Worth v Loongana Lime Pty Ltd

[2007] HCATrans 59

[2007] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P32 of 2006

B e t w e e n -

BRETT NORMAN WORTH

Applicant

and

LOONGANA LIME PTY LTD

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 FEBRUARY 2007, AT 1.48 PM

Copyright in the High Court of Australia

MR R.J.L. McCORMACK:   If it please your Honours, I appear for the applicant.  (instructed by Donna Percy & Co)

MR G.R. HANCY:   If it please your Honours, I appear for the respondent.  (instructed by Jackson McDonald)

CALLINAN J:   Yes, Mr McCormack.

MR McCORMACK:   If it please your Honours, this is an application for special leave to appeal from the whole of the judgment of the Court of Appeal of the Supreme Court of Western Australia in somewhat uncommon circumstances where there is a split in the reasoning demonstrated through the majority comprising his Honour the President, Justice Steytler, with whom Justice Pullin was in agreement but with no further reasons, and Justice Wheeler was in dissent.

The matter involved an injured worker who had been paid compensation of some $190,000 by his employer under the Workers’ Compensation and Rehabilitation Act 1981 (WA) and in addition to that he had received compensation from a third party representing a carrier involved in the carriage of passengers on a light aircraft.

CALLINAN J:   He had an entitlement without proving liability under that Act.  Is that right?

MR McCORMACK:   Yes, it is pursuant to a statutory obligation under section 28, if it please Justice Callinan, and it is and was at all levels of the court our submission that it is an action on a specialty.  It is grounded on the statute, it is not a common law cause of action ‑ ‑ ‑

CALLINAN J:   That is the same provision - this is in the federal Act and follows the international Convention, does it?

MR McCORMACK:   May it please, your Honour Justice Callinan, that is so.  It is the Warsaw Convention which by way of Professor Fleming in his edition which I have given your Honours in The Law of Torts, the learned author makes the observation for aviation law that it is a kind of compulsory insurance where every passenger – fare‑paying passenger on a plane anywhere in Australia is covered automatically up to a limit of $500,000.  There is a form of perceived consideration mentioned by Professor Fleming which is the increase in the price of the ticket, so there is, unknowing as it were to the passenger, a kind of insurance contract.

Now, that is relevant because of the rule in Bradburn’s Case and what Chief Justice Dixon had to say in Espagne’s Case that there are circumstances where double recovery is entirely justified, and the approach of the majority of the Court of Appeal, with great respect, is fundamentally flawed such as to create a state of unsettled law, not only impacting on the State of Western Australia as far as its legislation is concerned, but relevantly because of the opening words of section 93(1), being the relevant section of the Workers’ Compensation Act having wording which is in general terms common throughout the other jurisdictions in Australia and requiring where there has been an injury, that where it has been caused in circumstances involving a legal liability of a third party that a right of indemnity arises in the employer to claw back, as it were, the amount paid.

In this case, it is important that your Honours - and it is common ground, the injuries to Mr Worth, who was only one of a number of passengers – there are other matters involved and there are no doubt other examples, but in this present case, there were at least two mine workers seriously injured such that – at least in the case of Mr Worth, it may be taken that the Court of Appeal noted that through Justice Wheeler’s statement, and her judgment, with respect, that the injuries considerably exceeded the $500,000.

So that the effect is that the $500,000 has now been reduced by the $190,000, so a man seriously injured well beyond the $500,000 has been reduced to a little over $320,000 with his statutory entitlement under the Civil Aviation Act having been obliterated, and the difficulties which have emerged in terms of the reasoning ‑ ‑ ‑

HEYDON J: I just do not quite follow that. He gets half a million dollars because of the Civil Aviation Act, is that correct?

MR McCORMACK:   Yes, if it please.

HEYDON J:   Then he also got $190,000 as workers’ compensation.

MR McCORMACK:   Thereabouts, if it please your Honour.

HEYDON J: The majority says what, you have to repay the 193,000 to the employer or you repay the 193,000 to the person who paid under the Civil Aviation Act? Which is it?

MR McCORMACK: It is taken from the statutory compensation under the Civil Aviation Act and given back to the workers’ compensation insurer ultimately.

HEYDON J:   But he still ends up with half a million dollars.  Admitted, that under‑compensates him on the postulates you are putting but he still gets half a million, does he not?

MR McCORMACK:   No, if it please.  It is $500,000 which he has to then take a sum out of it representing $190,000 to repay the workers’ compensation insurer.  It is the same result.

