Wood v AAI Limited ACN 005 297 807 Trading as GIO (Motor Accident Injuries)
[2022] ACAT 7
•28 January 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WOOD v AAI LIMITED ACN 005 297 807 TRADING AS GIO (Motor Accident Injuries) [2022] ACAT 7
MAI 2/2021
MAI 3/2021
MAI 4/2021
MAI 5/2021
MAI 6/2021
MAI 7/2021
Catchwords: MOTOR ACCIDENT INJURIES – statutory interpretation – determination of a threshold question – where applicants for defined benefits claimed to have suffered psychological or psychiatric injury or nervous shock as a result of death of relative in motor accident – where persons claiming defined benefits were not present at the scene of the motor accident – whether such persons can make a claim – whether they are a ‘person injured in a motor vehicle accident’ where this term is defined under the Act to mean ‘an individual who sustains an injury as a result of a motor accident’ – interpretation must consider the text, context and purpose of the Act – presumption that different words give rise to different meanings – presumption that definition operates – whether presumptions rebutted – interpretation considered against the objects of the Act – public policy considerations – threshold question answered so as to allow the claims to be made – matters to proceed to final hearing
Legislation cited: Civil Law (Wrongs) Act 2002 ss 32, 33, 34, 35, 36
Legislation Act 2001 ss 6, 126, 139, 157
Motor Accident Injuries Act 2019 ss 6, 8, 9, 33, 38, 43, 44, 45, 46, 47, 48, 49, 55, 192, 193, 239, 246
Road Transport (Third-Party Insurance) Act 2008 (repealed)
Subordinate
Legislation cited: Law Reform (Miscellaneous Provisions) Ordinance 1955
Cases cited:Chester v Waverley Corporation [1939] HCA 25
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
Commissioner of Taxes (Vic) v Lennon [1921] HCA 44
Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd[2012] HCA 55
Jaensch v Coffey [1984] HCA 52
Kelly v The Queen[2004] HCA 12
Kirby v Health Care Complaints Commission [2021] NSWCA 139
Moreton Bay Regional Council v Mekpine Pty Ltd[2016] HCA 7
Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28
SAS Trustee Corporation v Miles[2018] HCA 55
SZTAL v Minister for Immigration and Border Protection[2017] HCA 34
Wilkie v Brown [2016] NSWCA 128
List of
Texts/Papers cited: DC Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019)
Explanatory Statement for the Motor Accident Injuries Bill (2019)
Oliver Jones, Bennion on Statutory Interpretation (6th edition, 2013)
Tribunal:Acting Presidential Members R Orr QC (Presiding)
Acting Presidential Member T Kyprianou
Date of Orders: 28 January 2022
Date of Reasons for Decision: 28 January 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 2/2021
BETWEEN:
SHANE BRADLEY WOOD
Applicant
AND:
AAI LIMITED ACN 005 297 807 TRADING AS GIO
Respondent
TRIBUNAL:Acting Presidential Members R Orr QC (Presiding)
Acting Presidential Member T Kyprianou
DATE:28 January 2022
ORDER
The Tribunal orders that:
The applicant’s application dated 4 March 2021 is to be listed for a directions hearing for directions to be made to prepare the matter for listing for final hearing.
………………………………..
Acting Presidential Member R Orr QC
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
These reasons concern a threshold question in relation to claims under the Motor Accident Injuries Act 2019 (Act). The claims arise from the death of Alexis Saaghy as a result of injuries she suffered in a motor accident on 31 October 2020. Ms Saaghy was a passenger in the motor vehicle involved in that accident.
Six members of Ms Saaghy’s family (the applicants), including Shane Wood, the stepfather of Ms Saaghy, applied to AAI Ltd trading as GIO (GIO or respondent), which insured the vehicle, for defined benefits under the Act. The applicants were not at the scene of the accident. All of the applicants claim that they have suffered psychological or psychiatric injuries as a result of Ms Saaghy’s death. Those claims have been rejected, most recently by way of internal review decisions made on 24 February 2021(reviewable decisions) on the basis that the applicants are not entitled to defined benefits under the Act. The applicants have sought review of the reviewable decisions in ACAT (Applications for Review).
