Yandell v SAE Institute Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yandell v SAE Institute Pty Limited [2024] NSWPIC 392
APPLICANT:	Samantha Yandell
RESPONDENT:	SAE Institute Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	23 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60AA for past domestic assistance; accepted ‘injury’; commutation agreement registered; whether liability to pay the compensation claimed commuted to lump sum; effect of section 87K; Held – the commutation agreement registered commuted the respondent’s full liability in respect of the injury; no remaining entitlement to past expenses pursuant to section 60AA; award in favour of the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Ms Samantha Yandell (the applicant) sustained a psychological injury arising out of or in the course of her reemployment with SAE Institute Pty Limited (the respondent).
Liability for the applicant’s psychological injury was accepted by the respondent’s insurer and payments of compensation were made in respect of incapacity, medical and related treatment expenses and permanent impairment resulting from the injury.
The insurer also paid compensation for domestic assistance pursuant to s 60AA of the Workers Compensation Act 1987 (the 1987 Act) provided from 16 November 2020 onwards. The payment of domestic assistance compensation from that date coincided with a report prepared by consultant psychiatrist Dr Thomas Wilmot for the respondent on 16 November 2020, in which he assessed of the degree of permanent impairment resulting from the injury to be greater than 15% whole person impairment.
The applicant subsequently claimed compensation for gratuitous domestic assistance pursuant to s 60AA of the 1987 Act for the period from the date of injury (31 May 2018) to 15 November 2020.
Liability to pay the compensation claimed was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers' Compensation Act 1998 (the 1998 Act) on 27 November 2023. The insurer determined that insufficient evidence had been provided to establish that the person providing assistance had lost income or foregone employment as a result of providing assistance pursuant to s 60AA(3) of the 1987 Act. Furthermore, the insurer was not satisfied that the 15% threshold in s 60AA(1)(c) of the 1987 Act would have been met prior to Dr Wilmot’s report on 16 November 2020.
The decision to dispute liability was maintained following internal review in further notices dated 12 December 2023 and 23 February 2024.
On 13 February 2024, the applicant signed an Application to Register a Commutation Agreement. Part 3 of that application noted that the parties had agreed to a lump sum amount to be paid in commutation of the respondent’s “full liability” in respect of the psychological injury on 31 May 2018. The agreement was registered by the Personal Injury Commission (Commission) on 26 March 2024 and the lump sum was paid to the applicant on 10 April 2024.
On 8 April 2024, the applicant commenced the current proceedings by lodgement of an Application to Resolve a Dispute. The applicant seeks compensation for domestic assistance pursuant to s 60AA of the 1987 Act for the period from 31 May 2018 to 15 November 2020.
The respondent’s insurer issued a further notice pursuant to s 78 of the 1998 Act on 1 May 2024, disputing liability to pay the compensation claimed on the additional ground that liability in respect of the injury had been wholly commuted under s 87D of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

At a preliminary conference on 10 May 2024, at which the applicant was unrepresented, the respondent made an application for the proceedings to be dismissed pursuant to s 54 of the Personal Injury Commission Act 2020. After hearing submissions from the parties, the respondent’s application was declined for reasons given orally and recorded. The matter was referred for conciliation conference and arbitration hearing.
The parties appeared for conciliation conference and arbitration hearing on 12 June 2024. The applicant was represented on that occasion by Mr Lachlan Robison of counsel, instructed by Ms Karena Nicholls. The respondent was represented by Mr Andrew Combe of counsel, instructed by Mr Doyle Myles.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether any liability to pay the compensation claimed has been commuted to a lump sum by operation of the commutation agreement registered on 26 March 2024;
(b) whether the domestic assistance claimed was reasonably necessary as a result of injury pursuant to s 60AA(1) of the 1987 Act;
(c) whether the injury had, at the relevant time, resulted in a degree of permanent impairment of at least 15% pursuant to s 60AA(1)(c) of the 1987 Act, and
(d) whether the person who provided the assistance had lost income or forgone employment as a result of providing the assistance pursuant to s 60AA(3) of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 7 May 2024;
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 31 May 2024, and
(e)    documents attached to an Application to Admit Late Documents lodged by the applicant on 11 June 2024.
Neither party applied to adduce oral evidence or cross-examine any witness.

