Court of Appeal Supreme Court New South Wales Medium Neutral Citation: StateCover Mutual Ltd v Cameron [2015] NSWCA 127 Hearing dates: 7 May 2015 Decision date: 07 May 2015 Before: Beazley P at [1], [22]; Basten JA at [2]; Ward JA at [21] Decision: 1.Dismiss the appeal. 2.The appellant must pay both respondents' costs in this Court, the second respondent's costs to be assessed on the ordinary basis up to 8 March 2015 and on the indemnity basis from 9 March 2015. Catchwords: STATUTORY INTERPRETATION – "employment" – which of two meanings applied – whether words in other provision to be read into provision where not appearing – Workers Compensation Act 1987 (NSW), s 18(1) WORKERS COMPENSATION – employer liable to pay compensation – identification of insurer – employee last exposed to relevant injury when first insurer on risk – different insurer on risk when employee ceased to be employed – Workers Compensation Act 1987 (NSW), s 18(1) Legislation Cited: Workers Compensation Act 1926 (NSW), ss 7, 18 Workers Compensation Act 1987 (NSW), ss 4, 9, 9A, 15, 17, 18, 151AB Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 7 [1] WorkCover Legislation Amendment Act 1996 (NSW), Sch 1.2 [1] Cases Cited: Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4 Blatchford v Staddon and Founds [1927] AC 461 CIC Workers' Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169 Smith v Mann (1932) 47 CLR 426 University of New South Wales v AAI Ltd [2014] NSWCA 153 Category: Principal judgment Parties: StateCover Mutual Ltd (Appellant) Rebecca Cameron as legal personal representative of the Estate of Alan Steere (First Respondent) AAI Ltd t/as GIO (Second Respondent) Representation: Counsel: Mr L King SC/Mr S Flett/Mr S Blount Mr P Morris SC/Mr L Morgan (First Respondent) Mr A R Moses SC/Mr A B Parker/Mr R L Gall (Second Respondent) Solicitors: David Allen Legal (Appellant) Carroll & O'Dea (First Respondent) Thompson Cooper (Second Respondent) File Number(s): 2014/255963 Decision under appeal Court or tribunal: Workers Compensation Commission Citation: [2014] NSWWCCPD 49 Date of Decision: 4 August 2014 Before: Deputy President Roche File Number(s): A1-559/13 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BEAZLEY P: I agree with the reasons of Basten JA. Not only as his Honour points out, is the language of s 18(1) unambiguous, the section uses very different language to the language of earlier sections including s 15(1)(b) upon which the appellant placed emphasis. In particular the phrase in s 18 "before the worker ceased to be employed by the employer", a phrase which is used twice, is unambiguous in itself. It is also unambiguously different from the phrase that the appellant sought to have implied into the section, namely that the words "in employment to the nature of which the disease was due" should be inserted after the word "employer". Nothing has been advanced to persuade me that the clear words of s 18(1), with its stated purpose, ought to have words implied into it as submitted by the appellant. I agree with the orders proposed by Basten JA. 2. BASTEN JA: Alan Wayne Steere, now deceased, worked for the Greater Taree City Council (and its predecessor) for almost 37 years. He died as a result of a metastatic melanoma on 19 July 2011. It is not in dispute that his employment contributed to his death and the Workers Compensation Commission made an order on 16 April 2014 for payment of compensation to his estate. [1] The present appeal is limited to the identification of the insurer responsible for the payment. 3. The answer to this question turned on the operation of two provisions of the Workers Compensation Act 1987 (NSW) ("the Act"). The primary provision, s 18(1), reads as follows: 18 Special insurance provisions relating to occupational diseases (1) If an employer has become liable under section 15(1)(b) or 16(1)(b) to pay compensation to a worker in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer, the liability of the employer is, despite sections 15 and 16, taken to have arisen immediately before the worker ceased to be employed by the employer. This subsection operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation. 1. For the purposes of this provision, the employer was the Greater Taree City Council and Mr Steere was the worker. The Council became liable under s 15(1)(b), which reads as follows: 15 Diseases of gradual process—employer liable, date of injury etc (1) If an injury is a disease which is of such a nature as to be contracted by a gradual process: (a) the injury shall, for the purposes of this Act, be deemed to have happened: (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due. 1. Section 15(1)(a) identifies when the injury is deemed to have happened "for the purposes of this Act"; s 15(1)(b) identifies the employer, including where there may be more than one, which is liable. Section 18(1) qualifies the effect of s 15(1)(a) in one circumstance and only for the purpose of determining the insurer liable in respect of the compensation. 