Copur v Alcan Australia Limited M71/1994 [1995] HCATrans 196 (9 June 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M71 of 1994

B e t w e e n -

ERHAN COPUR

Applicant

and

ALCAN AUSTRALIA LIMITED

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1995, AT 10.30 AM

Copyright in the High Court of Australia

MR J.T. RUSH, QC: May it please the Court, I appear with MR M.A. NIGHTINGALE, for the applicant. (instructed by Holding Redlich)

MR A.G. UREN, QC: If the Court pleases, I appear with my learned friend, MR D.F.R. BEACH, for the respondent. (instructed by Dunhill Madden Butler)

BRENNAN CJ: Yes, Mr Rush?

MR RUSH: May it please the Court. This application does involve a piece of domestic legislation and in the words of the respondent's outline of argument, it is only a statutory interpretation point. But it is submitted that the questions raised are of fundamental importance to the most seriously injured workers in this State and their rights under the Accident Compensation Act 1958 . The fundamental question is one of, having consideration for section 135(3A) and 135A of the Accident Compensation Act, when does a Court reduce damages under section 26(1) of the Wrongs Act and the question is highlighted by the circumstances of this case.

The applicant's damages were assessed in their totality at $300,000 and contributory negligence was assessed at 40 per cent. The reduction of $300,000 by 40 per cent would lead to a verdict of $180,000, a reduction to the statutory limits imposed by section 135(3A) and then a reduction under section 26(1) of the Wrongs Act led the court in this instance to an award of $110,000. Section 135A - - -

DAWSON J: This section has been amended, has it, since - - -

MR RUSH: There has been an amendment in 1992 to the section which is referred to in both outlines of argument and I think is attached to the respondent's outline of argument. The whole Act was amended in late 1992 to create serious injury provisions and then make allowance for pecuniary and non-pecuniary loss.

DAWSON J: But (3A) has disappeared as such?

MR RUSH: Yes, it has, your Honour. It has disappeared but nevertheless in the amended legislation there are provisions which create a similar problem to the one which was faced in this situation, which I intend to take the Court to. We would submit that the question involved in this application is a consideration of firstly section 135(3A) and particularly the words that:

the amount of damages shall not exceed $140,000 -

as written in the statute, but indexed by the time of this case to, I think, $182,700. The question we submit is what does it mean, what is the interpretation, what is the construction to be placed on "the amount of damages shall not exceed"? We would submit to the Court that in going to that construction the first point to go to is the interpretation of section 135(3A). It is our submission that that phrase and that section create a limit of damages. They create the limit which the Court will award. In the words, at page 25 of the application book, of Mr Justice Vincent in the dissenting judgment of the Full Court, he referred to it as being, at line 15, after referring to authority, he referred to that phrase at about line 18, as describing a:

"bottom line figure", that is, the amount of damages in respect of which subject to the specific deductions mentioned, judgment could be entered.

And his Honour Mr Justice Vincent in the dissenting judgment formed the opinion that that phrase in essence created a bottom line and it was proper to reduce the $300,000 in this case by the 40 per cent under section 26(1) of our Wrongs Act and then come to the figure, or the bottom line figure, which is the statutory limit created by 135(3A).

That section, 135(3A) had been considered in a number of authorities by the Full Court of Victoria and was specifically considered in an unreported decision of Ivanovski, which has been handed to the Court. I desire to refer the Court to the decision of Chief Justice Young, which is at page 1 of his judgment. That decision and the question of construction of section 135(3A), in that case the argument that was rejected by the court was that what section 135(3A) involved as far as section 98 payments are concerned and if one examines the section, it reads after the words:

the amount of damages shall not exceed $140,000, less any amounts of compensation paid under section 98.

It was put to the Court by argument by the appellant in that case that a worker in receipt of section 98 payments, that is a lump sum award under a table of maims created by section 98, should have damages reduced by the amount such worker received under the table of maims payment. His Honour the Chief Justice at page 2 of that judgment rejected that submission and said at the bottom paragraph:

With respect to those who think otherwise, I am quite unable to understand how the sub-section could possibly be construed in that way. It does not speak about reducing damages: it imposes a limit upon the amount of damages that may be recovered. The damages are not to exceed the stated amount, less, in the example I have taken $10,000. When Parliament wished to provide for an amount to be reduced, the word "reduced" is, not surprisingly, employed -

and his Honour referred to subsections (4A) and (4B) of the same section.

