cause of action in respect of:

(a) an injury received by a worker before 4 pm on 30 June 1987; or

(b) the death of a worker resulting from or caused by such an injury.”

27 Section 151U and Pt 14 of Sch 6 remain in the WC Act and were not expressly addressed or amended by any provision of the amending Acts in 2001.

28 What was therefore pellucid in 1989 was that (with the exception of the doctrine of common employment) none of the changes to the regime for common law damages for employment injuries in 1987 to 1989 touched the recovery of damages at common law for causes of action in respect of employment injuries received by a worker before 4 pm on 30 June 1987. Two regimes therefore existed – “pure” common law for causes of action in respect of injuries that occurred before 4 pm 30 June 1987 and “modified” common law damages for causes of action in respect of injuries received after that time and date.

29 Both the context and the significance of these changes in 1987 to 1989 was summarised by Allen J in Leonard v Smith (1992) 27 NSWLR 5 at 6-7, as follows:

Workers Compensation Act 1987

30 The juridical character of these changes was discussed in Berowra Holdings at 373 [23] by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ:

Mewett

Sargood Bros v Commonwealth

Pyneboard Pty Ltd v Trade Practices Commission

31 This passage is important to bear in mind in approaching the task of statutory construction of the WC Act and the WIM Act after the introduction of the First and Second 2001 Amending Acts. Whilst the passage is important in this context, it should also be recognised that the terms of ss 151E and 151F and the restrictions in ss 151G and 151H and otherwise in Pt 5 of the WC Act made it a legitimate and meaningful use of language to speak of the recovery of modified common law damages under the WC Act.

Funding of statutory and common law claims

32 Apart from the important provisions concerning the modification of common law rights of recovery by the worker against his or her employer, the legislation was directed to the funding of, and insurance for, common law claims and workers compensation.

33 A general licensing scheme had existed under the Workers Compensation Act 1926 (NSW), with the introduction of compulsory workers compensation insurance for employers (s 18(1)) and the requirement that insurers obtain a licence to carry on the business of insurance of employers against workers compensation liability (ss 27-29).

34 The significant reform brought about by the 1987 Act was the establishment of the managed fund scheme. Licensed insurers no longer managed and expended their own funds. Instead, the insurers were required to establish and maintain a statutory fund in respect of policies of insurance issued or renewed by the insurer, into which all premiums were paid: ss 195 and 196(1). Overall management of the funds was vested in the State Compensation Board. Fund moneys could only be applied for the purposes contained in s 197, one such purpose being “meeting claims under the policies of insurance in respect of which the statutory fund is maintained”: s 197(1)(a). The regulations under the WC Act required that policies of insurance include a provision indemnifying employers not only for statutory workers compensation claims but also for any liability arising independently of the Act, ie at common law (except for the original 1987 regulations which did not because of the removal of common law claims – but this was retrospectively amended to include common law liability in 1989). In other words, fund moneys were applied to meet claims under the relevant insurance policies, both statutory and common law. This would appear to include claims relating to injuries received before 4 pm on 30 June 1987, which were preserved by Sch 6 of the 1987 Act and were dealt with under the provisions of the 1926 Act.

35 The 1989 amendments brought further changes to the scheme. The WorkCover Administration Act 1989 (NSW) established the WorkCover Authority to administer the scheme. The Authority commenced operation on 1 January 1990 and replaced the State Compensation Board. The 1989 Amending Act provided for retrospective restoration of modified common law claims in s 151U. It also provided for the retrospective extension of insurance policies issued or renewed under the 1987 Act before the commencement of the amendments to cover an employer’s liability independent of the Act.

Statutory change: 1998 – the introduction of the WIM Act

36 The next major change was the introduction of the WIM Act in 1998. (I will refer to it in its original form as the “1998 Act”.) It was an Act for the effective management of work-related injuries and injury compensation. The 1998 Act had six chapters entitled: Preliminary, Administration, Workplace injury management, Workers compensation, Workers compensation insurance and Miscellaneous.

37 Chapter 4 commenced with s 60 which was in the following terms:

60 Liability, benefits, common law and other matters

(1) Provisions relating to a worker’s entitlement to compensation, the benefits payable, common law remedies and other matters are contained in the 1987 Act.

(2) The 1987 Act is, by the operation of section 2A of that Act, to be construed as if it formed part of this Act.

Note.

Workers Compensation Legislation Amendment Act 1998

38 Section 2A of the WC Act was introduced by the 1998 Act so as to order the operation of the WC Act and the WIM Act. It was and is as follows:

“2A Relationship to Workplace Injury Management and Workers Compensation Act 1998

(1) The [WIM Act] is referred to in this Act as the 1998 Act .

(2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.

39 Significant emphasis was placed in argument before us upon s 2A by counsel for the SRA. It has obvious relevance to the considerations of statutory construction referred to in the passage from Project Blue Sky earlier cited. It should be noted at this point that no provision of the 1998 Act, substantive or transitional, purported to regulate common law causes of action in respect of injuries received before 4 pm on 30 June 1987. There was no suggestion in argument before the Court that any aspect of the clear dichotomy of the two regimes of “pure” common law and “modified” common law, based on date of receipt of injury, and reflected in s 151U and Pt 14 of Sch 6 of the WC Act, was affected in any way by the 1998 Act.

40 The introduction of the WIM Act in 1998 brought changes to the administration of the scheme, although the substance of the scheme remained largely unchanged. The 1998 Act repealed the WorkCover Administration Act 1989, but the constitution, management and functions of the Authority were preserved in the WIM Act, Ch 2. A return to private underwriting of insurance, recommended by the Grellman Report of 1997, was envisaged in Ch 5 of the 1998 Act. However, Ch 5 never commenced and these provisions were ultimately repealed by the 2001 amendments. The insurance arrangements, including the managed fund scheme, were retained in the WC Act, Pt 7.

The 2001 amendments

41 By 2001, significant difficulties were perceived with the operation of the legislation in the field of personal injuries in the workplace. These difficulties were related to the cost of claims – both statutory and common law which were being paid through the managed fund scheme.

42 The history of the introduction in 2001 of legislation amending the WC Act and the WIM Act was turbulent. The first step was taken in March. This first step and events up to June were described by the Minister in the Legislative Assembly on 19 June 2001 in the Second Reading Speech to the Bill that became the First 2001 Amending Act as follows:

“In March of this year the Government introduced the Workers Compensation Legislation Amendment Bill. The Government's primary objective in reforming the scheme is to prevent disputes arising and to provide a simpler, fairer, faster system for resolving disputes in the workers compensation system.