Threshold Question and answer
The parties to all six Applications for Review agreed that when reviewing the reviewable decisions, the Tribunal should first decide a ‘Threshold Question’ common to all six proceedings. The Threshold Question has been posed, as follows:
Is a person –
a. who suffers a psychological or psychiatric injury (the injury) caused by the death of a relative fatally injured as a result of a motor accident; and
b. who was not present at the scene of the motor accident at the time it occurred;
entitled to apply for defined benefits under section 55(1)(a) of the …[Act]?
The parties also agreed that for the purpose of this Threshold Question only, the applicants are each such a person. If the Tribunal answers the Threshold Question in the negative the applicants’ six Applications for Review will be dismissed because the applicants are not persons who can apply for defined benefits under the Act. On the other hand, if the Threshold Question is answered in the affirmative, each of the Applications for Review will then be listed for further hearing by the tribunal to determine whether each of the applicants has suffered an injury for which defined benefits are payable under the Act and whether they should receive the defined benefits they have lodged claims for.
The Tribunal’s answer to the Threshold Question is: yes.
In summary, this is because section 8 of the Act states that in the Act the phrase ‘person injured in a motor accident’ means “an individual who sustains a personal injury as a result of a motor accident”. This definition includes the persons referred to in the Threshold Question, that is, the applicants. Section 55(1) then provides who may apply for defined benefits, and this includes in section 55(1)(a) “a person injured in a motor accident”. In our view, contrary to the submissions of the respondent, the definition in section 8 applies here. We do not accept the submissions of the respondent that the definition in section 8 should not operate in relation to section 55(1)(a), because sections 55(1)(b) and (c) use a different formulation of eligible applicants that refers to “a person who died as a result of the motor accident”. In our view, the use of the definition in section 55(1)(a) is supported by the text of the definition in section 8 and section 55(1)(a), the context of these provisions, and the purpose of the Act. This means that the applicants may make an application for defined benefits. More detailed reasons for the Tribunal’s decision are set out below.
Decision under review
As noted, the reviewable decisions were the affirmation of the rejections of the claims on internal review made on 24 February 2021. GIO provided a document entitled ‘Reasons for Internal Review Decision’ in relation to the claim by Mr Wood which set out the legal basis for affirming the rejection of his claim.[1]
Review by tribunal
[1] The Reasons for Internal Review Decision were provided attached to a letter from Ms Amanda Wright of GIO dated 24 February 2021, together with an Internal Review Notice by Ms Wright. GIO also provided to the Tribunal the Insurer’s submissions to the ACT Civil and Administrative Tribunal (ACAT) entitled ‘Reply for Liability decision’ by Nicole Tripolone dated 24 March 2021.
Section 193 of the Act provides that an applicant for defined benefits can apply to ACAT for external review of an ‘ACAT reviewable decision’ An ‘ACAT reviewable decision’ includes a decision of an insurer rejecting liability for defined benefits.[2] The applicants applied for such review in Applications for Review dated 4 March 2021. The respondent provided relevant documents for each of those decisions on 29 March 2021 (MAI documents).
[2] The Act section 192; schedule 1, part 1.2, item 3; and section 193
The parties have requested that the Tribunal determine the Threshold Question in relation to these matters. The applicants provided a document entitled ‘Applicants’ Threshold Question and Submissions’ filed on 15 April 2021, which set out their proposed threshold question and then an ‘Applicants’ Outline of Submissions’ dated 20 September 2021. The respondent provided ‘Respondent’s Proposed Question for Determination and Submissions in Support’ dated 14 April 2021, and then ‘Respondent’s Submissions in Reply’ dated 28 September 2021.
The Tribunal sent an email to the parties dated 2 July 2021 which provided the Threshold Question which the Tribunal determined should be posed, set out above at paragraph [3]. This email addressed a number of other matters and set out a number of issues which the Tribunal considered should be explored at the hearing on the question.
An online hearing was held on Wednesday 13 October 2021 at which the parties made submissions.
