Woolworths Group Limited v Jackermis

Case [2023] SASCA 31

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

WOOLWORTHS GROUP LIMITED v JACKERMIS

[2023] SASCA 31

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)

30 March 2023

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS - PERMANENT IMPAIRMENT AND LOSS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY

WORKERS' COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF - PREVENTION OF DOUBLE RECOVERY FROM EMPLOYER - EFFECT OF CLAIM OR PROCEEDINGS FOR OR RECEIPT OF COMPENSATION ON RIGHT TO DAMAGES - WHETHER COMPENSATION AND DAMAGES IN RESPECT OF SAME INJURY

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - INJURY, DISEASE OR DISABILITY - WHAT CONSTITUTES INJURY

Application for leave to appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal

The respondent commenced employment with the applicant in 2002. The applicant is a self-insured employer for the purposes of the of the Return to Work Act 2014 (SA) (‘RTWA’).

The respondent injured her right shoulder in the course of her employment. The date of her injury was fixed as 18 April 2016. The respondent was aged 50. The primary shoulder injury, scarring and subsequent issues with mastication and deglutition resulted in permanent impairment. As a result, the respondent sought lump sum compensation. The respondent’s overall whole person impairment (‘WPI’) was assessed as 17 per cent, with the applicant accepting that all the impairments resulted from the same cause and were combinable. The resultant entitlement under s 56 of the RTWA was $76,762. A determination to this effect was made on 17 April 2020.

The respondent suffered a further work injury to her left shoulder on 21 July 2017, resulting in a permanent impairment. The respondent was aged 51. Her WPI was assessed as 13 per cent. The resultant entitlement under s 56 of the RTWA was $45,188.72.

The applicant determined that this was a ‘new work injury’ within the meaning of s 56(6)(b)(ii), with the consequence that it was required to reduce the lump sum payable by the amount of the payment for the earlier entitlement. Deducting $76,762 from $45,188.72 resulted in a nil entitlement.

The respondent brought an application for review on the basis that she had not suffered ‘a new work injury’ within the meaning of s 56(6)(b)(ii), as the subsequent injury was completely separate from the earlier one. She contended that the phrase ‘new work injury’ referred to an injury to the same body part The trial judge rejected the respondent’s construction.

The Full Bench allowed the respondent’s appeal. It construed the phrase ‘a new work injury’ as referring to ‘a further work injury that occurs subsequently in time to an earlier work injury that gives rise to an entitlement to a lump sum under s 56 where a portion of the impairment is due to a…

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Woolworths Group Limited v Jackermis [2023] SASCA 31
Case
[2023] SASCA 31
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal concerning the calculation of lump sum compensation for work injuries. The appeal was brought by Woolworths Group Limited (the applicant) against its employee, Ms. Jackermis (the respondent). The dispute arose from the applicant's determination that the respondent was not entitled to further lump sum compensation for a second work injury due to a previous payment for an earlier injury.

The central legal issue before the Full Court was the proper interpretation of section 56(6)(b)(ii) of the Return to Work Act 2014 (SA) (RTWA), specifically the meaning of "a new work injury" in the context of reducing subsequent lump sum entitlements. The applicant had argued that the respondent's second shoulder injury constituted a "new work injury" and therefore required a reduction of the second lump sum payment by the amount of the first, resulting in a nil entitlement. The respondent contended for a different interpretation of this phrase.

The Full Court allowed the appeal, finding that the primary judge had erred in their construction of "a new work injury." The Court reasoned that while the definition of "injury" in the RTWA is broad, the specific wording and structure of section 56(6) indicated a distinction between injuries that are an aggravation, acceleration, exacerbation, deterioration, or recurrence of a prior injury (covered by s 56(6)(b)(i)) and "a new work injury" (covered by s 56(6)(b)(ii)). The Court concluded that the phrase "a new work injury" in subparagraph (ii) should not be interpreted so broadly as to encompass the types of injuries described in subparagraph (i), thereby avoiding rendering the latter otiose.

Consequently, the Full Court set aside the decision of the Full Bench and ordered that the respondent's application for review be dismissed. The Court found it unnecessary to consider an alternative ground of appeal relating to statutory limits on economic loss entitlements.