HEYDON J:   But he did get the 193,000.

MR McCORMACK:   Yes, he did.  That is his workers’ compensation entitlement.

CALLINAN J:   But he got it.  He has had 690,000 and he pays 190,000 or thereabouts back, is that not right, which leaves him with a net half a million?

MR McCORMACK:   Yes, if it please.  The question was whether double-dipping which was put against Mr Worth’s claim which succeeded at first instance and on appeal to the Court of Appeal was reversed on the grounds that the right of indemnity of the employer was live and able to claw back from the statutory compensation the amount of the workers’ compensation paid.  So in that sense the $500,000 was eroded by about 38 per cent.

Justice Wheeler makes that point, as does Justice Blaxell, the primary judge at first instance, when her Honour observes that the worker does not receive compensation which is consistent with his injuries in the sense of what he otherwise would be entitled to.  It was common ground as to that aspect.  That goes to how were these sections intended to work together.  It is our submission that a matter of general importance is raised and it may be put thus, but the question is ‑ ‑ ‑

HEYDON J:   Why can you not say that the entitlement to the half million dollars reflects a “legal liability . . . to pay damages”?  Those are the words of the Act.

MR McCORMACK: The word “damages” is used in the Civil Aviation Act but it is not damages in the common law sense. The settled law stated with authority, with respect, by Chief Justice Barwick in the Tickle v Hann Case is clear, that the words in the equivalent legislation – there his Honour the Chief Justice was dealing with section 22(1) of the Northern Territory Act.  His Honour identified the word “caused” as being caused by a person who has acted in a wrongful or neglectful way such as to trigger the legal liability and is called a tortfeasor.  The cause of action available to Mr Worth does not involve a tortfeasor.  It is an action on a specialty.

CALLINAN J:   Mr McCormack, where do I find in the record the relevant section of the legislation under which you can claim against the carrier?

MR McCORMACK: Your Honours will be assisted in the application book at page 39 where Justice Wheeler sets out the provisions from the Civil Aviation Act.

CALLINAN J:   It says, shall “be liable for damage sustained”, “liability . . . is limited to”.  For what it is worth, it does not say, “is liable to pay damages”.  It says, “liable for damage sustained by reason of the death . . . or any personal injury”.  I suppose you try to emphasise, for what it is worth, that it is “damage” and not “damages”, which is the word used in 93(1)(a).

MR McCORMACK: Yes. Could I trouble your Honours to look at the book of materials relied on by the applicant under tab 8 for the workers’ compensation provisions because there is, in my respectful submission, a stark difference between what is catered for in terms of this Act and the Civil Aviation Act which Professor Fleming has described as amounting to compulsory insurance. May I draw your Honours’ attention to page 106 for the heading of that section. It is entitled “Part IV – Civil proceedings in addition to or independent of this Act”. I rely on that as excluding, to such extent as the heading of the Act has an impact on the construction of the Division, as excluding the Civil Aviation Act which is not civil proceedings. It is an action on a specialty and involving statutory compensation which is capped, so therefore it is not damages in the common law sense.

May I then draw your Honours’ attention to section 93 itself.  The section which is common in general terms to all jurisdictions throughout Australia is the wording:

Where the disability for which compensation is payable under this Act –

and then, relevantly, may it please your Honours –

was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof ‑ ‑ ‑

CALLINAN J:   I think I pointed out in a case, Mr McCormack, that the Warsaw Convention is hopelessly out of date and was really agreed and not changed substantially, but agreed in times when most carriers were owned by the State and air travel was a great deal more perilous than it is now.  In a sense, it was a bit like some of that protective railway legislation in the 19th century.  Railways were regarded as very, very hazardous.  It was regarded as a very hazardous way of travelling.  That is why, I mean, the cap on damages seems extraordinarily low.

MR McCORMACK:   If it please, your Honour, if one was to take a state of an aircraft accident, usually the injuries can be very, very serious, brain damage, spinal injury.

CALLINAN J:   Usually, as they say, final.

MR McCORMACK: Usually final, indeed, and so a person could be ventilator dependent, no common law action because section 36 of the Civil Aviation Act is in substitution, the compensation is entire substitution of any civil liability. So that is the end of any prospect of any recovery, so it is precious and that ventilator dependent party lying there for the balance of their lives has $500,000 only and from which there has been a claw back from that sum of the workers’ compensation.

CALLINAN J:   You say on the basis a very imprecise language and you would be looking for precision.