Legislation
In very broad terms, the Act establishes a statutory scheme to provide benefits and support for death or personal injury resulting from a motor accident in the ACT.[3] It provides for a system of defined benefits, namely: income replacement benefits; treatment and care benefits; quality of life benefits; death benefits; and funeral benefits.[4] It also allows for awards of common law damages, but these are subject to requirements generally linked to aspects of the defined benefits scheme.[5]
[3] The Act sections 6 and 7
[4] The Act section 33
[5] The Act section 239
The Act contains some important definitions for the purposes of these proceedings. Section 8 provides:
8 Meaning of person injured in a motor accident
In this Act:
person injured in a motor accident means an individual who sustains a personal injury as a result of a motor accident.
NoteInjured person means a person injured in a motor accident (see dict). [emphasis in original]
We note that this is not just a clarifying or labelling definition, rather it is an enlarging definition which adds to the meaning that otherwise would not or might not be taken to be included in the term.[6] The applicants acknowledged that they would not fall within the ordinary meaning of the phrase ‘person injured in a motor accident’, but argued they fell within the defined meaning.[7]
[6] Oliver Jones, Bennion on Statutory Interpretation (6th edition, 2013) (Bennion) page 517
[7] Transcript of proceedings on 13 October 2021 page 7
Section 9 provides that in the Act ‘personal injury’ means bodily injury and includes:
(a) psychological or psychiatric injury; and
…
(c) death.
A note provides that “Examples—psychological or psychiatric injury” are “mental or nervous shock”. Section 36 defines the term ‘person who died as a result of a motor accident’ to mean: “an individual who dies (a) as a result of a personal injury the person sustained as a result of a motor accident; and (b) within 2 years after the date of the motor accident”.
Section 38 provides:
38 Person injured in motor accident entitled to defined benefits
If a person sustains a personal injury as a result of a motor accident in the Territory, defined benefits are payable in relation to the personal injury.
As the Threshold Question notes, a key provision here is section 55(1) of the Act which provides:
55 Who may apply for defined benefits?
(1) Any of the following people may make an application for defined benefits to the relevant insurer for a motor accident:
(a)a person injured in the motor accident;
NoteThe person may be entitled to income replacement benefits, treatment and care benefits and quality of life benefits.
(b)the dependant of a person who died as a result of the motor accident;
NoteThe dependant may be entitled to death benefits (see s 169).
(c)the person who has paid, or is liable to pay, the funeral expenses of a person who died as a result of the motor accident.
NoteThe person may be entitled to funeral benefits (see s 178).
In order to answer the Threshold Question it is necessary to interpret these provisions of the Act, in particular section 55(1)(a). To do so we look at a number of key factors, namely the relevant text in the context of the Act, and with regard to the purpose of the Act.
Text
The applicants referred to a statement in Kirby v Health Care Complaints Commission[8] (Kirby), namely:
55. The starting point for the ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose…[9]
56. The function of a definition is not to enact substantive law; it is to provide aid in construing the statute…[10]... For this reason, the usual process of statutory construction requires the definition to be read into the provision or provisions in which the term as defined is used, assuming it is not expressly or impliedly excluded in that context…[11]
Both parties accepted this statement of the law, as does the Tribunal.