2. The Commission found that, pursuant to s 15(1)(a)(i), the injury was deemed to have happened on 19 July 2011, being the date of Mr Steere's death. As Mr Steere had ceased to be employed by the Council on 25 February 2011, the time at which the injury was deemed to have happened was after Mr Steere ceased to be employed. Accordingly, each of the preconditions to the engagement of s 18(1) was satisfied. 3. The effect of s 18(1) was that the liability of the employer was taken to have arisen immediately before the worker ceased to be employed by the employer, namely on 24 February 2011. There is no dispute that the appellant, StateCover Mutual Ltd, was the Council's workers' compensation insurer at that time. Accordingly, a straightforward application of the relevant provisions supports the result reached by the Workers Compensation Commission, namely that the appellant was liable. 4. The factual underpinning to the appeal was the finding by the Commission that the deceased was last exposed to sunlight (which exposure contributed to his melanoma) in the course of his employment with the Council in 1986. Thereafter he ceased to work outside. The second respondent, AAI Ltd, was the workers' compensation insurer of the Council in 1986. 5. The first argument put forward by the appellant was that the word "employed" refers to "employment of a kind which was a substantial contributing factor to the injury". Section 17(1), which deals with loss of hearing, uses the language of a worker being "employed in an employment to the nature of which the injury was due". Section 151AB(1) of the Act, dealing with the identification of the policy of insurance which responds to a claim for damages for an "occupational disease", uses similar language to that found in s 17. Indeed, s 15(1)(b) also uses the language of the employer who last employed the worker in employment to the nature of which the disease was due. 6. The fact that s 18 does not use the extended language of the other provisions gives rise to the question why, when the legislature has expressly used that language in some provisions but not others, it should be assumed to have intended the language to operate in other provisions from which it was omitted, so as to achieve a different effect from the unambiguous language in fact used. One answer proffered by the appellant was that not to read the statute with the additional words inserted might give rise to anomalous results with respect to the liability of insurers. However, that argument has little if any weight with respect to the proper construction of a deeming provision, which identifies a relevant point in time for particular consequences of an injury which did not in fact "happen" at any particular point in time, but over a period. 7. The second basis, for what was in effect the same submission, relied on an effect described as "the increased emphasis on actual causation brought about by the enactment of s 9A of the Act and the definition of 'disease'." [2] That argument might provide a basis for disregarding or placing limited weight on earlier authorities which predated the amendment of the definition of "disease" in s 4 of the Act [3] (requiring that the employment be "the main contributing factor") and the insertion of s 9A (requiring that the employment be "a substantial contributing factor to the injury"). [4] 8. This submission should be rejected for two reasons. First, the case can be determined by construing the statute, as it was in the Workers Compensation Commission, and reference to authority is unnecessary for that purpose. (If case law suggested a different construction, the point might have more relevance.) More importantly, the statutory provisions relied on go to the question of liability of the employer, which is not an issue decided under s 18(1), but is a precondition to the operation of s 18(1). As explained in Allianz Australia Insurance Ltd v Pomfret, [5] caution should be taken in recrafting this legislative scheme. 9. Somewhat inconsistently with the previous submissions, the appellant thirdly contended that the Commission had failed to take into account a decision of this Court decided in October 1994, prior to the amendments relied on under the earlier submission. 10. The case in question was CIC Workers' Compensation (NSW) Ltd v Alcan Australia Ltd. [6] That case was, however, of no assistance. It dealt with s 151AB of the Act, not s 18. The language of s 151AB, critical to the outcome in that case, involved a reference to liability taken to have arisen "when the worker was last employed by that employer in an employment to the nature of which the disease was due." The submission depended, in effect, on acceptance of the first submission, namely that s 18 should be read as if that language had been included in the section. 