…

the current scheme lets these stakeholders down

43 The Bill to which the Minister was speaking (which became the First 2001 Amending Act) no longer dealt (as the first Bill had) with Pt 5 of the WC Act.

44 In the Legislative Council, the Minister directly responsible for the portfolio, the Hon John Della Bosca, spoke of the “current scheme” in a way clearly directed to the post-1989 regime. He recognised that further legislation dealing with thresholds and the like may eventuate after the Sheahan Inquiry, that had been established on 6 June and publicly announced, had finished its work. On 26 June 2001, he said:

First, the bill provides that WorkCover will be required to issue guides to assess the degree of permanent impairment, rather than simply relying on the AMA guides

Work on the guidelines will continue however if the legislation is passed. Once the formulas and thresholds have been determined, the Government will move in the following parliamentary session to amend the Workers Compensation Act 1987 to reinsert these matters into the principal legislation so that they cannot be altered by regulation in the future.

The current bill does not affect the so-called monetary or narrative gateway to access common law. This will remain in place until such time as legislation, if indeed any does arise, to implement recommendations of the Sheahan inquiry commences.

…

Fifth, it has been suggested to the Government that the transitional provisions contained in the bill will allow regulations to be made that can retrospectively change benefits for lump sum compensation. The bill is retrospective as to process but not in relation to benefit levels. Benefits for permanent loss or impairment will be calculated according to the law in force at the date of injury. This is made clear by clause 3 (1) at page 27 of the bill. It is not the intent of the legislation to confer a regulation-making power on government that could be used retrospectively to apply changes to benefit structures.”

45 In July 2001, the Parliament enacted the First 2001 Amending Act. A description of its purpose was given on 28 November 2001 by the relevant Minister in the Second Reading Speech to the Bill that became the Second 2001 Amending Act. He said:

It did not significantly address claims by injured workers for damages at common law and concerns in relation to both the increasing numbers and costs of such claims.

measures to amend common law arrangements were included in the Government’s March 2001 bill but were subsequently removed from the successor to that bill,

In May this year the Government agreed with the Labour Council and the Workers Compensation and Workplace Occupational Health and Safety Council

that there would be further consultation in relation to those areas of particular concern in the March bill, namely benefit entitlements for permanent loss, common law entitlements and the proposed claims assessment service.”

46 As the Minister stated, after the changes to common law recovery were removed from the first Bill in 2001, a consultation process was undertaken and the Sheahan Inquiry was established. This was described in the Second Reading Speech to the above November 2001 Bill as follows:

The [First 2001 Amending Act] subsequently established the commission as well as introducing the use of permanent impairment assessment guidelines. All parties to the consultation process agreed that the amendments relating to common law should be deferred whilst an independent inquiry was carried out.

47 The Sheahan Inquiry was commissioned under Letters Patent dated 6 June 2001, the terms of reference being expressed as follows:

common law claims under the [WC Act] and [WIM Act]

process common law claims under the [WC Act] and [WIM Act];

processing of common law claims under the [WC Act] and the [WIM Act]

common law claims under the [WC Act] and the [WIM Act].”

48 It is to be noted that the subjects of the inquiry were the various aspects of the “common law claims under the [WC Act] and the [WIM Act]”, their cost and inefficiencies. This was, in terms, a reference to common law claims in respect of injuries received after 4 pm on 30 June 1987. The terms of reference, identifying as they do the parameters of the mischief, were not directed at all to the subject of causes of action for injuries received before the above time and date.

49 The financial and political reality behind the desire for change and a reduction in cost of common law claims under the WC Act and the WIM Act was described in the Sheahan Report, the Second Reading Speeches for the Bill that became the Second 2001 Amending Act, and the Second Reading Speeches for the Bill that became the First 2001 Amending Act.

50 In a section entitled “The subject matter of the Inquiry”, the Sheahan Report stated at pp 2-3:

the availability of ‘common law’ rights, remedies, and damages against one’s employer, albeit subject to statutory limitations, has been targeted as a major and unjustifiable source of economic pressure on the relevant ‘insurance’ scheme, and the so-called ‘deficit’ of the NSW scheme

51 The Second Reading Speeches dealt with the same issues. In the Legislative Assembly in November, the Minister said:

The inquiry was asked to consider and make recommendations on an appropriate threshold for recovery of common law work injury damages, to develop incentives to reduce the number of common law claims made and to recommend ways to make the processing of common law matters more efficient.

52 What is important to appreciate is that the growing costs of the common law claims related to both the level of verdicts and the costs of litigation which were affecting the funding of the managed scheme. The Minister then went on to explain that the Bill (which became the Second 2001 Amending Act) was directed in two principal ways to reducing the costs of common law claims: (1) raising the thresholds for common law claims and at the same time improving statutory benefits; and (2) improving processes for the making of common law claims to reduce their costs.

53 The Second Reading Speech in November referred to the costs pressure on the current system and these two principal aims of the changes by the Bill that became the Second 2001 Amending Act:

the impact of common law claims and their high transaction costs

The report of the inquiry notes at page 4:

If the common law component of the scheme continues to expand, the funds available for the statutory benefits required by the overwhelming majority of injured workers must reduce, thus putting more pressure on those workers to seek a common law option, or a commutation of life-long statutory benefits.

the inquiry recommended a single threshold of the 20 per cent permanent impairment.

after consultation with the Labor Council the Government has accepted the view that with the abolition of the second gateway, a lower threshold of 15 per cent is appropriate.

When there is a dispute as to the degree of permanent impairment of an injured worker, the dispute must be referred to an approved medical specialist [AMS], who will issue a conclusive medical certificate.

recovery of common law damages will be restricted to damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity.

abolition of the existing entitlement to recover common law damages for non-economic loss such as pain and suffering.

…

second group of measures

gives effect to the common law inquiry recommendations relating to improved processes for common law claims.

Accordingly, the bill adopts the inquiry recommendation that a pre-litigation process be introduced for common law work injury damages claims.

no

further claims under the current system

be permitted other than those claims that have been filed at the date of the introduction of the bill into Parliament.

54 One important aspect of the procedural changes discussed in these last two paragraphs of the Second Reading Speech directed to the “second group of measures” was the aim to cut off common law claims “under the current system” by reference to filing at the date of the introduction of the Bill into Parliament (28 November 2001, being the very day of the Second Reading Speech). That reference point, the commencement of filing of the common law proceedings, assumes some importance in the language of the Second 2001 Amending Act and in the argument in this Court. It is sufficient to notice, at this point, that the terms of reference of the Sheahan Inquiry, the terms of the Sheahan Report and the terms of the Second Reading Speech to the Bill that became the Second 2001 Amending Act, were all directed to common law claims under the WC Act and the WIM Act or to the “current scheme”, being that established in the WC Act by the 1989 Amending Act, the operation of which was amended from 1998 by the WIM Act.