MR McCORMACK:   Yes, may it please, your Honour Justice Callinan.  May I invite your attention, and I apologise for going to the section, but it is extremely important and if I have an opportunity I would like to take your Honours briefly to the Tickle Case which is what, in my respectful submission, is the settled law which the Court of Appeal has gone against, other than Justice Wheeler, with great respect.

May I draw your Honours’ attention to 93(1)(b).  There the issue as to who is this third party is, in my respectful submission, identified.  It is a subsection which is accommodated to the opening words and must be read in a contextual and textual sense such as to give fruit to the beneficial nature of this legislation and there, who is the defendant, I pose rhetorically.  It is the person whose negligence caused the disability to the worker.

CALLINAN J:   So there is a disconformity between reference to negligence and the other section.

MR McCORMACK:   It is the opening words “caused under circumstances creating a legal liability” can only be read, in my respectful submission, properly by regarding the third party as a party whose negligence caused the disability.  Could I give your Honours an example. 

CALLINAN J:   We might be assisted at this point by hearing from Mr Hancy, Mr McCormack.

MR McCORMACK:   If it please, your Honours.

CALLINAN J:   Mr Hancy, there does seem to be an arguable basis for the construction - indeed two judges have thought so - advanced by Mr McCormack, does there not?

MR HANCY:   There are two sets of statutory provisions, your Honour, that we are asked to look at, but this case turned really on the construction of one and that was really two expressions in the State Act, which means that the question that the applicant is seeking to agitate before your Honours’ Court is one ultimately of construction of a particular provision. 

CALLINAN J:   I always find that an unattractive argument because this is the final Court of Appeal for the Supreme Courts and a misconstruction – I am not saying that occurred here.  I am speaking only for myself, perhaps – can cause great personal injustice and it may be in the interest of justice that the court hear a case.  I just find that unattractive that it involves merely State legislation.  Mr McCormack tells us that there are at least three potential cases here which could be caught by the legislation.  Anyway, I understand what you put that this is just, you say, merely State legislation and we ought to be above that and we should not intervene.  What is your next point?

MR HANCY:   Can I jump, if I may, to the question of damages which Mr McCormack focused on because it is important first of all to look at the way in which the nature of the claim was expressed by the applicant in his submissions.  Your Honours will know that the settlement amount was the result of an action for damages in the District Court and the submissions of the applicant tell us that that was an action in negligence which clearly was wrong, but in the alternative it has been described in Mr McCormack’s submissions at page 74 as “an alternative claim for damages for personal injury pursuant to the CA Act”.

The intermediate court and the trial judge used that compendious term, “the CA Act” but it is important to remember that this is not a Warsaw Convention claim.  This is a State Act claim, the State Act being there because it covers intrastate flight and it incorporates, and applies as State law, Commonwealth legislation.  But that is the way it was described; a claim for damages for personal injury.

Before the trial judge there was an admission made about the way in which the carrier ‑ which was initially a party to the appeal but then withdrew when it agreed and undertook to abide by the outcome – there is an admission that is set out at page 35 of the application book regarding the nature of its liability.  At lines 25 to 28, this is paragraph numbered 6 taken from the reasons of Justice Wheeler:

The carrier admits that it has a legal liability pursuant to the CA Act to pay the statutory compensation sum and has paid the statutory compensation sum.

That is an agreement between the parties.  It is an agreed state of fact.  So both parties agree an admission of legal liability under the Act and that whatever that liability amount was under the Act it had been paid.  That…..then the nature of the payment that was ultimately made through to whatever it is that what the parties called a statutory compensation sum is, which then takes us to the Act.

If your Honours turn to the respondent’s booklet of materials, numerous provisions of the Commonwealth Act which have been applied as State law by the State Act are set out under tab C.  Before I take your Honours to any of those individually, it is important to tell your Honours or remind your Honours that Justice Steytler dealt with this issue of the nature of the compensation whereas her Honour Justice Wheeler did not.

I note that there is a document that seems to have been prepared by the court that suggests that her Honour decided that the money paid was not recovered by way of damages.  We read her reasons – she did not address the issue but Justice Steytler did and he said words to the effect that it was not wrong to say that it was damages.  He used the double negative.  That is at page 31 of the application book: 

Nor can it be said, in my opinion, that compensation paid pursuant to s 28 of the CA Act is not “damages” -

So we turn to the Act and see if that provides any clue as to what the nature of this compensation is. We are taken to section 28 which creates the liability. So there is no doubt that it is a statutory liability. When section 28 is read with section 36, this is a liability under statute that is created in substitution of civil liability under any other law.

