Reported Decision : (2002) 54 NSWLR 282 New South Wales Court of Appeal CITATION : Cargill Australia Ltd v Agius [2002] NSWCA 119 FILE NUMBER(S) : CA 40795/01 HEARING DATE(S) : 26 April 2002 JUDGMENT DATE : 26 April 2002 PARTIES : Cargill Australia Ltd - Appellant Matthew James Alfred Agius - Respondent JUDGMENT OF : Handley JA at 21; Giles JA at 2; Santow J at 26 LOWER COURT JURISDICTION : District Court LOWER COURT DC 102/01 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER : COUNSEL : I D Roberts - Appellant L King SC & M Robinson - Respondent SOLICITORS : A O Ellison & Co - Appellant Gordon Garling Moffit, Young - Respondent CATCHWORDS : Damages - scheme of modified common law damages under Div 3 of Pt 5 of Workers Compensation Act 1987 - prohibition on damages for economic loss unless serious injury (as defined) - damages for gratuitous domestic assistance - whether damages economic loss within scheme - held yes. D. Griffiths v Kerkemeyer (1977) 139 CLR 161; CASES CITED: Kars v Kars (1996) 187 CLR 354; Nguyen v Nguyen (1990) 169 CLR 245; Van Gervan v Fenton (1992) 175 CLR 327. DECISION : (1) Grant leave to appeal and direct the notice of appeal be filed within 14 days. (2) Uphold the appeal. (3) Set aside the verdict and judgment of Sidis DCJ and in lieu threof verdict and judgment for $21,455.53 to take effect on 12 September 2001. (4) Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act if qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40795/01 DC 102/01 HANDLEY JA GILES JA SANTOW JA Friday, 26 April 2002 CARGILL AUSTRALIA LTD v AGIUS Judgment 1 HANDLEY JA: The Court will give judgment immediately and I will call on Giles JA to give the first judgment. 2 GILES JA: The plaintiff was employed by the defendant in the defendant's abattoir. In about August 1997 he contracted Q fever. It was not in dispute that the defendant was liable to him in damages, or that the damages fell to be assessed as modified common law damages under Div 3 of Pt 5 of the Workers Compensation Act 1987 (the Act) as it stood in 1997. 3 The assessment of damages was undertaken in a hearing before Sidis DCJ in September 2001. The plaintiff had only lost two weeks of work and had held down a second job for a considerable period, and there was a contest over the continuance of his symptoms and the existence, let alone extent, of any disability. Her Honour found that his symptoms had continued and were continuing, although they were decreasing in their intensity, and although not expressly found that he was affected in a manner entitling him to damages. 4 Her Honour then said: "As far as the assessment of his claim is concerned, I think it likely that he will, in time, recover, and that he is probably through the worst of his illness, and I have therefore assessed his claim at twenty per cent of a most extreme case. I understand that to mean that he will not recover his past or future economic loss. As regards the claim for assistance with domestic services, obviously I accept Mrs Agius as opposed to the evidence of the plaintiff. I would have found it extraordinary if the plaintiff were in fact contributing twenty-five hours a week to the upkeep of his home and his family. There is an argument as to whether the plaintiff is entitled to recover under s 151K of the Act, having regard to the provisions of s 151H which state that no damages are to be awarded for economic loss unless the injured worker has suffered a serious injury or dies as a result of the injury. A serious injury for the current purposes is one in respect of which an award of twenty-five per cent or more is made. The question is whether s 151K deals with damages for economic loss in circumstances where the claim is made on the principles in Griffith v Kerkmeyer [sic: Griffiths v Kerkemeyer ], that is, where the domestic services are provided gratuitously and not through the services of a paid agent. It is argued for the plaintiff that I should ignore the heading to s 151K on the principles of s 35 of the Interpretation Act , which provides that headings to a provision in an Act shall not be taken to be part of the Act. The heading to s 151K starts with the words 'Damages for economic loss' in the same way as s 151H, 151 I and 151J. It does seem to me that s 151K is directed at the circumstances where money is actually expended upon the securing of domestic services. Were it to have been intended to apply to gratuitous services, then, given the specific nature of the provision of the section, it seems to me that it would specifically had so stated. In those circumstances, the plaintiff will be awarded three hours per week in respect of domestic services at the rate of $17.59 per hour from the date of contraction of his illness for a period of seven years, by which time I would expect his recovery to be complete. There will be a verdict and judgment for the plaintiff in the sum of $40,115." 5 It was common ground that the $40,115 included damages for non economic loss calculated, having regard to the assessment of the plaintiff's claim at 20 per cent of a most extreme case, in the sum of $21,360. The components and calculation of the balance of the judgment were a little obscure. A reference in discussion after her Honour had given judgment to the amount awarded for the claim for assistance with domestic services, as her Honour described it, gave the figure at $18,659.47. For present purposes it is not necessary to decide whether or not that was a correct figure. The question in the appeal was whether Sidis DCJ was correct in regarding the damages she awarded for the claim for assistance with domestic services as outside the prohibition in s 151H of the Act. Leave to appeal was required, was not opposed, and should be granted. 