Yarham v Transport Accident Commission of Victoria

[2017] NSWCA 301

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Yarham v Transport Accident Commission of Victoria & Ors [2017] NSWCA 301

Hearing dates:

11 August 2017;Written submissions 25 August 2017 and 13 September 2017

Date of orders:

07 December 2017

Decision date:

07 December 2017

Before:

Meagher JA at [1];
White JA at [11];
Emmett AJA at [146]

Decision:

1. Appeal allowed.

 

2. Set aside the declarations and orders made by Hall J on 13 December 2016.

 

3. In their place, declare that a claim made by the appellant against the owner of the motor vehicle in which the appellant was injured as a result of the alleged negligence of the driver of that vehicle pursuant to s 112 of the Motor Accidents Compensation Act 1999 (NSW) is governed by the law of New South Wales and the Motor Accidents Compensation Act 1999 (NSW) applies to it.

 4. Order that the first respondent pay the appellant’s costs of the proceedings below and of the appeal.

Catchwords:

WORKERS' COMPENSATION – motor vehicle accident – injuries out of jurisdiction – where employee and employer based in Victoria and injury and alleged negligence occurred in New South Wales – whether primary judge erred by finding that the substantive law of Victoria applies to a claim for damages – workers compensation legislation to be construed within context of statutory regime and legislative history – whether choice of law provisions apply only to a claim made against an employer in its capacity as employer of claimant, including its vicarious liability for the torts of a co-employee – whether choice of law provisions apply also to claim against employer as owner of vehicle pursuant to the statutory agency under s 112 of the Motor Accidents Compensation Act 1999 (NSW) – whether choice of law provisions apply to a claim made against negligent driver

 

WORDS AND PHRASES – whether definition of “claim” in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) creates inconsistency with Division 1A in Part 5 of the Workers Compensation Act 1987 (NSW) – no inconsistency arises – “claim” forms part of the composite expression “claim for damages” – common law claim for motor vehicle damages is a “claim for damages”

STATUTORY INTERPRETATION – general rules of construction of instruments – construction of Division 1A of Part 5 of the Workers Compensation Act 1987 (NSW) – whether provisions should be given literal meaning – need to consider legislative history and context in construing the statutory regime

Legislation Cited:

Accident Compensation Act 1985 (Vic) Pt IV
Employees Liability Act 1991 (NSW) ss 3, 5
Interpretation Act 1987 (NSW) ss 6, 12
Interpretation of Legislation Act 1984 (Vic) s 48
Limitation Act 1969 (NSW) s 18A
Limitation Act 2005 (WA) s 14
Motor Accident Insurance Act 1994 (Qld) ss 20, 23
Motor Accidents Act 1988 (NSW) Pt 5, Pt 6
Motor Accidents Compensation Act 1999 (NSW) s 3A, Pt 3.4, Ch 4, Ch 5,
Supreme Court Act 1970 (NSW) s 75A
Transport Accident Act 1986 (Vic) ss 35, 93
Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 (Qld)
WorkCover Queensland Act 1996 (Qld) s 11
WorkCover Queensland Amendment Act 2002 (Qld)
WorkCover Queensland Amendment Bill 2002 (Qld)
Workers Compensation Act 1987 (NSW) ss 2A, 3, 9AA-9AC, Pt 5, ss 155, 156
Workers Compensation and Rehabilitation Act 2003 (Qld) ss 10, 113, 114, 324
Workers Compensation Legislation Amendment Act 2002 (NSW)
Workers Compensation Legislation Amendment Act 2002 (NSW)
Workers Compensation Legislation Amendment Bill 2002 (NSW)
Workers Injury Management and Workers Compensation Act 1998 (NSW) s 2A, s 4, Ch 7

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26
Behrendorff v Soblusky (1957) 98 CLR 619
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714
Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230
Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636; [2003] NSWCA 231
Francis v Emijay Pty Ltd [2006] 2 Qd R 5; [2006] QCA 62
Gunter v State Transit Authority of NSW (2004) 61 NSWLR 414; [2004] NSWCA 330
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Hodgson v Dimbola Pty Ltd t/as Towers Removals [2009] ACTSC 59
JA and BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82
Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555
Martin v Bailey (2009) 26 VR 270; [2009] VSCA 263
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Soblusky v Egan (1960) 103 CLR 215
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9
Toll Pty Ltd v Dakic [2006] NSWCA 58
Toll Pty Ltd v Harradine [2016] NSWCA 374
Transport Accident Commission of Victoria v Leslie Ross Yarham [2016] NSWSC 1791

Texts Cited:

Thomas Goudkamp and Andrew Morrison, Thomson Reuters, Personal Injury Law Manual NSW (at Update 156) [MACA 122.20]

Category:

Principal judgment

Parties:

Leslie Ross Yarham (Appellant)
Transport Accident Commission of Victoria (1st Respondent)
Andrew Gorman (2nd Respondent)
State Insurance Regulatory Authority (3rd Respondent)

Representation:

Counsel:
A J Stone SC with M Holz (Appellant)
M Allars SC (1st Respondent)
Submitting appearances (2nd and 3rd Respondents)

  Solicitors:
Ryan Legal (Appellant)
Carroll O’Dea Lawyers (1st Respondent)
Crown Solicitor (2nd & 3rd Respondents)

File Number(s):

2016/384774

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2016] NSWSC 1791

Date of Decision:

13 December 2016

Before:

Hall J

File Number(s):

2015/353438

HEADNOTE

The appellant, a resident of Victoria, was employed by a Victorian based company, Detour Holdings Pty Ltd. The appellant was injured in a motor vehicle accident in New South Wales when the truck he was travelling in ran off the road. The truck was being driven by a co-employee, and was owned by Detour Holdings. Following the accident the appellant received statutory no-fault workers’ compensation payment from Detour Holdings’ workers’ compensation insurer pursuant to the Accidents Compensation Act 1985 (Vic).

The respondent was the insurer of the third party policy for the truck. The appellant lodged a notice of claim for personal injury compensation under the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”).

A dispute arose as to whether the appellant could make a claim under the MAC Act. The respondent contended that, because compensation was payable to the appellant under the statutory workers’ compensation scheme of Victoria, s 150A of the Workers Compensation Act 1987 (NSW) (the WC Act) applied to the appellant’s motor accident claim. On that basis, it contended that the substantive law of Victoria governed whether or not the appellant could make a claim for damages in respect of his injury and, if so, the determination of that claim.

The respondent sought a determination from the Claims Assessment and Resolution Service (CARS) that the matter was exempt from a determination within the CARS on the basis that the issue as to the applicable law was complex. The assessor determined that the matter was suitable for assessment; that s 150A of the WC Act did not apply; and that the matter could be the subject of CARS assessment under the MAC Act.

The primary judge set aside the assessor’s decision and declared that Victorian law was the governing law.

The main issue on appeal was whether Victorian law governs motor accident claims brought in respect of an injury suffered in New South Wales for which compensation is payable under the Victorian workers compensation scheme.

The second issue on appeal was whether the assessor had made an error of law by purporting to decide the question of the application of s 150A of the WC Act, rather than the question of whether it gave rise to a complex legal issue.

At the time of the hearing, the appellant had not yet identified against whom the claim would be made. It was open to the appellant to make a claim for motor accident damages against both the co-employee, on the basis of alleged negligent driving; and Detour Holdings on the basis of vicarious liability for the acts of the co-employee, either as his employer or as owner of the vehicle (pursuant to the statutory agency created by s 112 of the MAC Act).

(1) The construction of s 150B of the WC Act:

White JA with Emmett AJA agreeing:

(i) There is an implied limitation to the scope of s 150B that it applies only to a claim for damages where the worker’s employer (or a person for whose acts the employer is vicariously liable or a person who is vicariously liable for the acts of the employer) is sued in that capacity or where a relationship of employment between the claimant and his employer, or between the employer and the tortfeasor, or that gives rise to a vicarious liability of a third party, is an element of the cause of action: at [97], [140].

(ii) Division 1A applies to the appellant’s claim against his employer for its vicarious liability as employer of the co-employee, but not as owner of the vehicle: at [138], [140], [154].

(iii) Where a plaintiff in the position of the appellant has a claim against his employer that arises both under the statutory agency provided for by s 112 of the MAC Act and under the common law, either for the employer’s own negligence or by reason of the employer’s vicarious liability for the acts or omissions of another employee, one cause of action will be governed by the law of New South Wales and the other or others by the law of Victoria. Such complexities are inherent in the scheme: at [141].

Meagher JA, dissenting:

(iv) Division 1A applies to claims for damages against the claimant worker’s employer, or a person vicariously liable for that employer or for whom that employer is vicariously liable, in respect of personal injury arising out of or in the course of employment. There is no reason for construing “vicariously liable” in ss 150(b) and 150B(3)(b) as confined in meaning or effect to claims where the worker’s employer and the primary tortfeasor have an employment relationship: at [8].

(2) The construction of s 150A of the WC Act:

White JA with Meagher JA and Emmett AJA agreeing:

(i) The reference to a ‘claim for damages’ in s 150A is capable of including a common law claim for damages in relation to a motor vehicle accident: at [10], [60]-[61].

(ii) The definition of ‘claim’ in s 4 of the Workers Injury Management and Workers Compensation Act 1998 (NSW) does not apply in s 150A, which uses the composite expression ‘claim for damages’: at [61].

White JA with Emmett AJA agreeing:

(iii) Section 150A(1)(a) should be construed as meaning that the substantive law of the State under whose statutory workers’ compensation scheme compensation is payable is the substantive law that governs whether or not a claim for damages in respect of the injury can be made, and if so, the determination of that claim, in so far as the claim is based upon a claim that the injury was caused by the negligence or other tort of the worker’s employer, as defined in s 150B(3); or a breach of contract by the worker’s employer, as so defined: at [138].

Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 applied.

(3) Legislative intent:

White JA with Emmett AJA agreeing:

The legislative context and history of the amendments to the WC Act show the intention of New South Wales, Victoria and Queensland to implement a uniform workers’ compensation scheme. The legislative and extrinsic materials do not indicate that issues regarding work injuries arising out of motor vehicle accidents were intended to be addressed by the amending legislation: at [109], [125], [133].

(4) Error of law by the assessor

White JA with Emmett AJA agreeing:

The assessor was not required to grant an exemption if the matter were complex. In any event, prerogative relief is discretionary. Once it is determined by this Court that the MAC Act does apply, then, subject to any application for special leave and any appeal to the High Court if special leave is granted, the answer to that question is no longer complex: at [144], [155].

