WorkPac Pty Ltd v Thearle

Case •

[2016] NSWCA 303

•

04 November 2016

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: WorkPac Pty Ltd v Thearle [2016] NSWCA 303
Hearing dates:4 October 2016
Date of orders: 04 November 2016
Decision date: 04 November 2016
Before: McColl JA at [1], Ward JA at [98], Adamson J at [99]
Decision:

(1)   Grant leave to appeal.

 

(2)   Appellant to file a notice of appeal in the form of the draft in the White Book within seven (7) days.

 

(3)   Allow the appeal.

 

(4)   Set aside the orders made by McLoughlin DCJ on 4 May 2016 in the District Court.

 

(5) Order that pursuant to UCPR 13.4, Ms Thearle’s proceedings against WorkPac be dismissed with costs.

 (6)   Ms Thearle to pay WorkPac’s costs of the appeal and application for leave to appeal.
Catchwords:

WORKERS COMPENSATION – effect of 2012 amendments to Workers Compensation Act 1987 (NSW) – 2012 amendments repealed s 151P (Damages for psychological or psychiatric injury) and inserted s 151AD (No damages for nervous shock injury to non-workers) – Sch 6, Pt 19H, cl 26 preserved the operation of repealed s 151P to or in respect of an injury received by a coal miner – mother of injured coal miner commenced proceedings against worker’s employer claiming damages for nervous shock – whether cl 26 preserved operation of repealed s 151P such that s 151AD did not apply to mother’s claim

 

STATUTORY INTERPRETATION – construction of Workers Compensation Act 1987 (NSW), Sch 6, Pt 19H, cl 26

WORDS & PHRASES – “to or in respect of” – Workers Compensation Act 1987 (NSW), Sch 6, Pt 19H, cl 26
Legislation Cited: Civil Liability Act 2002 (NSW)
Common Law Practice Act 1867 (Qld)
Compensation to Relatives Act 1897 (NSW)
Interpretation Act 1987 (NSW)
Motor Vehicles Insurance Acts 1936–1961 (Qld)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Workers Compensation Amendment Act 1997 (NSW)
Workers’ Compensation Act 1926 (NSW)
Workers Compensation Act 1987 (NSW)
Workers’ Compensation Act 1916 (Qld)
Workers Compensation Amendment Act 2015 (NSW)
Workers Compensation (Benefits) Amendment Act 1989 (NSW)
Workers Compensation Legislation Amendment Act 1998 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW)
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144
Central Northern Adelaide Health Service v Atkinson (2008) 103 SASR 89; [2008] SASC 371
Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Commissioner of Taxation of the Commonwealth v Scully (2000) 201 CLR 148; [2000] HCA 6
Elkateb v Lawindi (1997) 42 NSWLR 396
Ellavale Engineering Pty Ltd v Pilgrim (2005) 2 DDCR 744; [2005] NSWCA 272
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606; [2001] NSWCA 175
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30
Kimberly-Clark Australia Pty Ltd v Thompson (2006) 67 NSWLR 187; [2006] NSWCA 264
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100
Manufacturers Mutual Insurance Limited v Hooper (1988) 5 ANZ Ins Cas ¶60-849
McDowell v Baker (1979) 144 CLR 413; [1979] HCA 44
Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71
Mine Subsidence Board v Jemena Ltd (2013) 86 NSWLR 161; [2013] NSWCA 465
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Khazaal (2012) 246 CLR 601; [2012] HCA 26
R v Orcher (1999) 48 NSWLR 273; [1999] NSWCCA 356
Rheem Australia Ltd v Manufacturers’ Mutual Insurance Ltd [1984] 2 NSWLR 370
Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40
State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412; [1966] HCA 56
Tamworth Base Hospital v Durant [2000] NSWCA 209
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 89 ALJR 750; [2015] HCA 28
Transpacific Industrial Solutions Pty Ltd v Phelps (2013) 230 IR 438; [2013] NSWCA 31
Trustees of the Sydney Grammar School v Winch (2013) 83 NSWLR 80; [2013] NSWCA 37
Unsworth v Commissioner for Railways (1958) 101 CLR 73; [1958] HCA 41.
Victims Compensation Fund Corp v Brown (2003) 77 ALJR 1797; [2003] HCA 54
Wickstead v Browne (1992) 30 NSWLR 1
Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; [1988] HCA 49
Texts Cited: Workers Compensation Amendment Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 3 December 1996
Workers Compensation Legislation Amendment Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2012
Category:Principal judgment
Parties: WorkPac Pty Ltd (Applicant)
Maureen Thearle (First Respondent)
Downer EDI Mining Pty Ltd (Second Respondent)
Representation:

Counsel:
J Sexton SC and SJ Maybury (Applicant)
ID Roberts SC and R Harrington (First Respondent)
Submitting appearance (Second Respondent)

  Solicitors:
Barry Nilsson (Applicant)
Stacks Law Firm (First Respondent)
Moray & Agnew (Second Respondent)
File Number(s):2016/168666
Publication restriction:No
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
04 May 2016
Before:
McLoughlin DCJ
File Number(s):
2015/00234070

HEADNOTE

[This headnote is not to be read as part of the Judgment]

The respondent, Ms Thearle, is the mother of a coal miner who was injured at his workplace, the Boggabri Open Cut Colliery. Ms Thearle’s son was employed by WorkPac Pty Ltd (WorkPac). The respondent brought proceedings on her own behalf against WorkPac claiming damages for nervous shock she alleged she suffered after becoming aware of the injury to her son. She also sued Downer EDI Mining Pty Ltd which relevantly controlled the Colliery. WorkPac sought an order dismissing the statement of claim on the basis that it was precluded by s 151AD of the Workers Compensation Act 1987 (NSW) (1987 Act). That provision was inserted into Part 5, Division 5 of the 1987 Act by the Workers Compensation Legislation Amendment Act 2012 (NSW) (2012 Amendment Act). It prevents non-workers from claiming damages for pure mental harm.

The 2012 Amendment Act also repealed s 151P of the 1987 Act which had been found in Division 3 (Modified common law damages) of Part 5 of the 1987 Act. Section 151P limited the class of persons who could claim damages for psychological or psychiatric injury in respect of an injury (a term defined in s 4 of the 1987 Act) to the injured worker (s 151P(a)) and certain relatives of the injured worker, including a parent who, as a consequence of the injury or death of the injured worker, suffered a demonstrable psychological or psychiatric illness (s 151P(b)).

The 2012 Amendment Act also inserted Part 19H (Provisions consequent on enactment of Workers Compensation Legislation Amendment Act 2012), Division 3 (Miscellaneous) into Schedule 6 (Savings, transitional and other provisions) of the 1987 Act. Clause 26(1) provided:

“The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a coal miner (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”

The respondent contended that her nervous shock claim was “to or in respect of an injury received by a coal miner”, such that the effect of cl 26 was that s 151P(b) was not repealed in respect of her claim and s 151AD did not preclude her from bringing her proceedings against WorkPac.

A District Court judge dismissed WorkPac’s motion, holding the matter was not appropriate for summary determination. WorkPac appealed.

The issue on appeal was as to the proper construction of cl 26. Ms Thearle conceded the matter had been appropriate for summary determination.

Held, granting leave to appeal and allowing the appeal:

per McColl JA (Ward JA and Adamson J agreeing)

On its proper construction, cl 26 does not preserve s 151P(b) for the benefit of persons such as the respondent, who are strangers to the employment relationship: [45] – [51]; [91]

Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; [1988] HCA 49; Kimberly-Clark Australia Pty Ltd v Thompson (2006) 67 NSWLR 187; [2006] NSWCA 264 considered.

State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412; [1966] HCA 56; Rheem Australia Ltd v Manufacturers’ Mutual Insurance Ltd [1984] 2 NSWLR 370; Manufacturers Mutual Insurance Limited v Hooper (1988) 5 ANZ Ins Cas ¶60-849 distinguished.

