Workcover Qld v Municipal Mutual Insce & Anor (B26-997 SLA

[1997] HCATrans 357

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 1997

B e t w e e n -

WORKCOVER QUEENSLAND (formerly The Workers’ Compensation Board of Queensland)

Applicant

and

MUNICIPAL MUTUAL INSURANCE

First Respondent

and

THE COUNCIL OF THE CITY OF HERVEY BAY

Second Respondent

Office of the Registry
  Brisbane  No B27 of 1997

B e t w e e n -

WORKCOVER QUEENSLAND (formerly The Workers’ Compensation Board of Queensland)

Applicant

and

BRISBANE CITY COUNCIL

First Respondent

GIO GENERAL LIMITED

Second Respondent

CE HEATH CASUALTY & GENERAL INSURANCE LIMITED

Third Respondent

Applications for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 DECEMBER 1997, AT 12.30 PM

Copyright in the High Court of Australia

MR I.D.F. CALLINAN, QC:  May it please the Court, I appear with
MR R.M. STENSON for the applicants in both cases.  (instructed by Dillons)

MR S.C. WILLIAMS, QC:  May it please the Court, I appear with
MR W.D.P. CAMPBELL for the respondents in both matters.  (instructed by Sparke Helmore and instructed by Quinlan Miller & Treston)

GAUDRON J:   In matter No B26 of 1997, the Registrar certifies that he has been informed by Morton and Morton, solicitors for the second respondent, that the second respondent does not wish to be represented at this hearing and will submit to any order of the Court save as to costs.  There is a similar certificate in matter No B27 of 1997.  May the matters conveniently be heard together?

MR CALLINAN:   Yes, your Honour.  Your Honours, the factual situations in these two matters are relevantly the same.  Each plaintiff was an employee of a municipality.  Each suffered injuries on a journey home from work as a result of the negligence of other employees of the municipalities.  The negligence did not constitute a breach of any duty owed by the employer municipalities as employers to the plaintiffs as employees.  The issue in both cases, therefore, is whether the workers’ compensation fund should bear the burden of the damages awards for personal injuries.  It would be submitted and developed on any appeal, if special leave were granted, that the correct reasoning was that of her Honour Judge Wolff in the District Court in the Brisbane City Council matter.

Your Honours have, no doubt, looked at that reasoning but, in particular, your Honour’s reasoning we would rely upon is to be found at page 10 line 40 to the end of the page, page 11 lines 5 to 15, page 12 lines 38 to the end and page 13 lines 1 to 15 from which her Honour’s reasoning can be digested.  Your Honours, there is no doubt that in practice, we would submit, the obligations owed by an employer to an employee are more onerous than those owed to strangers.  The duty is to provide, among other things, a safe place of work.  It is a non-delegable duty.  The differences in duties owed in different circumstances are discussed by his Honour Justice Mason, as he then was, in Kondisv State Transport Authority (1984) 154 CLR 672 at pages 687 and 688. So much, we would respectfully submit, may be taken as clear.

It would be anomalous, in our submission, that a fund accumulated from premiums fixed by reference to workplace and employer and employee risks should be available to satisfy claims for damages sustained in situations that are totally unrelated to the relationship of employer and employee.

GAUDRON J:   Even so, you do, do you not, require the statute to be construed on a basis that extra words are written into it, do you not?

MR CALLINAN:   No.  Your Honour, we would prefer to put it upon the basis that words have to be read down, or confined.  But may I say this, your Honour:  that is precisely what this Court did on a different question but in relation to the same statute in the case of The Workers’ Compensation Board of Queensland v Technical Products Propriety Limited (1988) 166 CLR 643 at 655 and 656. There, this Court gave a very narrow meaning to the words “in respect of”. They construed this statute - different sections of it - and, indeed, the members of the Court read it down. But, yes, it involves, with respect, a question of construction of the statute. Could I say this, your Honours, that the matter - - -

GAUDRON J:   What particular provisions of the statute are in issue, there being no policy, I understand, in these matters?

MR CALLINAN:   There is no policy as such, your Honours, no.

GAUDRON J:   And most copies of available statutes are not actually marrying up with the numbers given in the Court of Appeal.

