WQA (a pseudonym) v Archbishop Comensoli
[2023] VSC 657
•15 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2020 00126
| WQA (a pseudonym) | Plaintiff |
| v | |
| ARCHBISHOP PETER A COMENSOLI and TRUSTEES OF THE CHRISTIAN BROTHERS | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 October 2023 |
DATE OF JUDGMENT: | 15 November 2023 |
CASE MAY BE CITED AS: | WQA (a pseudonym) v Archbishop Comensoli |
MEDIUM NEUTRAL CITATION: | [2023] VSC 657 |
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PERSONAL INJURY – Where claim has been settled but for issue relating to whether social security payments made to plaintiff should be accounted for in calculation of damages – Whether compensation affected payments made outside the preclusion period go in reduction of damages – Whether the Commonwealth intended that social security payments be applied in reduction of claimable losses – The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569 – Social Security Act 1991 (Cth) – Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 47.04.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC, Mr D O’Brien and Ms C Spitaleri | Arnold Thomas & Becker |
| For the First and Second Defendants | Mr C Winneke KC and Mr P Santamaria | Wotton & Kearney for the first defendant Carroll & O’Dea Lawyers for the second defendant |
TABLE OF CONTENTS
A.. Introduction.................................................................................................................................. 1
B.. The test that applies..................................................................................................................... 1
C.. The law prior to the introduction of the provisions now contained in the Social Security Act 1991 (Cth)....................................................................................................................................... 3
D.. The regime now found in the Social Security Act 1991 (Cth).............................................. 5
E... What should happen with compensation affected payments made outside the preclusion period?............................................................................................................................................ 7
F... Disposition.................................................................................................................................. 14
HIS HONOUR:
A. Introduction
WQA, the plaintiff, has settled a claim for damages against Archbishop Peter A Comensoli and the Trustees of the Christian Brothers, the first and second defendants, for injury alleged to have been suffered as a result of abuse that took place between 1959 and 1961. WQA’s claim includes a claim for damages for loss of earning capacity. He received a Newstart Allowance between June 1992 and August 1997, and a Disability Support Pension between September 1997 and ‘at least’ October 2015. Those payments were made in accordance with the Social Security Act 1991 (Cth). The Social Security Act 1991 (Cth) has provisions under which, in certain circumstances, benefits received under that Act are repayable to the Commonwealth out of a damages payment. The Newstart Allowance and Disability Support Pension that the plaintiff received are not repayable to the Commonwealth under those provisions. The defendants contend, and the plaintiff denies, that, in those circumstances, the amount of the Newstart Allowance and Disability Support Pension that the plaintiff has received operate to reduce the damages recoverable. The settlement of the claim has identified the relevant amount and has provided for that amount to be removed from, or included in, the amount otherwise agreed to be paid in settlement of the claim. The parties have asked the Court to determine, and I have agreed that I will determine, the single issue of whether the social security payments received by the plaintiff should ‘be taken into account in the calculation of damages for past economic loss, in circumstances where they are not repayable to the Commonwealth’.
The procedure by which the question comes to be determined was not discussed. It will probably be necessary to make an order under ord 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 formalising the process that has been undertaken.
B. The test that applies
It is a fundamental principle governing the assessment of compensatory damages that the injured party should receive compensation in a sum that will put that party in the same position he or she would have been in if the wrong had not been committed, and that, as a corollary, the injured party cannot recover more than he or she has lost.[1] That principle would suggest that the social security payments that the plaintiff has received, which operated as a form of income, should be taken into account in the assessment of the damages required to compensate him for the loss of his earning capacity. Otherwise, the plaintiff would be, in the language used by the defendants, ‘double dipping’. This principle, however, is not absolute. Occasions arise where it would be wrong to reduce the amount that a wrongdoer is obliged to pay because the injured party has received a benefit from a third party in amelioration of the effects of an injury caused by the wrongdoer. This will be the case, for example, where an injured party has paid for their own insurance or has received money from family and friends or some other benevolent organisation. In those circumstances, to reduce the damages payable would, in the language of the plaintiff, result in a ‘windfall’ to the wrongdoer: the wrongdoer would benefit from the generosity of the Commonwealth as if the Commonwealth had made the payment to it. The question, at heart, is whether the injured party should benefit from the retention of the additional moneys in addition to the damages awarded or the wrongdoing party should benefit from the prudence or generosity of others.