Submissions

Oral submissions were made by the parties in respect of all of the issues in dispute. For convenience, however, I have focussed below on the submissions made in respect of the preliminary question of whether liability to pay the compensation claimed was commuted to a lump sum by operation of the commutation agreement registered on 26 March 2024.

Applicant’s submissions

The applicant submitted that she had not identified any previous decisions dealing with the issue, nor had she found assistance from the commentary in Mills Workers Compensation New South Wales. The dispute appeared to turn the proper interpretation of the relevant legislative provisions.
The applicant submitted that there was a strong analogy between the provisions in question in these proceedings and those under the Police Regulation (Superannuation) Act 1906. The workers compensation legislation made clear that “double dipping” under the statutory scheme was impermissible, for example, where common law damages had been recovered pursuant to s 151A of the 1987 Act. However, no equivalent provision existed in respect of compensation under Part 3, Division 3 of the 1987 Act where a commutation agreement had been registered.
The applicant submitted that the 1998 Act and the 1987 Act operated together as a single legislative instrument. Section 234 of the 1998 Act contained a general prohibition on contracting out of the 1987 and 1998 Acts. The commutation agreement ought to be approached with that prohibition in mind.
The applicant submitted that a commutation agreement ought to be regarded as a statutory contract, akin to an insurance contract between an employer and a workers compensation insurer. The terms of the contractual agreement emerged, in part, from the statute.
The applicant submitted that contract law required the terms of the statutory contract to be construed contra proferentem, or against the interests of the respondent in the event of ambiguity. The workers compensation legislation was also beneficial and ought to be construed favourably to the applicant in the event of ambiguity.
The applicant conceded that s 87E of the 1987 Act permitted commutation of the respondent’s liability in respect of expenses under Part 3, Division 3 of the 1987 Act, which included liability to pay compensation in respect of domestic assistance pursuant to s 60AA of the 1987 Act. The applicant submitted, however, that the legislation provided no mechanism for the cessation of the applicant’s statutory rights under Part 3, Division 3 following a commutation agreement.
The applicant observed that s 87K of the 1987 Act provided that payment of a lump sum to which liability in respect of weekly compensation had been commuted was taken to be payment of the compensation concerned. The lump sum replaced the statutory entitlement to compensation in the form of weekly benefits. The legislation was silent, however, in relation to medical and related expenses.
The applicant submitted that the ambiguity caused by the absence of an equivalent provision to s 87K in respect of medical and related expenses ought to be resolved in favour of the worker.
Although the construction advocated by the applicant appeared to permit a “double dip”, there was precedent for this type of approach under the Police Regulation (Superannuation) Act 1906. The case of New South Wales v Seedsman [2000] NSWCA 119 concerned a police officer who was found to have concurrent statutory rights under the Police Regulation (Superannuation) Act 1906 and common law rights in circumstances where there was no statutory provision disentitling the police officer to those additional rights.
The applicant’s right to a lump sum was not a right that existed in the common law, rather it was a right created by Parliament. If Parliament had wished to do so, it could remove any concurrent rights under the legislation but in doing so its intention had to be clear.
There was nothing in the workers compensation legislation to distinguish Seedsman in respect of medical and related benefits. The same could not be said for weekly benefits as a clear mechanism was provided in s 87K of the 1987 Act.
While there was no case law directly on point, case law dealing with an equivalent provision ought to be followed. The threshold legal question ought to be resolved in favour of the applicant.

Respondent’s submissions

The respondent agreed that there was zero authority on the question arising in these proceedings. The dispute involved a question of statutory interpretation. The legislation was plain that once there was a commutation there was no further liability to pay statutory compensation. No regard ought to be had to other legislative schemes.
The respondent submitted that the commutation agreement was not a contract but an agreement approved by the Commission under s 87F of the 1987 Act.
. The compensation that may be commuted included compensation under Part 3, Division 3, which encompassed the domestic assistance claimed in these proceedings.
The respondent submitted that the use of the indefinite article in “a liability” in the relevant sections did not confine any agreement under s 87F to future liabilities only.
Section 87I provided that if a liability was only partially commuted, the balance of the compensation continued to be payable under and subject to the 1987 Act.
The agreement that was registered in this case was, however, plainly a complete commutation of liability.
The 1987 Act provided for past medical and related expenses to be commuted. The agreement provided for the respondent’s “whole” liability to be commuted.
If the legislature had intended that only future liability could be commuted it could have made that clear.
The legal advice provided to the applicant made clear that all of her entitlements, including past medical and related expenses, would come to an end with the commutation agreement. The legal advice was correct.
In bringing the present proceedings, the applicant was attempting to contract out of the 1987 Act.