6 The regime of modified common law damages under the Act distinguished between damages for non economic loss and damages for economic loss. 7 In the definitions in s 149(1) "damages" was defined as including, amongst other things, any form of monetary compensation, and "non economic loss" was defined to mean pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Economic loss was not defined. 8 By s 151G the amount of damages to be awarded for non economic loss was to be a proportion, determined according to the severity of the non economic loss, of the maximum amount which might be awarded, and the maximum amount was stipulated and it was said that it might be awarded only in a most extreme case. There was a further limitation where the amount of non economic loss was assessed at a low figure, and there was provision for indexation of the maximum amount. This, of course, was the basis for the damages of $21,360. 9 By s 151H no damages were to be awarded for economic loss unless the injured worker had received a serious injury or died as a result of the injury. "Serious injury" was defined in a way which meant that the injury assessed by Sidis DCJ at 20 per cent of a most extreme case did not satisfy the definition. 10 Sections 151I, 151J and 151K then added to the regime of modified common law damages. Their detail is not particularly significant in this case but I set them out for the most part, together with their headings, as appearing in the print of the Act as it stood in 1997. " 151 I Damages for economic loss – loss of past or future earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the injured or deceased worker's net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount). (3) The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (indexation of amounts of benefits). (4) This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35. 151J Damages for future economic loss – discount rate (1) If an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referable to: (a) deprivation or impairment of earning capacity, or (b) the value of future services of a domestic nature or services relating to nursing and attendance, or (c) loss of expectation of financial support, or (d) a liability to incur expenditure in the future, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. (2) The prescribed discount rate is: (a) a discount rate of the percentage prescribed by the regulations, or (b) if no percentage is so prescribed, a discount rate of 5 per cent. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages. 151K Damages for economic loss – maximum amount for provision of certain home care services (1) Compensation, included in an award of damages, for the value of services of a domestic nature or services relating to nursing and attendance: (a) which have been or are to be provided by another person to the injured worker, and (b) for which the injured worker has not paid or is not liable to pay, must not exceed the amount determined in accordance with this section. (2) (Repealed) (3) No compensation is to be awarded if the services would have been provided to the injured worker even if the worker had not been injured. (Hereafter particular provision was made in relation to the calculation of the compensation.)" 11 There can be debate over the characterisation of the damages awarded under the principle established in Griffiths v Kerkemeyer (1977) 139 CLR 161, as developed in the later cases of Nguyen v Nguyen (1990) 169 CLR 245, Van Gervan v Fenton (1992) 175 CLR 327 and Kars v Kars (1996) 187 CLR 354. On one view, the damages awarded to meet a need for the provision of domestic assistance were in those cases equated more with general damages than with special damages. However, the present task is one of construction of the Act. The prohibition in s 151H is on the award of damages for economic loss, and the question is how the damages are to be characterised for the purposes of the Act. 12 At first sight, when there is a definition of non economic loss other damages, that is, any other form of monetary compensation, are economic loss. Perhaps that does not necessarily follow if a third or further categories of damages can be identified, but it is a starting point. 13 In any event, the provisions of the Act thereafter in my opinion treat damages of the kind presently in question as damages for economic loss. That it seems to me is plain, even without reference to the heading, from s 151J, which refers to damages referable to the value of future services of a domestic nature or services relating to nursing and attendance as damages for future economic loss. The same clarity is not to be found in s 151K, but it also refers to damages for the value of services of a domestic nature or services relating to nursing and attendance. It would be remarkable, again even without reference to the heading, if the damages there referred to were to be characterised differently for the purposes of the Act from their characterisation in s 151J. 14 It will be seen that Sidis DCJ distinguished damages for the gratuitous provision of domestic services from other damages for the provision of domestic services. Her Honour