**********

Judgment

  1. McCOLL JA: The first respondent, Maureen Thearle, commenced proceedings in the District Court against the applicant, WorkPac Pty Ltd (WorkPac) and the second respondent, Downer EDI Mining Pty Ltd (Downer EDI), claiming damages for nervous shock she alleged she suffered after becoming aware of an injury to her son, a coal miner, at his workplace, the Boggabri Open Cut Colliery (Colliery). Ms Thearle’s son was employed by WorkPac. Downer EDI relevantly controlled the Colliery.

  2. WorkPac sought an order that Ms Thearle’s claim be summarily dismissed or struck out pursuant to either r 13.4 or r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on the basis that it was precluded by s 151AD of the Workers Compensation Act 1987 (NSW) (1987 Act). The matter proceeded before the primary judge on the basis that the facts Ms Thearle pleaded in her statement of claim against WorkPac would be established at trial. His Honour, Judge McLoughlin SC dismissed the motion because he held the matter was not susceptible to summary determination. [1] The effect of his Honour’s order, if it stands, is that determination of the application of s 151AD will have to await the final hearing.

    1.    Thearle v WorkPac Pty Ltd and Anor (District Court (NSW), McLoughlin DCJ SC, 4 May 2016, unrep).

  3. This is the concurrent hearing of WorkPac’s application for leave to appeal from the primary judge’s order and of the appeal, if leave be granted. Leave to appeal is required because an order dismissing an application for summary dismissal is interlocutory. [2] Leave to appeal should not be granted where the evidence will play a role in determining the application of the law. [3] However, an erroneous interlocutory order which allows proceedings to be commenced or continued should, if possible, be corrected before trial, not later. Accordingly, leave to appeal should be granted readily in proper cases. [4]

    2. Wickstead v Browne (1992) 30 NSWLR 1 (Wickstead) (at 11); Hall v Nominal Defendant (1966) 117 CLR 423 (at 440); [1966] HCA 36.

    3. Wickstead (at 5 – 6) per Kirby P in dissent; approved in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 89 ALJR 750; [2015] HCA 28 (at [70]) per Nettle J.

    4. Tamworth Base Hospital v Durant [2000] NSWCA 209 (at [66]) per Handley JA, referred to with approval in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 (at [154] – [165]) per Ipp AJA (Spigelman CJ and Sheller JA agreeing).

  4. Mr I Roberts of Senior Counsel, who appeared for Ms Thearle, with Mr R Harrington on appeal, but not in the District Court, conceded, properly in my view, that the question WorkPac’s motion raised was susceptible to summary determination. That is to say, he accepted that, on the assumed facts, the question of statutory interpretation WorkPac raises, if correct, means the proceedings would be resolved in its favour. [5]

    5. Cf Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 (at [57]) per Gaudron, McHugh, Gummow and Hayne JJ; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (at [46]) per Gleeson CJ, Gummow, Hayne and Crennan JJ.

  5. For the reasons that follow, I am of the view that leave to appeal should be granted and the appeal should be allowed.

Legislative framework

  1. The long title to the 1987 Act relevantly identifies the Act’s purpose as being “to provide for the compensation and rehabilitation of workers in respect of work related injuries …”.

  2. Pursuant to s 9(1), a “worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.” “Injury” in the 1987 Act means “personal injury arising out of or in the course of employment”. [6]

    6. 1987 Act, s 4(a).

  3. When the 1987 Act was first passed, Pt 5 (Common Law Remedies), s 149 abolished the right of a worker, or a person who would be entitled to recover damages in respect of the worker’s death, to recover damages from the worker’s employer (and persons vicariously liable for the employer’s acts or omissions or vice versa) in respect of an injury to the worker for which compensation was payable under the Act. The original Pt 5 was repealed in 1989 and a new Pt 5 inserted. [7] While the right of a worker to recover common law damages was restored, that right was “modified” as set out in the new Pt 5.

    7. Workers Compensation (Benefits) Amendment Act 1989 (NSW), Sch 1(1) (1989 Amendments).

  4. Section 151P of the 1987 Act, found in Div 3 (Modified common law damages) of Pt 5, was introduced as part of the 1989 Amendments and governed claims for nervous shock. It provided:

“151P   Damages for psychological or psychiatric injury

No damages for psychological or psychiatric injury are to be awarded in respect of an injury except in favour of:

(a)     the injured worker; or

(b)     a parent, spouse, brother, sister or child of the injured or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction.”

  1. As Basten JA observed in Kimberly-Clark Australia Pty Ltd v Thompson,[8] s 151P was “introduced by the Workers Compensation (Benefits) Amendment Act 1989, which introduced Pt 5 in its original form. The second reading speech gives no indication as to the intended scope and operation of par (b).”

    8. (2006) 67 NSWLR 187; [2006] NSWCA 264 (Kimberly-Clark) (at [63]).

  2. In 2012 the 1987 Act was amended by the Workers Compensation Legislation Amendment Act 2012 (NSW) (2012 Amendment Act). Schedule 3 (Amendments relating to damages for nervous shock) commenced on 27 June 2012. It repealed s 151P and inserted s 151AD into Pt 5, Div 5 (Miscellaneous provisions) in the following terms:

“151AD No damages for nervous shock injury to non-workers

(1)    No damages for pure mental harm may be awarded against an employer liable to pay compensation under this Act in respect of the death of or injury to a worker if the pure mental harm arises wholly or partly from mental or nervous shock in connection with the death of or injury to the worker unless the pure mental harm is a work injury (that is, an injury to the worker or to another worker).

Note. This section prevents a claim for damages for nervous shock when the nervous shock is not a work injury. It prevents claims for damages by relatives of an injured or deceased worker because their injuries are not work injuries.

(2)    In this section, pure mental harm has the same meaning as in Part 3 of the Civil Liability Act 2002.” [9] (Emphasis added)

9.    Notes included in the text do not form part of the Act: 1987 Act, s 3(6).

  1. In the Second Reading Speech to the Bill which became the 2012 Amendment Act, the Treasurer, the Hon M Baird, said of the introduction of s 151AD:

“Schedule 3 to the bill makes a change to the area of work injury damages with proposed new section 151AD limiting common law claims for nervous shock suffered by a relative or dependent of a deceased or injured worker, unless the nervous shock is itself a work injury. This reflects the view that an employer's liability for psychological injury to family members does not fall within the object of the workers compensation legislation.” [10]

There was no reference to coal miners in the Second Reading Speech.

10.    New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2012.

  1. The 2012 Amendment Act also inserted Pt 19H (Provisions consequent on enactment of Workers Compensation Legislation Amendment Act 2012), Div 3 (Miscellaneous) into Sch 6 (Savings, transitional and other provisions) of the 1987 Act. Division 3 relevantly provided:

“16   Damages for nervous shock

An amendment made by Schedule 3 to the 2012 amending Act extends to a claim for damages in respect of harm suffered before 19 June 2012 but does not apply to a claim for damages if the claimant commenced court proceedings for the recovery of work injury damages before 19 June 2012.

…

26 Coal miners

(1)   The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a coal miner (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.

(2)   In this clause:

coal miner means a worker employed in or about a mine.” (Emphasis added)[11]

11. “Workers Compensation Acts” is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act) as “this Act and the 1987 Act”.

  1. It is uncontroversial that Ms Thearle’s son at all material times was a coal miner within the meaning of cl 26. The proceedings were commenced after the date referred to in cl 16.

  2. The following provisions of the 1987 Act should also be noted.

  3. In s 3, the definitions provision, s 3(1AA) and s 3(1A) provide:

“(1AA)   In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise. [12]

…

(1A)   A reference to a worker who has been injured includes, if the worker is dead, a reference to the worker’s legal personal representative or the worker’s dependants, or any other person to whom or for whose benefit compensation is payable.”[13]

12. The “1998 Act” is a reference to the Workplace Injury Management and Workers Compensation Act 1998 (NSW): 1987 Act, s 2A(1).

13. A like provision is found in s 4(2) of the 1998 Act under the heading “Extended meaning of injured worker”.

  1. Part 5, Div 2 of the 1987 Act deals with “Common law and other remedies generally”. Section 151 provides:

“151 Common law and other liability preserved

This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.”