[1]Haines v Bendall (1991) 172 CLR 60, 63 (Mason CJ, Dawson, Toohey and Gaudron JJ).
Putting to one side benefits obtained under privately-obtained insurance, the answer depends on the intention of the party that provided the money.[2] If the money were provided in circumstances that reveal an intention that the money be retained by the injured party in addition to any damages awarded, then it is not taken into account in assessing those damages. If the money were provided in circumstances that reveal an intention that the money be applied in reduction of claimable losses, then it is taken into account in assessing those damages. A classic example of the former would be where family and friends, or a local organisation (and the plaintiff suggested a local football club) ‘pass the hat around’ and collect some money to help an injured person long before any damages claim has been resolved. A classic example of the latter would be sick pay made by an employer to an injured worker.
[2]See, eg, The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569, 598-599.
Here, the payments were made by the Commonwealth pursuant to the Social Security Act 1991 (Cth). Accordingly, it is the intention of the Commonwealth that matters. That intention is to be gleaned from a consideration of the Social Security Act 1991 (Cth) including the nature of the payments made under it.[3]
[3]See, eg, Redding v Lee; Evans v Muller (1983) 151 CLR 117, 125.
In order to put that legislation in context, it is necessary to consider the legal landscape that existed prior to its introduction.
C.The law prior to the introduction of the provisions now contained in the Social Security Act 1991 (Cth)
The idea of looking to the intention of the provider of the benefit (informed by the nature of the benefit), that emerged in The National Insurance Company of New Zealand Ltd v Espagne,[4] did not readily solve the problems that arose in relation to the provision of social security payments. Although it seems there was a consensus, acknowledged by Dixon CJ in The National Insurance Company of New Zealand Ltd v Espagne, that hospital or pharmaceutical benefits received did go in reduction of damages, and the Court later established that sick leave payments from an employer also went in reduction of damages for loss of earning capacity,[5] the situation with other benefits was unclear. In Evans v Muller (which was reported with Redding v Lee),[6] Mason and Dawson JJ considered that the receipt of unemployment benefits should go in reduction of a damages award because they were a ‘substitute or partial substitute for wages’ to which a person has a legal entitlement rather than a benefit ‘provided in relief of impecuniosity’.[7] In reaching this conclusion, they approved an earlier decision of the Full Court of the Supreme Court of Victoria to that effect.[8] Wilson J and Deane J agreed with Mason and Dawson JJ, making a majority, but Gibbs CJ, Murphy and Brennan JJ disagreed. Gibbs CJ reasoned that because unemployment benefits were ‘intended to provide some relief against destitution for a needy person who is unemployed … whether or not he has any cause of action for damages’, Parliament intended that ‘unemployment benefits should enure entirely for the benefit of the person who receives it and should not relieve from liability any other person who may be liable to pay damages to him.’[9] Murphy J questioned the rationale for differential treatment of different forms of benefit,[10] and suggested that a ‘coherent solution of the problem … can only be achieved by legislation’.[11] Brennan J expressed similar sentiments to Gibbs CJ, saying it was ‘an unlikely intention to impute to Parliament that statutory subventions should reduce the measure of the wrongdoer’s liability and correspondingly increase the plaintiff’s dependence on public funds.’[12] Deane J, part of the majority, joined with Murphy J in suggesting a legislative solution:
The obvious and commonsense solution – i.e. that payments on account of either invalid pension or unemployment benefits not be taken into account in the assessment of damages but, to the extent appropriate, be recouped to consolidated revenue in much the same manner as payments received on account of workers compensation are recouped to the workers compensation insurer — lies, however, in the hands of the Parliament and not of the Court.[13]
[4](1961) 105 CLR 569.