Applicant’s submissions in reply

The applicant submitted that the Police Regulation (Superannuation) Act 1906 was enacted by the New South Wales Parliament. The dispute in Seedsman had been decided by the New South Wales Supreme Court and was binding where relevant. It was not unusual to apply authorities dealing with other legislative schemes in applying the workers compensation scheme.
The applicant maintained her submission that the commutation agreement was a contract involving an offer, acceptance and consideration in the form of payment of the lump sum.
The applicant submitted that to read the agreement as extinguishing any past entitlement to compensation would be to read words into the contract and the legislative provisions underpinning it.
Section 87I, clearly provided for ongoing payments of compensation notwithstanding a commutation agreement.
The applicant agreed that the commutation in question was total in the sense that it encompassed the respondent’s liability to pay both weekly compensation and medical and related treatment expenses. However, it did not operate to commute liability in respect of past medical and related treatment expenses. If it did, s 87K would have no work to do.
The applicant submitted that the respondent’s construction would leave at least three sections of the 1987 Act with no work to do, including ss 87K, 151A and 151Z. All three provisions provided the mechanism by which Parliament precluded a double payment. There was no equivalent provision in respect of past medical and related treatment expenses.
The applicant accepted that she had commuted her right to recover medical and related treatment expenses for the future but submitted that she retained a concurrent right in respect of past expenses.
The applicant referred to the SIRA Guidelines for claiming workers compensation, which described an agreement to commute liability to a lump sum as removing the insurer’s liability to pay “future” weekly payments and/or medical, hospital and rehabilitation expenses for the injury.
The Guidelines suggested a temporal aspect to the commutation.