Now, your Honours, in the judgments of Mr Justice Brooking and Mr Justice Tadgell, the majority of the Full Court in the appeal in this case, both judges decided that the "effective assessment" - were the words used by Mr Justice Brooking at page 12 of the application book - there should be an effective assessment of damages and his Honour at page 12 of the application book said that effective assessment was something that could be incorporated into the terms of 135(3A). At line 12 his Honour said:

It seems to me that there is no reason for not giving the words their ordinary meaning, and that in their ordinary meaning they are concerned with the assessment of damages and that they impose a limit upon the amount at which damages may be effectively assessed. I draw the distinction between "assessment" and "effective assessment" because it seems to me that whether the trial is with or without a jury the tribunal of fact should first assess damages without regard to the limit imposed by s 135(3A) and that the sub-section then operates to reduce the assessment, if it exceeds the indexed limit, to the amount of that limit.

Now, we would submit that in the construction of 135(3A) to incorporate into the terms of that section an effective assessment is not a proper construction. Indeed, we would submit, in so far as Mr Justice Brooking, in the passage quoted from the application book, refers to section 135A operating to reduce damages, we would say it is in direct conflict with the decision of the Full Court and the Chief Justice in Ivanovski's Case where his Honour says that the section specifically did not speak about reducing damages. It imposed a limit on the amount of damages that may be recovered. In essence, your Honours, that was the point made by Mr Justice Vincent in his dissenting judgment.

Your Honours, section 26(1) of the Wrongs Act, we would submit, is also of some importance in relation to the construction of section 135(3A). That section provides for liability for contributory negligence, and in subsection (1) refers to a person suffering damages may have damages reduced as a consequence, in effect, of contributory negligence and says:

but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:

.....

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages awarded to the claimant by virtue of this sub-section shall not exceed the maximum so applicable;

(c) where an action is brought in a court of limited jurisdiction the court may award damages up to the limit of its jurisdiction even though such damages have first been reduced under this sub-section.

Now, we would submit, your Honours, that that is the mechanism that is established by statute that governs the operation of a reduction of damages under 135(3A) and we would submit to the Court that that is the appropriate manner of a reduction and it involves a reduction of the total assessment, not the reduced assessment or the statutory limit.

BRENNAN CJ: But, really, you do have to address the problem of the ultimate courts which ought to determine these questions. Should it be this Court or should it be the Victorian courts?

MR RUSH: Your Honour, obviously, we submit it should be this Court and we submit it because what is involved - I said at the outset and I appreciate the nature of the legislation that we are dealing with but what is involved in this question, we submit, are fundamental rights and the clarity with which the legislature deals with the reduction or the doing away of a worker's common law rights and we would submit, your Honours, that it is not only applicable to the section that has since been amended but is also applicable under the legislation that amended the Accident Compensation Act in 1992. The same question arises. It is an important consideration, we would submit to the Court, having regard to the nature of the damages and because of the sums involved, the Court is dealing with the most seriously injured workers.

Now, your Honours, we submit that it is appropriate for this Court to deal with this matter because it is a fundamental matter in relation to those rights. It is a fundamental matter in relation to vested common law rights. It is appropriate for the High Court - - -

DAWSON J: It may be, but it is still only a question of statutory construction, is it not?

MR RUSH: It is, your Honour, and we do not hide from that but the statutory construction, we would submit, is one of great importance and because it is only a matter of statutory construction, we would submit, is not the be all and end all as far as this Court's ability to deal with the appeal is concerned.

BRENNAN CJ: No, that is quite true. It is not the end of it, necessarily, but I find it difficult, to speak for myself, to think of a case more appropriate for final determination by the Victorian courts than this. This statute has been amended on several occasions in a most substantial way. It is a very complex piece of legislation. It has not always been noted for the clarity of its expression. It is a matter which obviously must command the attention of the Victorian legislature and the proposal that you advance today is that that matter should be taken out of the hands of the Victorian courts for final determination in relation to one section, now repealed, and dealt with by this Court.

MR RUSH: It is, your Honour.

BRENNAN CJ: Now, that would require this Court to master the whole of the jurisprudence which relates to this complex litigation in order to ensure that there was no decision given that would rupture that jurisprudence in some unforeseen way. It is just not a matter, it seems to me, Mr Rush, which we really ought to take on board for those reasons.