  1. In Pt 5, Div 3, s 151E and s 151F provide:

“151E Application—modified common law damages

(1)   This Division applies to an award of damages in respect of:

(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.

(2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies.

Note. However, this Division will generally apply in the case of an injury to a coal miner if 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).

(3)   This Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker’s employer even though the damages are recovered in an action for breach of contract or in any other action.

(4)   Subsection (3) is enacted for the avoidance of doubt and has effect in respect of actions brought before as well as after the commencement of that subsection.

151F General regulation of court awards

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

  1. Finally, reference should be made to s 2A of the 1987 Act:

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

(1)   The Workplace Injury Management and Workers Compensation Act 1998 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.

(3)    In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.”

  1. The purpose of the 1998 Act was to establish a workplace injury management and workers compensation system with the objectives set out in s 3 of that Act. Chapter 4 of the 1998 Act as in force at the time Ms Thearle’s son was allegedly injured dealt with the procedures for making workers’ compensation claims and what were called “existing claims”, which were claims for compensation made before the commencement of s 250 of the 1998 Act. [14] Section 250 commenced on 1 January 2002. Chapter 7 dealt with the procedures for “new claims”, being any claim (made or entitled to be made) [15] for compensation or work injury damages that was not an existing claim. [16] Words or expressions used in Pt 2 of Ch 7 have the same meaning as in Pt 5 of the 1987 Act. [17]

    14. Chapter 4 substantially reproduces Pt 4 of the 1987 Act which previously dealt with compensation claims and proceedings. Part 4 of the 1987 Act was omitted from that Act by the Workers Compensation Legislation Amendment Act 1998 (NSW) in connection with the enactment of the 1998 Act.

    15.    1998 Act, s 250.

    16. Ch 7, Pt 2, Div 2 (Making a claim for compensation or damages); s 4 definition of “claim”.

    17.    1998 Act, s 253.

  2. In s 4 of the 1998 Act, the definitions provision, “dependants of a worker” is defined as follows:

“dependants of a worker means such of the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent, and includes:

(a)   a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and

(b)   a divorced spouse of the worker so dependent, and

(c)   a person so dependent who:

(i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or

(ii)   in relation to an injury received after that commencement—is the de facto partner of the worker.

Note. ‘De facto partner’ is defined in section 21C of the Interpretation Act 1987.”

Background

  1. As I have said, Ms Thearle commenced proceedings in the District Court against WorkPac and Downer EDI, claiming damages for nervous shock she alleged she suffered after becoming aware of the injury to her son on or about 28 March 2012 and 5 August 2012 at the Colliery. WorkPac is a labour hire firm which provided labour to work at the Colliery controlled by Downer EDI. Downer EDI is referred to in Ms Thearle’s statement of claim as owing her son a duty of care in the nature of that owed as a “host employer.”[18] It is common ground that the question of statutory construction WorkPac raises does not apply to Downer EDI, so that Ms Thearle’s claim will proceed against that company regardless of the outcome of this appeal. In those circumstances, Downer EDI filed a submitting appearance.

    18. Cf Transpacific Industrial Solutions Pty Ltd v Phelps (2013) 230 IR 438; [2013] NSWCA 31 (at [40]) per Barrett JA (McColl and Basten JJA agreeing).

  2. Ms Thearle’s statement of claim alleged that the defendants owed her a duty of care as she fell “within a class of people of which it was foreseeable that they would potentially sustain injury resulting from an injury to a close relative”. She claimed that “as a result of [her] son’s injury”, she suffered nervous shock and sustained a consequential psychiatric condition, being a major depressive illness.

  3. By notice of motion filed on 19 January 2016, WorkPac sought an order that Ms Thearle’s claim be summarily dismissed or, alternatively, struck out pursuant to the UCPR provisions to which I have referred. It contended that, as Ms Thearle was not a coal miner herself, her claim was precluded by the operation of s 151AD.

  4. The primary judge summarised the parties’ submissions and the case law extensively in a manner which does not require repetition. However, his Honour ultimately did not form a decided view about the critical issue. Rather, he said that the matter was not appropriate for summary judgment because it was “for the trial judge to ultimately determine whether the plaintiff’s claim is … because of an injury to a coal miner or whether it is a common law right.” His Honour added that should Ms Thearle be successful, any verdict would be borne by either Coal Mines Insurance or a public liability insurer, not the WorkCover scheme referred to in the Second Reading Speech to the 2012 Amendment Act. He expressed the view that there was “a specific reason as to why coal miners were excluded and in my view, the plaintiff does not come within the nervous shock reference to which s 151AD applies.” Accordingly, he dismissed the motion with costs. [19]

    19.    Primary judgment (at 21 – 23).

  5. Save to the extent of his Honour’s conclusion that summary judgment was not warranted, Ms Thearle did not seek to support the primary judge’s reasons for that conclusion. Rather, she filed a notice of contention asserting that the primary judge should have dismissed WorkPac’s summary judgment motion on the grounds that her claim against it was maintainable because s 151P of the 1987 Act continued to apply to her claim by virtue of cl 26. Ms Thearle submits that the repeal of s 151P by Sch 3 to the 2012 Amendment Act does not apply to or in respect of an injury received by a coal miner and that, accordingly, s 151P continues to apply in full, both in respect of her son’s injury and to the benefit of those referred to in s 151P(b).

Submissions

  1. Mr J Sexton of Senior Counsel, who appeared with Mr S Maybury on appeal but not in the District Court, submitted that the natural meaning of the phrase “to or in respect of an injury received by a coal miner” in cl 26 was, as explained by Deane, Dawson and Toohey JJ in Workers’ Compensation Board of Queensland v Technical Products Pty Ltd,[20] a reference to damages payable to a worker and assessed by reference to his or her injury. The consequence of this interpretation, their Honours held, was that “[s]o construed, the expression would exclude damages for nervous shock to a person other than a worker, not only because such damages are payable to a person other than the worker, but also because the damages are measured by the extent of the nervous shock and its consequences and not by the extent of the injury causing the nervous shock and its consequences”. [21] This was because a claim for nervous shock was a derivative claim in the sense that while injury to the worker was a necessary contingency for the claim to arise, it was an independent injury. Accordingly, Mr Sexton submitted, the words “to or in respect of an injury received by a coal miner” in cl 26 did not preserve s 151P(b) for claimants such as Ms Thearle.

    20. (1988) 165 CLR 642 (at 655); [1988] HCA 49 (Technical Products).

    21. Ibid (at 655 – 656).

  2. Mr Sexton also submitted that the words “in respect of” had work to do. He contended that while the word “to” where it first appeared applied cl 26 directly to a coal miner, the words “in respect of” picked up the extended definition of “worker” in s 3(1A) of the 1987 Act (and the like provision, s 4(2) of the 1998 Act), thus extending the ambit of cl 26 to compensation to relatives claims in respect of the death of a coal miner. He also submitted the phrase would pick up s 151P, because that provision was not repealed so far as it, consistently with s 151AD, would still apply to a nervous shock claim by a co-worker of an injured coal miner.

  3. Mr Roberts submitted that although the 2012 Amendment Act could not be classified as beneficial legislation, in that it was largely directed to restricting workers’ previously existing rights, nevertheless cl 26 should be interpreted beneficially. This was because it operated to preserve for the benefit of coal miners (and those caught by the expression “to or in respect of an injury received by a coal miner” in cl 26) rights of which other workers were deprived. He submitted that cl 26 reflected the fact that coal miners had been treated differently to other workers since the 1987 Act was first enacted. He drew attention to historical examples of that favourable treatment. [22]

    22. See for example Sch 6, Pt 18 to the 1987 Act.

  4. Mr Roberts contended that the rationale for that differential treatment was explained in the Second Reading Speech to the Bill which became the Workers Compensation Amendment Act 1997 (NSW) (1997 Amendment Act). In that speech, the Attorney General, the Hon J W Shaw QC, explained that a special workers compensation scheme for coal miners was established in 1946, pursuant to which “all coal industry employers in New South Wales are required to insure for workers compensation purposes with the Joint Coal Board [which] fixes premium rates and administers claims through its subsidiary, Coal Mines Insurance Pty Ltd.” That insurance scheme was separate from the main WorkCover scheme in that “its premium and funding arrangements are not controlled by WorkCover.” [23] The Attorney General added:

“In contrast with the financial difficulties recently experienced by the main WorkCover scheme, the insurance scheme administered by the Joint Coal Board remains fully funded, with net assets of $24 million.