Respondent’s further submissions in reply

The respondent submitted that the SIRA Guidelines to which the applicant referred were a guide or commentary only and did not have the effect of delegated legislation. The respondent noted that the Guidelines also advised that once a commutation agreement was registered, workers would no longer be entitled to compensation for the benefits referred to in the agreement.
Consistently with the Guidelines, the applicant no longer had an entitlement to recover compensation under the 1987 Act.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 of the 1987 Act.
Part 3, Division 3 of the 1987 Act provides for compensation in respect of medical, hospital and rehabilitation expenses. Section 59 of the 1987 Act provides that “medical or related treatment” includes domestic assistance services.
Section 60AA of the 1987 Act provides that if, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, employer is liable to pay the cost of that assistance provided certain conditions are met.
Part 3, Division 9 of the 1987 Act makes provision for a liability to pay compensation under the 1987 Act to be commuted to a lump sum in certain circumstances.
Section 87E of the 1987 Act provides that a liability in respect of weekly compensation and a liability in respect of compensation under Division 3 of Part 3 may be commuted in accordance with Division 9 and not otherwise.
A number of pre-conditions to commutation are set out in s 87EA.
Section 87F provides a mechanism for commuting a liability to pay compensation by agreement between the parties:
“87F Commutation by agreement
(1)     A liability may be commuted to a lump sum with the agreement of the worker.
(2)     A commutation agreement must not be entered into unless (before the agreement is entered into)—
(a) a legal practitioner instructed independently of the insurer and the employer has certified in writing that the legal practitioner has advised the worker—
(i) on the full legal implications of the agreement, including implications with respect to any entitlement of the worker to compensation under this Act or to benefits under any other law (including a law of the Commonwealth), and
(ii) on the desirability of the worker obtaining independent financial advice, before the worker enters into the agreement, as to the financial consequences of the agreement, and
(b) the worker has confirmed in writing that the worker has been given and understands the advice referred to in paragraph (a).
(3)     A commutation agreement (including an agreement purporting to be a commutation agreement) is not subject to review or challenge in proceedings before the Commission or a court.
(4)     The worker has 14 days after entering into a commutation agreement in which to withdraw from the agreement by giving notice in writing to the insurer. Withdrawal from the agreement by the worker makes the agreement a nullity.
(5)     A liability cannot be commuted under this section if the worker is legally incapacitated because of the worker’s age or mental capacity.
Note—
Section 87G provides for the commutation of a liability when the worker is legally incapacitated.
(6)     A commutation agreement is of no effect unless and until it is registered as provided by this Part. Registration of the agreement removes the liability to which the agreement relates.
(7)     The amount payable under an agreement is payable within 7 days after the agreement is registered or within such longer period as the agreement may provide. Interest calculated at the rate prescribed by the regulations is payable on any amount due and unpaid. The amount payable under a commutation agreement and any interest payable on that amount is recoverable as a debt in a court of competent jurisdiction.
(8)     As part of a commutation agreement, a worker may agree that payment of a lump sum removes any liability to make a payment under Division 4 of Part 3 (or section 16 of the former Act) in respect of the injury concerned. This Division applies to the agreement for payment of that lump sum as if it were an agreement to commute the liability to pay that compensation to a lump sum. Payment of the lump sum removes any liability to which the agreement of the worker relates.”
Provisions for the registration of a commutation agreement are set out in s 87H of the 1987 Act.
Section 87I of the 1987 Act provides:
“87I Payment
(1) If a liability in respect of compensation is only partially commuted under this Division, the balance of the compensation continues to be payable under and subject to this Act.”
Section 87K of the 1987 Act provides:
“87K Commutation payment taken to be payment of compensation
Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this Division or section 51, or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act), is taken for the purposes of this Act, the 1998 Act and the former Act (as applied by this Act) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.”
The provisions set out above were inserted by the Workers Compensation Legislation Amendment Act 2001 No 61 and replaced the previous scheme under s 51 of the 1987 Act which provided for the former Compensation Court to determine, with the consent of a worker, that liability in respect of any weekly payment of compensation be commuted (either in whole or in part) to a lump sum:
“51 Exit payments by commutation of weekly payments
(cf former s 15)
(1)     (Repealed)
(2)     A liability in respect of any weekly payment of compensation may, with the consent of the worker, be commuted (either in whole or in part) to a lump sum, determined by the Compensation Court, having regard to:
(a) any dispute as to liability to pay compensation under this Act,
(b) the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury,
(c) the worker’s diminished ability to compete in an open labour market, and
(d) other benefits that the worker may be entitled to from any other source.
(2A) The Compensation Court is not to determine a lump sum for the purposes of this section unless satisfied that:
(a) the termination of liability concerned is in the best interests of the worker, and
(b) the worker fully understands the effect of the termination of liability concerned and has received adequate advice as to the consequences of the termination.
(2B) It is not necessary that the worker consent or agree to, or understand the effect of, a termination of liability under this section if the Compensation Court is satisfied that the worker is unable, by reason of infirmity of mind or body, properly to consent or agree to, or to understand the effect of, the termination of liability concerned.
(3)     If:
(a) the Compensation Court determines any such lump sum, and
(b) the worker agrees that payment of the lump sum should remove any liability to make a payment under Division 3 or 4 in respect of the injury,
(c) (Repealed)
payment of the lump sum removes any liability to which the agreement of the worker relates.
(4)     (Repealed)
(5)     An agreement as to the commutation of a payment to a lump sum shall not, nor shall the payment of the sum payable under the agreement, exempt the person by whom the payment is payable from any liability under this Act unless the sum has been determined by the Compensation Court in accordance with this Act.
(6)     A lump sum may by agreement or order of the Compensation Court be paid to the Authority for the benefit of the worker.
(7)     (Repealed)
(8)     If a liability in respect of weekly payments of compensation is only partially commuted under this section, the balance of the weekly payments continues to be payable under and subject to this Act.
(9)     Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this section or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act) is taken for the purposes of this Act, the 1998 Act and the former Act (as applied by this Act) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.”