55 No part of the perceived or identified mischief was the cost or burden of common law claims that had been excluded in the clearest express terms from the operation of that scheme by s 151U of, and Pt 14 of Sch 6 to, the WC Act.

56 No part of any available secondary material reveals any mischief or problem necessary to be solved by reference to claims for injuries received before 4 pm on 30 June 1987.

57 No part of any available secondary material reveals any need or desire or purpose to abolish the clear distinction made in the 1989 Amending Act between injuries received before and after 4 pm on 30 June 1987 or to alter, in any way, the rights of persons who received injuries before that time and date. Their common law claims or their rights could not be said to be “under” the WC Act or the WIM Act (as referred to in the terms of reference of the Sheahan Inquiry) or to be “under the current system” (as referred to in the Second Reading Speech to the Bills that became the First and Second 2001 Amending Acts).

58 The above is not undermined in any way by a recognition that the cost of pre-30 June 1987 injury common law claims may have also fallen on the fund. By 2001, they can be taken to have been few in number. They were not part of the expressed mischief.

59 Before turning to the terms of the First and Second 2001 Amending Acts, it is necessary to deal with one complicating factor concerning this secondary material.

60 The 2001 legislation was enacted in two tranches. Important parts of it were enacted in July 2001 in the First 2001 Amending Act. Most importantly in this respect, Ch 7 of the WIM Act, including the definition of the phrase “work injury damages” in s 250 was enacted in the First 2001 Amending Act. However, much of the relevant operation of the First 2001 Amending Act did not come into force until 1 January 2002 by proclamation made on 19 December 2001 (published in Gazette No 195A of 21 December 2001 p 10175). An earlier proclamation dated 3 October 2001 (published in Gazette No 152 of 5 October 2001 p 8487) appointed 5 October 2001 as the day of commencement of some provisions of the First 2001 Amending Act.

61 No provision relevant to the resolution of the construction issues in this appeal commenced before 1 January 2002. The only provisions of the First 2001 Amending Act that commenced on 5 October 2001 were those that inserted the heading to Ch 7 and Pt 10 of Ch 7 dealing with administration.

62 The whole of the contextual material in 2001 can be examined to understand both the First and Second 2001 Amending Acts. By November 2001, no relevant part of the First 2001 Amending Act had commenced; and, in any event, any provision of the First 2001 Amending Act could have been amended (as some provisions were – such as the definition of “existing claim”) before any commencement.

63 With that context and enactment history in mind, it is necessary to turn to the First and Second 2001 Amending Acts.

The First and Second 2001 Amending Acts

64 The changes to the thresholds were effected by the Second 2001 Amending Act repealing important provisions in Pt 5 of the WC Act in their form derived from the 1989 Amending Act and in their place enacting the provisions that further restricted damages that were available for work related injuries. For present purposes, only the new ss 151G and 151H need be noted:

“151G Only damages for past and future loss of earnings may be awarded

(a) damages for past economic loss due to loss of earnings, and

(2) This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897 .

151H No damages unless permanent impairment of at least 15%

(a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and

(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and

Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.

(3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.

(4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

psychological injury

secondary psychological injury

65 These two provisions remain in this form.

66 It is to be noted that the 15 per cent permanent impairment referred to in s 151H is a threshold to the recovery of any common law damages for employment claims. (The applicability of s 151H to Mr Wilson’s claim was the first of the questions put to the primary judge.)

67 At this point, it is critical to appreciate that neither s 151U nor Pt 14 of Sch 6 was expressly amended by either the First or the Second 2001 Amending Act.

.

68 It will be necessary in due course to examine, with some precision, Pt 18C of Sch 6 to the WC Act which was introduced and amended by the First and Second 2001 Amending Acts, respectively. Before doing so, however, it is necessary to understand the changes to the WIM Act brought about by the First and Second 2001 Amending Acts, and in particular the introduction of Ch 7 of the WIM Act. These changes embodied the “process change” referred to in the Second Reading Speeches in Parliament in both June and November 2001.

69 Chapter 7 of the WIM Act was introduced and amended by the First and Second 2001 Amending Acts, respectively.

70 Chapter 7 was entitled “New claims procedures”. It embodies the second principal way of reducing costs that was referred to in the Second Reading Speeches: by controlling or “improving” procedural processes.

71 Chapter 7 in its ultimate form after the Second 2001 Amending Act contained ten Parts:

Pt 1: Preliminary

Pt 2: Giving notice of injury and making a claim

Pt 3: Dealing with claims

Pt 4: Compensation dispute determination

Pt 5: Expedited assessment

Pt 6: Court proceedings for work injury damages

Pt 7: Medical assessment

Pt 8: Costs

Pt 9: Proceedings before Commission

72 Some of the Parts were, importantly, broken up into Divisions.

73 The definitions introduced into Pt 7 and otherwise into the WIM Act are important. Ignoring for a moment the changes that occurred in the definitions from those that appeared in the First 2001 Amending Act brought about by the Second 2001 Amending Act, the relevant definitions in the WIM Act, s 250 (after the Second 2001 Amending Act) are as follows:

“250 Interpretation
(1) In this Chapter:

damages has the same meaning as in Part 5 (Common law remedies) of the 1987 Act.

existing claim means a claim for compensation that is made before the commencement of this section or a related claim that is made or entitled to be made (whether before or after the commencement of this section).

Note. Part 18C of Schedule 6 to the 1987 Act provides for the transfer of existing claims, so that the claims transferred will be treated as new claims.

existing claim matter means any matter arising under the Workers Compensation Acts in respect of an existing claim.

insurer means a licensed insurer, specialised insurer or self-insurer, or a former licensed insurer.

new claim means any claim (made or entitled to be made) that is not an existing claim.

new claim matter means any matter arising under the Workers Compensation Acts in respect of a new claim.

related claims are claims or further claims for compensation in respect of the same injury, whether or not the claims are in respect of the same kind of compensation.

work injury damages means damages recoverable from a worker’s employer in respect of:

(a) an injury to the worker caused by the negligence or other tort of the employer, or
(b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,

whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.
Note. However, work injury damages generally extends to damages recoverable from a worker’s employer in the case of an injury to a coal miner where the injury is caused by an off-road motor accident and there is no motor accident insurer on risk (see section 3D of the Motor Accidents Act 1988 and section 3B of the Motor Accidents Compensation Act 1999 ).

