John Pfeiffer Pty Limited v David Rogerson [1997] ACTSC 99 (3 December 1997)

SUPREME COURT OF THE ACT

JOHN PFEIFFER PTY LIMITED v. DAVID ROGERSON
No. SCA 34 of 1997
Number of pages - 6
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ, CRISPIN AND RYAN JJ

CATCHWORDS

DAMAGES - appeal from Master - damages for personal injury - whether provisions of Workers' Compensation Act 1987 (NSW) capping damages operate as a substantive law replacing common law right of action or as a procedural law - contrast provisions of Transport Accident Act 1986 (Vic) which abolished common law right of action - Stevens v. Head applied - question of damages assessed by law of forum.

Workers' Compensation Act 1987 (NSW)

Motor Accidents Act 1988 (NSW)

Transport Accident Act 1986 (Vic)

Stevens v Head [1993] HCA 19; (1993) 176 CLR 433

Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 at 110-111

Thompson v Hill (1995) 38 NSWLR 714

HEARING

CANBERRA, 3 November 1997 (hearing), 3 December 1997 (decision)

03:12:1997

Appearances

Counsel for the Appellant : Mr M J Cranitch, SC

Solicitors for the Appellant : Abbott Tout Harper & Blain

Counsel for the Respondent : Mr F M Parker

Solicitors for the Respondent : Gary Robb & Associates

ORDER

Order:

(1) The appeal be dismissed.

(2) The appellant pay the respondent's costs of the appeal, such costs to be taxed in default of agreement.

DECISION

MILES CJ, CRISPIN AND RYAN JJ

This is an appeal from a judgment of Master Connolly given on 24 April 1997 in an action by the respondent for damages for personal injury sustained while working as a carpenter for the appellant, John Pfeiffer Pty Limited, on a site at Queanbeyan in the state of New South Wales. The respondent has at all times been a resident of the Australian Capital Territory and the appellant is incorporated in this Territory. The injury was sustained on 4 July 1989. The action was commenced on 8 November 1993.

The appeal turns on the narrow question of whether the provisions of the Workers' Compensation Act 1987 of the State of New South Wales (the "Workers' Compensation Act") operate to restrict the damages recoverable by the respondent in his action in this Court. Section 151G of the Workers' Compensation Act provides:

(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

(3) The maximum amount which may be awarded for non-economic loss is $204,000, but the maximum amount may be awarded only in a most extreme case.

(4) If the amount of non-economic loss is assessed to be $36,000 or less, no damages for non-economic loss are to be awarded.

(5) If the amount of non-economic loss is assessed to $36,000 and $48,000, the amount of damages to be awarded for non-economic loss is as follows:

Damages = [Amount so assessed - $36,000] x 4

(7) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amounts of $204,000, $36,000 and $48,000 were adjustable amounts and were referred to in section 81(1). However, section 80(2) does not apply to the amounts of $36,000 and $48,000.

(8) If an amount mentioned in this section:

(a) is adjusted by the operation of Division 6 of Part 3; or

(b) is adjusted by an amendment of this section,

the damages awarded are to be assessed by reference to the amount in force at the date of injury.

The right to recover damages for economic loss is correspondingly restricted by s 151H of the same Act in these terms:

(1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury.

(2) A serious injury is, if received before the commencement of Schedule 2(2) to the Workers' Compensation (Benefits) Amendment Act 1991:

(a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 33 per cent of the maximum amount from time to time referred to in section 66(1); or

(b) an injury for which damages for non-economic loss of not less than $67,800 are to be awarded in accordance with this Division (whether or not compensation is payable under section 66).

(2A) A serious injury is, if received on or after the commencement of Schedule 2(2) to the Workers' Compensation (Benefits) Amendment Act 1991:

(a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 25 per cent of the maximum amount from time to time referred to in section 66(1); or

(b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66).

(4) Division 6 of Part 3 (Indexation of amounts of benefits) applies as if the amount of $48,000 were an adjustable amount and were referred to in section 81(1). However section 80(2) does not apply to the amount of $48,000.

(5) For the purposes of determining whether an injury is a serious injury, the court has the powers under this Act of the Compensation Court relating to the reference of a matter to a medical referee or medical panel for report.

(6) If an amount mentioned in this section:

(a) is adjusted by the operation of Division 6 of Part 3; or

(b) is adjusted by an amendment of this section,

the damages awarded are to be assessed by reference to the amount in force at the date of the injury.

The learned Master acknowledged that the plaintiff had a right to bring his action at common law in the forum afforded by this Court if:

1. The claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce, and

2. By the law of the place where the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce.

(per Brennan J in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 at 110-111).