The legislative amendments thus removed the requirement for a determination by the Compensation Court and provided for commutation agreements to be entered into by the parties, subject to a number of preconditions, and registered by the new Workers Compensation Commission.
The language used in the new provisions was, however, derived largely from s 51 and the regime it had replaced in s 15 of the Workers Compensation Act 1926, which made provision for the “redemption” of “weekly payments”.
The history to these legislative regimes was traversed by Neilson J in Bradshaw v Trazmet [2002] NSWCC 1, who observed:
“Merely considering legal history and the verbiage of the 1926 Act and the eventual verbiage of the 1987 Act, it can be seen that whether the process was called redemption or is called commutation, the primary purpose of the procedure is to change the liability of the employer from the liability to make weekly payments, to the ability to remove that liability by making one lump sum payment.
Prior to 1980, although a practice had arisen that the Commission noted that the worker agreed that payment of the lump sum removed any liability under s 10 and s 16 of the former Act, such agreements were of no effect, and it was necessary to give them effect by the enactment of s 15(1A). That regime passed into the 1987 Act. The primary liability to be commuted is the liability to make weekly payments of compensation. If the worker agreed that payment of a lump sum in commutationof the liability to make weekly payments also removed the liability to make payments for hospital, medical and the like expenses or lump sum compensation under s 66 and s 67, that latter liability was removed by payment of the lump sum determined by the Court as the proper lump sum for the removal of the employer’s liability to make weekly payments.
Interestingly enough, the 1926 Act spoke of the liability under s 10 and s 16 ‘being redeemed’ but the 1987 statute does not speak of liability under s 60, s 66 and s 67 being ‘commuted’, rather that the approval of the commutationand agreement of the worker might remove the liability to make payments under, for example, s 60 and s 66 and s 67.”
Viewed in this historical context, it can be seen that the predecessors to the current scheme were concerned primarily with the commutation of liability for weekly compensation. The former s 51 was amended to give effect to a practice that had arisen between parties of agreeing that commutation of a liability to pay weekly compensation to a lump sum also removed liability to pay other forms of compensation.
The current scheme, while adopting much of the language of the former schemes, explicitly provides for both a liability in respect of weekly compensation and compensation under Division 3 of Part 3 to be commuted to a lump sum.
The submissions made in these proceedings centred in large part on the meaning of s 87K and whether the specific reference to weekly compensation in that provision and the omission of any reference to compensation under Division 3 meant that the applicant remained entitled to recover compensation under Division 3 even where there has been a commutation of a liability under Division 3 to a lump sum.
In my view, the interpretation advocated by the applicant fails to acknowledge the effect to the “commutation of liability” provided for by the scheme. If a liability to pay compensation, for example under s 60AA, has been “commuted” or changed to a lump sum, there can no longer be any entitlement to recover that compensation in accordance with the terms of s 60AA, only an entitlement to payment of the lump sum. The liability under s 60AA has by operation of the “commutation” been removed.
The omission of any explicit reference to compensation under Division 3 in s 87K and the absence of an equivalent provision can be explained by the historical context. In my view, s 87K simply provides clarification in relation to the effect of a commutation or redemption of liability to pay weekly compensation under the current scheme or its predecessor. The absence of any equivalent “clarifying” provision in respect of Division 3, does not render a commutation agreement entered into and registered in accordance with Division 9 ineffective.
It does, however, remain necessary to determine what “liability” has been commuted. I would accept that any liability under the 1987 Act which has not been commuted would persist. This requires consideration of the particular commutation agreement entered into and registered in this case.
The application to register a commutation agreement signed by the applicant on 13 February 2024 identified the psychological injury on 31 May 2018 as the injury which was the subject of the agreement. The application further indicated that a lump sum amount of $750,000 would be paid to the applicant so as to commute,
“…the employer's full liability for compensation (including weekly benefits, medical expenses and lump sum compensation) under the Workers Compensation Act 1987 in relation to the injury referred to in Part 2 of this form”.
Consistently with the statutory scheme, including s 87I of the 1987 Act, the form specifically provided for partial liability to pay compensation to be commuted and for particulars of such to be provided, however, that box was not ticked.
It would have been open to the parties to indicate that only future liability to pay compensation was being commuted or that the commutation did not encompass any liability to pay past compensation under s 60AA. This was not done.