(2) In the definition of work injury damages in subsection (1), a reference to a worker’s employer includes a reference to:

(a) a person who is vicariously liable for the acts of the employer, and
(b) a person for whose acts the employer is vicariously liable.

(3) A claim served on an insurer in accordance with the WorkCover Guidelines or forwarded to an insurer by the employer is taken to have been made on the insurer (and to have been so made when it was made on the employer).”

74 Various definitions were introduced into the WIM Act, s 4 by the First 2001 Amending Act.

75 The word “claim” was defined in the WIM Act, s 4 as meaning:

“a claim for compensation or work injury damages that a person has made or is entitled to make”.

76 The word “claimant” was defined in s 4 as meaning:

“a person who makes or is entitled to make a claim.”

77 The word “compensation” was defined in s 4 as meaning:

“compensation under the Workers Compensation Acts [defined as the WC Act and the WIM Act], and includes any monetary benefit under those Acts.”

78 A number of things need be noted about these definitions that are important considerations when coming to piece together the meaning, content and limits of the new regime brought about in 2001. First, the definition of “existing claim” in s 250 was changed in important respects in the Second 2001 Amending Act from the First 2001 Amending Act. In the First 2001 Amending Act the phrase “existing claim” was defined as meaning:

“(a) a claim for compensation made before the commencement of this section or a claim that is related to such a claim (whether or not the related claim is made before the commencement of this section), or

(b) a claim for work injury damages made in respect of an injury received before the commencement of this section or in respect of the death of a worker resulting from or caused by such an injury.”

79 This definition encompassed claims for both (statutory) compensation and common law damages (being for “work injury damages”). The discrimen in relation to the latter was the date of the injury (before the commencement of the section). This definition never commenced before its amendment by the Second 2001 Amending Act. Chapter 7 commenced (except the chapter heading and Pt 10) on 1 January 2002, to the extent that it was not amended by the Second 2001 Amending Act.

80 The later definition of “existing claim”, introduced by the Second 2001 Amending Act, was restricted to claims for (statutory) compensation that were made before the commencement of the section.

81 Secondly, the First 2001 Amending Act provided for a definition of “new claim” in s 250 of the WIM Act as meaning “any claim that is not an existing claim”. The Second 2001 Amending Act made a change necessary to accommodate the fact that “new claim”, as any claim that is not an existing claim, included all claims for work injury damages (whether already made or not). So, under the definition of “new claim” there was encompassed claims for (statutory) compensation made after the commencement of the section and (all) claims for work injury damages, whether made before or after the commencement of the section.

82 Thirdly, the phrase “new claim matter” was introduced into s 250 by the Second 2001 Amending Act. Such a matter was limited to one arising under the WC Act and the WIM Act.

83 Fourthly, the phrase “work injury damages” was introduced by the First 2001 Amending Act. It was as set out at [73] above. It was general in its terms. It had no limitation by reference to the date of receipt of any injury. It will become crucial to the resolution of this appeal to understand the proper limits of the phrase “work injury damages”. The operative definitions that include the word “claim” and many important provisions utilise the definition. For the reasons that are set out later, in my view, its meaning when placed into the relevant provisions of Ch 7 and into other defined terms that then operate in Ch 7, understood by its statutory purpose and context and by the text and structure of the legislation, is limited to injuries received after 4 pm 30 June 1987.

84 The only other section in Ch 7 Pt 1, s 251, is in the following form inserted by the Second 2001 Amending Act :

“251 Application of Chapter

Except as otherwise specifically provided in this Chapter, this Chapter applies to and in respect of new claim matters only.

85 In the First 2001 Amending Act, s 251 was the same, except the final words were “in respect of new claims only”, rather than “in respect of new claim matters only”.

86 Section 251 is important in that, with the exception of the effect of the prefatory words and other provisions that meet the description in the prefatory words, Ch 7 applies only in respect of (statutory) compensation matters, which Mr Wilson’s claim is not. Thus, as one moves through the Parts and Divisions of Ch 7, and the operation of the consequential provisions of Part 18C of Sch 6 of the WC Act, it is important to understand whether a provision falls within the prefatory phrase “otherwise specifically provided” to make Ch 7 applicable beyond (statutory) compensation matters being new claim matters.

87 Part 2 of Ch 7 concerned giving notice of injury and making a claim.

88 Division 1 of Pt 2 concerned giving of notice. By s 252, Div 1 was confined, in terms, to injuries received after the commencement of s 252. With the exception of s 253 (see below), this Division can therefore be put to one side.

89 Though, in Div 1, s 253 provided that words and expressions in Pt 2 had the same meaning as in Pt 5 of the WC Act. It would seem that s 253 operated beyond Div 1 and so is not limited by s 252.

90 Division 2, entitled “Making a claim for compensation or damages”, was introduced by the First 2001 Amending Act. It was comprised of ss 259 to 264 which were and are in the following terms:

“259 Application of Division

(1) This Division applies to the making of a claim after the commencement of this section (even if the injury concerned was received before the commencement of this section).

(2) However, this Division does not apply to the making of a claim for work injury damages if court proceedings to recover the work injury damages concerned were commenced before the commencement of this section.

260 How a claim is made

(1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.

(a) the form in which a claim is to be made,

(b) the manner in which a claim is to be made,

(c) the means by which a claim may be made,

(d) the information that a claim is to contain,

(e) requiring specified documents and other material to accompany or form part of a claim,

(3) Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.

(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),

(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,

(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.

(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.

(7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.

261 Time within which claim for compensation must be made

(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.

(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.

(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.

(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or

(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.

(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.

(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.

(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.

(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.

262 Time within which claim for work injury damages must be made

Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made.

263 Lump sum compensation claims to be made at same time

(1) All claims for permanent impairment compensation or pain and suffering compensation in respect of an injury must, as far as practicable, be made at the same time.

155 As Mason P said at [46], matters did not rest there (on his Honour’s view of s 259(1)). His Honour then turned to Pt 18C of Sch 6 to the WC Act. The President noted that during the hearing of the appeal the parties directed submissions to the effect of cl 9(1) of Pt 18C, but that no attention was paid to cl 8 until the Court invited further submissions from the parties as to its effect. Mason P did not thereafter deal with cl 9(1) given the views he then expressed as to cl 8.

