Reported Decision : 64 NSWLR 131 New South Wales Court of Appeal CITATION: Landon v Ferguson [2005] NSWCA 395 HEARING DATE(S): 10/11/05 JUDGMENT DATE: 23 November 2005 JUDGMENT OF: Hodgson JA at 1; Santow JA at 2; Ipp JA at 3 DECISION: (1) Application for leave to appeal upheld (2) Appeal dismissed with costs. CATCHWORDS: INSURANCE - injury to employee - Claim by train guard injured on train - Public transport - Relationship between s 151E of the Workers Compensation Act 1987 (NSW) and Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW) - Meaning of "caused by or arising out of" the use of public transport under s 121 of the Transport Administration Act 1988 (NSW). D Motor Accidents Compensation Act 1999 (NSW), Chapter 5 Workers Compensation Act (1987 (NSW), ss 150, 151E LEGISLATION CITED: Workplace Injury Management Act and Workers Compensation Act 1998 (NSW) Transport Administration Act 1988 (NSW), ss 121(1), 121(3) Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 Clement v Clement (1984) 1 MVR 435 Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80 CASES CITED: Lamont v Motor Accidents Board (1983) 1 VR 88 NSW Government Insurance Office v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437 NSW Insurance Ministerial Corporation v Handford (1994) 35 NSWLR 187 Catherine Jean Landon as Executrix of the Estate of the Late David Landon (Claimant) PARTIES: Judyth Ferguson (Opponent) FILE NUMBER(S): CA 40171/05 G M Watson SC/T A Berberian (Claimant) COUNSEL: G Little SC/A Capelin (Opponent) Sparke Helmore (Claimant) SOLICITORS: McClellands (Opponent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 7813/02 LOWER COURT JUDICIAL OFFICER: Ashford DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40171/05 DC 7813/02 HODGSON JA SANTOW JA IPP JA Wednesday 23 November 2005 CATHERINE JEAN LANDON AS EXECUTRIX OF THE ESTATE OF THE LATE DAVID LANDON v JUDYTH FERGUSON Judgment 1 HODGSON JA: I agree with Ipp JA. 2 SANTOW JA: I agree with Ipp JA. 3 IPP JA: This is an application for leave to appeal and, if granted, an appeal against a decision of Ashford DCJ. The proposed appeal raises the question whether the claim of the opponent, Ms Ferguson, is governed by those provisions of the workers compensation statutory regime that relate to claims for damages or whether her claim is governed by Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW). 4 On 25 November 1999 Ms Ferguson was injured in the course of her employment with the State Rail Authority while travelling as a train guard on a passenger train. The train was being driven by Mr David Landon, who was also employed by the Authority. The train had conveyed passengers to Redfern station at which point passenger services terminated. All passengers left the train and only Ms Ferguson and Mr Landon remained on it. Mr Landon then began driving the train to the Mortdale train sheds where it was to be cleaned. On the way the train passed through Mortdale Station. There, Ms Ferguson either fell or stepped off the moving train. She slipped between the train and the platform and was injured. 5 On 15 October 2002 Ms Ferguson issued a statement of claim against Mr Landon claiming damages. Subsequently Mr Landon died and Ms Ferguson's claim was amended to seek damages from the executrix of his estate (Mrs Landon). The fact that Ms Ferguson sued her co-worker and not her employer is not material to the issues in these proceedings (see s 150 of the Workers Compensation Act 1987 (NSW). 6 It is common ground that, at the time Ms Ferguson was injured, she was a worker under the Workers Compensation Act and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "Workplace Injury Management Act"), and the compensation regime provided by these two acts applied to her. She claimed, and was provided with, compensation for the injury she sustained in the accident. 7 In Mrs Landon's defence to the statement of claim she pleaded that Ms Ferguson's claim was governed by the Workplace Injury Management Act and the Workers Compensation Act. Mrs Landon argued that the proceedings had not been commenced in accordance with the procedural requirements of those two statues and were "void". 8 Before Ashford DCJ, Ms Ferguson contended that the Workplace Injury Management Act and the Workers Compensation Act did not apply to her claim. She argued that the accident in which she was injured was a public transport accident as defined by s. 121(3) of the Transport Administration Act 1988 (NSW). Section 121 (1) of that Act provides that Chapter 5 of the Motor Accidents Compensation Act governs claims for damages relating to the death of or bodily injury to a person caused by or arising out of a public transport accident. Ms Ferguson argued that her claim was for damages relating to injuries "caused by or arising out of a public transport accident" within the meaning of s. 121. Hence, she submitted, by virtue of s 121, Chapter 5 of the Motor Accidents Compensation Act (and not the Workplace Injury Management Act and the Workers Compensation Act) governed her claim. Ashford DCJ upheld Ms Ferguson's argument and the present proceedings stem from that decision. 