[5]They are treated as if they were wages: Graham v Baker (1961) 106 CLR 340, 346 (Dixon CJ, Kitto and Taylor JJ).
[6](1983) 151 CLR 117.
[7]Ibid 145.
[8]Tuncel v Renown Plate Co Pty Ltd [1976] VR 501.
[9]Redding v Lee; Evans v Muller (1983) 151 CLR 117, 133.
[10]Ibid 149.
[11]Ibid 150.
[12]Ibid 165-166.
[13]Ibid 168.
Accordingly, the situation, following Redding v Lee, Evans v Muller was that:
(a) The receipt of an invalid pension did not result in the reduction of a damages award but the receipt of sick pay or unemployment benefits did; and
(b) There was no ability in the Commonwealth to recover invalid pensions or unemployment benefits paid to an injured person from that person or a wrongdoer; and accordingly,
(c) There was the possibility of ‘double dipping’ on the part of an injured plaintiff to the extent that that plaintiff received both an invalid pension and damages, but no possibility of ‘double dipping’ on the part of an injured plaintiff to the extent that that person received both sick leave or unemployment benefits and damages;
(d) To the extent that the damages that would otherwise be payable by a wrongdoer were reduced by the receipt of sick leave or unemployment benefits, there was, instead, a potential ‘windfall’ benefit to wrongdoers or their insurers at the effective expense of the Commonwealth; and
(e) As a practical matter, a court assessing damages for loss of earning capacity was required to evaluate and to take into account the extent to which a plaintiff had obtained unemployment benefits or sick leave in the past and the prospect that they might be able to access those benefits in the future; but
(f) Members of the High Court had suggested that the legislature intervene.
D. The regime now found in the Social Security Act 1991 (Cth)
The Social Security and Veterans’ Affairs (Miscellaneous Amendments) Act 1986 (Cth) introduced a regime into the Social Security Act 1947 (Cth) that was similar to that now found in the Social Security Act 1991 (Cth). The parties agreed that there were no relevant differences between the regime that was introduced in 1986 and the regime now found in the Social Security Act 1991 (Cth).
Section 17 of the Social Security Act 1991 (Cth) defines a ‘compensation affected payment’ widely to include an age pension, different forms of disability support pensions, a parenting payment, a social security benefit, a carer payment, various allowances, a sickness benefit, a job search allowance, an unemployment benefit, an invalid pension, a sole parent pension, a parenting allowance and a youth training allowance.[14]
[14]The definition in s 17(1) includes a ‘former payment’, which is in turn defined to include various payments made under previous versions of the Social Security Act 1991 (Cth) and under the Social Security Act 1947 (Cth), including a sickness benefit and various invalid pensions.
Part 3.14 of the Social Security Act 1991 (Cth), headed ‘Compensation recovery’, introduced a concept called the ‘lump sum preclusion period’ that is measured in a certain number of weeks. In accordance with ordinary practice, I will refer to this simply as ‘the preclusion period’. The preclusion period is calculated by dividing the part of a damages award that is attributed to a claim for loss of earning capacity[15] by the ‘income cut-out amount’. The income cut-out amount is, I was told, presently $1,166.00.[16] In the circumstances of this case, as is ordinarily the situation, the preclusion period begins on the day on which the loss of earnings or loss of capacity to earn began.[17] Depending on the circumstances, the preclusion period might, by the time of a settlement or hearing of a damages action, be entirely in the past or extend also some time into the future.
[15]The formula by which the number of weeks in the lump sum preclusion period is determined is contained in s 1170(4) of the Social Security Act 1991 (Cth). The numerator in the formula is the ‘compensation part of lump sum’. The word ‘compensation’ is defined in s 17(1) of the Act to include a payment of damages that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury. The ‘compensation part of a lump sum’ compensation payment is defined in s 17(3) of the Act to be 50% of a settlement amount or, if otherwise so much of the payment as is, in the Secretary’s opinion, in respect of lost earnings or lost capacity to earn or both. I will use the phrase ‘component attributed to loss of earning capacity’ as a shorthand for the amount determined by this process.