156 Mason P found that cl 8 applied to Mr Attileh’s proceeding. Mason P expressed the view that in the light of the definition of the word “claim” as found in the WIM Act, s 4, made relevant to the WC Act by s 3(1AA) of the WC Act, cl 8(1) necessarily applied to the proceedings of Mr Attileh. This was so because of the clear and general words of the cl 8(1): “the making of a claim after the commencement of those sections”. Mason P’s reasoning was predicated upon Mr Attileh’s claim being one for work injury damages, as that phrase was defined in s 250 of the WIM Act. The definition of the word “claim” in s 4 of the WIM Act meant a claim for compensation or for work injury damages. Based on that assumption, the words of cl 8(1) appeared clear. It should be noted that cl 8(2) provided that cl 8 had effect, despite s 251 of the WIM Act which limited the application of Ch 7 to and in respect of new claim matters only.

157 Finally, Mason P dealt with the submission made on behalf of Mr Attileh that an action for common law damages involving an injury received prior to 4 pm on 30 June 1987 was not an “existing claim” or a “new claim” for the purposes of Pt 18C or for the purposes of Ch 7 of the WIM Act. Mason P agreed that such an action could not be an “existing claim”, defined as it was in s 250 as a claim for compensation under the Workers Compensation Acts. But Mason P disagreed that cl 8(1) did not therefore cover such a claim for damages, saying at [57]:

“But Pt 18C addressed other matters as well, including the topic of cl 8. The language of that clause is intractably emphatic and it reinforces the generality of s 259 of the WIM Act. It means that the new procedures found in Ch 7, Pt 2, Div 2 apply to the making of any type of claim after 1 January 2002.”

158 Santow JA agreed with Mason P and agreed with the additional comments of Tobias JA (with the exception of Tobias JA’s comments concerning the opening words of s 251, to which I have already made reference).

159 The additional observations of Tobias JA concerned the operation of cl 8 and the definitions of “existing claim” and “new claim”. His Honour rejected the submissions of the appellant that cl 8 should be construed as applying only to “existing claims”. It was broader than that. If it were so restricted, there would have been no need to say anything other than extending the identified provisions to an existing claim. Rather, the words used were “the making of a claim after the commencement” of the section “even if the claim [was] an existing claim.” In these circumstances, Tobias JA was of the view that cl 8(1) necessarily included a claim for work injury damages if the claim was made after the commencement of the sections.

160 Once again, like Mason P, the reasoning of the additional comments of Tobias JA were predicated upon the cause of action by Mr Attileh being a claim for work injury damages.

The approach of the primary judge

161 The learned primary judge recognised the binding terms of Attileh. By reference to the WorkCover Guidelines under s 260 that required a 15 per cent whole person impairment, his Honour then found that Mr Wilson failed to meet the necessary requirement for bringing proceedings. In that respect the primary judge relied upon the Guidelines promulgated in late 2006 which in their terms applied to injuries notified and claims made from 1 January 2002. The learned primary judge applied cl 8 of Pt 18C of Sch 6 to found the conclusion that there was a requirement that claims for damages after 1 January 2002 were confined to those for which there was a degree of permanent impairment of 15 per cent or more, regardless of when the injury was sustained. In so doing the learned primary judge followed Attileh.

The arguments of the parties and the disposition of the appeal

The broad attack: Chapter 7 of the WIM Act does not apply to causes of action in respect of injuries before 4 pm on 30 June 1987 – Attileh is wrong

The submissions on the broad attack

162 Mr Campbell approached the appeal initially on the basis of the acceptance of Attileh as correct. The appeal as originally framed and as argued orally was more narrowly advanced. I will deal with these more narrow arguments shortly. By reason of the course of debate on the appeal Mr Campbell sought leave, which was granted, to argue that Attileh was plainly wrong and should not be followed. Written submissions were filed by the parties in support of their respective positions.

163 Mr Campbell recognised that the ratio of Attileh was that claims for common law damages with respect to injuries suffered before 4 pm on 30 June 1987 were covered by Div 2 of Pt 2 of Ch 7 of the WIM Act because of cl 8 of Pt 18C of Sch 6 to the WC Act.

164 As I have already observed, Mr Campbell did not attack the reasoning process of the Court in Attileh, as far as it goes. The attack was directed to the assumption made in Attileh that does not appear to have been the subject of argument: that a claim for common law damages based on a cause of action in respect of the injury received before 4 pm on 30 June 1987 was a claim for “work injury damages“ within the meaning of that phrase in s 250 of the WIM Act. That assumption (that was stated clearly by Mason P as a fact at [20] of Attileh) underpins the intractability of the conclusion about cl 8(1) concerning the making of a “claim” after the commencement of the sections in Ch 7 to which cl 8(1) was directed.

165 Mr Campbell’s argument was based on the text and structure of the 2001 amendments and the clear purpose, he submitted, of dealing only with the scheme created from 1989. Central to this submission was the place of s 151U of, and Pt 14 of Sch 6 to, the WC Act that remained untouched by any of the 2001 amendments. The terms of parts of Ch 7 of the WIM Act such as ss 313, 314, 319, 322(4) and 323 assumed a degree of permanent impairment which could not be so unless Pt 5 of the WC Act was amended to apply to pre-1987 injuries, which it was not.

166 Mr Watson’s argument in response was that Mr Campbell’s submissions failed to give appropriate weight to the operation of s 2A of the WC Act. By that interpretive provision, s 151U and Pt 14 of Sch 6 of the WC Act no longer operated in relation to proceedings in respect of pre-1987 injuries if those proceedings were commenced after 27 November 2001 or after 1 January 2002. That was so, it was submitted, not only because of the operation of cl 8 (with effect from 1 January 2002), but also because of cl 9(1) (with effect from 27 November 2001), Div 2 of Pt 2 of Ch 7 of the WIM Act of its own force by s 259(1) (with effect from 1 January 2002), Div 4 of Pt 3 of Ch 7 of the WIM Act of its own force (with effect from 1 January 2002) and Pt 6 of Ch 7 of the WIM Act of its own force (with effect from 1 January 2002).

167 Mr Watson’s argument recognised that if s 151U “still works my client would lose”: T p 33 ll 35. This concession may, taken literally, remove the need for dealing with the subsidiary arguments of Mr Campbell to which I will come. Mr Watson recognised (T p 39 ll 38-43) that if s 151U was left to operate according to its terms, the form of the Guidelines by way of delegated legislation could not be read as incompatible with and thus destructive of the worker’s substantive rights; that is, the Guidelines could not introduce the 15 per cent permanent impairment requirement, if it were not within the statute. This recognition, in Mr Watson’s customarily frank style, of the central difficulty that s 151U (and Pt 14 of Sch 6) had for him, if left unaffected by the 2001 amendments to the WIM Act and by cll 8 and 9(1) of Pt 18C of Sch 6 of the WC Act, helped collapse the argument in the appeal principally into the broad attack on the conclusion in Attileh.