9 The statutory provisions on which the resolution of these proceedings, essentially, depends are s 121 of the Transport Administration Act and s 151E of the Workers Compensation Act. 10 Section 121 of the Transport Administration Act provides: "(1) Chapter 5 (Award of damages) of the Motor Accidents Compensation Act 1999 applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a public transport accident, not being an award of damages to which that Chapter applies. (2) Accordingly, in that Chapter: (a) a reference to a motor accident includes a reference to a public transport accident, and (b) a reference to a motor vehicle includes a reference to any vehicle or vessel used for public transport. (3) For the purposes of this section, a public transport accident is an accident caused by or arising out of the use of any form of public transport in New South Wales, including public transport in the form of a passenger railway or a water ferry or taxi, but not including: (a) public transport in the form of air transport, or (b) public transport that is operated primarily for tourists, the purposes of recreation or historical interest or that is an amusement device, or (c) an accident for which, or to the extent to which, a person is liable otherwise than in the capacity of the owner or driver of, or other person in charge of, the vehicle or vessel used for public transport. … (4) This section does not apply to or in respect of public transport accidents occurring before the commencement of the Motor Accidents Compensation Act 1999. Note. For damages that may be awarded for accidents occurring before that commencement, see Part 6 of the Motor Accidents Act 1988." Ms Ferguson's accident occurred after the commencement of the Motor Accidents Compensation Act . Therefore, s 121(4) is not of application. 11 Section 151E of the Workers Compensation Act recognises the primacy of Chapter 5 of the Motor Accidents Compensation Act 1999 in respect of awards of damages which relate to the death of or bodily injury to a person caused by or arising out of a public transport accident. It provides: "(1) This Division applies to an award of damages in respect of: (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker's employer. (2) This Division does not apply to an award of damages to which Part 6 of the Motor Accident Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies. …" 12 Mr Watson SC, who together with Ms Berberian appeared for Mrs Landon, submitted that Ms Ferguson's claim was not in respect of an award of damages which related to the bodily injury of a person "caused by or arising out of a public transport accident" within the meaning of this phrase in s 121(1). For that reason, he submitted, s 121 did not apply to Ms Ferguson's claim (which, therefore, was subject to the Workers Compensation Act and the caps and procedures provided thereby). 13 Mr Watson's primary submission was that s 121(1), in general, and the phrase "public transport" in that section, in particular, mean that Chapter 5 of the Motor Accidents Compensation Act only applies when death or bodily injury to a person is caused by or arises out of that person's use of "the item [used as mode of transport], whether a ferry, train or bus, for public transport." He argued, in other words, that, by s.121, Chapter 5 does not apply when the person injured is not personally using the form of public transport for the purposes of public transport. On this argument, as Ms Ferguson was not, herself, using the passenger train as a form of public transport, her claim would fail. 14 Mr Watson submitted, in the alternative, that s 121(1) and the phrase "public transport" in that section mean that Chapter 5 only applies when, at the time of the relevant death or injury, the means of transport causing or giving rise to such death or injury is being used for the purposes of public transport. On this argument, as Ms Ferguson was not injured when the train was being used to convey passengers (that is, according to Mr Watson's submission, for the purposes of public transport), her injury was not caused by and did not arise out of a public transport accident and her claim would fail on this ground. 15 Mr Watson submitted that s. 121 should be restrictively construed for the following reasons: (a) Continuing effect should be given to the "idea of a comprehensive workers compensation scheme" (as created by the Workers Compensation Act and the Workplace Injury Management and Workers Compensation Act ) and the construction found by Ashford DCJ would detract from such a comprehensive scheme (as it would create exceptions to it). (b) The ordinary and natural meaning of the concept of "use of public transport" does not include the driving of the train carrying the passengers; it covers only the use of the train by the passengers themselves. (c) The fact that public transport workers were not specifically excluded from the operation of the workers compensation scheme indicates that the legislature did not intend their claims against their employers for common law damages to be governed by the Motor Accidents Compensation Act . Mr Watson argued other points but these in essence were reiterations of one or other of the three factors mentioned above. 