Judgment

1. MEAGHER JA: These reasons for judgment assume a familiarity with the underlying facts and legislation which are set out in the judgment of White JA. I respectfully disagree with his Honour’s answer to the central question on which the disposition of this appeal turns.

2. The appeal is from relief granted in the Common Law Division reviewing a decision made by a claims assessor under Motor Accidents Compensation Act 1999 (NSW) (MAC Act), Part 4.4, Div 2. Before that assessor, the first respondent (TAC) had argued that the motor accident claim by the appellant (Mr Yarham) was “not suitable for assessment” under Part 4.4 because the MAC Act did not apply to it: s 92(1)(b). An application for exemption from assessment on that basis was dismissed by the assessor. However, the primary judge (Hall J) declared that decision to be invalid and, more significantly, declared that the substantive law governing any such claim is that of Victoria. The appeal is from those declarations and consequential orders.

3. Stated generally, the central question is whether Victorian law governs motor accident claims brought in respect of an injury suffered in New South Wales for which compensation is payable under the Victorian workers compensation scheme. That question arises in circumstances where the relevant injury to Mr Yarham was allegedly caused by the negligence of a co-employee (Mr Benson), whilst driving a vehicle in which Mr Yarham was a passenger. That vehicle was registered in Victoria and owned by their common employer, the second respondent (Detour). The answer depends on whether Workers Compensation Act 1987 (NSW) (WC Act), Pt 5, Div 1A applies to Mr Yarham’s claims for damages in respect of that injury. That in turn depends on the construction of s 150B.

4. Mr Yarham’s notice of claim (see MAC Act, s 72) could support claims against Mr Benson and Detour: the former on the basis of negligent driving; and the latter on the basis of vicarious liability for the acts of Mr Benson, either as his employer or as owner of the vehicle. The last claim, based on ownership, is assisted by MAC Act, s 112(1), which deems Mr Benson to be Detour’s agent and acting within the scope of his authority in driving the vehicle. As Dixon CJ, McTiernan and Taylor JJ observed of equivalent legislation (Motor Vehicles Insurance Act 1936 (Qld), s 3(2)), that provision “does not speak in terms of liability, it speaks in terms of agency”: Behrendorff v Soblusky (1957) 98 CLR 619 at 622–623. The liability depends on the common law principle that negligent driving is imputed to the owner or bailee in possession of a vehicle who “appoints another to do the manual work of managing it … on his behalf in circumstances where [the former] can always assert his power of control”: Soblusky v Egan (1960) 103 CLR 215 at 231 (Dixon CJ, Kitto and Windeyer JJ). That principle is an extension of the “strict theory of vicarious liability”, which rests on employment, rather than agency: Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226 at 229 (Walsh JA, Jacobs and Holmes JJA agreeing). But it renders the owner a tortfeasor vicariously liable for another’s actionable wrong: Soblusky v Egan at 235.

5. Each of these claims is to be characterised by reference to s 150B(1), which provides that Part 5, Div 1A “only” applies to claims for damages “against a worker’s employer” and “in respect of an injury that was caused by: (a) the negligence or other tort … of the worker’s employer, or (b) a breach of contract by the worker’s employer” [emphasis added]. That language restricts the claims to which Div 1A applies in three ways. The first reference to a “worker’s employer” (in the chapeau) identifies the person against whom such a claim is made. The latter two references (in paras (a) and (b)) identify the person whose actionable conduct has caused the “injury”. And the definition of “injury” in WC Act, s 4 as “personal injury arising out of or in the course of employment” (subject to qualifications related to dust diseases) identifies the causal and temporal context of such an injury: see Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.

6. In their terms, ss 150 and 150B(3) respectively extend the meaning of each reference to a “worker’s employer” in Part 5 generally and Div 1A specifically, to include both “a person who is vicariously liable for the acts of the employer” and “a person for whose acts the employer is vicariously liable”. In any case, that person’s liability for the injury will be additional to that of the worker’s employer. The first limb of that extended meaning refers to a class of person who incurs liability in defined circumstances for the actionable breach of duty of another (namely, the relevant “worker’s employer”): see Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 731–733 (Clarke JA, Priestley JA agreeing). The second limb refers to a class of person whose actionable breach of duty also gives rise to liability in another (again, the “worker’s employer”). Either or both limbs of the definition may, however, be inapplicable to a particular reference by reason of the context or subject matter: Interpretation Act 1987 (NSW), s 6.

7. The second limb of the definition naturally applies to para (a) of s 150B(1). For that reason, and as Mr Yarham concedes, Div 1A applies to a claim for damages against the claimant worker’s employer in respect of personal injury arising out of or in the course of employment (subject to the dust diseases qualifications) if that injury was caused by the negligence or other tort of a person for whom the employer is vicariously liable. Mr Yarham’s claim against Detour in relation to Mr Benson’s negligence in the course of his employment clearly satisfies that description. That claim is not brought against Detour in its capacity as Mr Yarham’s employer. The employment relationship between that claimant worker and his employer is only relevant to engaging the defined terms “worker’s employer” and “injury”.

8. That observation exposes the difficulty with Mr Yarham’s submission that a claim against Detour based on ownership of the vehicle is not governed by Div 1A because it is not made against that employer as employer. The only employment relationship to which s 150B attaches any significance is that between the claimant worker and his or her employer, and only in the manner described above. Neither the subject matter of that provision nor the other references to a “worker’s employer” in Part 5 supply any reason for construing “vicariously liable” in this second limb as confined in meaning or effect to claims in respect of “injury” where the worker’s employer and the primary tortfeasor have an employment relationship. It follows, in my view, that Div 1A applies to each of Mr Yarham’s proposed claims against Detour.

9. As to the claim against Mr Benson, the only issue is whether the second limb of the definition extends the reference to a “worker’s employer” in the chapeau to s 150B(1). Three factors confirm that it does. First, that reference is the only one in which the first limb of the definition has any work to do, namely by enlarging Div 1A to include certain claims against persons vicariously liable for the acts of the claimant worker’s employer (such as the employer’s employer). Given the structure of s 150B, it is most unlikely that only one limb would be intended to apply to a particular reference to the defined term. Secondly, even applying both limbs in the chapeau, it remains the case that Div 1A only applies to claims which could be brought against the claimant worker’s employer. The nature of vicarious liability ensures that outcome, which is reinforced by the definition of “injury”. As a result, the extended meaning of “worker’s employer” in Part 5 ensures that a claimant cannot circumvent the substantive law of a State, particularly its limits on the recovery of damages in Div 2, merely by selecting a suitable defendant. Thirdly, if the person against whom a claim is made happens to be a co-employee of the claimant, he or she may be entitled to an indemnity from their common employer: see Employees Liability Act 1991 (NSW), s 3(1). To the extent that Div 1A is concerned with employers’ liability and insurance, that possibility of being ultimately accountable is significant.

1. I agree for the reasons given by White JA at [60]–[64] that a common-law claim for damages in relation to a motor accident is capable of being a “claim for damages” to which s 150A(1) applies. The result, on my view, is that each of the claims proposed by Mr Yarham’s notice of injury must be determined according to the substantive law of Victoria. As neither party has taken issue with the form of the primary judge’s orders, I would dismiss the appeal with costs.

2. WHITE JA: This is an appeal from declarations and orders made by Hall J on 13 December 2016 (Transport Accident Commission of Victoria v Leslie Ross Yarham [2016] NSWSC 1791). The declarations and orders included the following:

“(1) A declaration that the assessment decision of the Claims Assessor, the Second Defendant, made on or about 25 September 2015 purportedly pursuant to s 92(1)(b) of the Motor Accidents Act 1999 was affected by jurisdictional error and accordingly was invalid.

(2)    An order that the First, Second and Third Defendants refrain from acting on or taking any step in reliance on the assessment decision referred to in Order (1).

(3) A declaration that, by reason of the provisions of s 150A(1) of the Workers Compensation Act 1987 the substantive law that governs:

(a)    Whether or not a claim for damages by the First Defendant in respect of injuries allegedly suffered by him in a motor vehicle accident on 18 July 2010 on the Newell Highway in New South Wales, can be made; and

(b)    If it can be made, the determination of the claim is the substantive law of the State of Victoria.”

12. The appellant, Mr Yarham, was employed by a Victorian based company, Detour Holdings Pty Ltd (“Detour Holdings”). He was injured in a motor accident on the Newell Highway in New South Wales on 18 July 2010. The truck was driven by another employee of Detour Holdings, a Mr Benson. Mr Yarham was the relief driver. The truck ran off the road. Mr Yarham alleges that this was due to negligence on the part of Mr Benson in his driving of the truck. The truck was registered to Detour Holdings in Victoria. Mr Yarham was and is a resident of Victoria.

13. Following the accident Mr Yarham received statutory no-fault workers’ compensation payment from Detour Holdings’ workers’ compensation insurer pursuant to the Accident Compensation Act 1985 (Vic) (“the Accident Compensation Act”).

14. The first respondent, the Transport Accident Commission (“the TAC”), was the insurer of the third party policy for the truck in which Mr Yarham was injured.

15. The TAC contends that because compensation was payable to Mr Yarham under the statutory workers’ compensation scheme of Victoria, the substantive law of Victoria governs whether or not he may make a claim for damages in respect of his injury and, if so, the determination of that claim. The primary judge made a declaration to that effect.

16. Subject to contrary statutory provision, the law governing a claim Mr Yarham might bring for damages arising from the motor accident is governed by the law of New South Wales as the place of the alleged tort (John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [102]). The TAC contends that s 150A of the Workers Compensation Act 1987 (NSW) (“the WC Act”) is such a contrary provision. Section 150A is part of Div 1A of Pt 5 of the WC Act. Division 1A was introduced by the Workers Compensation Legislation Amendment Act 2002 (NSW). That Act was assented to on 16 December 2002 but Sch 1, which relates to cross-border amendments and contains the provisions in Div 1A, did not commence until 1 January 2006. As noted below, it was introduced as the result of an agreement between the governments of New South Wales, Queensland and Victoria that each State should pursue complementary legislation establishing a single rule for workplace-related accidents consistent with national principles whose aim was to eliminate the need for employers to obtain workers’ compensation coverage for a worker in more than one jurisdiction (see para [53] below).

17. Division 1A of Pt 5 of the WC Act provides as follows:

“Division 1A Choice of law

150A The applicable substantive law for work injury claims

(1)    If compensation is payable (whether or not it has been paid) under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs:

(a)    whether or not a claim for damages in respect of the injury can be made, and

(b)    if it can be made, the determination of the claim.