MR CALLINAN:   I am sorry, your Honours.  What happened was - I apologise for that - the statute was renumbered.  It remained identical.  Your Honours, should have received the same copy of the statute as was construed in the Court of Appeal which - - -

GAUDRON J:   Yes, I think we now have that.

MR CALLINAN:   I apologise for that.  Your Honours, section 2.1 under the 1990 statute, and section 4.9(2) are the particular provisions in, of course, the context of the Act as a whole.

GAUDRON J:   So, you wish us to read down the definition of “accident insurance” in paragraph (b) of that definition, do you?

MR CALLINAN:   In 2.1, yes, your Honour.

GAUDRON J:   And in 4.9?

MR CALLINAN:   In 4.9, your Honour, (2)(b) is the provision.  Your Honours, to do otherwise is to give rise, we would submit, to a number of anomalies, some of which we give examples of in the applications book at pages 76 and 77.  Your Honours have no doubt seen those, but one could have the anomalous situation that people injured in exactly the same circumstances - one fortuitously being an employee - would be able to look, ultimately, to different sources for satisfaction of a judgment.  But we develop those - and I will not repeat them - we develop them in the applications book.

McHUGH J:   But Mr Callinan, the legislature, itself, seems to have intended the policy to operate very widely, because section 4.9(2) refers to the obligation to insure and talks about the legal liability to pay damages in respect of injury, and so does “accident insurance”.  An injury is defined to mean personal injury “arises out of or in the course of the” employment.  Now, ordinarily, one would say that these injuries did not arise out of or in the course of the employment but, unfortunately for that argument, section 5.4(2) says that an injury:

is taken to arise out of or in the course of the worker’s employment if it occurs -

among other things -

while the worker -

(i)  is travelling between the worker’s place of abode and place of employment -

so, it seems to be very widely cast.

MR CALLINAN:   Your Honour, the Act made a distinction, it makes fairly clear distinction in the way in which it deals with, on the one hand, damages at common law and an entitlement to compensation and the section ‑ ‑ ‑

McHUGH J:   I know it does, but the common law liability is also defined in terms of personal injury arising out of in the course of employment and by reason of the operation of section 5.4(2) it is given a very wide meaning.

MR CALLINAN:   We make the submission, your Honours, that those provisions in (2) are provisions relating to compensation only and that was the view, of course, that her Honour Judge Wolfe formed in her reasoning and we submit that it is correct.  Your Honours, could I go then to our submissions as to why we would put to your Honours that this is a matter that should attract a grant of special leave.  It is one of importance to municipalities, other large employers and, in particular, to the mining industry in Queensland.  I say that, your Honours, because it is, of course, notorious that mining companies, not only in Queensland but perhaps especially in Queensland, often perform the functions and, indeed, sometimes perform more than the functions of local municipalities in constructing infrastructure and providing town facilities.  In our submission, it is, therefore, a matter of public importance.

GAUDRON J:   But it is a statute of local application which can presumably be amended and one would imagine that the statute is of major importance to you, a government or semi‑government instrumentality, rather than the Councils, who are not even here present.

MR CALLINAN:   Your Honours, with respect, we appreciate the force of what your Honour the presiding Justice puts to me, but the difficulty about that, with great respect, is that although this Court has said to our knowledge on a number of occasions what your Honour has said should be, in effect, a bar to a grant of special leave, on the other side of the coin there are cases involving the construction of a State statute and, indeed, in this very area, where the Court has entertained and granted applications for special leave and decided the cases and there is, with great respect, absolutely no discernible pattern and, indeed, in our respectful submission, it undermines the authority and respect for the Court when no such pattern can be discerned.  Could I also say this, with respect ‑ ‑ ‑

GAUDRON J:   Perhaps there is none undiscernible by you, Mr Callinan.  It may be others could, but you have a statute that applies in one State.  There is nothing to suggest that the same problem arises in other States, that it involves any general question of insurance law or fundamental principle of workers compensation.

KIRBY J:   And I would add - and this is a factor that is relevant to the point you made about the discernible pattern - if there appears to be a real argument, a strong argument both ways, then you are more likely to get the grant of special leave than where it appears that the Court of Appeal got it right.  I mean, it is a matter of judgment in every case.