168 Mr Watson submitted that the provisions to which I have referred expressly, and by necessary intendment, removed the effect of s 151U of, and Pt 14 of Sch 6 to, the WC Act after the 2001 amendments, leaving s 151U and Pt 14 of Sch 6 to operate to deny the caps and scheme procedures to pre-1987 injury claims only if proceedings in respect thereof had been commenced before 27 November 2001 or 1 January 2002.

Disposition of the broad attack

169 In my view, the position contended for by Mr Campbell is correct. I come to this conclusion having regard to: (a) the clarity of the pre-enactment and contextual material that the mischief to which the 2001 amendments were directed was the cost of common law claims under the “current scheme” and made under the WC Act and the WIM Act and that the purpose of the 2001 amendments was to reduce the burden of verdicts and costs thereof; (b) the text and structure of the legislation; and (c) the application of relevant canons of statutory interpretation.

170 I need say no more about mischief and purpose taken from the enactment history and contextual materials.

171 It is to be appreciated at the outset that the phrase in question “work injury damages” is a definition, not a substantive provision. It is an aid to the construction of the statute: Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 at 635. Thus, its meaning is to be gleaned, not in isolation within s 250, but in the context of how it is deployed in the substantive provisions of the statute.

172 The destruction of, or imposition of a substantive restriction or limitation on, common law rights of suit for personal injury requires “very clear legislative intent”: Berowra Holdings at 373 [23]. There has been some doubt thrown on this canon of construction in its application to common law rights of suit in “reforming” Acts whose purpose was to change the law: see Harrison v Melham at 382-384 [2]-[11] (Spigelman CJ), 403 [191] (Beazley JA) and 406-409 [209]-[221] (Basten JA). Nevertheless, the clear expression of view by the plurality in Berowra Holdings at 373 [23] on this very statute makes adherence to the principle mandatory. This is especially so when the Parliament has made a policy choice pellucid in its expression (in s 151U and Pt 14 of Sch 6) in 1987 and 1989 that the worker’s common law right to damages was not to be affected by the changes to the regime for compensation (using the term in its general sense) for injuries suffered at work. The position is even further reinforced by the terms of s 151 of the WC Act that that Act does not affect any liability in respect of an injury existing independently of the Act except to the extent that the WC Act otherwise expressly provides.

173 It is necessary to construe the legislation (the WC Act and the WIM Act) as a whole in the way described in Project Blue Sky at 381-382 [69]-[71]. In that context, s 2A of the WC Act must be given effect. Section 2A(2) requires the two Acts to be construed as if one Act. The primacy of the provisions of the WIM Act (s 2A(3)) does not mean, however, that appropriate meaning or limitation by reference to object and purpose is not to be given to a provision in the WIM Act or that the literal words of a provision in the WIM Act gain a broader content than they would receive looking at the legislation as a whole and applying relevant canons of statutory construction, including having regard to context, purpose and mischief.

174 Turning to the legislation, the first critical factor is that s 151U and Pt 14 of Sch 6 were not expressly amended by the Parliament to have Pt 5 of the WC Act apply to causes of action in respect of injuries received before 4 pm on 30 June 1987 if proceedings had not been commenced before 27 November 2001. In the considerable body of amendments that were made by the Second 2001 Amending Act, such an amendment would have been both easy to draft and of sufficient clarity to evince a Parliamentary intention to destroy or significantly modify common law rights. No such step was undertaken.

175 The Parliament not only made no amendment to the WC Act to reveal an intent to affect rights concerning injuries received before 4 pm on 30 June 1987, but also it did not do so in its changes to the WIM Act. Reliance was placed in particular on s 260 (and any promulgated Guidelines) and Pt 6 of Ch 7 of the WIM Act especially ss 313, 314, 322 and 323 as effectively repealing s 151U of, and Pt 14 of Sch 6 to, the WC Act. None of these provisions goes any further than assuming that a degree of permanent impairment is required in any claim for work injury damages. They lack any textual clarity to require (as opposed to assume) such degree of permanent impairment sufficient to permit the conclusion that common law rights were intended to be affected. More importantly, however, only assuming as they do that a degree of permanent impairment is required for work injury damages, they point to the conclusion that work injury damages are confined to those that have already been affected by the express changes to Pt 5 of the WC Act. This is reinforced textually by the terms of s 322(1) that expressly contemplate that the assessment of permanent impairment is for the purposes of the Workers Compensation Acts.

176 Read in this context, the definition of work injury damages can be seen implicitly to be referable only to injuries to which Pt 5 of the WC Act speaks, namely, those received at or after 4 pm on 30 June 1987.

177 If the WIM Act changes were to bring about substantive changes to the common law rights protected by s 151U and Pt 14 of Sch 6, this would be contrary to the comment of the Minister in the Second Reading Speech for the Bill that became the First 2001 Amending Act that the changes were not retrospective as to benefit levels.

178 Reading the two Acts together, there is no express provision, let alone one which speaks with any clarity, that the new regime introduced in 2001 was intended to affect common law rights with respect to pre-30 June 1987 injuries. Given that the mischief to which the First and Second 2001 Amending Acts were directed was the cost and procedure of common law claims under the WC Act and the WIM Act, under the current scheme, Ch 7 can be seen to be directed thereto. The only way to read the definitional phrase “work injury damages” in the critical parts of Ch 7 of the WIM Act (ss 260, 313 and 314) is that it applies only to those injuries to which the clear legislative changes have been made in Pt 5 of the WC Act. That permits the tolerably clear conclusion that the whole of the 2001 changes, including ss 259, 260, 313, 314, Div 2 of Pt 2, Divs 2-5 of Pt 3 and cll 8 and 9 of Pt 18C of Sch 6 to the WC Act, apply to injuries received at or after 4 pm on 30 June 1987.

179 Clause 9(1) does not depend for its operation on the phrase “work injury damages”. Nevertheless, it can clearly be understood as referable only to injuries affected by Pt 5, that is, at or after 4 pm on 30 June 1987 in respect of which proceedings had not been commenced.