(2)    This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.

(3)    For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it:

(a)    would have been payable but for a provision of the scheme that excludes the worker’s right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision, or

(b)    would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.

(4)    A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.

(5)    In this Division:

State includes Territory.

150B Claims to which Division applies

(1)    This Division applies only to a claim for damages against a worker’s employer in respect of an injury that was caused by:

(a)    the negligence or other tort (including breach of statutory duty) of the worker’s employer, or

(b)    a breach of contract by the worker’s employer.

(2)    Subsection (1) (a) applies even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.

(3)    A reference in this Division to a worker’s employer includes a reference to:

(a)    a person who is vicariously liable for the acts of the employer, and

(b)    a person for whose acts the employer is vicariously liable.

150C What constitutes injury and employment and who is employer

For the purposes of this Division:

(a)    injury and employer include anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State, and

(b)    the determination of what constitutes employment or whether or not a person is the worker’s employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State.

150D Claim in respect of death included

For the purposes of this Division, a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury.

150E Meaning of ‘substantive law’

In this Division:

a State’s legislation about damages for a work related injury means:

(a)    for this State—Part 5 of this Act and Chapter 7 of the 1998 Act [being the Workplace Injury Management and Workers Compensation Act 1998 (NSW)], and any other provision of this Act or the 1998 Act providing for the interpretation of anything in that Part or Chapter, and

(b)    for any other State—any provisions of a law of the State that is declared by the regulations to be the State’s legislation about damages for a work related injury.

substantive law includes:

(a)    a law that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action, and

(b)    a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time), and

(c)    a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit, and

(d)    a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered, and

(e)    a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered, and

(f)    a law expressed as a presumption, or rule of evidence, that affects substantive rights, and

(g)    a provision of a State’s legislation about damages for a work related injury, whether or not it would be otherwise regarded as procedural in nature,

but does not include a law prescribing rules for choice of law.

150F Availability of action in another State not relevant

(1)    It makes no difference for the purposes of this Division that, under the substantive law of another State:

(a)    the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State, or

(b)    the circumstances on which the claim is based do not give rise to a cause of action.

(2)    In this section:

another State means a State other than the State with which the injury is connected.”

18. “Damages” for the purposes of Pt 5 is defined by s 149 as follows:

“149 Definitions

(1)    In this Part:

damages includes:

(a)    any form of monetary compensation, and

(b)    without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),

but does not include:

(c)    compensation under this Act, or

(d) additional or alternative compensation to which Division 8 of Part 3 applies, or

(e)    an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or

(f)    a sum required or authorised to be paid under a State industrial instrument, or

(g)    any sum payable under a superannuation scheme or any life or other insurance policy, or

(h)    any amount paid in respect of costs incurred in connection with legal proceedings, or

(i)    damages of a class which is excluded by the regulations from this definition.

(2)    A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made.”

19. Mr Yarham submits that Div 1A does not apply to his claim for “motor accident damages” meaning damages to which Ch 5 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”) applies.

Dispute Emerges

20. On 25 July 2014, more than four years after the accident, Mr Yarham gave notice to the TAC of a claim for personal injury compensation under the MAC Act. This was well after the period of six months for the making of a claim prescribed by s 72 of the MAC Act. However, no point is taken about that on this appeal. The claim followed the form approved by the Motor Accidents Authority of NSW (“the Authority”) to be used for claims made under the MAC Act for accidents occurring on or after 1 October 2009. It attached an incident report and named the driver of the vehicle, Mr Benson. Under a section headed “Employment Details (Relating to Loss of Income)” Mr Yarham named Detour Logistics Pty Ltd as his employer and gave details of his wages and hours of work. The claim form did not otherwise identify the person against whom Mr Yarham contended he had a claim. The form included a provision for inserting the name and details of the driver and owner of the vehicle. It did not require the claimant to identify the person against whom a claim would be made.

21. On 10 December 2014 the TAC advised the solicitors for Mr Yarham that in the TAC’s view the substantive law that applied to his claim was the law of Victoria and he was required to satisfy s 93 of the Transport Accident Act 1986 (Vic) (“the Transport Accident Act”). The TAC acknowledged that it appeared that the accident had occurred due to driver error and it noted that Detour Holdings was vicariously liable for the actions of its employee, Mr Benson. It said Victorian law applied by reason of s 129MA of the Accident Compensation Act. That section is the Victorian equivalent of s 150A of the WC Act.

22. Correspondence between Mr Yarham’s solicitor and the TAC followed. On 28 May 2015 Mr Yarham’s solicitors, Ryan Legal, wrote to the TAC noting that they had sent to the TAC a report from a doctor that assessed that Mr Yarham’s whole person impairment as a result of the accident was over 30 per cent and that another doctor had put his psychiatric injuries at 10 per cent. Ryan Legal asserted that New South Wales law was applicable to Mr Yarham’s claim that they said was governed by the MAC Act. They asked the TAC to advise whether it accepted that Mr Yarham’s whole person impairment exceeded the 10 per cent threshold under the MAC Act.

23. Section 131 of the MAC Act provides that:

“131      Impairment thresholds for award of damages for non-economic loss

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.”

24. In contrast s 93 of the Transport Accident Act provides:

“Actions for damages

(1)    A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.

…

(4)    If—

(a)   under section 46A, 47(7) or 47(7A), the Commission has determined the degree of impairment of a person who is injured as a result of a transport accident; and

(b)    the degree so determined is less than 30 per centum—

the person may not bring proceedings for the recovery of damages in respect of the injury unless—

(c)    the Commission—

(i)   is satisfied that the injury is a serious injury; and

(ii)    issues to the person a certificate in writing consenting to the bringing of the proceedings; or

(d)    a court, on the application of the person, gives leave to bring the proceedings.

…”

25. In its letter of 28 May 2015 Ryan Legal said:

“Once the 10% WPI threshold is resolved, we will be preparing for a Section 89A conference and thereafter, will be filing an Application for General Assessment with CARS.

We invite TAC to make whatever preparations it requires to be ready to proceed towards a CARS assessment of this case. We urge you to appoint NSW panel lawyers who can advise on the ‘forum’ issues.

We look forward to hearing from you in relation to the issues raised above including as to the applicable law and the 10% WPI threshold.”

MAC Act Procedures

26. Part 3.4 of the MAC Act provides for the establishment of a unit known as the Motor Accidents Medical Assessment Service (“the MAS”) (s 57A). Part 3.4 applies if there is a disagreement between a claimant and an insurer about, amongst other matters, whether the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10 per cent (s 58(1)(d)). Part 4.3 of the MAC Act deals with duties with respect to claims, including a duty of an insurer to try to resolve a claim expeditiously (s 80(1)). Section 81 provides in substance that an insurer must advise as expeditiously as possible whether it admits or denies liability for the claim and must in any event do so within three months after having been given notice of the claim under s 72. If the insurer fails to do so it is taken to have given notice denying liability (s 81(3)). Section 82 requires an insurer to make an offer of settlement unless the insurer wholly denies liability for the claim within a timeframe specified in that section. If an insurer admits liability (wholly or in part) it is obliged to make payments in respect of hospital, medical, pharmaceutical, rehabilitation and other expenses in accordance with s 83.

27. Under Pt 4.4 of the MAC Act (headed “Claims assessment and resolution”) parties are required to participate in a settlement conference as soon as practicable after the insurer makes an offer of settlement under s 82 (s 89A(1)). Section 89A(2) provides that a claim cannot be referred to the Authority for assessment until the parties have participated in a settlement conference. Under s 89C if the parties participate in a settlement conference but the claim is not settled each party must make an offer of settlement within 14 days after the settlement conference concludes.

28. These provisions in Div 1A of Pt 4.4 do not apply if the claim is exempt from assessment pursuant to s 92(1)(a) or, relevantly, the insurer wholly denies liability in respect of the claim (s 89E).

29. Division 2 of Pt 4.4 relates to the assessment of claims. A claimant cannot commence court proceedings against another person in respect of a claim until either a Principal Claims Assessor has issued a certificate under s 92 that the claim is exempt from assessment, or a claims assessor has issued a certificate under s 94 under which the claims assessor has made an assessment of the issue of liability (unless the insurer has accepted liability) and the amount of damages for that liability, being an amount that in the assessor’s opinion is an amount that a court would be likely to award (s 94(1)).

30. The starting point for these procedures where there is disagreement on medical assessment matters, which include the injured person’s degree of permanent impairment, is the referral of matters for medical assessment under Pt 3.4 by the MAS.

31. By its letter of 28 May 2015 Ryan Legal asked for a concession that the degree of permanent impairment of Mr Yarham as a result of the injury caused by the motor accident was greater than 10 per cent. The TAC responded on 9 June 2015 by stating that it would not respond to the request to concede the “NEL threshold” (being shorthand for non-economic loss) given its position that the MAC Act did not apply.

32. Because of this position taken by the TAC there was no application made to the MAS to determine the degree of Mr Yarham’s permanent impairment. Nor were the subsequent procedures provided for by the MAC Act implemented. Although the TAC did not give notice expressed to be made under s 81 as to whether it admitted or denied liability for the claim, it did deny liability for a claim made pursuant to the MAC Act by asserting that the MAC Act did not apply.

The TAC’s Claim for Exemption

33. Notwithstanding that the TAC asserted that the MAC Act did not apply, on 28 July 2015 it lodged with the Authority an “Application for General Assessment by the Claims Assessment and Resolution Service” in accordance with a form 2A approved in accordance with cl 9.1.1 of the Claims Assessment Guidelines. This application was apparently made pursuant to s 91(2)(c) of the MAC Act. The Guidelines relevantly state:

“14.11 For the purpose of section 92(1)(b), an Assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment.

…

14.16   In determining whether a claim is not suitable for assessment, an Assessor and the PCA shall have regard to the circumstances of the claim as at the time of consideration of the claim. This may include, but is not limited to:

…

14.16.3   whether the claim involves complex legal issues;”

34. The TAC submitted that by virtue of Div 1A of Pt 5 of the WC Act, and in particular ss 150A, 150B and 150E, a claim by Mr Yarham for damages for injuries sustained in the motor accident was governed by the law of Victoria and the MAC Act did not apply to it and therefore a CARS assessor had no jurisdiction to “determine the claim”. The TAC submitted that “the matter ought to be exempted from determination by CARS”.