[16]The income cut-out amount is calculated by a complicated formula contained in s 17(8) of the Social Security Act 1991 (Cth). See also the definition in ss 17(1) and 23(1) of the Act. It is, it seems, intended to be equivalent to ‘the amount above which no pension is payable to a single person under the ordinary income test’ – see the Australian Government’s ‘Social Security Guide’, part of its ‘Guides to Social Policy Law’, version 1.312, released on 20 September 2023, at page 4 of 5.
[17]Social Security Act 1991 (Cth) s 1170(3). Different provisions apply where there has been the receipt of ‘periodic compensation payments’. I have not located a definition of a ‘periodic compensation payment’, but it is clear that none have been made in this case.
Where a person has received damages that include a component attributed to loss of earning capacity, the legislation then provides that:
(a) during the preclusion period, compensation affected payments are not payable to a person otherwise entitled to receive them; [18] and
(b) the Secretary may recover from that person any compensation affected payments that have been received during the preclusion period.[19] The amount recoverable is capped at the smaller of the component of the damages attributed to loss of earning capacity and the sum of the compensation affected payments made.[20]
[18]Ibid s 1169(1).
[19]Ibid s 1178(1) and s 1184F.
[20]Ibid s 1179.
In practical terms, this means that:
(a) A successful plaintiff has to repay to the Commonwealth all or some of the compensation affected payments he or she has received during the preclusion period; and
(b) A plaintiff might, if the preclusion period extends in the future, also be unable to obtain compensation affected payments for the balance of the preclusion period.
The Secretary may recover the amount repayable directly from the wrongdoer out of the damages award to be made.[21] The Secretary is also able to ‘require’ a person who has received a compensation affected payment to take certain specified action, including to make a claim for damages so that the Secretary can recover some or all of those payments.[22]
E.What should happen with compensation affected payments made outside the preclusion period?
[21]Ibid ss 1184, 1184C and 1184G.
[22]Ibid s 1166.
There is no dispute that any compensation affected payments made during the preclusion period are ignored when it comes to assessing damages for loss of earning capacity. Because the plaintiff does not get to retain those payments, there is no basis for reducing the damages that the wrongdoer is obliged to pay to avoid ‘double dipping’.
The problem that arises concerns the situation where compensation payments have been or may in the future be made after the preclusion period has finished. In this case, it is agreed that the plaintiff has received $245,529.00 in Newstart Allowances or as a Disability Support Pension since the preclusion period expired many years ago. It is also agreed (and there would also be no doubt) that those payments are ‘compensation affected payments’.
The Social Security Act 1991 (Cth) does not expressly deal with what is to happen with respect to payments made or that might be made after the preclusion period. This question may be particularly significant in claims for damages for historic child sex abuse because the preclusion period will often have finished many years prior to a settlement or verdict. But the issue might arise in any damages action.
As noted above, the problem is to be answered by divining the intention of the Commonwealth when it made the payments it did. The payments were all made after 1991 and so that intention must be gleaned from the terms of the Social Security Act 1991 (Cth) read in its context, including a consideration of the types of payments with which it deals.
The defendants submitted, in substance, that the legislature intended to create two arrangements: one during the preclusion period, where the receipt of social security benefits are to be ignored in the assessment of damages, and one after the preclusion period where the receipt of social security benefits are to be taken into account in the assessment of damages or, more accurately, the previous common law rules are to be applied to determine whether or not they are to be taken into account. The plaintiff submitted, in substance, that the legislature intended to create one arrangement that applied to all relevant social security payments: they were to be ignored in the assessment of damages but were repayable to the Commonwealth by the plaintiff or wrongdoer to the extent that repayment was required by the simple and objective calculation provided for in the legislation.