180 If Mr Watson were correct as to the repealing effect of the provisions in Ch 7, there would be an anomaly in the legislation. The amendments to Pt 5 of the WC Act brought about by the Second 2001 Amending Act commenced at 9 am on 27 November 2001. Chapter 7 of the WIM Act (other than headings) commenced on 1 January 2002. If provisions of Ch 7 are to be taken to have impliedly repealed the effect of s 151U (in Pt 5) and Pt 14 of Sch 6, that would occur at a time different to the commencement date of other provisions of the Second 2001 Amending Act that dealt with Pt 5. Clause 9 of Pt 18C of Sch 6 commenced at 9 am on 27 November 2001: Second 2001 Amending Act, s 2(2)(b). Clause 8 of Pt 18C introduced by the Second 2001 Amending Act, Sch 5.1[3] by way of replacement provision commenced on 1 January 2002.

181 These discrepancies, not determinative of themselves, point to a lack of intention by Parliament to repeal, in part and indirectly, s 151U of, and Pt 14 of Sch 6 to, the WC Act by procedural changes to the WIM Act commencing at a date later than the substantive changes to Pt 5 of the WC Act.

182 This expression of view is contrary to Attileh. The argument was not put in this way in Attileh. Nevertheless, a new way of putting the matter should not be a ground for side-stepping the need to demonstrate that Attileh was “plainly” or “clearly” wrong, in a relevant respect. Nevertheless, it is a consideration.

183 I am sufficiently persuaded of the clarity of the position that the 2001 amendments did not reach back to affect causes of action in respect of injuries received before 4 pm on 30 June 1987 to the level of conviction discussed in Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at 561-566 [274]-[295]. That is not to say that I disagree with the reasoning in Attileh, save for the correctness of the assumption and statement at [20] of Mason P’s reasons. Nor is it to disagree with anything in Attileh that would mean that Ch 7 of the WIM Act or parts thereof or cll 8 and 9 of Pt 18C of Sch 6 thereof apply to claims for injuries received before 27 November 2001 or 1 January 2002, but at or after 4 pm on 30 June 1987.

184 That leaves the question whether Attileh should be departed from. I refer to the considerations in Gett v Tabet at 566-567 [296]-[301]. Mr Watson submitted that Attileh had been followed in Kimberley-Clark, Wattyl Australia and East West Airlines Ltd v Turner [2010] NSWCA 53. The correctness of Attileh for pre-30 June 1987 injuries did not arise in any of these cases.

185 The reasoning in Attileh remains of relevance for injuries received after 4 pm on 30 June 1987.

186 Contrary to these considerations, is the necessity to do justice to Mr Wilson according to law and according to the correct construction of a law of the Parliament. This consideration is, for me, determinative in this case, especially in circumstances where it does not disturb a settled body of cases.

187 I would depart from Attileh insofar as it concerns injuries received before 4 pm on 30 June 1987.

The narrower attack: even if cl 8 applies to Mr Wilson’s claim

188 Mr Campbell began the appeal argument accepting that Attileh was correct. On this basis, he submitted that Mr Wilson was not prevented from proceeding with his common law action.

189 Mr Campbell first submitted that the Guidelines as delegated legislation could not impinge in a substantive way upon a common law right. The concession made by Mr Watson largely does away with the need to consider this argument. If, as is my view, there has been no attempt by the Parliament to modify s 151U and Pt 5 of the WC Act to apply to injuries received before 4 pm on 30 June 1987, then the procedural requirements under delegated legislation under the WIM Act cannot bring about the same result. So much was conceded.

190 In any event, at the time the claim was made by Mr Wilson the relevant Guidelines did not require him to make out or assert a 15 per cent permanent impairment.

191 Further, it is to be recognised that s 260(1) of the WIM Act refers to “applicable requirements” of the Guidelines. In my view, if it were the case that Ch 7 applied to pre-30 June 1987 injuries so as to impose procedures on the bringing of the cause of action, those procedures, so far as they arose out of the Guidelines, would only be those that were “applicable”. This would require the requirements of the Guidelines to be relevant to the general cause of action for negligence otherwise untouched by Pt 5 of the WC Act. A similar approach can be seen in the comments of Basten JA in Kimberley-Clark at 196-197 [43]. His Honour’s view was obiter because he was of the view that the claim in question was not one for work injury damages being a claim for nervous shock brought by a stranger to the employment relationship.

192 It is unnecessary for the disposition of this case to deal with the comments made by Beazley JA and Young CJ in Eq in Wattyl Australia at 247 [90]-[91] and 254 [169]-[175] about Kimberley-Clark. If, on the present hypothesis a provision of a Guideline under the WIM Act or a provision of the WIM Act appeared to require a state of affairs to be satisfied by a claimant (here a 15 per cent degree of permanent impairment) which was not legally necessary it is difficult to see how such a provision would be construed as affecting the substantive right. In any event, here, if Pt 5 has not been amended to require in any way injuries received prior to 4 pm 30 June 1987 to be subject to a degree of permanent impairment of 15 per cent, none of the Guidelines promulgated under s 260 would effect such a requirement. This much, as I have noted, has been conceded.

193 In my view, the case should be decided on the basis of the argument as ultimately presented. Mr Campbell submitted that no part of the First or Second 2001 Amending Act was sufficiently clear to amend Pt 5 of the WC Act or to otherwise impose upon a claim for damages for an injury received before 4 pm on 30 June 1987 a requirement found in Pt 5 for a 15 per cent permanent impairment as a pre-condition for the recovery of any damages. Mr Watson argued to the contrary and recognised that unless the First and Second 2001 Amending Acts can be seen effectively to repeal s 151U and Pt 14 of Sch 6 (except only to the extent that proceedings to vindicate pre-1987 injuries had been commenced prior to 27 November 2001 or 1 January 2002) the SRA must lose.

194 This is how the case should be decided. For the reasons that I have given, in my view, Mr Campbell’s argument is correct. The form that the argument ultimately took, in my view, requires the questions to be slightly reformulated. I would reformulate the questions and I would answer them in terms set out in [4] above.

195 The parties asked that the question of costs abide the Court’s substantive decision. I would order that submissions on costs be filed within 14 days.

196 GILES JA: I have had the privilege of reading the reasons of Allsop P in draft. I agree with them, and with the orders he proposes.

197 HODGSON JA: I agree with the orders proposed by Allsop P and I gratefully adopt his reasons. I would add the following.