11. In the course of argument, the appellant sought to obtain assistance from the predecessor to s 18(1), namely s 18(6A) of the Workers Compensation Act 1926 (NSW) ("the 1926 Act"). The language of s 18(6A) was undoubtedly similar to the present provision, though not identical, and existed within a statutory framework which was similar to the current framework, but also differed. No useful purpose is to be served by exploring the earlier legislation in order to understand the purpose and effect of s 18(1). However, and relevantly in the context of reliance upon Alcan Australia, reference to the earlier legislation may provide support for a contrary conclusion. Thus, s 18 and s 151AB fall in different parts of the current legislation. Their respective antecedents, however, were s 18(6A) and (6B) respectively of the 1926 Act. [7] The juxtaposition of subss (6A) and (6B) in s 18 of the 1926 Act highlights the fact that Parliament legislated differentially with respect to the identification of insurers liability to pay compensation, on the one hand, and damages, on the other, prior to the current Act. 12. Finally, the appellant sought support from the reasoning of Dixon J in Smith v Mann. [8] That case dealt with the predecessor to s 15(1), namely s 7(4) of the 1926 Act. The reasoning was of quite a different kind from that invoked by the appellant. It involved reading a term in one part of s 7(4) in the same way as the same term when used with words of clarification in another part of the same provision. That approach would not justify reading material from a provision having an identifiable purpose into a separate provision having a different purpose. 13. Furthermore, the reasoning in Smith v Mann was concerned to identify the nature of a "disease", namely one contracted by a gradual process and due to the nature of an employment. Alcan Australia was concerned with the same language, now contained in s 151AB. Gleeson CJ noted that similar words had been construed by the House of Lords in Blatchford v Staddon and Founds. [9] He set out an extract from the speech of Lord Blanesburgh: [10] "The word 'employment' is not, as I think, in this phrase used immediately to describe the relation between employer and workman, a sense in which it is so frequently utilised throughout the Act. … In this phrase, as it seems to me, the word very clearly refers to the work or process in which the workman had been engaged and not to his contract with an employer to engage in it." 1. This passage is either neutral or counts against the appellant's submissions. The Act deals with matters in steps. The first step requires that the worker establish that he or she has received an injury, within the meaning of s 4. [11] That will include proving that the injury, in the case of a disease injury, is contracted in the course of employment and that the employment was the main contributing factor. Section 15 presumes that an injury has been established and, in the case of a disease contracted by a gradual process, identifies a point in time at which it is deemed to have happened and the employer who is liable to pay compensation. Section 18 presumes that liability has been established on the part of a particular employer and then deems when liability has arisen, for the purpose of determining the insurer liable in respect of that compensation. Section 18 is not concerned with a determination of liability, nor with identification of the employer. There is no reason why rules to be applied at one stage of the process should be incorporated into a later stage. As recognised by Lord Blanesburgh in Blatchford, the term "employment" can (and does) have different meanings in different parts of the Act. 2. On the appeal within the Workers Compensation Commission, Deputy President Roche disposed of the arguments put forward by the appellant in seven short paragraphs. [12] He described the submissions of the appellant as "fundamentally wrong." [13] That assessment was correct. 3. The appeal must be dismissed. The appellant must pay both respondents' costs in this Court. 4. WARD JA: I agree with the reasons of Basten JA and the orders that his Honour proposes. I also agree with the additional observations of the President. 5. BEAZLEY P: The order that the appellant pay the costs of the second respondent is an order that those costs be assessed on the ordinary basis up to 8 March 2015 and on the indemnity basis from 9 March 2015. ********** Endnotes 1. Workers Compensation Commission – Certificate of Determination, par 4. 2. Notice of Appeal, ground 1(b). 3. Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 7 [1], commenced 27 June 2012. 4. WorkCover Legislation Amendment Act 1996 (NSW), Sch 1.2 [1]. 5. [2015] NSWCA 4 at [20]. 6. (1994) 35 NSWLR 169. 7. The legislative history was summarised in University of New South Wales v AAI Ltd [2014] NSWCA 153 at [14]-[16]. 8. (1932) 47 CLR 426 at 448-449. 9. [1927] AC 461. 10. Blatchford at 482. 11. The Act, s 9. 12. StateCover Mutual Ltd v Cameron [2014] NSWWCCPD 49 at [82]-[88]. 13. StateCover at [82]. 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. Decision last updated: 13 May 2015