erroneously regarded s 151K as directed to damages for the paid provision of domestic assistance. It was accepted in the appeal that it was in fact directed to damages for the gratuitous provision of domestic services. The structure of the scheme, commencing with the definitions and with the provisions to which I have referred, to my mind evidences the legislative intention that damages for gratuitous domestic assistance are to be regarded as damages for economic loss just as much as damages for paid domestic assistance. Indeed, as Mr Roberts for the appellant pointed out, it would be anomalous if in the present context there were to be a distinction between damages for gratuitous domestic assistance and damages for paid domestic assistance. If the plaintiff had paid for the domestic assistance, he could not recover damages. If the plaintiff had not paid for the domestic assistance, he could recover damages. There is no sense in that. 15 With characteristic forthrightness, Mr King SC for the respondent acknowledged that there was force in the appellant's arguments: they were to the effect of what I have thus far said. He submitted, however, that a different complexion was placed on the matter by regard to legislative history. 16 The scheme of modified common law damages came into the Act in 1989. In 1994 a new s 151K replaced the 1989 s 151K. It was submitted that the 1989 s 151K was either limited to damages for paid domestic assistance or encompassed both damages for paid domestic assistance and damages for gratuitous domestic assistance, and that the 1994 s 151K brought a deliberate restriction to damages for gratuitous domestic assistance. Thus, it was said, the relationship with s 151J was broken, and the 1994 s 151K should be seen as a separate provision, in its terms looked at alone not dealing with damages for economic loss. 17 It seems to me that there are two answers to this submission. 18 The first is that, as I read the 1989l s 151K, it was no more or less limited to damages for gratuitous domestic assistance than the 1994 s 151K. That appears from its reference to compensation "for the value of" services of a domestic nature or services relating to nursing and attendance. Value, it seems to me, connotes that the award is by valuation of assistance, not by recompense for a known paid amount. Thus there was not the deliberate restriction in 1994. 19 Even if that not be so, however, at best it seems to me that the submission gives grounds for ambiguity. By s 35 of the Interpretation Act 1987 the headings to the sections are generally not part of the Act, but by s 34(1)(b) once there is an ambiguity it is open to refer to the headings. (It should be said that it seems Sidis DCJ was not referred to s 34.) Although I really do not regard the provisions as ambiguous, if the submission gives grounds for ambiguity there can be reference to the heading to s 151K, being the same heading for both the 1989 s 151K and the s 151K in the Act as it stood in 1997. Upon reference to the heading the position is put beyond doubt. 20 It follows, in my view, that the following orders should be made: (1) Grant leave to appeal and direct that the notice of appeal be filed within fourteen days. (2) Uphold the appeal. (3) Set aside the verdict and judgment of Sidis DCJ and in lieu thereof verdict and judgment for $21,455.53, taking effect on 12 September 2001. (4) Respondent pay the appellant's costs of the appeal but have a certificate under the Suitors Fund Act if qualified. 21 HANDLEY JA: I agree. I will only add a few observations for myself. The definition of non economic loss in s 149(1) is in my judgment an exhaustive definition because the specific heads of damages referred to are introduced by the word "means", a classic word used by Parliamentary Counsel when creating an exhaustive definition. There is no definition of economic loss in the Act but in my judgment s 151J(1) shows that Parliament treated Griffiths v Kerkemeyer damages as damages for economic loss for the purposes of the Act and is an implicit definition of such damages. 22 Mr King suggested there could be a third category, because for example damages awarded on the Fox v Wood principle and awards of interest were neither economic nor non economic loss. He further suggested that Griffiths v Kerkemeyer damages were likewise in this third category. 23 I have not been persuaded that there is a third category of loss for the purposes of this Act. The Act in s 151M treats interest as something to be awarded on damages and not as part of those damages. This view is not displaced by the principle that has been worked in cases outside the Act that interest on damages is awarded as further damages. It seems to me that damages awarded on the Fox v Wood principle are properly to be seen as part of the plaintiff's past economic loss due to loss of earnings. 24 In my judgment therefore the Act divides damages into two mutually exclusive and exhaustive categories, damages for economic and damages for non economic loss. 25 Subject to those observations, I agree with what has fallen from Giles JA and with the orders he has proposed. 26 SANTOW JA: I agree with the judgment of Giles JA and the orders he proposes and I would concur in the observations of Handley JA. 27 HANDLEY JA: The order of the Court therefore is as proposed by Giles JA. _____________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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