It is also relevant that workers in the coalmining industry face a significantly higher than average risk of injury or death.”[24]

23.    Workers Compensation Amendment Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 3 December 1996.

24. Ibid; see also Ellavale Engineering Pty Ltd v Pilgrim (2005) 2 DDCR 744; [2005] NSWCA 272 (Ellavale Engineering) (at [79] – [80]) per Beazley JA (Campbell AJA agreeing).

  1. Mr Roberts emphasised that the expression used in cl 26 was “to or in respect of”, rather than merely “in respect of”, the phrase considered in Technical Products. He relied on Technical Products, to the extent that the High Court acknowledged that the words “in respect of” had a wide meaning, with the caveat that the meaning to be ascribed to the phrase depended “very much on the context in which it is found”. [25] He submitted that “to or in respect of an injury” in cl 26 must be at least as wide as “in respect of any injury” and “for … injury” as those words were construed in Rheem Australia Ltd v Manufacturers’ Mutual Insurance Ltd,[26] Manufacturers Mutual Insurance Limited v Hooper [27] and State Government Insurance Office (Qld) v Crittenden. [28]

    25.    per Wilson and Gaudron JJ (at 647); see also Deane, Dawson and Toohey JJ (at 653).

    26. [1984] 2 NSWLR 370 (Rheem).

    27. (1988) 5 ANZ Ins Cas ¶60-849 (Hooper).

    28. (1966) 117 CLR 412; [1966] HCA 56 (Crittenden).

  2. Mr Roberts also contested Mr Sexton’s submission that “in respect of” preserved the rights of co-workers to claim damages for nervous shock because, he contended, those rights were preserved by s 151AD. Accordingly, he submitted that “in respect of” had a broader meaning which had the effect of preserving s 151P in its entirety insofar as claims such as Ms Thearle’s were concerned.

  3. Mr Roberts accepted that the point raised by the notice of contention stood or fell depending on the ambit to be given to the words “to or in respect of”.

Consideration

  1. There was no issue about a number of matters. First, that, by reason of cl 26, s 151AD did not apply “to or in respect of an injury” received by a coal miner. This was because the effect of cl 26 was that s 151P(a) continued to operate to enable a coal miner to recover damages for psychological or psychiatric injury. Secondly, that the words “in respect of” in cl 26 picked up the extended definition of “worker” in s 3(1A) of the 1987 Act (and the like provision, s 4(2) of the 1998 Act), thus extending the ambit of cl 26 to compensation to relatives claims in respect of the death of a coal miner. Thirdly, that a claim to recover damages for nervous shock by a person other than a worker, albeit that the nervous shock is said to be a reaction to the injury the worker suffered, is not assessed by reference to the worker’s injury, but rather, the damages are measured by the extent of the nervous shock suffered by the claimant and its consequences. [29]

    29.    Crittenden (at 422) per Windeyer J; applied in Technical Products (at 655 – 656) per Deane, Dawson and Toohey JJ; see also (at 646) per Wilson and Gaudron JJ.

  2. The critical issue to be determined on the summary judgment motion was whether, by virtue of cl 26, s 151AD did not apply to Ms Thearle’s claim against WorkPac because cl 26 preserved the operation of s 151P(b) of the 1987 Act in her favour.

  3. Before considering the construction of cl 26, it should be observed that, prior to its repeal, s 151P was not a source of rights to damages. Rather, it placed limitations on what damages might be recovered when there was an available cause of action based on common law principles. This is because it did not provide that damages would be awarded in the circumstances to which it referred. Instead, it provided that no damages would be awarded unless those circumstances existed. [30] When s 151P was in force, the relevant parts of the 1987 Act assumed the existence of rights of action for nervous shock arising out of workplace injuries and confined the right to claim damages in such actions to injured workers and their immediate family members. [31]

    30. Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606; [2001] NSWCA 175 (Gifford CA) (at [27]) per Hodgson JA (Handley JA and Ipp AJA agreeing).

    31. Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33 (Gifford HC) (at [44]) per McHugh J, approving Hodgson JA’s construction of s 151P in Gifford CA; see also [62] and [93] – [94] per Gummow and Kirby JJ (Gleeson CJ agreeing (at [24]); Hayne J to like effect (at [105]); Callinan J also (at [123])).

  4. It might be accepted that workers’ compensation acts are a recognised category of legislation described as remedial or beneficial in nature and “to be given ‘a fair, large and liberal’ interpretation rather than one which is ‘literal or technical’”. [32] Indeed, as Mr Roberts submitted, coal miners have received differential treatment under the 1987 Act since it was introduced. [33]

    32. IW v City of Perth (1997) 191 CLR 1 (at 12); [1997] HCA 30 per Brennan CJ and McHugh J.

    33. Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 (at [15]) per Allsop P (Giles and Bell JJA agreeing); see also Ellavale Engineering (at [21] – [22]) per Beazley JA (Campbell AJA agreeing).

  5. A remedial or beneficial statutory provision is one that gives some benefit to a person and thereby remedies some injustice. [34] The reason workers’ compensation acts satisfy this description is self-evident: they provide a scheme of compulsory insurance for the benefit of workers and their dependants against death or incapacitating injuries occurring to workers injured in the course of their employment without the necessity to prove fault on the part of the employer. [35] However, the construction Ms Thearle advances is not one which supports the payment of a benefit to a worker or the worker’s dependants in this sense, but, rather, the payment of damages in respect of allegedly negligently inflicted injury (nervous shock) to her as referred to in s 151P(b). Such an injury, as I have said, is measured by reference to the extent of the nervous shock and its consequences, not by the extent of the worker’s injury. This weakens, if it does not make entirely irrelevant, the principles of beneficial construction.

    34. Central Northern Adelaide Health Service v Atkinson (2008) 103 SASR 89; [2008] SASC 371 (at [81]) per Gray J (Kelly J agreeing), referring with approval to Re McComb [1999] 3 VR 485; [1999] VSC 311 (at [22]) per Warren J.

    35. Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 (Medaris) (at 73) per Jordan CJ (Davidson J agreeing).

  6. I also do not accept Mr Roberts’ submission that a more beneficial construction is to be given to cl 26 because coal miners’ compensation claims are dealt with under the separate insurance scheme that administers coal miners’ claims which, at least historically, has not suffered the financial difficulties experienced by the WorkCover scheme. [36] Whether or not that continued to be the case as at 2012 was not established. The insurance arrangements relating to employers in the coal industry are not straightforward. [37] Without a detailed exploration of how it might be said those insurance arrangements somehow cast a light on the wording used in the 2012 Amendment Act, which Mr Roberts did not undertake, I would not be prepared to see those matters as capable of having any bearing on the construction of cl 26.

    36.    Workers Compensation Amendment Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 3 December 1996.

    37.    Ellavale Engineering (at [88]).

  7. Determining the proper meaning of cl 26 remains a task of statutory construction. As Heydon J said in Victims Compensation Fund Corp v Brown, “to begin consideration of issues of construction by positing that a ‘liberal’, ‘broad’, or ‘narrow’ construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require.”[38]

    38. (2003) 77 ALJR 1797 (at [33]); [2003] HCA 54 (McHugh ACJ, Gummow, Kirby and Hayne JJ agreeing); see also Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40 (at [54]) per Kirby J.

  8. The task of statutory interpretation is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have. [39] The exercise must begin with a consideration of the text,[40] the object being to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. [41]

    39. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) (at [78]) per McHugh, Gummow, Kirby and Hayne JJ.

    40. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 (Alcan) (at [47]) per Hayne, Heydon, Crennan and Kiefel JJ; see also French CJ (at [4]).