35. The application was considered by an assessor, Mr Andrew Gorman. He is the second respondent. On 25 September 2015 he dismissed the TAC’s application for exemption under s 92(1)(b). His reasons are discussed at more length below. He concluded that Div 1A of Pt 5 of the WC Act did not apply to Mr Yarham’s claim and there was no issue of legal complexity. The TAC says that this was a non sequitur and that Mr Gorman addressed the wrong question by purporting to decide the question of the application of Div 1A of Pt 5 of the WC Act, rather than the question whether it gave rise to a complex legal issue.

The TAC’s Claim for Relief

36. By its Second Further Amended Summons the TAC sought an order in the nature of certiorari or alternatively a declaration setting aside or declaring invalid the assessment decision of the assessor, and an order in the nature of prohibition, or alternatively an injunction, preventing Mr Yarham and Mr Gorman and the State Insurance Regulatory Authority (the new name of the Authority)[1] from taking any further step in reliance on the assessment decision. It also sought a declaration that by reason of s 150A(1) of the WC Act “the proceedings brought by the First Defendant [Mr Yarham] against the Plaintiff [the TAC] are governed by the Accident Compensation Act 1985 (Vic)”.

    1. On 1 September 2015, the State Insurance Regulatory Authority (“SIRA”) took over the work of the Authority. SIRA is a statutory body created by the State Insurance and Care Governance Act 2015 (NSW). The Motor Accidents Authority was a statutory body constituted by the MAC Act. For ease of reference, and to maintain consistency with the terminology used in the legislation, I will use the term “the Authority” to refer to both organisations interchangeably.

37. This was not the form of the declaration made by the primary judge. No proceedings have yet been commenced by Mr Yarham. If the MAC Act applies Mr Yarham will be required to refer his claim to the Authority for assessment under Pt 4.4 of the MAC Act. It would only be if a claims assessor issues a certificate in respect of his claim under s 94 that is not accepted by him, or if the TAC does not accept an assessment as to liability for the claim, that Mr Yarham could commence court proceedings (MAC Act, ss 94, 95 and 108(1)(b)). If such proceedings are commenced they will be brought against either or both of Detour Holdings and Mr Benson. A claim against Detour Holdings could be based on its vicarious liability as Mr Benson’s employer for his alleged tort, or on its vicarious liability as owner of the vehicle for the alleged negligence of Mr Benson as driver arising from the presumed agency created by s 112 of the MAC Act. A claim against Detour Holdings might also arise if Mr Yarham alleged that it failed to provide a safe system of work.

38. Mr Stone SC who appeared with Ms Holz for Mr Yarham, explained that Mr Yarham has not referred his claim to the Authority for assessment because “medical assessment matters” (MAC Act, s 58) have not been referred for medical assessment under Pt 3.4 owing to the dispute as to whether New South Wales or Victorian law is applicable.

Part 5 of the WC Act

39. Part 5 of the WC Act is headed “Common law remedies”. The definition of damages in s 149 applies to the Part generally. Section 150 (which is also in Div 1) also applies to the Part generally. It is in the same terms as s 150B(3). The latter applies only to Div 1A.

40. Section 151 (which is in Div 2) provides that the Act does not affect any liability in respect of an injury to a worker that exists independently of the Act, except to the extent that the Act otherwise expressly provides. Part 5 generally modifies both the substantive and procedural aspects of an injured worker’s common law right to damages from his or her employer. The succeeding provisions, for the most part (s 151C excepted), pay close attention to the extent to which they apply to motor accident damages. “Motor accident damages” means damages to which Pt 6 of the Motor Accidents Act 1988 (NSW) or Ch 5 of the MAC Act applies (WC Act s 3(1AA) and Workers Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”) s 4).

41. Section 151A(1) provides in substance that if a person recovers damages in respect of an injury from his or her employer who is liable to pay compensation under the WC Act, then that person ceases to be entitled to any further compensation under the Act in respect of the injury. This is subject to exceptions and qualifications. Section 151A(4) provides in substance that if the person recovers motor accident damages in respect of an injury, he or she ceases to be entitled to any further compensation under the WC Act in respect of that injury and the amount of any compensation already paid is to be deducted from the damages.

42. Section 151C provides that a person to whom compensation is payable under the WC Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer until six months have elapsed since notice of the injury was given to the employer. There is no exclusion from the operation of the section for a claim for motor accident damages. How, if at all, s 151C applies to a claim for damages against an employer for injury suffered in a motor accident in the light of the specific procedures in the MAC Act for the giving notice of a claim to the insurer was not debated before us and need not be decided.

43. Section 151D imposes a time limit in which court proceedings for damages in respect of an injury can be commenced. Section 151D(4) provides that the section does not apply to the commencement of court proceedings in respect of a claim under Pt 5 of the Motor Accidents Act 1988 (NSW) or Ch 5 of the MAC Act.

44. Division 3 of Pt 5 is headed “Modified common law damages”. Section 151E(2) provides that the Division does not apply to an award of damages to which Ch 5 of the MAC Act applies. Division 3 of Pt 5 imposes more stringent limitations on the recovery of common law damages than is provided for under Ch 5 of the MAC Act.

45. The fact that there is no express exclusion of motor accident damages in the definition of damages in s 149 does not indicate a legislative intention that claims for motor accident damages against an employer should not be excluded from the operation of Div 1A. But the fact that at the time Div 1A was introduced, Divs 2 and 3 contained express qualifications or exclusions to the application of those Divisions to claims for motor accident damages may be relevant to discerning the legislative intent.

Definition of “claim” in the WIM Act

46. Section 2A(2) of the WC Act provides that that Act is to be construed with, and as if it formed part of, the WIM Act. The WIM Act defines the word “claim” as follows:

“claim means a claim for compensation or work injury damages that a person has made or is entitled to make.” (s 4(1))

47. The WIM Act defines “work injury damages” as having the same meaning as in Ch 7 of that Act (s 4(1)). Section 250, which is in Ch 7, defines “work injury damages” as follows:

“work injury damages means damages recoverable from a worker’s employer in respect of:

(a)     an injury to the worker caused by the negligence or other tort of the employer, or

(b)     the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,

whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.” (Emphasis added.)

48. “Motor accident damages” are defined to mean damages to which Part 6 of the Motor Accidents Act 1988 (NSW) or Ch 5 of the MAC Act applies.

49. Section 122 of the MAC Act that is in Pt 5.1 of Ch 5 of that Act provides that Ch 5:

“… applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.”

Reasoning of the Primary Judge

50. After describing the background facts, the decision of the assessor Mr Gorman, and the parties’ submissions, the primary judge concluded that s 150A of the WC Act modified the common law rule established in John Pfeiffer Pty Ltd v Rogerson that the lex loci delicti should be applied as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. His Honour observed that the subheading to s 150A entitled “The applicable substantive law for work injury claims” could not be used to control the proper construction of the actual terms of s 150A itself so as to limit the operation of the section. His Honour noted that there was no separate definition of the expression “work injury claims” in the Act. His Honour held that s 150A employs the word “damages” which is defined in s 149. Section 149 contains specific exclusions. Motor accident damages are not within those exclusions (paras [75] and [83]). His Honour said that the conditions for the application of s 150A were that it applied to a person who was a worker suffering injury to whom compensation was payable under a statutory workers compensation scheme of another State. Both those conditions were satisfied and the substantive law of Victoria governed both actionability and the determination of a claim for damages (at [76] and [78]).

51. The primary judge noted that s 150B limits Div 1A to a claim for damages against a worker’s employer that was caused by the negligence or other tort of the worker’s employer or a breach of contract by the worker’s employer, and by s 150B(3) a worker’s employer includes a person for whose acts the employer is vicariously liable (at [79] and [80]). His Honour did not further address the significance, if any, of s 150B. Little attention was given to that section in Mr Yarham’s submissions before the primary judge. The TAC submitted that s 150B(3) made it clear that a reference to the employer would be a reference to an employee for whose acts the employer was vicariously liable. It submitted that there was no relevant limitation in the WC Act as to how the accident need occur for the Act to be invoked. If it be a claim for damages based upon a breach of duty by an employer or his employee then, according to the TAC’s submission, the WC Act would apply.

52. The primary judge considered the Minister’s Second Reading Speech on the Workers Compensation Legislation Amendment Bill 2002 (NSW) (“the Workers Compensation Legislation Amendment Bill”) that introduced Div 1A into Pt 5.

53. The Second Reading Speech included the following:

“For a number of years, there has been concern about the need for employers to take out workers compensation insurance for individual workers in more than one State or Territory even if these employees are working only temporarily in another State. Over the past 10 years there have been a number of attempts to resolve these cross-border issues. Discussions with all of the States and Territories at ministerial and officer level have recognised the need for a legislative solution. Attempts were made to prepare national template legislation, but these attempts have foundered because the proposed solution became too complicated and unworkable. However, national principles have been agreed. These aim to eliminate the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction. These principles also are intended to ensure that workers working temporarily in another jurisdiction will only have access to the workers compensation entitlements—and common law benefits—available in their home State or ‘State of connection’ and to provide certainty for workers about their workers compensation entitlements and ensure that each worker is connected to one jurisdiction or another.

In addition, it has been agreed between New South Wales, Queensland and Victoria that each State should pursue complementary legislation establishing a single rule for workplace-related accidents, consistent with the national principles. Queensland introduced amendments to deal with this issue on 7 November. As Victoria is currently preparing for elections, legislative action in that State has been delayed. It is hoped that the provisions in all three eastern States will be operative by the middle of next year. It is also hoped that the other Australian States and Territories will adopt the template legislation that has been developed. Schedule 1 to the bill introduces the necessary legislative framework to give effect to these principles by amendments to the Workers Compensation Act. The test for home State connection is set out in proposed section 9AA (3). If a single home State cannot be clearly determined by the first test, that is, what is the usual place of employment, the second test—where is the worker usually based—will be applied.

If no one State is identified by the application of the first two tests, the final test will be applied. That is, what is the employer's principal place of business in Australia? In deciding whether a worker usually works in a State, section 9AA (6) provides that temporary arrangements under which a worker works in a State for a period of not longer than six months are to be disregarded. This will remove the need for employers to have two workers compensation policies for employees working temporarily interstate for up to six months. Other provisions in schedule 1 will enable the recognition of a determination of the State of connection made in another State and will enable the State of connection tests to also apply to common law claims against an employer. The reforms contained in schedule 1 will be of significant benefit to both workers and insurers. It will give employers with workers in different States clear guidelines on their workers compensation responsibilities. It will also provide injured workers with increased certainty about their workers compensation entitlements and common law rights.”