So in a case like this the obvious substitution of the statutory liability is for a liability to pay damages for negligence.  That does not mean that it is not damages.  The Act seems to preserve that concept.  It draws a distinction between the basis of liability on the one hand, it is no longer negligence, but it does not abandon the notion that what is payable is damages and the concept remains.  She has turned to page 26 of that copy of the statute, section 34.  You will see a section dealing with limitation of actions.

CALLINAN J:   I do not know whether mine is paginated. 

MR HANCY:   It is the bottom left‑hand – 26.  They are not paginated but the extract has page numbers.

CALLINAN J:   Page 26.

MR HANCY:   Yes, bottom left‑hand corner - the numbers.

CALLINAN J:   Yes, I have that, thank you.

MR HANCY:    Section 34 begins:

The right of a person to damages under this Part -

Now, this part, of course, is Part IV and Part IV is a part of the Commonwealth Act that applies where the Warsaw Convention does not.

The right of a person to damages under this Part -

So that is a clear message that what is being provided as a remedy and a payment, a liability under the Act is for damages.  Section 35 also uses similar expressions.  If you turn the page and look at subsection (4) it talks in the first line about “the damages recoverable”, as does subsection (7) lower down that page.  Subsection 8 talks about “awarding damages”.  Then turn the page to look at section 38:

In assessing damages in respect of liability under this Part ‑ ‑ ‑

CALLINAN J:   Do you say Justice Wheeler did not refer to these provisions, Mr Hancy?

MR HANCY:   In our reading of her reasons, she did not decide that the nature of the payment was not damages whereas Justice Steytler dealt with the issue expressly at page 31, lines 31 to 33.

CALLINAN J:   Against that, I suppose you would say it is capped damages.  It is something that may not be true compensation.  It can still be damages, I suppose.

MR HANCY: That is what the Act appears to be saying, that even though it is not damages for liability for negligence or some other tort it is still damages. That theme is reflected also in section 37. Now, section 37 is an exclusion to the substitution of liability under section 36. What section 37 makes clear is that the substitution of liability does not extend to every liability that would have been there but for section 36 or, to put it another way, the substitution of liability does not cover every case where the carrier would have had a liability by reason of its conduct.

So, nothing under section 37 – by section 37 the liability “to indemnify an employer” for payments of compensation is preserved and also the liability “to pay contribution to a tort‑feasor” is also preserved.  Now, in this State the liability to pay contribution arises where a party, a defendant, is either a tortfeasor or has breached a statutory duty.

CALLINAN J:   Mr Hancy, I think we may hear from Mr McCormack about – I just want to know whether he contends that Justice Wheeler dealt with these provisions that you say her Honour did not. Mr McCormack, is it right that Justice Wheeler did not deal with these provisions, section 36 and the like, those provisions which expressly use the word “damages”?

MR McCORMACK:   Yes.

CALLINAN J:   Also, in one of them it refers, I think, to a conventional way of assessing damages by having regard, among other things, to out‑of‑pocket expenses and loss of earnings which is an orthodox component of damages.  Did her Honour deal with those provisions?

MR McCORMACK:   Her Honour did, not as expressly as Justice Steytler, President of the Court of Appeal ‑ ‑ ‑

CALLINAN J:   Where do we find her Honour’s treatment of those?

MR McCORMACK:   The first – to read her Honour’s judgment as a whole is necessary.  Her Honour identifies at pages 39 to 40 of the application book the relevant civil aviation provisions.  Her Honour then refers at – between lines 20 to 30 at page 40 as to how it was dealt with in the court below concerning damages recovered.  I am reading here from about line 27:

damages are recovered on a non‑common law basis and without any finding of negligence against the person liable for the same”.

It is the case that as Justice Wheeler’s judgment proceeds it is clear, in my respectful submission, that what in substance her Honour is finding is that you can have damages from a number of different sources but the only kind of damages which are relevant to section 93 are common law damages.  Your Honours will find that at page 51 of the application book at line 30 where her Honour says the approach she is taking is consistent with the way in which the Full Court of the Supreme Court of Western Australia has previously read section 93.  Your Honours will see there the extract from Justice Owen, with whom Chief Justice Malcolm and Justice Wallwork agreed, and it reads:

In other words, a worker who is injured in a work related accident may recover workers compensation or common law damages but not both –

Then Her Honour at line 40 extrapolates that to how her Honour reads section 93.  Her Honour clearly has diverged in her construction of section 93 from that taken by the majority of the Court of Appeal, with respect, but in so doing it is my respectful submission that Justice Wheeler’s reasons are to be preferred as a matter of logic and proper construction of beneficial legislation where her Honour recognises there are issues of construction which need to be considered but in a careful judgment shows that the majority’s reasoning, although her Honour, of course, does not use such wording, it is my submission that it would lead to an absurd result.  For instance, in section 93(1)(a), when one looks at how Justice Wheeler has dealt with that – that is at page 50 line 10.