[8] [2021] NSWCA 139 at [55]-[56] (Gleeson JA)
[9] References in the original: SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20], citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]
[10] References in the original: Kelly v The Queen; (2004) 218 CLR 216; [2004] HCA 12 at [103] (McHugh J); Moreton Bay Regional Council v Mekpine Pty Ltd; (2016) 256 CLR 47; [2016] HCA 7 at [61] (French CJ, Kiefel, Bell and Nettle JJ)
[11] References in the original: Kelly v The Queen at [103]; Wilkie v Brown[2016] NSWCA 128 at [41] (Beazley P, McColl and Gleeson JJA agreeing)
Section 38 of the Act (see paragraph [15] above) states who is entitled to defined benefits. The substance of, but not the heading for, section 38 uses the terms of the definition in section 8 of the phrase ‘person injured in a motor accident’. In its terms section 38 allows the applicants to make a claim. Both parties agreed with this, but the respondent argued that section 38 was an introductory and general provision which was limited by later provisions, in particular by their interpretation of section 55(1)(a).[12]
[12] Transcript of proceedings on 13 October 2021 pages 14-15, 19
If the terms of the definition in section 8 are read into section 55(1)(a) (see paragraph [16] above), this then states:
(1) Any of the following people may make an application for defined benefits to the relevant insurer for a motor accident:
(a)[an individual who sustains a personal injury as a result of a motor accident]; …
On this basis the applicants can make such an application. Their claim is that they have sustained a psychological or psychiatric injury as a result of a motor accident, even though they were not in, and did not see, the accident. The respondent seemed to accept that if the definition in section 8 applies to section 55(1)(a) the applicants can make an application.[13]
Context
[13] Transcript of proceedings on 13 October 2021 pages 19
As the comments in Kirby note, the correct approach is to read the definition into the provision unless it is expressly or impliedly excluded in that context. There is no express exclusion. The question arises, is there an implied one?
Section 55(1)(b) and (c)
The respondent’s principal argument was that in the context of section 55(1)(a), the phrase “a person injured in the motor accident” should take its literal meaning, not the defined meaning provided by section 8.
The basis for this was said to be the use of different words in sections 55(1)(b) and (c), namely the phrases “(b) the dependant of a person who died as a result of the motor accident [emphasis added]”, and “(c) the person who has paid, or is liable to pay, the funeral expenses of a person who died as a result of the motor accident [emphasis added]”. The respondent argued that this “impliedly excludes the process of importing the definition in s.8 into s.55(1)(a)” since such an importation “renders idle the use of different words in subsections (b) and (c)” and the “differences in terminology in the same section of the Act was deliberate and must be given different meaning and effect”.[14]
Presumption that different words give rise to different meaning
[14] Respondent’s Submissions in Reply dated 28 September 2021 at [14]-[15]; see also transcript of proceedings on 13 October 2021 pages 20-22
It is true that different words are used in section 55(1)(a) to those used in section 55(1)(b) and (c). It is also true that where a word, or in this case words, are used consistently in legislation they should be given the same meaning; but that “where a legislature could have used the same word but chose to use a different word, the intention was to change the meaning”.[15]
Are the words used in the three paragraphs of section 55(1) different words?
[15] DC Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019) (Pearce) at [4.6]. In Bennion at page 1034 the presumptions is described as that the “same words [are] to be given the same meaning” and “different words [are] to be given different meanings”.
However, a number of points can be made in relation to the operation of this presumption here. First, here there is not in substance the use of different words. The defined term in section 8 is ‘person injured in a motor accident’, and the definition itself is “an individual who sustains a personal injury as a result of a motor accident”. Section 51(1)(a) uses the defined term. Sections 55(1)(b) and (c) use part of the definition itself. This suggests that both are talking about the same concept.
There are other provisions in the Act that suggest the two phrases are interchangeable. Section 38 uses the defined term in the heading,[16] and then the definition itself in the substantive provision.
Is the change made for other reasons?
[16] Section 126(2) of the Legislation Act 2001 (Legislation Act) provides that such a heading is part of the Act.
Second, it is recognised that a change of language may be forced by the context.[17] The applicants argued that this was the case here. Section 55(1)(b) deals with the situation where a person has died, and therefore a dependant may be entitled to death benefits. It was not possible to use exactly the same formulation as in section 55(1)(a); some adjustment was necessary. What the drafter did was use another term, “person who died as a result of the motor accident” as defined in section 36.[18] In our view the use of the two defined terms in section 55(1) provides little support for the argument that the use of the second defined term suggests that the use of the first defined term should be ignored and preference given to the plain meaning.
[17] Pearce at [4.6]
[18] Section 157 of the Legislation Act provides that if there is a defined term, other parts of speech and grammatical forms of the term have corresponding meanings. The change from “a motor accident” in section 36 to “the motor accident” in section 55(1)(b) is caught by the principle in section 157, see also further below at paragraph [42].