I prefer the plaintiff’s submission. In my view, the terms of the Social Security Act 1991 (Cth), read in context, reveal an intention on the part of the legislature to replace the previous complex and uncertain common-law position with a single overall scheme for the treatment of social security payments in the event that a recipient of those payments obtains a damages award. That scheme precludes the receipt of ‘compensation affected payments’ from being considered in a damages assessment, and provides for their repayment, or partial repayment, to the Commonwealth in accordance with a relatively-straightforward formula. In my view, this conclusion follows from the following (in no particular order):
(a) The new arrangement specifically eschews any differentiation between different types of benefits received. The definition of a ‘compensation affected payment’ is wide and includes both benefits that under the common law might have been ignored in the assessment of damages and benefits that would have led to a reduction in the assessment of damages. It is inherently unlikely that the legislature would have intended to remove the complexity of the common law position altogether for the duration of the preclusion period but have intended its return for the period after the preclusion period.
(b) The calculation of the preclusion period necessarily takes place after damages have been assessed. This indicates an intention that damages should be capable of being assessed without having first to consider what the preclusion period would be. This cannot be done if payments received outside the preclusion period must be taken into account in assessing those damages. The logical sequence by which the damages are assessed first, and then the preclusion period calculated, and then the repayment obligations determined, strongly suggests that the legislature intended that the damages assessment should be independent of the benefits received including benefits paid after the expiration of the preclusion period.
(c) Associated with the above, there would be considerable complexity in the application of the process urged by the defendants. If the preclusion period had likely not finished at the time of the assessment, a jury would probably have to be told that if it were to award a particular sum of damages then the preclusion period would be until such and such a date, and that the jury would then have to consider the prospect that the claimant might receive unemployment benefits after that date. But if the jury were to award a different sum of damages then the preclusion period would be until some other date, and the jury would then have to consider the prospects that the claimant might receive unemployment benefits after that different date. A similar problem would exist if the preclusion period had expired. The jury would probably have to be told that if it were to award a particular sum of damages then the preclusion period would finish on one date, and so the jury should take into account a particular amount of benefits received, or if the jury were to award a different sum of damages then the preclusion period would finish on another date and so it should take into account a different amount of benefits received. These would be circular and tortuous processes in any damages assessment, particularly by a jury, and are unlikely to have been intended.
(d) There is a clear intention, at least for the duration of the preclusion period, to remove the benefit that a wrongdoer would otherwise obtain from the provision by the Commonwealth of certain social security payments, such as unemployment benefits, to an injured party. The requirement on the injured party to repay those benefits out of the damages award ensures that the damages paid by the wrongdoer are not to be reduced. Further, the legislation enables the Commonwealth to recover those payments directly from the wrongdoer even if the injured party does not wish to bring an action. These were significant changes to the common law position in favour of the Commonwealth (as the payer of the benefits) and against the interests of the wrongdoer. On the other hand, there is nothing in the legislation that reveals an intention to benefit wrongdoers by providing that social security benefits are to be taken into account in order to reduce a damages assessment.
(e) The new arrangement can require an injured party to repay to the Commonwealth, and allow the Commonwealth to recover directly from a wrongdoer, social security payments that are disconnected from the injury caused by the wrongdoer. This is because there is no requirement that a ‘compensation affected payment’ be made for an injury caused by the wrongdoer and for which damages are to be assessed. The new arrangement simply sets a time-frame, and provides for the recovery of all benefits paid during that time-frame. For example, if a claimant suffers the onset of an unrelated but separately-disabling condition during the preclusion period that entitles that person to benefits that are not attributable to the injury caused by the wrongdoer, those benefits, too, have to be repaid and can be recovered directly from the wrongdoer (subject to the maximums provided). In this way, too, the new arrangement promotes simplicity, to the benefit of the Commonwealth, over the complexities associated with the common law, and indicates that the Commonwealth was intending to introduce a comprehensive scheme rather than merely to work within the common law principles.
The introduction of a preclusion period calculated by dividing the damages by one prescribed figure for all claims does introduce a sense of arbitrariness into the process. That, however, was likely the cost of simplicity. The benefit of simplicity would be removed if the old complications were to return outside the preclusion period. It is difficult to see why the legislature would have introduced an arrangement like the one it did without intending that it ‘cover the field’ in the sense that it apply to all relevant damages assessments.