    41.    Project Blue Sky (at [69]) per McHugh, Gummow, Kirby and Hayne JJ.

  9. It is also accepted that the “modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [reference to reports of law reform bodies], one may discern the statute was intended to remedy.”[42] However, historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. [43]

    42. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (at 408); [1997] HCA 2 (CIC Insurance) per Brennan CJ, Dawson, Toohey and Gummow JJ; see also Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 (at [57]) per French CJ, Hayne, Kiefel and Nettle JJ.

    43.    Alcan (at [47]).

  1. Much of the argument focused on the phrase “in respect of” in cl 26. It is uncontroversial that those words have a wide, even elusive, meaning, taking their meaning from the context in which they appear and that it is the context which will determine the matters to which they extend. [44] However, in the context of the Workers’ Compensation Act 1926 (NSW) (1926 Act), in Medaris,[45] Herron J (as his Honour then was) pointed out that payments of compensation made under the 1926 Act were made “in respect of [the worker’s] injury” and that that phrase had a special significance when used in that Act. This was no doubt because, as his Honour observed, “the scheme of the Act is based upon ‘an injury’ received by a worker” and that “it is the injury which gives rise to liability leaving the result of the compensation and the persons who are to receive it as incidental matters of inquiry.”

    44. Technical Products (at 653 – 654) per Deane, Dawson and Toohey JJ; see also R v Khazaal (2012) 246 CLR 601; [2012] HCA 26 (at [31]) per French CJ; Commissioner of Taxation of the Commonwealth v Scully (2000) 201 CLR 148; [2000] HCA 6 (at [39]); Mine Subsidence Board v Jemena Ltd (2013) 86 NSWLR 161; [2013] NSWCA 465 (at [22]) per Meagher JA (Beazley P and Macfarlan JA agreeing); Kimberly-Clark (at [5]) per Bryson JA; (at [47ff]) per Basten JA with whom Ipp JA agreed.

    45.    (at 80).

  2. Basten JA made a similar observation in Kimberly-Clark when he observed that, save to the extent the word “injury” was used in the chapeau to s 151P, the definition of “injury” in the 1987 Act was “otherwise consistently applicable by reference to the employment of the worker whose injury is the source of the liability to pay damages.” [46] This proposition is supported by reference to s 9 (and s 4) of the 1987 Act set out above, [47] which ties liability for, and entitlement to, compensation under the Act to a “worker who has received an injury”. This is the concept which finds reflection in the words of cl 26.

    46.    (at [62]).

    47.    (at [7]).

  3. However, the expression used in cl 26 is “to or in respect of an injury received by a coal miner” (emphasis added). Mr Roberts emphasised the composite phrase I have italicised which, he submitted, did not appear in any other provision of the 1987 Act, save in Sch 6, Pt 18 (Special provision relating to coal miners), cl 3(1). [48]

    48. That provision deals with whether amendments to the 1987 Act effected in 2001 “apply to or in respect of coal miners” but does not contain the words “an injury received by.” It does not, in my view, assist in the construction of the different phrase in cl 26, save perhaps to highlight that the focus of the phrase in cl 26 on “an injury received” reveals a legislative intention to confine the operation of that clause.

  4. That is not the case. The phrase “to or in respect of” is used in a variety of provisions of the 1987 Act, for example, s 151D(3) and s 151AC(6). More relevantly, the phrase appears in Sch 6, Pt 19H, cl 25, which is to like effect as cl 26, save that it provides that the amendments made by the 2012 Amendment Act do not apply “to or in respect of an injury received by a police officer, paramedic or firefighter”. [49] In other words, coal miners were not the only beneficiaries of the legislature’s benevolence.

    49. See also Sch 6, Pt 19I, cl 14(1) and cl 15(1) which use the same phrase in provisions identical to cll 25 and 26 of Pt 19H, save insofar as they provide that the provisions of the Workers Compensation Amendment Act 2015 (NSW) do not apply to the persons referred to in each clause.

  5. In my view, the composite phrase “to or in respect of” at the outset of cl 26 indicates to what the amendments made by the 2012 Amendment Act do not apply, that is to say, the amendments do not apply “to or in respect of an injury received by a coal miner”. The parties’ focus on the phrase “in respect of” in cl 26 accepts, correctly in my view, that the word “to” clearly indicates that cl 26 was intended to exempt coal miners from the operation of the amendments made by the 2012 Amendment Act. It also accepts that the word “or” in cl 26 takes its ordinary grammatical, that is to say, disjunctive, meaning. The words “in respect of” extend the operation of the clause, as Mr Sexton submitted, to the dependants who can claim in the event of the worker’s death (including those referred to in s 4(2) of the 1998 Act). They are necessary because it is only the worker (coal miner) who can receive an injury. [50] Further, the focus of the composite phrase where it first appears is on the “injury received by a coal miner”. The “natural meaning of [that] expression is … damages payable to a worker and assessed by reference to his injury.” [51]

    50. McDowell v Baker (1979) 144 CLR 413 (at 428); [1979] HCA 44 per Aickin J (with whom Stephen and Mason JJ agreed); see also Technical Products (at 655).

    51.    Technical Products (at 655).

  6. Claims such as compensation to relatives claims the worker’s dependants may bring, while not claims the primary victim might, or might but for death, have made, are nevertheless “a derivative action, dependent on or secondary to rights of action vested in the deceased immediately before his or her death”, so that they are made by persons “claiming through” the primary victim. [52]

    52. Trustees of the Sydney Grammar School v Winch (2013) 83 NSWLR 80; [2013] NSWCA 37 (at [194]) per McColl JA (Bathurst CJ, Allsop P, Beazley and Meagher JJA agreeing) referring to Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 (at 104) per Samuels AP.

  7. In contrast, claims for nervous shock are not proceedings the primary victim might have brought, nor are they dependent on a right of action vested in that person. They may be made even though a worker may not be entitled to compensation under the 1987 Act, as, for example, where a person claims to have suffered nervous shock by reason of the worker having been put in peril, [53] even if the worker did not receive an injury within the meaning of s 9(1).

    53.    Cf Technical Products (at 655 – 656).

  8. I accept that there may be force in Mr Roberts’ submission that s 151AD preserves the availability of claims for damages for pure mental harm in respect of the co-workers to whom Mr Sexton submitted the words “in respect of” applied. Nevertheless, it is apparent those words where they first appear in cl 26 have work to do in relation to claims by a worker’s dependants.

  9. The phrase “to or in respect of” is then varied so that the relational words are connected by “and” indicating the extent of the reprieve encompassed by the first part of cl 26. In this use, the phrase, “to and in respect of such an injury” (emphasis added), ties what is preserved in the Workers Compensation Acts and regulations to what is reprieved from the amendments made by the 2012 Amendment Act. In this context, the word “and” takes its ordinary grammatical, that is to say, conjunctive, meaning. Importantly, it limits the class of those benefited by the reprieve in the first part of the clause to those whose claims fit within the four walls of the first relational phrase, that is to say, workers and their dependants, a construction which is consistent with the ambit of the 1987 Act, as is apparent from the discussion which follows.

  10. Accepting that the construction of a relational phrase such as “in respect of” is ultimately contextual, it is nevertheless relevant, in my view, to have regard to the High Court’s consideration of that phrase in Technical Products. That is part of the context in which the 2012 Amendment Act was enacted, demonstrating the “existing state of the law” concerning the construction of the critical phrase in a statutory context with marked similarities to the 1987 Act. [54]

    54.    CIC Insurance (at 408).

  11. In Technical Products, a worker’s wife claimed damages for nervous shock resulting in a psychiatric illness suffered as a consequence, she alleged, of the worker suffering serious injury in the course of his employment with Technical Products Pty Ltd. She brought proceedings against Technical Products which in turn joined the Workers’ Compensation Board of Queensland as a third party, seeking indemnity pursuant to the terms of an insurance policy issued by the Board in accordance with s 8 of the Workers’ Compensation Act 1916 (Qld) (Qld Act). The Board demurred to the plaintiff’s statement of claim on the ground that she had no entitlement under the Qld Act.

  12. Section 8(1) of the Qld Act required every employer to insure with the Workers’ Compensation Board “against all sums for which, in respect of injury to any worker employed by him” the employer might become legally liable by way of compensation under the Qld Act or, in the case of such injury, “damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury.”