CALLINAN J:   Mr McCormack, I interrupted you before.  Was there anything you needed to say or further that you wanted to say?

MR McCORMACK:   Mr Hancy?

CALLINAN J:   No, I am speaking to you, Mr McCormack.  Is there anything further you wanted to say because I interrupted you in‑chief?  I think you probably said everything you wanted to say but is there anything further?

MR McCORMACK:   No, I will leave my – I think that reference at page 50 is sufficient for your Honours to show the sequence of Justice Wheeler’s reasoning which incorporates her Honour’s recognition of damages of different kinds.

CALLINAN J:   I suppose you also say, as Justice Wheeler said at page 53, the foot of it, that if there is a policy against double‑dipping, this case and perhaps many other cases, will not involve double‑dipping, because the person is not adequately compensated anyway under the Civil Aviation Act.

MR McCORMACK:   Yes, and may on that point, I draw your Honour’s attention to page 38 of the application book where that point is made expressly by Justice Wheeler, and that is common ground between the parties, at line 40, may it please your Honours.

CALLINAN J:   Yes, all right, thank you, Mr McCormack.  Mr Hancy, is there anything you wanted to add?

MR HANCY:   A couple of things, your Honours.  Mr McCormack referred to an extract from the decision of Geralton Building Co v Cramer which referred in turn to an unreported decision of EMS Holdings v International Shipyards, also a decision of the Full Court of the Western Australian Supreme Court.  Now, neither of those cases, as I recollect‑ and I was certainly counsel in one of them, EMS Holdings – neither of them raised the issue as relevant as to whether legal liability to pay damages was confined to common law damages, because in those cases all that was in question was the liability to pay common law damages, as was the position in Tickle v Hann.

The issue, if I can turn to it, of negligence, is that there is nothing in section 93(1)(a) itself, in the language that is used, that confines the relevant liability to pay damages to liability to pay damages for negligence, and certainly in contrast, where negligence is relevant and it is relevant to an employer’s right of indemnity against a third party, the expression “negligence” is used.  There is no need to confine legal liability to pay damages to legal liability to pay damages for negligence.

I made the point at the outset about the question of State construction. My friend has not raised at all the extent to which if at all the question of construction or questions of construction that arose here feed in in any other way to any other workers’ compensation legislation because ultimately, if your Honours put to one side the question of damages under the Civil Aviation Act, the issues are only of interpretation of workers’ compensation legislation. Here, there were just two expressions that are relevant. The first:

the worker . . . shall not be entitled to recover both damages and compensation -

and the second:

shall bring to account in reduction of his entitlement to compensation the amount recovered by way of damages -

only those two expressions.  Now, there is nothing in there that makes any exception for the unfortunate case of a person who might have suffered catastrophic injuries but been injured in an aircraft accident so that there is a cap on liability.  There is nothing in there that makes that exception.  The language that is used, although the themes do, but the language that is used does not feed in to language used in other legislation in other jurisdictions, because every State seems to have done its own thing.

The only common theme – and I could take your Honours to it, and we have provided some of the materials from New South Wales, Victoria and South Australia which provide examples – but if there is anything in common, it is a common theme of preventing a worker receiving and retaining both compensation and damages, and in some cases there are exceptions, but they are usually as they are in the Western Australian legislation, express and clear, but that is the common theme and objective; a worker will not receive and retain both compensation and damages.  That is an objective that his Honour Justice Steytler identified, and he expressed it in these terms:

there will be no double recovery by a worker in respect of one disability.

That is a double recovery in terms of the class of compensation, not the extent of it.  The decision of the majority, your Honours, obeys the statutory commands that I have mentioned.  There is no recovery of damages and compensation – again, referring to class not extent, and secondly, the worker does, if that decision is as we say it is correct, he does bring to account in reduction of his entitlement to damages the amount recovered by way of damages, and it also conforms with the objective of not both receiving and retaining compensation in damages.