54. The primary judge concluded as follows:

“[86] In any determination of the choice of law issue in this case, the issue is one to be resolved by the statutory language appearing in s 150A of the WCA, construed in the context of the WIM Act. In the latter respect s 2A(2), (3) of the former Act applies. Additionally, the operation of s 3(1AA) of that Act in respect of the meaning of words and expressions, has relevance in terms of the definitions in s 149 for the purpose of Pt 5 of the WCA, ‘Common Law Damages’.

[87] The scope and operation of these provisions cannot, in my opinion, as a matter of statutory construction be controlled or shaped by the description in the sub-heading to s 150A ‘work injury claims’, an expression not otherwise used or defined in the WCA. The text of s 150A is critical in its construction. Also of central importance are the undisputed facts as to injury occurring in New South Wales on 18 July 2010 and the First Defendant’s claim for compensation under the AC Act. Those facts satisfy the precondition in s 150A which in turn determines the ‘substantive law’ of Victoria governs both whether or not a claim for damages in respect of the injury can be made and, if so, the determination of the claim: s 150A(1)(a) and (b).

[88] Section 149 plays a key role for the purposes of Pt 5 of the WCA in that the definition of ‘damages’, on a proper reading of its provisions, includes a claim for damages for injury sustained in a motor vehicle accident. The motor vehicle accident in this case had, as discussed above, a number of factual connections both to the First Defendant’s employment and to the State of Victoria: see [65] above. The common law as to the lex loci delicti by the enactment of Pt 5, so far as the present case and like cases are concerned, was modified or changed as specified in s 150A. Where s 150A applies to a case of an injured interstate employee involved in a New South Wales accident and the preconditions in s 150A are satisfied, then by that section the injured employee’s rights to claim damages will be determined by the substantive law of the other State.

[89] A claim for compensation under the scheme under the TA Act or a claim under the scheme under the MAC Act is not excluded under the definition in s 149. Each involves a claim of a kind that fall within the definition of ‘damages’ in that section. A claim under the above Victorian Act is accordingly a claim for damages in s 150A(1)(a). The TA Act would fall within s 150E of the WCA (‘substantive law’): see s 150E(a), (d) and (e). A proceeding for damages under the latter Act is one under the substantive law of Victoria. It is that Act which governs whether or not a claim for damages in respect of injuries sustained in the motor vehicle accident can be made.

[90] I do not, with respect, consider that the construction and approach to the construction of s 150A advanced in submissions for the First Defendant should be accepted. In particular:

(1) The provisions of s 150A cannot, given their terms, be read down or construed by the heading to that section as the heading is not part of a New South Wales Act: s 35(2)(a) Interpretation Act 1987.

(2) In any event, there is no definition of the expression ‘work injury claims’ and is in the nature of an abbreviation designed to be descriptive of what is in fact provided for in s 150A.

(3) There is no proper foundation or basis for, effectively, substituting for the definition of ‘damages’ in s 149 the definition of ‘work injury damages’ in s 4 of the WIM Act (defined in s 4 as having the same meaning as in Chapter 7 (New Claims Procedure of the WIM Act).

(4)    In that respect ‘work injury damages’ is defined in a way that confines it to Chapter 7. Section 250(1) commences ‘In this Chapter’ and separately defines ‘damages’ and ‘work injury damages’. On the other hand, for the purpose, inter alia, of the choice of law provision in Div 1A of Pt 5, s 149 directs ‘In this Part’ which specifically defines ‘damages’.

(5) Finally, on this aspect, had the legislature intended to exclude cases such as the present from s 150A it could readily have done so by adding an exclusion clause to the definition of ‘damages’ in s 149. I accept as submitted for the plaintiff that the failure to exclude motor accident claims is a powerful indicator of a legislative intention that claims such as that in this case are, where the preconditions in s 150A are satisfied, governed by the substantive law of the other State — in this case, the substantive law of Victoria.

(6) The second reading speech to which reference is made above, in my opinion, is consistent with and provides support for the construction of s 150A advanced by the plaintiff.”

55. The primary judge considered that the claims assessor had addressed the wrong question when seeking to exercise the power conferred by s 92(1)(b) of the MAC Act as to whether the claim of Mr Yarham was not suitable for assessment under Pt 4.4 of the MAC Act. The primary judge said that instead of addressing the question as to whether the claim involved complex legal issues, the claims assessor decided that question for himself, and in his Honour’s view, decided the question incorrectly.

56. Both parties urged the primary judge to decide the question, as his Honour did by the second declaration made in the third of his Honour’s orders.

Appellant’s Submissions

57. Mr Yarham submitted that the Second Reading Speech addressed only workers’ compensation insurance arrangements and the position of workers’ compensation insurers. He correctly noted that there was no mention of Compulsory Third Party (“CTP”) insurers or CTP schemes. Nonetheless, the Minister’s Second Reading Speech does refer to the new s 150A as enabling the “State of connection tests to also apply to common law claims against an employer”, and referred to both an injured worker’s workers’ compensation entitlements and his or her common law rights.

58. Mr Stone SC submitted that the decision of the primary judge created an unnecessary exception to the general rule that anyone injured in a motor vehicle accident in New South Wales was entitled to pursue a claim under New South Wales law. He submitted that to require a worker who is injured through an act of negligence of a fellow employee in a motor vehicle accident in New South Wales to be required to bring a compulsory third party claim against the CTP insurer of the vehicle in accordance with the law of the State of the place of employment was bizarre and capricious. In seeking to support these sweeping statements by reference to the text of the legislation, Mr Stone SC relied on the statutory definition of the word “claim” in the WIM Act. Section 150A of the WC Act refers to the substantive law that is to govern “a claim for damages in respect of the injury”. As noted above, s 4 of the WIM Act defines the term “claim” as meaning a claim for compensation or work injury damages that a person has made or is entitled to make. By virtue of s 2A of the WC Act that definition is applicable to the WC Act and hence to s 150A. “Compensation” is a defined term in the WIM Act. It means compensation under the Workers Compensation Acts (viz. the WIM Act and the WC Act) and includes any monetary benefit under those Acts. “Work injury damages” is also a defined term and has the meaning in Ch 7 of the WIM Act. Under Ch 7 of the WIM Act work injury damages does not include “motor accident damages” (s 250(1)). Hence Mr Stone SC argued that in s 150A the reference to a “claim for damages” did not include a claim for motor accident damages because such a claim was not a “claim” as defined.

57. However, the definition of “claim” in s 4 of the WIM Act applies to the construction of that Act and to the construction of the WC Act, except insofar as the context or subject matter otherwise indicates or requires (Interpretation Act 1987 (NSW) s 6) (“the Interpretation Act”). As Ms Allars SC, who appeared for the TAC, submitted, s 150A(1)(a) requires a construction of the composite expression “claim for damages” and not the single word “claim”. It is clear that in the composite expression “claim for damages”, “damages” has the meaning given in s 149. It does not include compensation under the WC Act. But the defined word “claim” in s 4 of the WIM Act includes a claim for compensation. The word cannot have been used in its defined sense in s 150A of the WC Act.

58. The TAC submitted that a claim for motor accident damages was a claim for monetary compensation that fell within the definition of “damages” in s 149 and was not the subject of any exclusion in that section.

59. I agree with that submission. The TAC submitted that the word “claim” in the composite expression “claim for damages” cannot be used in its defined sense as to do so creates an internal inconsistency. Section 2A(3) of the WIM Act provides that the WIM Act is to be preferred in the event of inconsistency between the two Acts. Nonetheless, the better construction is that “claim” forms part of a composite expression and as such, no inconsistency for the purpose of s 2A(3) arises.

60. Mr Yarham submitted that the primary judge was not justified in placing any reliance on the absence of an exclusion of motor accident damages in s 149 because through the definition of “claim” as extending only to compensation or work injury damages, and thus excluding motor accident damages, there was no need for such an exclusion. But that reasoning depends upon the correctness of Mr Yarham’s submission that in the phrase “claim for damages” claim was used in its defined sense. That is not so.

61. For the reasons at [40]-[45] above, I do not accept the TAC’s submission that the real work is done by the word “damages” as defined in s 149(1). That submission fails to recognise that the definition of “damages” in s 149(1) has work to do for the whole of Pt 5. It does not have regard to the whole of the context of Div 1A of Pt 5.

62. What is potentially more significant is the absence of an express exclusion of motor accident damages in Div 1A notwithstanding the express exclusions or qualifications in other Divisions of Pt 5. However, that absence may be explained by the attempt to adopt a uniform template to be used in other States and Territories.

63. Mr Yarham submitted that the MAC Act contained the entirety of the provisions relevant to determining his “motor accident rights” and that he was pursuing a motor accident claim “against a CTP insurer under the MAC Act”.

64. Mr Yarham’s “motor accident rights” were the right to sue Mr Benson in the tort of negligence and the right to sue Detour Holdings as the party vicariously liable for the alleged tort committed by Mr Benson, either on the ground that the alleged tort was committed in the course of Mr Benson’s employment or on the ground that by s 112 of the MAC Act Mr Benson as driver of the insured vehicle is taken to be the agent of Detour Holdings acting within the scope of his authority in relation to the vehicle.

65. The MAC Act regulates how such claims for damages can be brought. The Act confers rights and imposes duties on insurers to endeavour to resolve claims as justly and expeditiously as possible (s 80) and to make a reasonable offer of settlement unless the insurer wholly denies liability for the claim (s 82). Where liability is admitted the insurer is required to make hospital, medical and certain other payments (s 83) and comes under an obligation to meet costs and expenses in connection with the provision of rehabilitation services (s 84). If the person against whom a claim can be made is dead or cannot be served, proceedings can be brought against the person’s insurer (s 113). The involvement of insurers in the process as provided for by the MAC Act does not alter the fact that the underlying claim is a claim for damages against the driver, employer, or owner.

66. As he did before the claims assessor, Mr Yarham relied on authorities that, in a different context, have drawn a distinction between the liability of an employer as employer for failure to provide a safe system of work and the liability of an employer as owner of a motor vehicle involved in a claim. But counsel for Mr Yarham did not attempt to identify how that distinction applies to the interpretation of s 150A. It is convenient to consider this submission in the context of Mr Gorman’s decision.

Claims Assessor’s Decision

69. Mr Gorman noted that whilst the claims assessment guidelines provide for a range of matters to be considered in determining whether a claim is suitable for assessment, the list of circumstances is not conclusive. As I understand this statement, Mr Gorman was saying that whilst clause 14.16 lists circumstances to which an assessor is required to have regard in determining whether a claim is not suitable for assessment, a conclusion that one such circumstance exists does not require the assessor to determine that the claim is not suitable for assessment. That is correct. Clause 14.11 provides:

“For the purpose of section 92(1)(b), an Assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the claim is not suitable for assessment.” (Emphasis added.)