  13. Section 9 of the Qld Act established a Workers’ Compensation Fund. Section 9A provided that where an injury entitling a worker to compensation from the Fund was received under “circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury”, the damages payable by the employer should be reduced by the compensation payable from the Fund and the worker or his dependants should receive that reduced amount from the Fund.

  14. The critical issue on the demurrer was the meaning of the phrase “damages in respect of that injury” in s 8(1)(b) of the Qld Act which was reproduced in the policy the subject of the indemnity claim. Accordingly, the interpretation of s 8(1)(b) governed the construction of the relevant clause of the policy. [55]

    55.    Technical Products (at 653) per Deane, Dawson and Toohey JJ.

  15. It was common ground that the object of the Qld Act was to provide for the payment of benefits to injured workers and their dependants, an object discerned from s 9(1) which provided, subject to the Act, for compensation to be paid from the Fund to “[a] worker who … received an injury arising out of or in the course of his employment (and, in the case of the death of the worker, his dependants)”, [56] a provision not relevantly dissimilar to that found in s 9(1) of the 1987 Act. There was an extended definition of the word “worker” where the worker was dead, in terms not relevantly dissimilar to that found in s 3(1A) of the 1987 Act and s 4(2) of the 1998 Act. [57] In the event a worker, or the worker’s dependants, recovered damages at common law from an employer, any compensation received was to be deducted from the damages awarded. [58]

    56.    Ibid (at 654).

    57.    Ibid.

    58.    Ibid; referring to s 9A(1) of the Qld Act; cf 1987 Act, s 151A(1)(b); s 151A(2)(b) and s 151A(3)(b).

  16. Deane, Dawson and Toohey JJ accepted that, to the extent s 9A(1) of the Qld Act contemplated an action for damages by the dependants of a worker, the operation of the subsection clearly extended beyond damages assessed by reference to an injury to a worker and would apply to damages recovered under s 12 of the Common Law Practice Act 1867 (Qld), the Queensland equivalent of Lord Campbell’s Act, [59] that is to say, in New South Wales, the Compensation to Relatives Act 1897 (NSW). Such damages are “not accurately described as damages in respect of the injury received by the deceased person”. [60]

    59.    Ibid (at 655).

    60. McDowell v Baker (at 419) per Gibbs J (as his Honour then was); Technical Products (at 655); Unsworth v Commissioner for Railways (1958) 101 CLR 73; [1958] HCA 41.

  17. However, the plurality rejected a submission by the employer that, accordingly, the words “damages in respect of that injury” were intended to include damages payable to a person other than a worker. Rather, in their Honours’ opinion, references in the Qld Act to damages in respect of injury to a worker had an extended meaning because of s 3(4), which required any reference to a worker who had been injured to be read as including a reference to his dependants. Accordingly, the plurality accepted that s 9A and s 8(1) of the Qld Act “extend[ed] in their operation to damages payable to dependants, without accepting the broader proposition that damages in respect of injury to a worker include damages assessed by reference to some other injury and payable to some other person altogether”. [61]

    61.    Technical Products (at 655).

  18. The plurality held (footnotes omitted):

“The phrase ‘damages in respect of that injury’ in s 8(1)(b) is clearly a reference to ‘damages in respect of injury to a worker’. The natural meaning of the expression is, therefore, damages payable to a worker and assessed by reference to his injury. So construed, the expression would exclude damages for nervous shock to a person other than a worker, not only because such damages are payable to a person other than the worker, but also because the damages are measured by the extent of the nervous shock and its consequences and not by the extent of the injury causing the nervous shock and its consequences: see State Government Insurance Office (Q.) v. Crittenden, per Windeyer J.” [62] (Emphasis added)

62.    Ibid (at 655 – 656); See also (at 646, 652) per Wilson and Gaudron JJ.

  1. The plurality also held that if the reference to “damages in respect of that injury” in s 8(1)(b) was apt to cover damages payable to a worker and assessed by reference to his injury, it could not “easily be read at the same time as a reference to” the damages payable to another and assessed by reference to injury to that other. [63]

    63.    Ibid (at 656).

  2. The plurality recognised that “[i]n the context of some enactments words such as ‘damages in respect of an injury’ or … words such as ‘liability for damages in respect of an injury’ may extend to liability at the suit of some person other than the person sustaining the injury.” In this respect, their Honours distinguished Crittenden on the basis of the object of Motor Vehicles Insurance Acts 1936–1961 (Qld) there under consideration. They also distinguished Rheem, to which I refer below, as depending upon the form of the policy there in question. [64]

    64.    Ibid (at 655 – 657).

  3. The plurality concluded that the most that could be drawn from decisions dealing with differently worded provisions was “that the use of the phrase ‘in respect of’ does not, of itself, extend the meaning of an expression such as ‘damages in respect of injury to any worker’ so as to include damages payable to a person other than the worker”. Their Honours noted that the general context of s 8(1) and s 9A was that of an Act with the object of providing benefits to injured workers and their dependants and that nothing in the scope of its provisions warranted giving the words “damages in respect of that injury” a broader meaning than they naturally bore. [65]

    65.    Ibid (at 657 – 658).

  4. Wilson and Gaudron JJ were also of the view that the injury referred to in the phrase “damages in respect of that injury” in s 8(1) of the Qld Act was “the injury suffered by the worker himself”. [66] However, if the plaintiff succeeded in establishing her claim against Technical Products she would be awarded damages which were not quantified by reference to the injury suffered by the worker, but by reference to another injury, namely the nervous shock and psychiatric illness which she had suffered. [67]

    66.    Ibid (at 646).

    67.    Ibid.

  5. In Wilson and Gaudron JJ’s view, the primary meaning of the phrase “damages in respect of [the worker’s] injury” would be to describe damages flowing directly to the worker or his or her dependants from the injury he or she had suffered in the course of employment. Their Honours held that a contrary conclusion could only be supported if the phrase yielded a legislative intention to extend protection of insurance to damages resulting from an injury other than that suffered by the worker. [68]

    68.    Technical Products (at 646 – 647, 652).

  6. Wilson and Gaudron JJ could not discern such an intention. Rather, in their view, there was no apparent reason why a workers’ compensation statute should be concerned to protect a plaintiff who may not bear any relation whatever to a worker. Nor was there any ready explanation why such a statute should not only protect such a person by ensuring that there was a statutory fund out of which his or her damages may be paid, but also ensure the payment in full of such damages regardless of the amount of compensation and other damages the Fund had already been called upon to bear in respect of the injury to the worker. In their Honours’ view, those considerations “strongly favour[ed] a narrower construction of s 8(1)(b) of the [Qld] Act consonant with the primary meaning of the words ‘damages in respect of that injury’.” [69]

    69.    Ibid (at 650).

  7. Like the plurality, their Honours were of the view that the “material sections of the [Qld] Act [were] concerned with the protection of workers and their dependants in respect of injury suffered by the worker in the course of his employment”, that that the purpose of the insurance the employer was obliged to obtain was to insure against all sums for which it may become liable to pay to the worker or his or her dependants as compensation or damages and that it would be alien to that purpose for an employer to be obliged to insure with the Board against liability to any person at all for negligence in respect of an injury suffered by a worker. [70]

    70.    Ibid (at 652).

  8. Accordingly, the Court held that s 8(1)(b) did not extend to damages for nervous shock to a person other than the worker where they would not be payable to or for the worker and would not be assessed by the worker’s injury, but by its effect on another.

  9. The reasoning underpinning the decision in Technical Products was applied in Kimberly-Clark, in which the question arose whether a widow’s claim for damages for nervous shock resulting from the death of her husband from injuries received in the course of his employment should be dismissed on the basis that she had failed to comply with procedures set out in Ch 7 of the 1998 Act.

  10. Although Kimberly-Clark concerned the 1998 Act, as is apparent from the provisions I extracted in laying out the legislative framework, that Act and the 1987 Act form part of the workers’ compensation scheme in this State. The 1987 Act contains the provisions relating to a worker’s entitlement to compensation, the benefits payable, common law remedies and other matters, and is, by the operation of s 2A of that Act, to be construed as if it formed part of the 1998 Act. [71]

    71.    1998 Act, s 60.