MR CALLINAN:   Yes, let me immediately, with respect, accept that but it does not alter the point, of course, that some of the decisions ‑ and I can name two for your Honours but, no doubt, your Honours are aware of a number ‑ there does not seem to be any such clearly discernible error until that was established by this Court.  The two cases that I am thinking of are Haines v Rendall (1991) 172 CLR 60, which was a case from New South Wales, and Walker v Wilson (1991) 172 CLR 195, a case from Western Australia. With great respect, we would submit ‑ ‑ ‑

GAUDRON J:   Where it was urged that we should read down the plain words of a statute of local application in either case?

MR CALLINAN:   They were different.  But, your Honour, with respect, in the other case to which I have referred, a case from this jurisdiction, the Technical Products Case, that was precisely what the Court was asked to do.

GAUDRON J:   Well, that gave a meaning to the words “in respect of”.  They are words which can have a variety of meanings.  Here, you need to read down the plain words of the section or, alternatively, have it held that, which is an even harder proposition to maintain, I would have thought, that the definition of “injury” does not apply to the definition of “accident compensation”.

MR CALLINAN:   Your Honour, we would prefer to put it this way.  We invite the Court to read the statute in a way which is consonant, we would submit, with its plain scope and purpose.

GAUDRON J:   But you invite us to read down definitions.  Now, I think if you look at some of the maritime cases, you will see statements from this Court about the difficulty of reading down definitions, that really definitions are to be taken to mean what they say and say what they mean.  Otherwise, if definitions do not serve that purpose, there can be nothing approaching certainty in the law and that is what you are inviting this Court to do.

MR CALLINAN:   I will not repeat myself, your Honour.  Your Honours, with respect, have what I say in connection with this matter.  We point to the reasoning of her Honour Judge Wolfe and we submit it is convincing and correct.  Your Honours, could I just finish in relation to the issue of special leave.  Your Honours, it is put against us that there is a new statute which is a matter to which we drew attention ourselves.  However, the new statute does have provisions which, if not identical, are virtual analogues to the provisions which would fall to be construed if the Court were to grant this application.

Could I just conclude with one further matter, your Honours.  Your Honour the presiding Judge has put to me the proposition that if, in effect, the result is unacceptable to the State or to the instrumentality then the appropriate course is for the statute to be amended.  In our submission, and we say this with great respect, that misconceives the ease or the basis upon which statutes should, and may be, amended.

We would submit that a State has as much right to push a proposition that its intermediate Court of Appeal has erred as any other litigant has. 

There are often difficulties associated with amendments which may not be readily apparent to a court and, on that account we would submit, on that account alone, an application for special leave should not be refused.  Your Honours, those are my submissions.

GAUDRON J:   Yes, thank you, Mr Callinan.  Yes, thank you, we will hear from the respondents in this matter.

MR WILLIAMS:   If the Court pleases.  As your Honour Justice Gaudron has already indicated in the course of my learned friend’s argument, there are few features of this case which warrant a grant of special leave.

KIRBY J:   Except perhaps the merits of the fact that it does burden the workers’ compensation insurer with liability that you would not really expect in the context of the workers’ compensation statute.  I mean, that is the fundamental merits point that they have, and I have some sympathy for it.  It is just a question of whether that can live with the statute and the statutory language.

MR WILLIAMS:   Your Honour, in our submission, it can and, indeed, must, for the word “injury”, which is the central feature and the point upon which the whole statute is drafted, is defined only once in the Act and defined using the term “arising out of or in the course of employment”.  That term gains no meaning, in our submission, in itself, it gains meaning only by the definition in section 5.4.  In the absence of the application of that definition throughout the Act, one faces the prospect that the word “injury” must be read in two senses within the Act whenever it appears:  one in relation to workers’ compensation provisions, and the other in relation to the common law liability provisions.