70. Mr Gorman went on to say:

“It seems incontrovertible, in the context of the scheme governed by MACA, that the need to apply the law of another jurisdiction to the determination or assessment of a claim constitutes a sufficient ground for its exemption under Section 92(1)(b) of that Act.”

71. This is consistent with the conclusion to which Mr Gorman ultimately came. I understand him to say that if, contrary to his view, the law of another jurisdiction applies to the determination or assessment of a claim so that the MAC Act does not apply, then that would be a sufficient ground for granting a certificate of exemption under s 92(1)(b). It is unnecessary to pursue that question. The better view may be that no certificate of exemption should be given under s 92(1)(b) if the Act is inapplicable. However, the TAC had invited such a determination notwithstanding its contention that the Act did not apply.

72. Mr Gorman noted Mr Yarham’s contention that:

“… WCA, does not apply because he is not pursuing a work injury claim within the meaning of that Act. He says his claim is against the Transport Accident Commission and the Insured owner or driver, in their capacity as owner or driver, not in their capacity as employer or employee, for whom the employer is vicariously liable”.

73. This submission was upheld. After setting out the relevant terms of ss 150A, 150B and 150C of the WC Act Mr Gorman said that on the face of it the insurer’s submission appeared to be well founded, stating:

“The reference, in Division 1A, of Part 5 WCA to a worker’s employer, extends to TAC’s Insured owner, as the same entity, and to the insured driver because it was his acts for which the employer is vicariously liable. Moreover, there can be little dispute that Mr Yarham brings a claim for damages in respect of an injury which occurred during his employment.”

74. After referring to s 151 of the WC Act Mr Gorman continued:

“12.   There can be little doubt that the injuries sustained by Mr Yarham have given rise to a liability that exists independently of WCA, namely a liability that arises under MACA. Accordingly, the question to be answered is whether, on a proper interpretation of its provisions, WCA expressly supplants operation of MACA.

13.   A long history of cases within this State concerning the proper characterisation of defendants (and putative defendants) suggests that MACA must apply. I agree with the Claimant that the enduring theme found in this case law is that those cases falling within the scope of MACA are to be properly brought under that Act, irrespective of any additional liability that may arise on the part of the defendant in its capacity as employer.”

75. Mr Gorman was correct in saying that a liability for the injury sustained by Mr Yarham arose under the MAC Act. That is so because s 112 of the MAC Act deems the driver of the vehicle to be the agent of the owner of the vehicle and to have been acting within the scope of the agent’s authority in relation to the vehicle. Hence, it can be said that the MAC Act is a source of Detour Holdings’ vicarious liability for the alleged negligence of Mr Benson. But Mr Benson’s liability does not arise under the MAC Act. Instead, the MAC Act regulates the procedures to be undertaken for the bringing of the claim and modifies the common law by creating a hurdle of 10 per cent permanent impairment and limiting the damages that would otherwise be recoverable at common law. The source of the alleged liability of Mr Benson is the common law, not the MAC Act. Likewise, a source of Detour Holdings’ vicarious liability as Mr Benson’s employer is the common law. The MAC Act creates an additional source of liability.

76. Mr Yarham relied upon two decisions of the Court of Appeal, namely Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636; [2003] NSWCA 231 and Gunter v State Transit Authority of NSW (2004) 61 NSWLR 414; [2004] NSWCA 330 for his contention at [72] above. In his submission to the assessor Mr Stone relied also on Toll Pty Ltd v Dakic [2006] NSWCA 58 and JA and BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82 for the proposition that “if a claim fits within the scope of the NSW MAC Act then it is dealt with as [an] MAC Act claim”.

77. None of these cases addressed the issues arising under Div 1A of the WC Act.

78. In Emad Trolley Pty Ltd v Shigar the claimant was injured when he slipped off a trolley truck, which was a registered vehicle, whilst employed as a trolley collector. The injury occurred on 8 September 2000. At that time it would have been advantageous to the injured employee that his claim not be governed by the MAC Act. He sued his employer for failing to provide a safe system of work and cast his case in terms that sought to avoid attributing any fault to the use or driving of the trolley truck. Nonetheless, the facts giving rise to the claim for damages showed that the plaintiff’s claimed injury arose from claimed fault in the use or operation of the vehicle (at [20] and [22]). The Court of Appeal held that the plaintiff could not avoid the strictures of the MAC Act arising from the motor accident by pleading the case as a breach of the employer’s duty of care (at [77]-[78]).

79. This does not support a construction of s 150A of the WC Act that the section does not apply to a claim for motor accident damages. To the contrary, if the reasoning can be applied to s 150A, it would suggest that the section applies to any claim for damages that falls within its literal terms, whether or not the damages are payable as the result of a claim against the employer in the employer’s capacity as such. That is, just as a plaintiff could not avoid the provisions of the MAC Act by framing his claim as a claim against the employer in the employer’s capacity as such for failing to provide a safe system of work, so, it might be said, a plaintiff entitled to sue the employer to enforce the employer’s vicarious liability for the tort of a co-employee cannot avoid the operation of s 150A by framing the claim as a motor accident for which the employer is vicariously liable under the agency deemed to arise by s 112 of the MAC Act from the employer’s ownership of the vehicle.

80. The second decision relied upon was that of the Court of Appeal in Gunter v State Transit Authority of NSW. The plaintiff was injured when a bus stop fell upon her after being struck by a bus. She alleged that the State Transit Authority was negligent, not in respect of its employee’s driving of the bus, but in the placing of the sign. She claimed it was foreseeable that the sign would be struck by a vehicle that might injure someone in the immediate vicinity of the sign and she alleged that there was a failure to warn the plaintiff of the dangers of placing the bus stop in that position (at [8]-[9]).

81. Young CJ in Eq, with whom Tobias JA and Wood CJ at CL agreed, held that the MAC Act applied to the claim, notwithstanding that it was framed as one for occupier’s liability rather than for vicarious liability for negligence of the driver of the bus.

82. Gunter v State Transit Authority of NSW has not escaped criticism (Thomas Goudkamp and Andrew Morrison, Thomson Reuters, Personal Injury Law Manual NSW (at Update 156) [MACA 122.20]). In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26 the plurality (Gummow, Hayne and Heydon JJ) rejected one of the conclusions of the Court of Appeal in Gunter, namely its conclusion at [16] that the Act had as one of its main objects the provision of a universal scheme to provide compensation for compensable injuries sustained in motor accidents to achieve optimal recovery for persons injured in motor accidents (Allianz at [90]).

83. It is unnecessary to pursue the criticisms of the decision in Gunter v State Transit Authority of NSW. At its highest from the perspective of Mr Yarham, it does not advance his argument beyond what was said in Emad Trolley Pty Ltd v Shigar and for the same reasons as at [79] above, it does not assist his argument.

84. Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, Toll Pty Ltd v Dakic, and JA and BM Bowden & Sons Pty Ltd v Doughty all concerned the definition of “injury” as then contained in s 3 of the MAC Act prior to its amendment from 1 October 2006. In Allianz the plurality characterised the issue of whether the state or condition of the vehicle was to be treated as causative in the relevant legal sense to the worker’s injury, as being whether his injury was caused by a defect in the vehicle or by the employer’s negligent direction for the unloading of the vehicle. Essentially the same issue arose in Toll Pty Ltd v Dakic. In both cases it was held that the cause of the injury was not the defect in the vehicle, but the negligent instructions given in relation to the loading or unloading of the vehicle. In Toll Pty Ltd v Dakic Santow JA concluded that “… the bodily injury which occurred was as a result of the conduct of Toll qua employer, not Toll qua owner of the vehicle” (at [109]). In JA and BM Bowden & Sons Pty Ltd v Doughty the plaintiff was injured when working as an orchard hand. He was required to drive a tractor that was fitted with a roll bar, but was instructed to keep the roll bar lowered so as not to damage the fruit. He obeyed the instruction and was injured when the tractor rolled over onto him. Had the roll bar been raised the tractor would not have rolled onto him (at [3]). The Court of Appeal, by majority (Giles JA and Handley AJA, Sackville AJA dissenting) held that the cause of the injuries sustained was not the fault of the owner of the tractor “in the use or operation of the tractor”, but in the giving of the instruction to drive the tractor with the roll bar lowered. The Court of Appeal held that the relevant fault was in the system of work put in place by the employer, not fault by the owner of the vehicle “in the use or operation of the vehicle” (at [31], [44]).

85. None of these decisions is directly relevant to the construction of Div 1A of Pt 5 of the WC Act although they highlight the different capacities in which an employer who is the owner of a vehicle may be liable where the vehicle is in some way involved in the worker’s suffering an injury.

86. There are many other cases in relation to the operation of what is now s 3A of the MAC Act, s 67 relating to the application of Ch 4, and s 122 relating to the application of Ch 5 of the MAC Act (see e.g. Toll Pty Ltd v Harradine [2016] NSWCA 374), but they do not take the matter further.

Section 150B

87. In the course of oral submissions the Court raised the effect of s 150B. Because the issues raised had not been addressed in any depth in argument before the primary judge, nor in the parties’ written submissions, nor in the oral submissions of counsel for Mr Yarham, after the conclusion of the oral argument the Court gave leave to the parties to provide supplementary written submissions on the scope and effect of s 150B.

88. Section 150B limits the claims for damages to which Div 1A applies. Two issues were raised during oral argument in respect of the operation of that section. First, whether Div 1A applied to a claim that Mr Yarham might bring against the driver, Mr Benson. Secondly, whether it follows from s 150B that Div 1A applies only to the liability of an employer in its capacity as an employer and has no application to a claim brought against an employer not in that capacity, but by virtue of the statutory agency created by s 112 of the MAC Act between the owner and driver of the vehicle.

89. I address first the question of whether Div 1A applies to a claim against the driver. The TAC submitted that having regard to s 150B(3)(b), Div 1A does apply to such a claim. It submitted that each time s 150B(1) refers to a “worker’s employer” the subsection is to be read as including a reference to a person for whose acts the employer is vicariously liable. Thus s 150B(1) can be read as follows:

“This Division applies [only] to a claim for damages against a person for whose acts the employer is vicariously liable in respect of an injury that was caused by:

a)   the negligence or other tort … of a person for whose acts the employer is vicariously liable, or

b)   a breach of contract by a person for whose acts the employer is vicariously liable.”