198 In my opinion, the conclusion that the definition of “work injury damages” in s 250 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) is referable to injuries to which Part 5 of the Workers Compensation Act 1987 (NSW) (WC Act) applies, that is, only those received at or after 4 pm on 30 June 1987, is reinforced by the following considerations:

(2) s 250 includes a definition of “damages” as having the same meaning as in Part 5 of the WC Act;

(3) the definition of “damages” in Part 5 of the WC Act is a definition in s 149 of that Act that applies only “In this Part”;

(4) by s 151U of the WC Act, Part 5 of that Act applies only to causes of action in respect of injuries received at or after 4 pm on 30 June 1987;

(5) therefore, the definition of “damages” in Part 5 of the WC Act is one applying only in respect of such causes of action;

(6) therefore, plausibly, the definition of “work injury damages”, being a sub-class within this definition of “damages”, was intended to have the same limitation.

199 I do not suggest that this is a conclusive argument, but rather that it gives some persuasive textual support to the conclusion, reached by Allsop P for other reasons, that the definition of “work injury damages” in s 250 of the WIM Act is referable to injuries to which Part 5 of the WC Act applies.

200 If that is correct:

(2) such a claim is therefore neither a “new claim” nor an “existing claim” in the definition of those expressions in s 250 of the WIM Act.

201 I believe it follows that there is no inconsistency between the WIM Act and s 151U of the WC Act that could possibly have the effect of repealing the latter provision.

202 TOBIAS JA: I have had the privilege of reading in draft the detailed reasons of the President including his clear and persuasive analysis of the legislative history of the complex amendments to the WC Act and to the WIM Act. That analysis and his Honour’s conclusions drawn therefrom persuade me that I was in error in my reasoning in Attileh. I therefore agree with the answers given by the President to the reformulated questions and to the orders he proposes for the reasons he has given.

I agree with Allsop P.

**********

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Citations

Wilson v State Rail Authority of New South Wales [2010] NSWCA 198

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CITATION:	Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
HEARING DATE(S):	27 May 2010
JUDGMENT DATE:	16 August 2010
JUDGMENT OF:	Allsop P at 1; Giles JA at 196; Hodgson JA at 197; Tobias JA at 202; Macfarlan JA at 203
DECISION:	1. The appeal be allowed. 2. The orders of the Court made on 17 June 2009 be set aside and in lieu thereof, the questions be reformulated and answered as follows: (a) Do the provisions of Part 5 of the WC Act (including ss 151G and 151H) apply to the plaintiff’s claim for damages?: No. (b) Do the provisions of Chapter 7 of the WIM Act require the plaintiff to demonstrate that he has suffered a 15 per cent permanent impairment before he is entitled to commence proceedings for damages?: No. (c) Are the plaintiff’s proceedings maintainable?: Yes. 3. Submissions on costs be filed within 14 days.
CATCHWORDS:	WORKERS COMPENSATION – entitlement to compensation – claim for damages at common law – injury received prior to 30 June 1987 – consideration of the application of Part 5 of the Workers Compensation Act 1987 and Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 – Part 5 does not apply – work injury damages as defined in Chapter 7 is limited to claims in respect of injuries received on or after 30 June 1987 - STATUTORY INTERPRETATION – workers compensation legislation – effect of 2001 amendments – Workers Compensation Legislation Amendment Act 2001 – Workers Compensation Legislation Further Amendment Act 2001 – introduction of definitions into the Workplace Injury Management and Workers Compensation Act 1998 – “existing claim”, “new claim”, “new claim matter” and “work injury damages” - WORDS AND PHRASES – “work injury damages”
LEGISLATION CITED:	Interpretation Act 1987 (NSW), ss 33, 34, 35(1)(a) Limitation Act 1969 (NSW) WorkCover Administration Act 1989 (NSW) Workers Compensation Act 1926 (NSW), ss 18(1), 27-29, 195, 196(1), 197(1)(a) Workers Compensation Act 1987 (NSW), Pt 5, Pt 5 Div 3, Pt 5 Div 4, Pt 7, ss 2A, 3(1AA), 60AA, 149, 150, 151, 151AA, 151E, 151F, 151G, 151H, 151U, Sch 6 Pt 14, Sch 6 Pt 18C cll 2, 8, 9 Workers Compensation (Benefits) Amendment Act 1989 (NSW) Workers Compensation Legislation Amendment Act 2001 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW), s 2(2)(b), Sch 1.1, 1.2, 3, 5.1[3] Workplace Injury Management and Workers Compensation Act 1998 (NSW), Ch 2, Ch 5, Ch 7, Ch 7 Pt 2 Div 1, Ch 7 Pt 2 Div 2, Ch 7 Pt 3 Div 1-5, Ch 7 Pt 6, ss 4, 60, 250, 251, 252, 253, 259, 260, 261, 262, 263, 264, 280A, 281, 281(2), 281(2A), 281(2B), 311, 312, 313, 314, 315, 316, 317, 318, 319, 321, 322, 323, 324, 325, 327, 328, 329, 330, 331
CATEGORY:	Principal judgment
CASES CITED:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 Attileh v State Rail Authority of New South Wales [2005] NSWCA 64; 62 NSWLR 439 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 Bropho v Western Australia [1990] HCA 24; 171 CLR 1 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 East West Airlines Ltd v Turner [2010] NSWCA 53 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 Kimberley-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264; 67 NSWLR 187 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Leonard v Smith (1992) 27 NSWLR 5 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Pye v Butterfield Cheese Factors Pty Ltd (1996) 39 NSWLR 425 Maxwell v Murphy [1957] HCA 7; 96 CLR 261 Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326; 74 NSWLR 229.
TEXTS CITED:	New South Wales, Commission of Inquiry into Workers Compensation Common Law Matters: Report (Justice Terry Sheahan), 31 August 2001 New South Wales Government Gazette, No 152, 5 October 2001, at 8487 New South Wales Government Gazette, No 195A, 21 December 2001, at 10175 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001 at 14772 New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 June 2001 at 15281 New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 November 2001 at 18961 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 November 2001 at 18895
PARTIES:	Michael Alan Wilson (Appellant) State Rail Authority of New South Wales (Respondent)
FILE NUMBER(S):	CA 2009/40299
COUNSEL:	Mr S G Campbell SC, Mr M L Snell (Appellant) Mr G M Watson SC, Mr R Gambi (Respondent)
SOLICITORS:	Carroll & O'Dea Lawyers (Appellant) Astridge & Murray Solicitors Hunters Hill (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2007/20443
LOWER COURT JUDICIAL OFFICER:	Hidden J
LOWER COURT DATE OF DECISION:	17 June 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Michael Alan Wilson v State Rail Authority of New South Wales & Anor [2009] NSWSC 537