It is true that other drafting approaches could have been taken. But to use the phrase “the dependant of a person injured in the motor accident” would have cast the net too broadly, since it would have included people who were injured but had not died. It would have been possible to make this adjustment in other ways. The drafter could have said: “the dependant of a person injured in the motor accident who died”, but this is clumsy and potentially ambiguous. The drafter could have said “the dependant of a person injured in the motor accident where the injury was death” which is clumsier, but less ambiguous.
In our view it is likely that the change in formulation was forced by the substantive limitation in section 55(1)(b) to people who have died. The same can be said in relation to section 55(1)(c), which is limited to funeral benefits.
The respondent suggested that sections 55(1)(b) and (c) could have said “the dependant of a person who died in the motor accident”.[19] But this is a fourth formulation, which uses neither the defined term nor the definition in section 8, nor the defined term in section 36. Further, as the applicant noted, it would not catch a person who died after the accident but as a result of the accident.
[19] Transcript of proceedings on 13 October 2021 page 21
In our view the position is that the drafter could not implement the policy behind sections 55(1)(b) and (c) by using the phrase in section 55(1)(a). A range of options were available. The fact that the phrase used was different was forced by the policy. The phrase used was itself defined in section 36. This does not suggest that section 55(1)(a) is not using the defined term in section 8.
Presumption concerning different words is readily rebuttable
Third, the presumption that different words are to be given different meanings is readily rebuttable. In Commissioner of Taxes (Vic) v Lennon,[20] Higgins J said:
There is sound sense in the statements contained in Maxwell’s Interpretation of Statutes, 6th ed., pp. 557, 564, to the effect that, although it is always well to use the same word for the same thing and not to change the language unless a change in meaning is intended, the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear.
Presumption that definitions apply
[20] [1921] HCA 44; (1921) 29 CLR 579 at 590; see also Pearce at [4.9]
Fourth, there is also a presumption that definitions apply unless a contrary intention appears. DC Pearce and RS Geddes state: “It is suggested that the proper approach is to assume that the expression is used as defined and then ask whether, in the particular context in which it appears, a contrary intention can be shown”.[21]
[21] Pearce at [6.12], see also [6.2] and [6.13]; see also Kirby at paragraph [18] above
In Deputy Commissioner of Taxation v Mutton,[22] Mahony JA discussed the issue of determining a contrary intention in relation to the application of a definition and stated:
A contrary intention may be inferred from a particular provision if, were the definition to be applied, the provisions of or the procedure established by the section would not appropriately work: see Brown v Brook (1971) 125 CLR 275 at 276, 292; where, if the definition applied, it would require a lender to take specified steps in respect of his business of money-lending where he had no such business. It is, I think, not necessary that what is laid down by the section in question be impossible of operation; it is sufficient if the result of the application of the definition to a section results in the operation of the section in a way which clearly the legislature did not intend. Thus, in Dealex Properties Ltd v Brooks [1966] 1 QB 542 at 551, Harman LJ referred to the fearful confusion that would follow the application of the statutory definition.
[22] (1988) 12 NSWLR 104, 108
In our view these requirements are not met in this case; this is not a case where: application of the definition would not appropriately work; would be impossible of operation; would be an operation which the legislature clearly had not intended; or would result in “fearful confusion”.
Section 38
Fifth, the applicants argued that the use of the definition in section 55(1)(a) was supported by section 38. We agree. As noted, it suggests that the defined term and the definition are interchangeable in the Act. It also suggests that a person who sustains personal injury as a result of a motor accident, which would include nervous shock, is entitled to the defined benefits set out in the Act.
The respondent argued that this right was limited in a number of ways by the Act, and that their interpretation of section 55(1)(a) was simply another way of providing for a limitation, which was compatible with section 38.