90. However, the employer’s vicarious liability is irrelevant to the claim against the driver/employee. The provision could sensibly be construed as applying the extended references in s 150B(3) only where those references are relevant to the claim made. That is, s 150B(1) could be read as saying:

“This Division applies only to a claim for damages against a worker’s employer in respect of an injury that was caused by:

a.   the negligence or other tort … of a person for whose acts the employer is vicariously liable, or

b.   a breach of contract by the worker’s employer.”

So construed, by reason of s 150B, s 150A would not apply to a claim against Mr Benson, because he was not the worker’s employer.

91. It initially seemed to me that as a matter of textual analysis the preferred construction was that the extended reference provided for in subs (3) to a “worker’s employer” should be applied to subs (1) only insofar as it is necessary and appropriate to give the extended reference work to do. This would be to apply the dictates of s 6 of the Interpretation Act that a definition (which s 150B(3) is) applies except insofar as the context or subject matter otherwise indicates or requires.

92. But there is a difficulty with this construction. Section 150 uses the same formula as s 150B(3), but applies to the whole of Pt 5 and not just to Div 1A. But for the fact that Div 1A was intended to be uniform legislation to be enacted in Victoria, Queensland and New South Wales (and later became adopted nationally), there would be no need for s 150B(3) because s 150 would do the same work. The same wording is used in s 250(2) of the WIM Act that prescribes procedures for the making and dealing with claims.

93. Section 3(1) of the Employees Liability Act 1991 (NSW) (“the Employees Liability Act”) provides:

“3   Employee not liable where employer also liable

(1)     If an employee commits a tort for which his or her employer is also liable:

(a)     the employee is not liable to indemnify, or to pay any contribution to, the employer in respect of the liability incurred by the employer, and

“The person insured by this policy is the owner, driver, passenger or other person whose wrongful act or omission in respect of the insured motor vehicle causes the injury to someone else and any person who is vicariously liable for the wrongful act or omission.”

116. Clause 3 provided:

“3   Exclusions

(1)   This policy does not insure an employer against a liability to pay worker’s compensation.

(2)   This policy does not insure an employer against a liability to pay damages for injury to an employee if-

(a)   the injury arises from the employer’s failure to provide a safe system of work for the employee or the employer’s breach of some other duty of care to the employee; and

(b)   neither the employer nor another employee of the employer was the driver of the motor vehicle at the time of the motor vehicle accident out of which the injury arose.

(3)   This policy does not insure against a liability to pay exemplary, punitive or aggravated damages.

(4)   This policy does not insure against a liability to pay damages for an injury that arises gradually from a series of incidents.”

117. Accordingly, if either the employer, or another employee of the employer, was the driver of the motor vehicle at the time of the motor vehicle accident out of which the injury arose, the policy did respond. As in the case of New South Wales and Victoria, in Queensland such a claim was regulated by the Motor Accident Insurance Act and not the Workers Compensation and Rehabilitation Act.

118. Thus, an important part of the context of the Workers Compensation Legislation Amendment Bill was that the “workers compensation” legislation of each of New South Wales, Victoria and Queensland regulated and restricted the rights of workers to common law damages arising from injury suffered in the course of their employment, but in each State, there were exclusions from the application of the “workers’ compensation legislation” (to differing degree) in respect of an employee’s right to common law damages against his or her employer arising from a motor vehicle accident.

119. The Explanatory Notes and Second Reading Speeches address the effect of the proposed legislation upon an employee’s right to “common law damages”. That is explained by the fact that the “workers compensation” legislation of each State regulated and restricted an employee’s right to common law damages. Neither the Second Reading Speeches nor the Explanatory Notes addressed more specifically whether the new legislation affected a worker’s rights and the restrictions on a worker’s rights provided for by the relevant motor accidents legislation.

120. Counsel for Mr Yarham made no submission on the question of what Victorian law would apply if the TAC’s submission is correct. Ms Allars SC for the TAC submitted that the Transport Accident Act would apply to such a claim. Section 35 of the Transport Accident Act provides for that Act to have an extraterritorial operation in relation to the provision of benefits to a person injured in an accident occurring outside Victoria involving a registered vehicle. The Court’s attention was not drawn to any provision of the Transport Accident Act that would extend the regulation and restrictions on an injured plaintiff’s claim for damages arising from a motor vehicle accident to an accident occurring outside Victoria (cf. Interpretation of Legislation Act 1984 (Vic) s 48 (“the Interpretation of Legislation Act”)).

121. Nor did any party submit that in a converse situation to which s 129MA of the Accident Compensation Act applied, that is, where an employee whose seat of employment was in New South Wales was injured in a motor vehicle accident in Victoria, the MAC Act would apply as if the accident had occurred in New South Wales rather than in Victoria.

122. Prima facie, the MAC Act applies only to injuries arising from a motor accident occurring in New South Wales (Interpretation Act s 12) and the Transport Accident Act likewise extends only to accidents occurring in Victoria (Interpretation of Legislation Act s 48), except insofar as that Act otherwise provides, as it does in the limited circumstance provided for by s 35.

123. It follows, if the TAC’s argument as to the construction of s 150A and s 150B is correct, that Mr Yarham’s entitlement to damages is not regulated by the Transport Accident Act, but by the common law of Victoria as modified by the Accident Compensation Act. If circumstances were reversed, and if the TAC’s argument as to the proper construction of s 150A of the WC Act (whose equivalent is s 129MA of the Accident Compensation Act) is correct, if an employee whose seat of employment was in New South Wales were injured in a motor accident in Victoria as a result of the negligence of her co-employee, her right to damages would be regulated by the common law of New South Wales as modified not by the MAC Act, but by the WC Act. Division 3 of the WC Act would apply as part of the substantive law of New South Wales (WC Act ss 150E and 151E).

124. There is nothing in the Ministers’ Second Reading Speeches in New South Wales or Victoria, or in the Explanatory Notes to the legislation that indicates that any attention was paid to these complexities. No other potentially relevant extrinsic materials were brought to the attention of the Court.

125. Having regard to the way each of Queensland, New South Wales and Victoria made different provision to work injuries arising out of motor vehicle accidents, and the absence of any indication that such issues were addressed, I think that the sole mischief the amendments addressed was that identified at [109] above.

126. The TAC referred to two decisions that it said illustrated the practical application of choice of law provisions that are the counterparts to s 150B. Neither is directly relevant. In Hodgson v Dimbola Pty Ltd t/as Towers Removals [2009] ACTSC 59 the plaintiff lived in Canberra and worked as a furniture removalist and driver for an employer in Queanbeyan in New South Wales. He drove his truck to Queensland and was injured when unloading the truck and moving furniture up the driveway to a house in Queensland. He was paid some compensation under the New South Wales statutory workers’ compensation scheme. He sued his employer in negligence in the ACT Supreme Court. Harper M held, correctly, that the lex loci delicti, that is, the substantive law of Queensland applied. Section 324 of the Queensland Workers Compensation and Rehabilitation Act, which was part of the substantive law of Queensland, provided that the substantive law of New South Wales was the law governing whether or not a claim for damages could be made, and if it could, New South Wales law governed the determination of the claim (at [21]).

127. The question then was, what parts of New South Wales law should be regarded as substantive (presumably from the perspective of Queensland law) and what parts procedural.

128. One of the defences was that the claim was barred by s 18A(2) of the Limitation Act 1969 (NSW). Harper M held that s 324 of the Queensland Workers Compensation and Rehabilitation Act did not make s 18A(2) of the Limitation Act the applicable law. It is unnecessary to express a view on the correctness of that part of the decision. It does not address the issues arising in the present case.

129. The TAC also referred to the Victorian Court of Appeal’s decision in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230. That decision concerned a provision in the Victorian legislation that is not contained in the New South Wales legislation. The applicant was injured on a construction site in Perth. He was employed by a construction company based in Melbourne and was working temporarily in Perth in the course of his employment. He received workers’ compensation payments from his employer’s workers’ compensation insurer in Western Australia and then from his employer’s workers’ compensation insurer in Victoria. The Victorian WorkCover Authority determined that he had suffered a serious injury which entitled him to commence a proceeding for damages pursuant to s 134AB of the Accident Compensation Act. He sued his employer and companies that he alleged supplied and erected the scaffolding at the construction site from which he fell. Those companies carried on business only in Western Australia. They pleaded that the applicant’s claim was barred by s 14(1) of the Limitation Act 2005 (WA) that stipulated a three-year limitation period for personal injury claims. The applicant alleged that his claims against those companies were governed by the substantive law of Victoria which stipulated a six-year limitation period. If the applicant had been a New South Wales employee, it is clear that his claim against the Western Australian defendants would have been statute-barred because the law of Western Australia was the lex loci delicti that prima facie applied. Section 150B of the WC Act would make it clear that Div 1A did not apply to the claims against the third parties. Section 129MB of the Accident Compensation Act contains an additional provision not found in s 150B of the WC Act. Section 129MB(2) of the Accident Compensation Act provides:

“(2)   This Division also applies to a claim for damages or recovery of contribution brought against a person other than a worker's employer in respect of an injury if—

(a)    the worker's employment is connected with Victoria; and

(b)     the negligence or other tort or the breach of contract on which the claim is founded occurred in Victoria.”

130. The Victorian Court of Appeal (Osborn and Kyrou JJA, Garde AJA agreeing) held that the applicant’s claims against the Western Australian companies failed because the alleged negligence or other tort on which the claim was founded did not occur in Victoria and therefore s 129MB(2)(b) was not satisfied (at [102]). Again, this decision is not directly relevant to the present issues. But the observations of Osborn and Kyrou JJA in Di Paolo v Salta Constructions Pty Ltd at [110]-[111] are important. Their Honours said:

“[110]   … The mischief that was sought to be remedied by overriding the common law choice of law rules focused on obviating the need for a worker to navigate different substantive laws in respect of claims against an employer where the worker’s employment had a connection with Victoria. The modification of the common law choice of law rules in respect of claims against a non-employer were more confined.

[111]    Division 6AB of Pt IV of the AC Act simply does not contain an overarching statement that, once a determination is made that a worker’s employment has a connection with Victoria, all claims by the worker against all defendants would be governed by Victorian law. Rather, the division carefully delineates the circumstances in which Victorian law governs a claim against an employer and the circumstances in which that law governs a claim against a non-employer. …”

131. In Di Paolo v Salta Constructions Pty Ltd the Victorian Court of Appeal noted that another difference between the Victorian Accident Compensation Act and the workers’ compensation legislation of other States is that in Victoria the workers’ compensation legislation places restrictions on common law claims against non-employers (at [119]: Martin v Bailey (2009) 26 VR 270; [2009] VSCA 263).