However, counsel for the appellant contended that the provisions of the Workers' Compensation Act are to be distinguished from s 79 of the Motor Accidents Act 1988 (NSW) (the "Motor Accidents Act") which a majority of the High Court held in Stevens v Head [1993] HCA 19; (1993) 176 CLR 433 to be a law with respect to the quantification of damages and not a substantive exclusion of the recovery of damages under particular heads. In the joint judgment of the majority (Brennan, Dawson, Toohey, and McHugh JJ) in Stevens v Head, it was observed at 459:

The circumstances prescribed by both sub-s. (1) and sub-s. (4) arise not when the personal injury is suffered but subsequently, when the extent of impairment is known or when the trial, in which the plaintiff sues on an existing cause of action, concludes. In other words, sub-ss. (1) and (4) assume that a common law liability exists but direct the court not to exercise its jurisdiction to award damages when it finds that the circumstances prescribed by those respective provisions exist. The liability is not truly contingent, but the right to enforce the liability is. The provisions of sub-ss. (1) and (4) of s. 79 operate in much the same way as a statute of limitations, that is to say, by acknowledging the cause of action but barring its enforcement.

Section 79 of the Motor Accidents Act provided:

(1) No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life is significantly impaired by the injury suffered in the accident.

(2) The amount of damages to be awarded for non-economic loss shall be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

(3) The maximum amount which may be awarded for non-economic loss is $180,000 (or the maximum amount declared for the time being under section 80), but the maximum amount shall be awarded only in a most extreme case.

(4) If the amount of non-economic loss is assessed to be $15,000 or less, no damages for non-economic loss shall be awarded.

(5) If the amount of damages to be awarded for non-economic loss in accordance with subsections (1)-(3) is more than $15,000 but less than $55,000, the following deductions shall be made from that amount:

(a) if the amount of damages is less than $40,000 - the amount to be deducted is $15,000;

(b) if the amount of damages is not less than $40,000 - the amount to be deducted is $15,000 or $15,000 reduced by $10,00 for every $1,000 by which the amount of damages exceeds $40,000.

Counsel for the appellant has submitted that the effect of ss 151G and 151H of the Workers' Compensation Act in the present case is to disentitle the respondent to a claim for damages for economic and non-economic loss. The effect of that Act, on this argument, is to deny certain substantive rights of a plaintiff in the position of the respondent and curtail the jurisdiction of the Supreme Court of New South Wales which it would otherwise have to award damages at common law. Counsel contends that this is tantamount to the extinguishment of the substantive common law and its replacement with a statutory scheme for the recovery of damages. Reliance was placed on Thompson v Hill (1995) 38 NSWLR 714. The New South Wales Court of Appeal held that s 93 of the Transport Accident Act 1986 (Vic) (the "Transport Accident Act") was a substantive provision which extinguished the right to recover common law damages in respect of a "transport accident" in Victoria except as provided by the Act. Accordingly, it was held that, in accordance with the principles developed under private international law and applied in Stevens v Head (supra), a plaintiff's claim in a New South Wales court for damages for personal injury arising out of a "transport accident" in Victoria was not maintainable except as provided by the Victorian legislation.

Section 93(1) of the Transport Accident Act is in these terms:

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.

As Clarke JA noted in Thompson v Hill, at 739, s 93 of the Transport Accident Act differs, both in form and in substance, in essential respects from s 79 of the Motor Accidents' Act. Sub-sections (1), (2) and (4) of the Victorian section, his Honour pointed out:

... operate to deny a person a right to recover in respect of any damages in the relevant circumstances unless the two conditions have been satisfied. A person has, for instance, no right to go to court in Victoria seeking damages for personal injuries received in a transport accident unless the Commission has determined the degree of impairment and the injury is a serious one in the sense earlier discussed.

Accordingly, his Honour concluded, at 740, that sub-ss (1), (2) and (4) of s 93 are substantive because:

It would, in my opinion, be an unacceptable extension of the concept of a procedural law to allow it to embrace a statutory provision which disentitles a person from recovering damages for personal injury received in a transport accident except upon satisfaction of conditions expressed in the statute.

In our view s 93 manifests a clear legislative intent to exclude all right of recovery at common law. By contrast, we have not been able to discern any corresponding legislative intent in the provisions of the Workers' Compensation Act. Rather, ss 151G and 151H of the latter Act are concerned, we think, to erect procedural limitations on the quantification of an award of damages and do not amount to a substantive exclusion of the recovery at common law of damages under particular heads. It is to be noted, for instance, that ss 151G and 151H are contained within Division Three of the Workers' Compensation Act under the heading "Modified Common Law Damages " which contains other restrictions on a court's ability to award damages for other types of loss including loss of past or future earnings, and to award interest. We therefore agree with Counsel for the respondent that ss 151G and 151H can be equated with s 79 of the Motor Accidents Act as similarly delimiting the damages recoverable at common law for non-economic loss. In our view therefore the learned Master correctly regarded himself as bound by the reasoning of the majority in Stevens v Head.

For these reasons the appeal must be dismissed with costs.