16 I would accept Mr Watson's proposition that, generally, one would expect an accident in which a worker was injured in the course of her duties as a train guard to be covered by a workers compensation statutory regime rather than a motor accident statutory regime. But, this is as far as the point goes. 17 The statutes in this State relating to workers compensation and common law damages claims by workers against their employers and others can be described as a hodge-podge. No consistent thread of principle can be detected. For example, the caps on damages under the Workers Compensation Act are lower than the caps under the Motor Accidents Compensation Act. Some workers' injuries occur in circumstances where the workers are required to bring their claims under the Workers Compensation Act. In other circumstances workers are required to bring their claims for damages under the Motor Accidents Compensation Act. In yet other circumstances neither Act applies, but other legislation governs the claims. No detectable rational reason explains the difference in categories. In some cases it is difficult to discern under which particular statute the case falls, and difficult and sometimes illogical distinctions have to be drawn. 18 The safest course, therefore, is to apply a linguistic construction, attempt to discern the ordinary natural meaning of the language used and then to apply that. It is not possible to discern, reliably, a broader contextual construction. 19 I do not accept the submission that the ordinary and natural meaning of the words used in s 121 is such that they exclude an accident to the driver or operator of the vehicle or train or ferry or other means of transporting the public. Indeed, s 121 creates no distinction between various classes of persons who might suffer the death or injuries that are the subject of the section. The section governs, simply, any "award of damages" which relates to the death or bodily injury to a person caused by or arising out of a public transport accident. 20 Any other result would give rise to incongruous and unfair consequences. Take, for example, an accident that results in injuries to the driver of a passenger train and some of the passengers being conveyed. It would be an incongruous and unfair result if it were to be held the driver was not injured in a public transport accident (because he was driving the train), but the passengers were (because they were members of the public being conveyed). Another such example would be a ferry carrying passengers that collides with a small yacht operated by a single yachtsman. Assume that the pilot of the ferry, some passengers and the yachtsman were injured. It would be incongruous and unfair if the passengers' claims were to be governed by the Motor Accidents Compensation Act (because they were actually being conveyed in the ferry), the claim of the pilot by the Workers Compensation Act (because he or she was a worker, working on the ferry at the time), and the yachtsman's claim by the Civil Liability Act (because he was neither being conveyed by the ferry nor a worker subject to the Workers Compensation Act). It is to be presumed, prima facie, that the legislature intended that persons injured in the same accident should be treated in the same way. 21 According to the ordinary and natural meaning of s 121, the section applies to awards of damages where bodily injuries are caused by or arise out of a public transport accident and it is not restricted in its application to awards of damages to persons who are injured while being conveyed by public transport. 22 I do not accept that, because public transport workers were not specifically excluded from the operation of the Workers Compensation Act, it is to be inferred that the legislature intended their claims for common law damages to be governed by that Act and not the Motor Accidents Compensation Act. The omission to exclude public transport workers from the operation of the compensation provisions of the workers compensation legislation says nothing as to whether they are to be excluded from the operation of the common law damages provisions in that legislation. The latter is a separate question of statutory construction. 23 Accordingly, I do not accept Mr Watson's primary submission. 