132. The lack of uniformity in the workers’ compensation legislation and the legislation regulating the common law rights of persons injured in motor accidents between the States and Territories requires careful attention to contextual considerations in interpreting Div 1A of Pt 5 of the WC Act.

133. I accept the TAC’s submission that s 150A and s 150B apply to Mr Yarham’s claim against Mr Benson who is taken to be Mr Yarham’s employer through the application of s 150B(3)(b). That is consistent with the legislative purpose that an employer with interstate operations need take out only one workers’ compensation policy.

134. I also accept that read literally, s 150A and s 150B apply to Mr Yarham’s claim against Detour Holdings, irrespective of whether the claim is based upon Detour Holdings’ vicarious liability as Mr Benson’s employer for his alleged negligence, or for its allegedly failing to provide a safe system of work, or upon its vicarious liability pursuant to s.112 of the MAC Act arising from its ownership of the vehicle.

135. That was the construction adopted by the primary judge. The literal meaning of words is usually their legal meaning. That is not always so. The legal meaning may be different from the grammatical or literal meaning of a provision having regard to its context, using that term in its widest sense as including the mischief intended to be remedied (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] per McHugh, Gummow, Kirby and Hayne JJ). In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, the plurality (Hayne, Heydon, Crennan and Kiefel JJ) said (at [47]):

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (Citation of authority omitted.)

136. This is not inconsistent with CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 where Brennan CJ, Dawson, Toohey and Gummow JJ said:

“[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.” (Citation of authority omitted.)

137. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, Gageler J referred to the above passage and an earlier statement to like effect by Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48 and continued:

“[37]Both of those passages have been ‘cited too often to be doubted’. Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ‘if, and in so far as, it assists in fixing the meaning of the statutory text’.

[38]The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’, in which case the choice ‘turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies’.” (Citation of authority omitted.)

138. In contrast to Emad Trolley Pty Ltd v Shigar and Gunter v State Transit Authority of NSW on which, paradoxically, Mr Yarham relied, I think that the different legislative history and context of Div 1A of Pt 5 of the WC Act requires a different approach to construction of Div 1A than was applied in those cases to the MAC Act. When read contextually, s 150A(1)(a) should be construed as meaning that the substantive law of the State under whose statutory workers’ compensation scheme compensation is payable is the substantive law that governs whether or not a claim for damages in respect of the injury can be made, and if so, the determination of that claim, in so far as the claim is based upon a claim that the injury was caused by the negligence or other tort of the worker’s employer (as defined in s 150B(3)), or a breach of contract by the worker’s employer (as so defined). That is, Div 1A applies where the claim is based upon that employment relationship. This is consistent with what the Victorian Court of Appeal in Di Paolo v Salta Constructions Pty Ltd at [110]-[111] as set out at [130] above identified as the legislative purpose and mischief to be remedied.

139. Such a construction does not substantially depart from the literal text (Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9 at [39]).

140. Mr Yarham’s claim against Detour Holdings in its capacity not as employer of Mr Benson, but as owner of the vehicle that Mr Benson was driving, does not depend upon that relationship. In my view, the better construction of Div 1A is that that Division does not apply to such a claim.

141. A consequence of this construction is that where a plaintiff in Mr Yarham’s position has a claim against his employer that arises both under the statutory agency provided for by s 112 of the MAC Act and under the common law, either for the employer’s own negligence or by reason of the employer’s vicarious liability for the acts or omissions of another employee, one cause of action will be governed by the law of New South Wales and the other or others by the law of Victoria. But such complexities are inherent in the scheme. If the accident occurred as a result partly of the fault of Mr Benson and partly of the fault of another driver, the claim against the other driver would be governed by the law of New South Wales, including the MAC Act.

142. If the liability of Mr Benson and his employer were solely governed by the law of Victoria, that would only complicate questions of contribution that would arise. Indeed, the practicalities of such a claim support the appellant’s arguments. If the TAC’s submission is correct, and if Mr Yarham had been injured by both the fault of Mr Benson and the driver of another car, he would have to obtain a determination of the degree of his impairment by both the TAC, and by the MAS under the MAC Act. No greater complexity arises in respect of a claim made against the employer who is the owner of the vehicle if the claim is made against the employer/owner in both capacities.

Conclusion

143. It follows that declaration (3) made by the primary judge (as set out at [11] above) should be set aside.

144. The TAC submitted that if this conclusion were reached the claims assessor’s decision should nonetheless be quashed because the claims assessor addressed the wrong question. I do not agree. Whilst the question presented for Mr Gorman’s determination was undoubtedly complex, he was not on that account required to grant a certificate of exemption. Even if that were not so, his decision should not be quashed. Prerogative relief is discretionary. The only ground upon which the TAC contended that the matter was complex was that Mr Yarham’s claim for damages for injuries sustained in the motor accident was governed by the law of Victoria and the MAC Act did not apply to it. Once it is determined by this Court that the MAC Act does apply, then, subject to any application for special leave and any appeal to the High Court if special leave is granted, the answer to that question is no longer complex. Accordingly, the primary judge’s declaration that the assessment decision was invalid and the consequential relief the primary judge granted should also be set aside.

145. For these reasons I propose the following orders:

1. Appeal allowed.

2. Set aside the declarations and orders made by Hall J on 13 December 2016.

1. In their place, declare that a claim made by the appellant against the owner of the motor vehicle in which the appellant was injured as a result of the alleged negligence of the driver of that vehicle pursuant to s 112 of the Motor Accidents Compensation Act 1999 (NSW) is governed by the law of New South Wales and the Motor Accidents Compensation Act 1999 (NSW) applies to it.

2. Order that the first respondent pay the appellant’s costs of the proceedings below and of the appeal.

146. EMMETT AJA: This appeal concerns the construction and effect of s 150A of the Workers Compensation Act 1987 (NSW) (the 1987 Act). Section 150A(1) relevantly provides that, if compensation is payable under a statutory workers’ compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs:

(a)   whether or not a claim for damages in respect of the injury can be made; and

(b)   if it can be made, the determination of the claim.

147. Under s 150B, s 150A applies only to a claim for damages against a worker’s employer in respect of an injury that was caused by:

(a)   the negligence or other tort, including a breach of statutory duty, of the worker’s employer; or

(b)   a breach of contract by the worker’s employer.

A reference in those provisions to a worker’s employer includes a reference to:

(a)   a person who is vicariously liable for the acts of the employer; and

(b)   a person for whose acts the employer is vicariously liable.

148. The appellant, Mr Leslie Yarham, was a passenger in a truck driven by a fellow employee (Mr Benson) when the truck was involved in an accident in New South Wales, as a consequence of which Mr Yarham suffered injury. At the time, the truck was owned by Detour Holdings Pty Ltd (Detour), which was the employer of both Mr Yarham and Mr Benson. Detour is a Victorian company that operates in Victoria. At the time of the accident, both Mr Yarham and Mr Benson were engaged in the course of their employment by Detour. Mr Yarham has at all times been a resident of Victoria.

149. Following the accident, Mr Yarham received statutory no fault workers’ compensation payments from the workers’ compensation insurer of Detour under the Accidents Compensation Act 1985 (Vic). Additionally, Mr Yarham seeks to pursue a motor accident claim against the first respondent, Transport Accident Commission of Victoria (the Commission), under the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). The Commission was the compulsory third party insurer of Detour in respect of the truck.

150. The Commission sought a determination by the Claims Assessment and Resolution Service (CARS) of New South Wales that the matter was exempt from a determination within the CARS system on the basis that the issue as to the law applicable was complex. The second respondent (the CARS Assessor) determined that the matter was suitable for assessment and also concluded that s 150A of the 1987 Act did not apply and that the matter could be the subject of a CARS assessment under the MAC Act.

151. The Commission commenced proceedings for judicial review of the decision of the CARS Assessor in the Common Law Division of the Supreme Court. For reasons published on 13 December 2016, a judge of the Common Law Division (the primary judge) made a declaration that the decision of the CARS Assessor made on 25 September 2015 was affected by jurisdictional error and, accordingly, was invalid. The primary judge ordered that relevant parties be restrained from acting on or taking any step in reliance on the decision of the CARS Assessor. His Honour also declared that, by reason of the operation of s 150A(1), the substantive law of the State of Victoria governs:

• whether or not a claim for damages by Mr Yarham in respect of the accident can be made; and

• if it can be made, the determination of the claim.

By notice of appeal of 7 March 2017, Mr Yarham appeals under s 75A of the Supreme Court Act 1970 (NSW) from the orders made by the primary judge.

152. Mr Yarham has not, at this stage, commenced any proceedings against the Commission, Detour or Mr Benson for recovery of damages as a consequence of the conduct of Mr Benson in driving the truck in a manner that constituted breach of a duty of care owed by him to Mr Yarham. Under the relevant legislation, Detour is vicariously liable for the conduct of Mr Benson as driver because, at the time of the accident, it was the owner of the truck. If Mr Benson was negligent in the driving of the truck, the Commission will be liable to indemnify both him and Detour in respect of any liability that either of them may have to Mr Yarham as a consequence of the injury he suffered as a result of the accident.

153. Two questions arise in the appeal. The first is whether the CARS Assessor exceeded his jurisdiction in resolving the substantive question as to the law to be applied to a claim by Mr Yarham. The second question is whether s 150A applies to a claim for damages in respect of an injury that was caused by the negligence or other tort, including breach of statutory duty, of Detour in any capacity, or whether it applies only to a claim in respect of injury that was caused by the negligence or other tort of Detour in its capacity as Mr Yarham’s employer.

154. The primary judge concluded, in effect, that s 150A applies to a claim that may be made by Mr Yarham simply because it is against Detour. However, a distinction must be drawn between a claim made against Detour in its capacity as the owner of the truck, in which capacity it is vicariously liable for the negligence of Mr Benson by reason of the motor accident legislation, on the one hand, and a claim made against Detour in its capacity as Mr Yarham’s employer, on the other. It is only a claim against Detour in the latter capacity to which s 150A would apply.

155. I have had the advantage of reading in draft form the proposed reasons of Meagher and White JJA. I agree with White JA that the declaration made by the primary judge, that the assessment decision by the CARS Assessor was affected by jurisdictional error and was invalid, should be set aside. I also agree with White JA, for the reasons proposed by his Honour, that the consequential relief granted by the primary judge should also be set aside. I agree with the orders proposed by White JA.

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Endnote

Decision last updated: 03 December 2018