Orders

Orders of the court

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Background

Background to the litigation

This entitlement also has a minimum threshold of at least five per cent WPI, as assessed under Division 5 of Part 2 and the Impairment Assessment Guidelines.[2] Unlike the entitlement in relation to economic loss, this entitlement is not limited to workers other than seriously injured workers. Section 58(7) sets out the circumstances in which there may be a reduction where compensation for non‑economic loss has been previously paid (comparable to, but not the same as, that of s 56(6) in respect of economic loss):(7) If— (a) a work injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior work injury; and (b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment, there will be a reduction of the lump sum payable under this section in respect of the injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines. [2] RTWA, ss 58(2), (8).Background The respondent commenced employment with the applicant in 2002. The applicant is a self-insured employer for the purposes of the RTWA. The respondent injured her right shoulder in the course of her employment. The date of her injury was fixed as 18 April 2016. She was aged 50. Her injury required surgery and resulted in some scarring. The respondent subsequently developed issues with mastication and deglutition, due to the medication she was taking for her injury. The primary injury, scarring and subsequent issues with mastication and deglutition have resulted in permanent impairment. The respondent sought lump sum compensation in respect of these impairments. Her WPI was assessed as 13 per cent for the right shoulder injury, four per cent for mastication and deglutition and one per cent for scarring. The applicant accepted that all these impairments resulted from the same cause and were combinable, pursuant to s 22(8)(c). The overall assessment was 17 per cent WPI. The applicant determined the respondent’s lump sum entitlements under ss 56 and 58 of the RTWA. For the purposes of s 56, the relevant prescribed sum was $109,660. The age factor was 70. The hours worked factor was full time. The resultant entitlement was $76,762. A determination to this effect was made on 17 April 2020. The respondent suffered a further work injury to her left shoulder on 21 July 2017, resulting in a permanent impairment. She was aged 51 at the time. Pursuant to s 22 of the RTWA, her WPI was assessed at 13 per cent. The applicant determined her lump sum entitlements under ss 56 and 58 in respect of this subsequent injury. For the purposes of s 56, the relevant prescribed sum was $66,454. The age factor was 68. The hours worked factor was full time. The resultant entitlement was $45,188.72. The applicant determined that the injury the respondent sustained on 21 July 2017 was a ‘new work injury’ for the purposes of s 56(6)(b)(ii). It reasoned that in connection with her entitlement under s 56, it was required to reduce the lump sum payable by the amount of the payment for the earlier entitlement. It therefore deducted $76,762 from $45,188.72 and determined that the respondent had a nil entitlement.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This conclusion is sufficient to allow the appeal on Ground 1. These reasons indicate that the complaint in Ground 2 is also established, but this is properly seen as an error in reasoning going to the construction of the phrase ‘a new work injury’, which is the subject of the complaint in Ground 1. Ground 3 is expressed in the alternative. It is not necessary to decide whether s 56(11) operates as a statutory limit on entitlements for economic loss payable under s 56(6), such that successive lump sum payments under s 56(6) cannot exceed the limit identified in s 56(11) read with Schedule 7. The appellant did not address this ground in submissions.Conclusion We grant leave to appeal on Ground 1. We allow the appeal, set aside the decision of the Full Bench and order that the application for review be dismissed.

Ratio Decidendi

Legal Principle Established

To assess this contention, and its detail, it is necessary to construe the phrase in context.Contextual and purposive considerations The immediate context of the phrase in s 56(6)(b) under consideration is that the worker ‘subsequently suffers … a new work injury’. This expresses a temporal connection between the original work injury and the ‘new work injury’. This temporal connection applies to the incidents in both subparagraphs 56(6)(b)(i) and (ii). The contemplated ‘aggravation, acceleration, exacerbation, deterioration or recurrence’ referred to in subparagraph (i) is of the injury referred to in s 56(6)(a). Subparagraph (ii), on the other hand, uses the indefinite article. That carries a suggestion, at least, of an injury with no connection to that in sub‑section (i). As we will come to, the word ‘new’ is capable of contributing to that connotation of separation. Section 4(1) of the RTWA defines ‘injury’ to include ‘an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury’. As with all definitions in this section, this is expressed to be ‘unless the contrary intention appears’. The incorporation in s 56(6)(b)(i) of this same wording, by reference to the injury identified in s 56(6)(a), suggests that the concept of ‘a new work injury’ in s 56(6)(b)(ii) does not include that covered by s 56(6)(b)(i), notwithstanding the extended definition of ‘injury’ in s 4(1). However, the Full Bench accepted the respondent’s submission that the wide construction of the phrase would render otiose the description of further injury in s 56(6)(b)(i).[26] That acceptance appears to have been based on an unstated premise that a ‘wide’ construction of the phrase would necessarily extend to the concept addressed by subparagraph (i). The difficulty with this is that it is possible, on the one hand, to accept that the phrase ‘a new work injury’ is broad on its ordinary construction, but also to accept that the context may necessarily require some limit to its reach. Here, subparagraph (i) provides a clear contextual indicator that the phrase ‘a new work injury’ does not extend to its subject matter. That does not provide a great deal of guidance as to what other restriction, if any, is properly applied to the phrase.[26] [2022] SAET 74 at [64]. We therefore do not accept that a broad reading of s 56(6)(b)(ii) would necessarily render the previous subparagraph otiose. They are to be read together. Subparagraph (ii) may be read broadly but not so as to extend to the subject matter of subparagraph (i). That does not otherwise assist with the interpretive task at hand. This conclusion provokes one further immediate observation. As the appellant observed, it is not at all clear how the narrow construction of subparagraph (ii) would differ in its operation from the ‘aggravation [etc.]’ formulation in subparagraph (i). If anything, the narrow construction would tend to render subparagraph (i) otiose.