MR RUSH: Your Honour, I can only say in reply to that that, in essence, the problem which has been identified through the appeal process in this case has been repeated in the legislation which is the cause of substantial amendment in 1992 and as far as a definitive ruling in relation to that process, as it deals with, we would submit, not an unimportant principle of the way in which contributory negligence should be reduced in terms of a statute that has a limit and when a jury is asked, as his Honour Mr Justice Brooking asked, a trial judge, to assess a total quantum is of fundamental importance and the reason the conflict which has existed on our Supreme Court in relation to that issue, we would submit, is one that draws the attention of this Court to it.

Your Honours, in essence, what the court decided, Mr Justice Brooking and Mr Justice Tadgell, in interpreting the legislation, drew on section 135A which was inserted into the legislation as a direct consequence of Ivanovski's Case. It created a process by which section 98 payments could be reduced from damages and created it in such a manner that a process was put in train by that legislation to reduce damages by the table of maims payment to stop, as the Minister in his second reading speech referred to, "double dipping".

It is submitted, your Honours, that that section, as it applies to this scenario, is not applicable and there are a number of reasons relating to that but section 135A(4) sets out a process for reduction of damages and the process which it refers to is:

If the amount of a judgment is subject to a reduction under section 135 or this section, that reduction must be made before the reduction (if any) under section 26(1) of the Wrongs Act is made.

Now, in short, your Honour, we say that that subsection is not applicable to this case. There was no section 98 payment in this case and there would be no reduction under section 135. If the contributory negligence reduced the $300,000 assessed figure to $180,000, there would be no need for a 135 reduction.

We say, your Honours, that in interpreting the legislation, the prime section that the Court should be concerned with is section 135A and have regard to the fact that that section was inserted merely to overcome the problem that was identified by the Chief Justice in Ivanovski's Case. We would submit - and it goes, I think, to some extent, your Honours, to the point raised by your Honour the Chief Justice in relation to the importance of the point - section 135 was dealt with by the Full Court comprising Justices Murphy, Gobbo and Southwell in the case of Sharp v Associted Pulp and Paper Mills (1989) VR and it dealt with the applicability of that section to pre-accident compensation injuries. In relation to the matter of interpretation of that section, that court said - and we would submit it is of relevance in relation to the interpretation of these sections - that as far as a construction of the section is concerned that:

such a construction which involves the taking away of accrued rights should not be adopted unless it is unavoidable. In our opinion such a construction is not necessary and it is certainly not so clearly expressed that no other view of the matter is reasonably open. In our view, the plaintiff's accrued rights remain unimpaired by the new legislation, for it is not shown with irresistible clarity that it was the "intention of Parliament to infringe vested rights".

Now, that principle of construction was not addressed in any way by the majority in the Full Court of Appeal in this case and we say it is a matter of some consequence, not only in relation to the proper construction of the Act but, as I have indicated to the Court, in relation to the importance of the issue.

In essence, we would respectfully submit to the Court that the amendments which were incorporated into the Act by section 67 of the 1992 amending legislation, in reality, create the same set of circumstances. The same procedure in relation to the awarding of damages under section 135A(7) is put into place, that is, subsection (7) refers to:

A court must not, in proceedings in accordance with this section, award to a worker in respect of an injury -

and if one goes to (b):

pain and suffering damages.....

(ii) in excess of $298,640 or that amount as varied in accordance with section 100 as at the date of the award -

The same problem, we submit to the Court, exists in relation to the interpretation of what should happen with a Wrongs Act 1985 reduction as a consequence of the wording of that legislation. It is of note, we would submit, that before a person can receive an award of damages under that section the person must receive not less than $29,860 prior to any reduction under the Wrongs Act.

BRENNAN CJ: Your time has expired, Mr Rush.

MR RUSH: If your Honour pleases.

BRENNAN CJ: We need not trouble you, Mr Uren.

This application raises only the question of construction of a particular provision of the Accident Compensation Act (Vic) that has now been repealed. No general canon of statutory construction is involved. The construction of the Accident Compensation Act 1958 and its relationship with the Wrongs Act (Vic) are questions which are eminently appropriate for final determination by the courts of Victoria. The Act has been substantially amended and the complex provisions of that Act can most conveniently be kept under review by the legislature in the light of the decisions of Victorian courts. For those reasons, special leave is refused.

MR UREN: Would the Court make an order for costs?

BRENNAN CJ: Do you have anything to say about that, Mr Rush?

MR RUSH: No, your Honour.

BRENNAN CJ: It will be refused with costs.

AT 10.52 AM THE MATTER WAS CONCLUDED