  11. As Basten JA observed in Kimberly-Clark, the statement of objectives in s 3 of the 1998 Act “focuses on the principal concerns of the system which undoubtedly relate to workplace injuries, rather than injuries which occur to persons who are not employees of a particular employer, or indeed, in the present case, to persons not in the workforce at all.” [72] It also addresses third party dependants of workers in the case of the death of the worker by the extended meaning of the term “worker” or “injured worker”. [73] His Honour concluded from a detailed examination of the provisions of Ch 7 that a claim for damages by or on behalf of a person other than the employee was not a claim for “work injury damages” within the meaning of s 250 of the 1998 Act. [74]

    72.    Kimberly-Clark (at [17]).

    73.    Ibid (at [18] – [23]).

    74.    Ibid (at [43]).

  12. Basten JA also addressed the meaning of the phrase “in respect of” in the definition in s 250 of “work injury damages”. He considered Technical Products in detail. [75] His Honour accepted that the “difficulty with the conclusion that a claim for nervous shock by a third party is ‘in respect of’ an injury to a worker is that it may not depend upon an actual injury to any worker.” [76] Accordingly, his Honour held that the statutory concept of “work injury damages” in s 250 of the 1998 Act did not extend to a claim for nervous shock brought by a stranger to the employment relationship, against the employer, merely because the cause of the nervous shock was an injury (causing death) to an employee. [77]

    75.    Ibid (at [47] – [52]).

    76.    Ibid (at [52]), referring to Technical Products (at 655 – 656) per Deane, Dawson and Toohey JJ.

    77.    (at [56]) per Basten JA (Ipp JA agreeing); (at [4]) per Bryson JA.

  1. Basten JA rejected a submission by the employer that because, by virtue of s 151P, Div 3 of Pt 5 of the 1987 Act applied to the widow, her claim must be one for “work injury damages”. [78] His Honour held that, save as to the presence of s 151P in Pt 5, the application of Div 3 of Pt 5 was “dealt with in s 151E in language similar to, although not identical to, the definition of ‘work injury damages’ in Ch 7 of the [1998 Act], s 250.” [79]

    78.    Ibid (see [59] – [60]; [66]).

    79.    Ibid (at [59]).

  2. Basten JA observed that s 151P(b) used the word “injury” in a context which referred “to the injury suffered by the worker”. However, “[f]or damages to be awarded in favour of … a spouse who suffers a demonstrable psychological or psychiatric illness, the word ‘injury’ in the chapeau [to s 151P] must refer to an injury to the spouse. However, his or her injury is not a ‘personal injury arising out of or in the course of employment’, as required by the definition of ‘injury’ as set out in s 4 [of the 1987 Act]”. [80] His Honour found this anomalous and unexplained by the legislative history. [81]

    80.    Ibid (at [62]).

    81.    Ibid (at [63]).

  3. As I have said,[82] Basten JA noted that s 151P was introduced by the Workers Compensation (Benefits) Amendment Act 1989 (NSW), which introduced Pt 5 in its original form and also introduced s 151 to the effect that the 1987 Act “does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.” His Honour concluded:

“If general law liabilities in respect of injuries to workers are only affected as expressly provided, no broader intention should be inferred in relation to persons who are not workers. Consistently with that approach, and accepting that s 151P expressly applies to those who are not workers, there can be no implied affectation of other rights of non-workers, beyond those expressly identified in s 151P. Any proposed implication that other provisions of Pt 5 of the [1987 Act], let alone provisions of the [1998 Act], are thereby engaged by implication is untenable.” [83]

82. See [10] above.

83.    Kimberly-Clark (at [63]).

  1. Basten JA also rejected a submission by the employer that Pt 5 of the 1987 Act applied to the widow’s claim because of one sentence in Hodgson JA’s reasons in Gifford CA. In that case, a widow and her three children claimed damages for nervous shock arising from the death during a work accident of the widow’s late husband. In the course of his reasons, Hodgson JA said that because the accident occurred during the course of the deceased’s employment, Pt 5 of the 1987 Act applied. [84] As Basten JA observed, no issue arose in Gifford CA as to whether the provisions Hodgson JA referred to did apply to the widow’s action in nervous shock, the only issues being the proper construction of those provisions. The assumption that s 151P applied continued to operate in Gifford HC, which determined the operation of s 151P on the facts of Gifford. [85]

    84.    Gifford CA at [12]).

    85.    Kimberly-Clark (at [64] – [65]).

  2. However, in Basten JA’s view, that did not mean that s 151P should be given, by way of inference, an extended operation so as to expand the kind of proceedings to which the rest of Pt 5 applies where those provisions do not expressly so provide. [86]

    86.    Ibid (at [63], [66]).

  3. The particular relevance of Kimberly-Clark to the present case is that Ms Thearle’s claim is not one for “work injury damages”. Mr Roberts did not suggest otherwise. On a wider basis, Kimberly-Clark highlights the fact that s 151P(b) was an exceptional, and unusual, provision in New South Wales’ workers’ compensation scheme.

  4. The construction of the phrase “to or in respect of” arose in two cases concerning the policy of insurance prescribed under s 18(3) of the 1926 Act, which Mr Roberts submitted this Court should apply. The insuring clause of the policy provided indemnity in the event the employer was “liable to pay compensation under the Act to or in respect of any person who is or is deemed by the Act to be a worker of such employer, or to pay any other amount … in respect of his liability independently of the Act for any injury to any such person.” (emphasis added)

  5. In Rheem, the Court of Appeal considered whether the statutory policy responded to an employer’s claim for indemnity in respect of the employer’s liability to pay damages in respect of a claim for loss of consortium by the husband of an injured worker. However, the Court did not directly consider the meaning of the phrase “to or in respect of” in that clause. Rather, Glass JA (with whom Samuels JA agreed) framed the question as being whether “the employer [had] been adjudged liable to pay [damages] in respect of its liability for an injury to its female worker”. [87] His Honour held that “‘liability … for any injury to’ a worker [meant] on its proper construction ‘liability to any person consequent upon or in respect of injury to’ a worker.” Accordingly, the employer’s liability for the loss of consortium damages was covered by the statutory indemnity. [88]

    87.    Ibid (at 371).

    88.    Ibid (at 374 – 375).

  6. Mahoney JA agreed with Glass JA’s conclusions, but delivered separate reasons. His Honour also framed the issue as turning on the width of the meaning to be given to the word “for” in the phrase “liability … for any injury to” the worker in the insuring clause. His Honour concluded from an examination of the history and the form of the provisions of the 1987 Act which governed the form of the statutory policy that the meaning to be given to “for” was a wide rather than a narrow one. [89] On this approach, and reading “for” as “in consequence of”, his Honour concluded a loss of consortium claim was covered as it was a consequence of the injury to the worker even though other matters, such as the loss of services, needed to be established before the liability for loss of consortium accrued. [90]

    89.    Ibid (at 376).

    90.    Ibid (at 376 – 377).

  7. In Technical Products, the plurality distinguished Rheem as turning on the specific clause in the policy, a “provision [which] was said to encompass liability pursuant to the Compensation to Relatives Act 1897 (NSW) and to require the conclusion that the phrase ‘liability for any injury to any worker’ extended beyond liability to the injured worker himself.” [91] As I have said, [92] in their Honours’ view, the most that could be drawn from decisions dealing with differently worded provisions was that the use of the phrase “in respect of” did not, of itself, extend the meaning of an expression such as “damages in respect of injury to any worker” so as to include damages payable to a person other than the worker. [93] Wilson and Gaudron JJ also distinguished Rheem as turning on a statute “materially different” from the Qld Act. [94]

    91.    (at 657).

    92.    (at [63]) above.

    93.    Ibid.

    94.    (at 652).