24 To understand better Mr Watson's alternative submission, it is helpful to read s 121(1) and s 121(3) together by substituting the words used in s 121(3) to define "public transport accident" for that phrase in s 121(1). Making due allowance for the exigencies of the proper use of language, the combined section would read: "Chapter 5 of the Motor Accidents Compensation Act 1999 applies to and in respect of an award of damages which relates to the death of or bodily injury to a person caused by or arising out of an accident caused by or arising out of the use of any form of public transport in New South Wales, including public transport in the form of a passenger railway or a water ferry or taxi, but not including …" 25 It is not in dispute that, until the train on which Ms Ferguson was working stopped at Redfern station and all passengers disembarked, it was being used as a form of public transport. The question raised by Mr Watson's alternative submission is whether Ms Ferguson's injury was caused by or arose out of the use of a form of public transport, even though it occurred while the train was empty of passengers and otherwise than for the purposes of conveying them. 26 The references in s 121(3) to passenger railway, water ferry, taxi and air transport indicate that "form" of transport is a reference, generally, to "mode" of transport and not to the particular means of transport being used. Thus, in context, a "water ferry" or "taxi" does not connote the particular individual ferry or taxi that is being used but rather, the mode of transport. 27 I accept that, in determining whether a particular means of transport was used as a form of public transport, regard must be had to the purpose for which it was used. While a "form" of public transport might be passenger railway or water ferry or taxi or air transport, any of these forms of transport could be used for private purposes and not for the purpose of conveying members of the public. It would offend common sense, for example, to classify as a public transport accident an accident involving a driver of taxi who was using the taxi, alone, to make a social visit to a personal friend. It does not, however, necessarily follow that, for a form of transport – at a given time - to constitute "public" transport, members of the public must be conveyed thereby. 28 It is significant that the phrases, "caused by" and "or arising out of", are both used. In this context, "arising out of" has a wider connotation than "caused by" and has an "extensive import": NSW Government Insurance Office v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437 at 442-443 (per Barwick CJ); see also Menzies J at 445, Fawcett v BHP By-Products Pty Ltd (1960) 104 CLR 80, Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 per McHugh J at 397. 29 Meagher JA in NSW Insurance Ministerial Corporation v Handford (1994) 35 NSWLR 187 said (at 188) that the expression "caused by or arose out of the use of a motor vehicle" in the Motor Vehicles (Third Party Insurance) Act 1942 is to be interpreted "according to broad and practical conceptions". I see no reason why the similar phrase in s 121 should not be similarly construed. 30 In my view, the phrase "caused by or arising out of" in the expression "an accident caused by or arising out of the use of any form of public transport" connotes more than an accident that occurs while members of the public are actually being conveyed by a form of public transport. In my view, it encompasses things that are incidental to the conveyance of the public by such means. 31 In my opinion, whether an accident was caused by or arose out of the use of any form of public transport depends upon whether the accident was a consequence, not remote, of such use: cf the remarks of Windeyer J in NSW Government Insurance Office v R J Green & Lloyd Pty Ltd at 447. 32 A helpful illustration of the reach of the phrase can be seen from Lamont v Motor Accidents Board (1983) 1 VR 88. In this case the plaintiff was injured when his bicycle collided with a parked vehicle. Tadgell J (at 96) held that the plaintiff's injuries were caused by or arose out of the use of the parked motor vehicle because "the injuries would not have been sustained as they were had it not been for the fact that the car had been brought in the course of its ordinary use to the place where it was at the time of the accident." These remarks were quoted with approval by Handley JA (with whom Sheller JA agreed) in NSW Insurance Ministerial Corporation v Handford at 191; see also Clement v Clement (1984) 1 MVR 435 per Foster J. 33 In my opinion, the driving of the passenger train from the point where passengers' journey ended to the rail yards so that it could be cleaned was incidental to its use as a form of public transport. On that basis, Ms Ferguson's accident was caused by or arose out of the use of the train as public transport. Moreover, in my opinion, Ms Ferguson's accident was caused by or arose out of the use of the train as public transport as the accident was not a remote consequence of its use involving the conveyance of the public. 34 Accordingly, I would not uphold Mr Watson's alternative submission. 35 I would uphold the application for leave to appeal but dismiss the appeal with costs. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.