The extrinsic materials, although not inconsistent with my conclusion, are of little assistance. As noted above, an effectively-similar arrangement was first introduced into the Social Security Act 1947 (Cth) by the Social Security and Veterans’ Affairs (Miscellaneous Amendments) Act 1986 (Cth). The Minister, in his second reading speech when introducing the Social Security and Veterans’ Affairs (Miscellaneous Amendments) Bill 1986, said:
The current arrangements by which sickness benefit is either reduced or recovered by reference to compensation payable to the beneficiary will be extended to invalid pension, unemployment benefit, rehabilitation allowance and sheltered employment allowance, as from May 1987.[23]
[23]Commonwealth, Parliamentary Debates, House of Representatives, 10 October 1986, 1866 (Brian Howe, Minister for Social Security).
The explanatory memorandum was in similar terms:
The current arrangements applying to sickness beneficiaries receiving compensation would be extended to invalid pensioners, unemployment beneficiaries and persons receiving rehabilitation allowance or sheltered employment allowance who commenced to receive that pension, benefit or allowance after 1 May 1987.[24]
[24]Explanatory Memorandum, Social Security and Veterans Affairs (Miscellaneous Amendments) Bill 1986 (Cth) 2, cl (8).
Prior to these amendments, a person who had received a sickness benefit for an injury for which he or she recovered damages was ordinarily required to repay the sickness benefit to the Commonwealth. It followed that a wrongdoer did not have a damages assessment reduced due to the receipt of sickness benefits. The second reading speech and explanatory memorandum confirm that the intention was to treat the other benefits in the same way. But the second reading speech and explanatory memorandum do not otherwise shed any light on how payments made after the preclusion period are to be treated.
For the reasons set out 20 above, I respectfully agree with the view expressed by the Full Court of the Supreme Court of Tasmania in Partridge v Hobart City Council:[25]
… Ever since Espagne, the law has been clear. The proper approach is to determine whether the payer of a benefit to an injured person intended the payment or payments to be enjoyed in addition to any right to damages or compensation from another party. The relevant provisions in the Social Security Act and the legislation that it replaced make it clear that Parliament intended the recipients of pensions and benefits, if they had claims or entitlements to damages or other compensation for their injuries, to keep the payments that they received after the expiry of the statutory preclusion period, in addition to any damages or compensation that they might receive. Applying Espagne, Redding v Lee and Evans v Muller, it follows that social security payments received after the preclusion period must not be taken into account in reduction of damages. Payments made during the preclusion period must also be ignored, but for a different reason, namely that they are fully recoverable by the Commonwealth.
We reject the notion that the legislation combines two philosophies. It has achieved precisely what Deane J suggested in Redding v Lee, Evans v Muller. It imposes a requirement whereby social security payments, whilst not being taken into account in the assessment of damages, must "to the extent appropriate, be recouped to consolidated revenue in much the same manner as payments received on account of workers' compensation are recouped to the workers' compensation insurer": Redding v Lee, Evans v Muller (above) at 168. The receipt of damages or compensation does not forever preclude the recipient from receiving social security benefits, nor is eligibility for such benefits reduced on a dollar-for-dollar basis. Ineligibility and recoupment are provided for "to the extent appropriate", as determined in accordance with the statutory provisions.
[25][2012] TASFC 3, [236]-[237]. Mildren J had earlier come to the same conclusion in the Supreme Court of the Northern Territory in Renehan v Leeuwin Ocean Adventure Foundation Ltd (2006) 17 NTLR 83 at 119 [207]: ‘I think the preferable view is that it is intended by the Social Security Act that, to the extent that the plaintiff may get an award which is more than he is obliged to repay, he can keep the excess.’ Luntz and Harder have declined to offer an opinion in their authoritative text: see Harold Luntz and Sirko Larder, Assessment of Damages for Personal Injury and Death (LexisNexis, 5th ed, 2021) [9.5.6].