However, in our view there is a distinction between these two types of limitations. Division 2.2.2 is headed “Limitations and exceptions to entitlement”. It sets out a number of express limitations on entitlement, including: where there is an uninsured motor vehicle;[23] where there are driving offences;[24] where injuries are self-inflicted;[25] where there are detainees;[26] where there are serious offences;[27] and where there is an act of terrorism.[28] Given these clear express provisions, in our view it would seem unlikely that the drafter provided for another important limitation, that is the exclusion to any entitlement to defined benefits of persons who suffered a nervous shock injury as the result of the death of a relative in a motor accident they had not witnessed, simply by use of a different drafting style in section 55(1).
Purpose
[23] The Act section 43
[24] The Act sections 44, 45
[25] The Act section 46
[26] The Act section 47
[27] The Act section 48
[28] The Act section 49
Importantly, section 139(1) of the Legislation Act2001 (Legislation Act) provides that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. Section 139 operates where there are at least two possible meanings. In this case there are two proposed interpretations for section 55(1)(a), one which uses the definition in section 8, proposed by the applicants, and one which does not, and uses instead the ordinary meaning, proposed by the respondent.
The Act sets out its purposes expressly in section 6, which states in part:
6 Objects of the Act
The main objects of this Act are to—
(a) ensure benefits are available to support all people injured in motor accidents on a no-fault basis, subject to some exclusions and limitations; and
(b) encourage early and appropriate treatment and care of people injured in motor accidents to achieve optimum recovery and return to pre-accident levels of activity and work; and
(c) support people injured in motor accidents to access defined benefits; and
(d) promote and encourage the early, quick, cost-effective and just resolution of disputes; and
…
Does the definition in section 8 apply to the objects clause (section 6)?
A preliminary question arises from the use of the term “people injured in motor accidents” in sections 6(a), (b), (c), This is similar to but not identical to the term defined in section 8, which is “person injured in a motor accident” [emphasis added]. Section 157 of the Legislation Act provides: “If an Act or statutory instrument defines a term, other parts of speech and grammatical forms of the term have corresponding meanings”. In our view ‘people injured in motor accidents’ is the defined term in another grammatical form. The defined term refers to a person, singular, an individual, injured in a motor accident, singular; the term used in section 6 adjusts this term to refer to people, plural, injured in motor accidents, plural. Of course, section 157 of the Legislation Act may be displaced expressly or by a contrary intention.[29] There is no express displacement, and it is difficult to see any basis for a contrary intention here.
Terms of the objects clause (section 6)
[29] Legislation Act section 6(3)
The object in section 6(a) of the Act is to “ensure benefits are available to support all people injured in motor accidents”, which applying the definition in section 8 means all people who sustain a personal injury as a result of a motor accident, including people such as the applicants. Reading section 55(1)(a) in accordance with the definition in section 8 would best achieve this purpose; it would enable benefits to be available to people like the applicants. It is true that section 6(a) concludes “subject to some exclusions and limitations”. Division 2.2.2 is entitled “Limitations and exceptions to entitlement” and sets out a number of express exclusions and limitations. There are also express limitations in relation to the specific types of defined benefits. But these express provisions of themselves suggest that the exclusions and limitations are important, and they are therefore made clear. Given the clarity and strength of the purpose in section 6(a), we do not think that further exclusions and limitations should be readily implied, in particular from the weak presumption in relation to drafting differences.
The purpose in section 6(b) is to “encourage early and appropriate treatment and care of people injured in motor accidents to achieve optimum recovery and return to pre-accident levels of activity and work”. Again, reading section 55(1)(a) in accordance with the definition in section 8 would best achieve this purpose; it would enable early and appropriate treatment and care of people like the applicants. On the respondent’s approach the regime would provide for delayed remedies, and therefore possibly delayed treatment, for people like them.
The purpose in section 6(c) is to “support people injured in motor accidents to access defined benefits”. Reading section 55(1)(a) in accordance with the definition in section 8 would best achieve this purpose. On the respondent’s approach the regime would deny people like the applicants any defined benefits.
The purpose in section 6(d) is to “promote and encourage the early, quick, cost-effective and just resolution of disputes”. Reading section 55(1)(a) in accordance with the definition in section 8 would best achieve this purpose. It would enable the applicants and people like them to apply for defined benefits and have any dispute about this resolved. On the respondent’s approach the regime would deny people like the applicants defined benefits, leaving them to wait for common law damages under section 239 and generally more delayed resolution of disputes.