It is also relevant to note that the application form indicated that there was no dispute as to liability to pay compensation under the Workers Compensation Acts. This suggested that the insurer’s determination set out in the notices issued under s 78 of the 1998 Act on 27 November 2023, 12 December 2023 and 23 February 2024 had been accepted by the applicant.
The applicant has sought to argue that, notwithstanding the express terms of the agreement, only “future” liability to pay compensation under s 60AA was commuted. The applicant refers, in this regard to the legal advice provided by her former solicitor and copy of which is attached to the Application to Resolve a Dispute.
That advice relevantly stated,
“A commutation is where you and the insurer agree to a single lump sum payment. This payment removes the insurer's liability to you to pay future weekly payments and/or medical, hospital, and rehabilitation expenses for your injury. The insurer will not be liability for any further lump sum compensation or work injury damages.
Said another way, a commutation is an agreement between you and the insurer to commute or ‘buy- out’ any future liability for weekly compensation payments and medical, hospital, and rehabilitation costs, through the payment of a lump sum to you.
Once your commutation agreement is registered with the Personal Injury Commission, you will no longer be entitled to benefits under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998.
We advised you that if you enter into a commutation agreement, it will be the full and final settlement of your workers compensation claim and that it will be the only claim you will ever be able to make in respect of your workplace injury on 31 May 2018 and no further claim of any type can be made, even if your condition deteriorates in the future.”
The applicant also refers to the SIRA Guidelines, which state:
“A commutation is where you (the worker) and insurer agree to a single lump sum payment. This payment removes the insurer’s liability to pay future weekly payments and/or medical, hospital and rehabilitation expenses for the injury.
A commutation agreement must be registered with the Personal Injury Commission.
Once your commutation agreement is registered with the Personal Injury Commission, you will no longer be entitled to compensation for the benefit(s) referred to in the agreement.”
In my view, however, the terms of the commutation agreement that was registered in this case are plain. The parties agreed that the respondent’s “full” liability to pay compensation under the 1987 Act in respect of the psychological injury on 31 May 2018 should be commuted to a lump sum. This was permitted by the statutory regime. The preconditions to the commutation agreement appear from the materials before the Commission to have been satisfied. The agreement was registered by the Commission. The lump sum has been paid. It has not been suggested that there was any deficiency in the form or execution of the commutation agreement.
There is, in my view, no ambiguity in the agreement and no cause to revert the legal advice or SIRA Guidelines as an aid to interpreting either the terms of the agreement or the legislative provisions underpinning it.
Even if there was, I do not accept that either the legal advice or the SIRA Guidelines support the view that only future liabilities could be, or were in this case, commuted. The references to “future liabilities” in both documents is, in my view, a reflection of the fact that usually any disputes as to past liabilities will have been resolved prior to a commutation agreement being entered into, or have not arisen at all. Both documents make clear that once a commutation agreement is registered there is no longer any entitlement to the benefits referred to in the agreement.
Nothing in either the plain terms of the commutation agreement registered in this case, or the statutory scheme suggests that only “future liabilities” could be, or were in this case, commuted to a lump sum.
I have had regard to the submissions of the applicant by reference to Police Regulation (Superannuation) Act 1906 and the decision in Seedsman. In my view, that scheme can be distinguished from the one presently under consideration. In Seedsman there were concurrent entitlements to statutory and common law remedies. These proceedings concern only one entitlement, which has been commuted to a lump sum. There is no separate or additional entitlement to lump sum compensation.
Similarly, the circumstances presently under consideration can be distinguished from those addressed by ss 151A and 151Z of the 1987 Act, which deal with concurrent entitlements to remedies under the 1987 Act and at common law. I do not accept that the approach I have adopted in this case leaves those provisions with no work to do.
While the applicant has asserted that she had a different understanding of what the commutation agreement entailed, that is potentially a matter for another forum.
For the reasons set out above, I find that any liability under s 60AA of the 1987 Act in respect of the period from 31 May 2018 to 15 November 2020, if it existed, has been commuted to the lump sum, which was paid on 10 April 2024.
As a result, it is unnecessary to determine the remaining issues arising in these proceedings concerning whether or not that liability existed.
There will be an award for the respondent.

[2024] NSWPIC 392

23 July 2024