Her Honour Justice Wheeler, on the other hand, seemed to acknowledge that there is this goal of preventing receipt and retention of double recovery and the passage that your Honour Justice Callinan identified was really her ultimately labelling it as a not – it was not an unacceptable double recovery by the worker.  That is the term she used.  It is not unacceptable double recovery by the worker.  In one sense, if you put to one side what the statute says, you can say that is right.  You think you would like somebody injured like that.

CALLINAN J:   There would be lots of people very badly off who could not recover workers’ compensation or damages against an employer and also could not recover damages anywhere near what they are entitled to against the carrier, so it is not just the applicant who is placed in this highly disadvantageous position, not necessarily.

MR HANCY:   No.  If the worker had a claim against the employer, then that is not covered by the statutory substitution because that is a substitution for the carrier’s rights; it is not a substitution for the employer’s rights.  So to that extent the limitation is confined to the carrier and its liability but not the employer.  If her Honour Justice Wheeler was correct – and I should add, your Honours, that we rely on our written submissions on the question of merits ‑ ‑ ‑

CALLINAN J:   Mr Hancy, I do not think we need to hear you any more.

MR HANCY:   Thank you.

CALLINAN J:   I think you have probably said all you wanted to say, Mr McCormack, is that right?

MR McCORMACK:   If it please your Honours, if I was permitted I would mention the case of Manners v Transfield which I have included in the reference materials.  In that case – this is in answer to my friend’s point as to Justice Wheeler relying on a particular approach in construing section 93, in the Manners v Transfield Case the Full Court, including the judgment of Chief Justice Malcolm, expressly applied Chief Justice Barwick in the Tickle Case and the decision in the Tickle Case we rely upon as being settled law as to how the policy throughout Australia is to be applied with regard to workers’ compensation and specifically what the draftsman in the opening words of any of the relevant paragraphs means when speaking of causation and creation of a legal liability. 

I commend if I have time and your Honours are minded to look at case 2 for the Tickle decision, in particular at page 328 where Chief Justice Barwick makes that point starkly.  It is the identification of the tortfeasor.  There is no suggestion in any decision in Australia that the person, the third party in the opening words of section 93 or its equivalent throughout Australia is anything other than a tortfeasor.  It is for that reason that Justice Wheeler drew attention at page 53 of her judgment to the decision of the Court of Appeal in Victoria in Scott v Bowyer.  This is found at page 53 at line 10 and I commend that to your Honours.  Justices Winneke, President of the Court of Appeal, Brooking and Justice Hayne, as he then was, noting:

the relevant Victorian provision appeared to provide a right of recovery by way of indemnity to an employer only in circumstances where the negligence of the employer had itself contributed to the relevant injury, and appeared to deny such a right to an employer who was wholly innocent.

Her Honour looked very carefully at the law, including Redding v Lee of the High Court, which is referred to in the next paragraph.

As far as my friend’s proposition that double-dipping is a once and for all hard and set rule, that collides violently, if it please and with respect to my friend, with what Chief Justice Dixon said in the Espagne Case – and that is case 1 on my list – at page 573.  I appreciate, with the greatest of respect, your Honours are well familiar with that case.  It is for that reason that a disability insurance contract is never taken into account for personal injuries.  As Professor Fleming has said, and if the Professor is right, then

this is no more than a kind of insurance which is given to passengers when they buy their ticket.

It is a matter of general importance that, in my respectful submission, the High Court has an appropriate vehicle before it to elucidate for all purposes in Western Australian workers’ compensation the proper meaning of the third party, the notion of damages and causation.  I rely on the fact that the decision of the Court of Appeal and the majority is against settled principle and Justice Wheeler’s reasoning is to be preferred.  Unless I can assist the Court further.

CALLINAN J:   Yes, thank you, Mr McCormack.  It seems to us that in this case in which the majority in the Court of Appeal of Western Australia adopted a construction of a Western Australian statute which was plainly open, we do not think that there would be such prospects of success of an appeal as to justify a grant of special leave and, accordingly, we would dismiss the application.

Do you ask for costs, Mr Hancy?

MR HANCY:   I do, your Honours.

CALLINAN J:   Can you say anything about that, Mr McCormack?

MR McCORMACK:   No, if it please the Court.

CALLINAN J:   Thank you.  That will be with costs.

Adjourn the Court, please, to the next sittings to commence on 20 February in Canberra at 10.15 am.

AT 2.33 PM THE MATTER WAS CONCLUDED