Therefore, we think that the express purposes set out in sections 6(a), (b), (c) and (d) support the applicants’ reading of section 55(1)(a).
Is there a purpose which supports the respondent’s reading?
We do not think that there is clear purpose which would support the respondent’s reading of section 55(1)(a). The respondent argued correctly that there were a range of express limitations and exceptions to entitlement to defined benefits and damages. But the respondent did not put forward a clear purpose for the implied limitation it argued for, except that the Act already restricts compensation both for defined benefits and damages, and its reading of section 55(1)(a) was simply another restriction.[30] In our view this is a weak possible purpose in the context of the express purposes in section 6.
[30] Transcript of proceedings 13 October 2021 page 26
It was also suggested that it takes time for a person to develop a psychological or psychiatric illness, and that therefore defined benefits for nervous shock are not so relevant so long as damages are still available, as we discuss below.[31] We do not think there is any basis for this argument. No evidence was provided that it takes time for such illnesses to develop. There is no indication in the statute or the relevant extrinsic materials that this was a relevant purpose or consideration in relation to the legislative scheme.
[31] Transcript of proceedings 13 October 2021 page 28
Rather we think that there is support for the position that there was no legislative purpose to limit the operation of section 55(1)(a) in the way the respondent argues, in particular from the terms of section 6, as discussed above, and the previous law.
Previous law
The significant concept of damages for psychological or psychiatric injury, what is generally called nervous shock (including in section 9 of the Act), was developed in Australia as part of the common law by the courts, with in very broad summary its rejection in Chester v Waverley Corporation[32] and then acceptance in Jaensch v Coffey.[33] It was also developed by the legislatures, including in the ACT, where from 1955 there has been legislation enabling damages for nervous shock.[34] The successor of that provision is section 33 of the Civil Law (Wrongs) Act 2002, and this issue is also dealt with in sections 32 and 34 to 36. These provisions were in operation before the Act, and generally people could seek and obtain damages for nervous shock within the system at that time.[35]
[32] [1939] HCA 25; (1939) 62 CLR 1
[33] [1984] HCA 52; (1984) 155 CLR 549
[34] Law Reform (Miscellaneous Provisions) Ordinance 1955 section 23, which provided:
23(1) In an action for injury to the person caused after the commencement of this Ordinance, the plaintiff is not debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock.
[35] Transcript of proceedings 13 October 2021 pages 12-13, 23-25
Before the Act, the scheme for compensation for motor accidents in the ACT was regulated by the Road Transport (Third-Party Insurance) Act 2008. The respondent agreed that under that Act nervous shock claims could be made by people who were not present at the accident.[36]
[36] Transcript of proceedings 13 October 2021 page 25
The Explanatory Statement for the Bill which became the Act provided that the purpose of the Act is to implement a model for the new Motor Accidents Injuries Scheme, as chosen by a citizen’s jury, which will be a new hybrid no fault common law scheme, a key feature of which is that it will no longer be necessary to prove another driver was at fault to access defined benefits following “injury in a motor accident”. This formulation, undefined, provides some support for the respondent’s position, but later the Statement provides that the Bill “establishes entitlements to defined benefits for death or injury caused by a motor accident in the ACT”.[37]
[37] Explanatory Statement for the Motor Accident Injuries Bill (2019) page 4
Further the detailed consideration of clauses 55 to 57 provides that these “clauses will enable a person to make an application for defined benefits with the relevant insurer for a motor accident.”[38]
[38] Explanatory Statement for the Motor Accident Injuries Bill (2019) page 31
Given the history in the ACT and Australia, in our view the denial of defined benefits to people who suffer nervous shock but are not present at the accident would be a significant public policy development. There is nothing in the Explanatory Statement which indicates that the new scheme will deny defined benefits to people who suffer nervous shock but are not present at the accident, and certainly no policy explanation for such a change. In our view this suggests that section 55(1) should not be read to implement such a policy.