This decision is not, of course, binding on me. The defendants pointed out that Partridge v Hobart City Council was decided without any reference to Manser v Spry.[26] In Manser v Spry, Ms Spry injured her neck and back in a transport accident as a result of the negligence of Mr Manser and brought a claim for damages. She later received no-fault benefits for an aggravation of her neck and back that she sustained at work. On the construction put by the Court on the Workers Rehabilitation and Compensation Act 1986 (SA), the provision of that Act that might have allowed WorkCover to recover from Mr Manser the no-fault benefits it paid to Ms Spry did not apply because the injuries arose out of different events. The question then arose as to whether the benefits received by Ms Spry should go in reduction of the damages assessed against Mr Manser. The Court concluded that they should. In doing so, the Court observed that its role was ‘to discover the intention of the legislature’ and said that there were ‘three possible indicia of a relevant legislative intention: the financial source of the benefit, the presence of a provision which requires a repayment of a statutory benefit out of the damages awarded or paid and the nature of the benefit’.[27] It then observed that ‘if all indicia of intent fail’ the ‘settled principle’ that there not be double-recovery must be applied.[28] The Court concluded that the legislation contained ‘no indication of intention’, and so looked to the character of the benefits paid. Under the Workers Rehabilitation and Compensation Act 1986 (SA), an employer’s common law liability was excluded[29] and the no-fault benefits are provided to indemnify the worker against losses associated with the work-caused disability. The Act was not designed, the Court held, ‘to confer benefits to be added to the damages to which the worker might otherwise be entitled at common law for a loss caused by an event which is not work related‘.[30]
[26](1994) 181 CLR 428 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).
[27]Ibid 436.
[28]Ibid 437.
[29]Save, it seems, for some motor vehicle accidents that take place in the course of employment where another insurer is on risk – see Workers Rehabilitation and Compensation Act 1986 (SA) s 54(2).
[30]Manser v Spry (1994) 181 CLR 428, 438-439.
I do not consider that Manser v Spry is against the conclusion that I have reached. The High Court confirmed that the exercise is one of ascertaining the legislative intent. Its reference to the three criteria was not intended, as I read it, to be exhaustive in all circumstances or to exclude the normal process of ascertaining that intent having regard to the legislation considered as a whole and in its context. I note that the Court in Manser v Spry quoted with approval the following passage from Adams v Ascot Iron Foundry Pty Ltd:[31]
The difficulty lies in attempting to extract from the Act an actual meaning or intention with reference to the question which has to be resolved. The question may be one to which the Parliament or the draftsman of the Act did not in fact adverts at all. Nevertheless, if it is possible to do so, it is necessary to extract from the Act indications of what was intended. If one cannot find any real indications pointing one way or the other, or if one finds indications both ways which are evenly balanced, it may be that the question must then be resolved by taking the view that the dominant rule … should operate.
[31](1968) 72 SR (NSW) 120, 135, quoted in Manser v Spry (1994) 181 CLR 428, 437.
In this case, I consider that the statutory intention may, for the reasons I have given, be extracted from the Social Security Act 1991 (Cth). Further, to the extent that Manser v Spry focuses on the ‘nature of the benefit received’, it must be recalled that the Social Security Act 1991 (Cth) eschewed any distinctions of significance along those lines by its wide definition of a ‘compensation affected payment’. It would only be possible to consider the implications from a particular form of payment in the way done in Manser v Spry if it were already concluded that the question of payments outside the preclusion period were to be governed by the common law.
F. Disposition
Subject to hearing from the parties, I will make orders in the following form. Paragraph one will be expressed to be by consent:
1. Pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015, the following questions be heard and determined on the basis of the statement of agreed facts, and the defined terms identified in that statement of agreed facts, filed by the parties on 12 September 2023:
A.Should social security payments paid to the plaintiff in the Relevant Period be taken into account in the calculation of damages for past economic loss, in circumstances where they are not repayable to the Commonwealth?
B.Is the Disputed Amount or any part thereof payable to the Plaintiff.
2. The questions identified above be answered as follows:
A.No.
B.Yes.
I will hear the parties on the precise form of order and on costs.
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