  8. In Hooper, the construction of an insuring clause in terms relevantly the same as that considered in Rheem arose in the context of the Court of Appeal considering whether the statutory indemnity extended to a claim for damages for mental or nervous shock brought by the widow of a deceased worker and a passer-by who was injured when he went to the husband’s aid. Hope and Priestley JJA held that the policy did so extend, because the words “for any injury to any such worker” should be read as they were in Rheem to extend an employer’s liability to a third party who suffered loss as a consequence of an injury to a worker arising out of the worker’s employment. [95] McHugh JA considered that the natural meaning of the wording was that it extended only to liabilities payable to the worker or his or her dependants in respect of injury or death to the worker. However, his Honour felt constrained to apply the ratio in Rheem, that the policy covered any liability to any person consequent upon or in respect of injury to a worker. [96]

    95.    (at 75,308).

    96.    Ibid (at 75,309).

  9. Hooper was handed down on 6 May 1988, some months before judgment was given in Technical Products on 27 September 1988. Neither the plurality nor Wilson and Gaudron JJ referred to the Court of Appeal’s decision in Hooper. However, Wilson and Gaudron JJ referred to Clarke J’s first instance decision in Hooper [97] which applied Rheem and, as I have said, having distinguished Rheem implicitly also distinguished Hooper. [98]

    97. Manufacturers Mutual Insurance Ltd v J E Hooper (1987) 4 ANZ Insurance Cases ¶60–768.

    98.    (at 652).

  10. In Kimberly-Clark, Basten JA distinguished Clarke J’s decision in Hooper [99] and the decision in Rheem. [100] His Honour noted that Rheem had been distinguished in Technical Products essentially as not concerning the wording which was before the High Court. The parties in Kimberly-Clark had not sought to compare the operation of the 1926 Act with the scheme established under the 1987 and 1998 Acts, nor had they submitted that the reasoning necessarily applied to a nervous shock claim by a third party. [101] The same can be said in this case.

    99.    (at [53] – [54]); his Honour did not refer to the Court of Appeal’s decision in Hooper.

    100.    Ibid (at [55]).

    101.    Ibid.

  11. Further, in Basten JA’s view, any broad principle Rheem established must be approached in the light of subsequent High Court authority. In this respect, his Honour was clearly of the view that that the ratio of Technical Products to the effect that, even though provisions of the Qld Act extended to damages payable to dependants, that did not support a broader proposition that damages in respect of injury to a worker included damages assessed by reference to some other injury and payable to some other person altogether, applied to the construction of the 1987 and 1998 Acts. [102]

    102.    Ibid.

  12. In my view, neither Rheem nor Hooper supports the construction of cl 26 for which Mr Roberts contends. First, the wording of the provision in question in those cases was very different from the wording of cl 26. Secondly, as I have said, even though the words “to or in respect of” appeared in the insuring clause, the Court did not expressly consider them in determining the ambit of the clause. Thirdly, the words there were used to identify “any person” to whom the employer was obliged to pay compensation, rather than identifying the person who had suffered “injury”. The latter inquiry turned on the meaning of the word “for”, which the Court held was capable of being read as “consequent upon or in respect of” or “in consequence of”. This contextual process of reasoning cannot, in my view, be used to displace the natural meaning of the phrase used in cl 26.

  13. As Mr Sexton submitted, the critical phrase in cl 26, “to or in respect of an injury received by a coal miner”, focuses on exempting from the operation of the 2012 Amendment Act matters which depend upon the “injury received” by the coal miner. In contrast, the phrase in the Rheem and Hooper policy, “to or in respect of any person” was more general in nature and not linked to the worker’s injury and, accordingly, leant itself to the wide construction applied in those cases.

  14. Nor, in my view, does Crittenden assist Ms Thearle. In that case, the High Court construed the expression “for accidental bodily injury” when used in the Motor Vehicles Insurance Acts 1936–1961 (Qld) broadly so that the word “for” should be understood as equivalent to “in respect of”. That case depended on the particular legislative context. Mr Roberts did not submit that the legislative context there considered was comparable to that in the 1987 Act.

  15. The phrase in cl 26 is, in my view, comparable to the phrase considered in Technical Products, “in respect of injury to any worker”. Considered in the context of the 1987 Act and its focus on providing a scheme of compensation to a “worker who has received [a personal injury arising out of or in the course of employment], (and, in the case of the death of the worker, his or her dependants)”,[103] it is apparent that, save for the exceptional inclusion in the 1987 Act of s 151P, the 1987 Act was not intended to apply to an award of damages to a person whose claim for compensation is not assessed by reference to the worker’s injury.

    103. 1987 Act, s 9, s 4.

  16. The 2012 Amendment Act was intended to remove the anomaly s 151P created. It did so entirely in the case of workers other than coal miners, and, too, the workers referred to in Sch 6, Pt 19H, cl 25 to which I earlier referred. However, the language used in cl 26 was intended to restrict the extent of the legislature’s largesse to those within the narrow compass of the category of persons referred to in s 9 of the 1987 Act. I can discern no intention on the part of the legislature, by means of cl 26, to preserve the operation of s 151P(b) in favour of persons who are strangers to the employment relationship.

  17. I have reached this conclusion based on the text and context of cl 26. In my opinion that interpretation is confirmed by the statement in the Second Reading Speech to the Bill which became the 2012 Amendment Act that “an employer’s liability for psychological injury to family members does not fall within the object of the workers compensation legislation.”[104]

    104. Interpretation Act 1987 (NSW), s 34(1)(a).

  18. It was common ground that if the Court concluded cl 26 did not preserve s 151P for Ms Thearle’s benefit, s 151AD operated to preclude her claiming damages in respect of her nervous shock claim from WorkPac. I would understand this concession on Ms Thearle’s part to arise from the use of the phrase “in connection with the death of or injury to the worker” (emphasis added) in s 151AD, the words italicised being “words of wide import”, the meaning to be attributed to them depending on their context and the purpose of the statute in which they appear. [105]

    105. R v Orcher (1999) 48 NSWLR 273; [1999] NSWCCA 356 (at [30] – [32]) per Spigelman CJ (Grove and Sully JJ agreeing), applying Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 (at 146).

  19. The phrase “in connection with” is “a ‘prepositional phrase’ of indefinite content”,[106] and may be “of considerable width, satisfied by a link or an association … and summed-up in the phrase ‘having to do with’.”[107] When it is used in contrast to the words “in respect of the death of or injury to a worker” earlier in s 151AD, it is apparent in my view that s 151AD was intended to preclude claims for damages for pure mental harm by non-workers such as Ms Thearle. [108]

    106. Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 (at [24]) per French CJ.

    107. Elkateb v Lawindi (1997) 42 NSWLR 396 (at 402) per Giles CJ Comm D (as his Honour then was).

    108. This conclusion might be seen as anomalous having regard to Pt 3 of the Civil Liability Act 2002 (NSW). Mr Roberts did not submit Ms Thearle’s claim could be brought pursuant to that legislation.

  20. This conclusion is based on the text of s 151AD and the context of the 1987 Act as earlier explained. It is also confirmed by the note to s 151AD, to which regard can be had in accordance with s 34(1)(a) and s 35(5) of the Interpretation Act.

  21. Accordingly, Ms Thearle’s nervous shock claim against WorkPac is obviously untenable. [109] The primary judge should have so found and dismissed her claim.

    109. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (at 129); [1964] HCA 69.

Orders

  1. I propose the following orders:

  1. Grant leave to appeal.

  2. Appellant to file a notice of appeal in the form of the draft in the White Book within seven (7) days.

  3. Allow the appeal.

  4. Set aside the orders made by McLoughlin DCJ on 4 May 2016 in the District Court.

  5. Order that pursuant to UCPR 13.4, Ms Thearle’s proceedings against WorkPac be dismissed with costs.

  6. Ms Thearle to pay WorkPac’s costs of the appeal and application for leave to appeal.

  1. WARD JA: I have had the advantage of reading in draft the reasons of McColl JA. I agree with her Honour’s reasons and with the orders her Honour has proposed.

  2. ADAMSON J: I agree with McColl JA.

**********

Endnotes

Amendments

09 December 2016 - Formatting change to [12].

Decision last updated: 09 December 2016

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