Availability of common law damages
The Act allows for limited common law damages to be obtained, in addition to defined benefits. Section 239 sets out when an award of damages may be made, and relevantly provides:
239 Award of damages—requirements
(1) An award of damages in a motor accident claim may be made only if the injured person to whom the motor accident claim relates—
(a)has made a quality of life benefits application under division 2.6.2 (Quality of life benefits—application) and been assessed as having a WPI of at least 10% as a result of the accident; or
…
(c)is taken, under section 133 (WPI taken to be 10% in certain circumstances) or section 213 (2) (a) (SOI report—injury has significant occupational impact), to have a WPI of 10% as a result of the accident; or
…
(e) has died as a result of the accident.
There was some discussion about this provision at the hearing. It was argued by the respondent that it would be possible for the applicants and persons like them who were, on the respondent’s view, unable to make a claim under section 55 for defined benefits, to still be able to make a claim for damages.[39] The applicant agreed that this was the case.[40] It is not necessary or appropriate for this Tribunal to determine whether this is the case. This issue was not expressly raised in the Threshold Question. There was mention of the issue but not full consideration of it in the submissions and the hearing. In our view we need only consider whether if this position is correct, it would change our answer to the Threshold Question.
[39] Transcript of proceedings 13 October 2021 pages 23, 25
[40] Transcript of proceedings 13 October 2021 pages 10-13
On this basis, the interpretation and limitation which the respondent argues for will restrict the applicants and people like them from applying for and receiving any defined benefits, but will not prevent them applying for and receiving damages. It is noted that section 246 provides that such damages may not be awarded in a motor accident claim for any loss of earnings of the claimant in the first year after the motor accident.
This means that the respondent’s position is not as detrimental to the applicants as it would be if they were also denied damages. It was argued that their rights to common law damages before the Act are continued and that it is just the new right to defined benefits in the Act which is denied to them.[41] But even on this basis, the textual and contextual considerations above do not support the respondent’s interpretation. Importantly, the respondent’s view still does not implement the objects of the Act. It does not ensure defined benefits are available to the applicants (sections 6(a) and (c)); it does not encourage early and appropriate treatment (section 6(b)); and it does not promote and encourage early, quick, cost-effective resolution of disputes (section 6(d)). Further, it does so for no explicit public policy reason, nor by any express provision. It would mean that a person who suffers nervous shock in the accident will receive access to the defined benefits and damages; but that a person who suffers nervous shock, as a result of but away from the accident, will have no access to the defined benefits. For these reasons, even if it would be possible for the applicants to make a claim for damages, this would not affect our answer to the Threshold Question.
Conclusion
[41] Transcript of proceedings 13 October 2021 page 30
We find therefore that when section 55(1)(a) provides that ‘a person injured in a motor accident’ may make an application for defined benefits, the definition in section 8 of the Act applies and this extends to “an individual who sustains a personal injury as a result of a motor accident.” This includes a person who suffers psychological or psychiatric injury, including mental or nervous shock, as a result of a motor accident, but was not present at the accident. The argument of the respondent that the application of the presumption that the different words in sections 55(1)(b) and (c) give rise to a different and literal meaning for section 55(1)(a) is not accepted. We reached this conclusion in particular light of the terms of the definition, the presumption that the definition operates except where there is a contrary intention, section 38, the purpose and objects of the Act and the terms of section 139 of the Legislation Act, and the lack of any clear purpose in support of the respondent’s reading. We therefore answer the question at paragraph [3] above: yes.
Accordingly, we will make an order that Mr Wood’s Application for Review dated 4 March 2021 be listed for a directions hearing for directions to be made to prepare the matter for listing for final hearing. We will make a similar order in relation to the other Applications for Review.
………………………………..
Acting Presidential Member R Orr QC
For and on behalf of the Tribunal
| Date(s) of hearing: | 13 October 2021 |
| Counsel for the Applicants: | Mr D Crowe |
| Solicitor for the Applicants: | Mr J May, Chamberlains Law |
| Counsel for the Respondent: | Dr K Rewell SC |
| Solicitor for the Respondent: | Mr J Solomon, Moray & Agnew Lawyers |
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