The only merit, in our submission, that the applicant’s argument has is that the provisions in section 5.4 appear in a part of the Act which is headed “Entitlement to Compensation”.  But for that heading, in our submission, there could be no argument against the proposition that section 5.4 is of general application throughout the Act and was intended to be so by the legislature.  However, as your Honours will have observed in the Court of Appeal judgment, this Act has subsisted in Queensland for now a little more than 80 years.  The same, or essentially the same provisions, flow throughout the Act in its repealed forms and even in its current form, which repeals the present Act. 

In earlier days, the relevant provision, or the equivalent provision to section 5.4 appeared without headings and therefore it could not be construed by reference to any heading, and in the current version of this Act the equivalent provisions appear in a chapter entitled “Preliminary” and in a part entitled “Basic Concepts”, that is definitions.  The relevant provision, therefore, in our submission, in earlier Acts and in the present Act, is plainly one of general application throughout the Act, as it must be in the 19 ‑ ‑ ‑

KIRBY J:   Yes, but what we are talking about it a policy of insurance for the purpose of workers’ compensation.  It would not do terrible havoc to the Act to read it purposively and to say that this is what Parliament was providing for, a form of insurance for workers’ compensation and not for every risk that a local government authority is exposed to, because that can be a substantial extra ambit and add extra burdens on policyholders and on them as employers.  Often, as we all know, they are different insurers:  the one for workers’ compensation and common law liability, and the other for public liability risk.  The result of this is a odd result.  The only thing that I have to consider in my consideration of the application is whether it is mandated by the terms of the Act.  But it is an odd result; very odd.

MR WILLIAMS:   Your Honour, there are two responses to that, in our submission.  Firstly, the legislature is chosen to extend the ambit of the Act, at least in so far as workers’ compensation provisions are concerned, to journey claims which are covered by section 5.4.  In our submission, the general use of that term leads to an intent that the employer is also covered or indemnified in respect of common law liability in the same circumstances.

The second point is one made clear in the Court of Appeal judgment at page 60 of the application book in which their Honours say, from lines 47 to the end of the page:

Indeed, it may well have been the intention of the legislature to state the liability to indemnify in this way in order to avoid disputes as to whether negligence of an employer causing personal injury to an employee was negligence in the capacity of the employer or as whether, at common law, the employee’s injury arose out of or was incurred in the course of employment.

In our submission, your Honours, within the framework of a scheme, the objects of which are to protect both employee and dependants of employees and to protect the worker.  It is a logical extension of the compensation provisions, with respect to journey claims, that they also encompass any common law liability of the employer in that situation.

McHUGH J:   Yes.  The definition of “accident insurance” in 2.1 also indicates that a wide meaning was probably intended because it refers to:

A legal liability in the employer to pay such damages -

and I quote:

Other than a liability against which the employer is required to provide.....in accordance with some other Act of Queensland -

and so on.

McHUGH J:   So, the assumption is that there will be widespread liability but the employer is exempted only when that liability is one in which he is required to insure against.

MR WILLIAMS:   Yes, your Honour.  That is regarded as the “motor vehicle exception” in Queensland because of those provisions.  We submit that is the plain intent of the act because of those provisions.

McHUGH J:   Yes, of course, highway case.  It does indicate that, without the words “other than a liability” et cetera, that it was intended to cover the highway type of accident, where the employee is simply driving along the highway and some other vehicle runs into him.

MR WILLIAMS:   Yes, in our submission, that is so, your Honour.  It was intended to cover the field but for statutory exceptions and, in our submission, it should be read in that way.  I do not know that I can usefully add anything on that point, your Honours, unless there is some further point.  Those are our submissions.

GAUDRON J:   Thank you, Mr Williams.  Yes, Mr Callinan.

MR CALLINAN:   Your Honours, there is nothing further that I would say.  I would only be being repetitious.

GAUDRON J:   Yes, thank you. 

In these matters the Court is of the view that the decision of the Court of Appeal is not attended with sufficient doubt to justify the grant of special leave.  Accordingly, special leave is refused in both matters.

MR WILLIAMS:   May it please the Court, I ask for costs in both matters.

MR CALLINAN:   I cannot oppose that, your Honours.

GAUDRON J:   It is refused with costs in both matters.

AT 12.55 PM THE MATTER WAS CONCLUDED