In February 2015, we reported on the decision of the Supreme Court of Victoria in Di Paolo v Salta Constructions Pty Ltd & Ors  VSC 31. The worker subsequently appealed this decision to the Court of Appeal of the Supreme Court of Victoria. On Friday last week, the Court of Appeal dismissed the worker’s appeal in the decision of Di Paolo v Salta Constructions Pty Ltd & Ors  VSCA 230.
The case concerned a worker’s claim for damages following a serious accident he had in Western Australia resulting in spinal and closed head injuries. The worker lived in Victoria and was seconded by his Victorian based employer to work at a construction site in Western Australia where he was injured. The worker subsequently sued his employer and two Western Australian based defendants in the Supreme Court of Victoria seeking damages in negligence and for breach of statutory duty (in addition to a claim for breach of contract against his employer). The worker maintained the laws of Victoria (which included a six year limitation period to commence proceedings) governed his claim against all three defendants. The two Western Australian based defendants maintained the laws of Western Australia (including that State’s three year limitation period) applied to the claims against them.
The issue of whether Western Australian or Victorian legislation governed the worker’s claim against the two Western Australian based defendants was determined as a preliminary issue prior to trial before His Honour Judge Ginnane. Prior to the hearing before Judge Ginnane, the County Court of Victoria ordered there be a determination that the worker’s employment be connected with Victoria further to s80 of the Accident Compensation Act 1985(Vic). Judge Ginnane found this determination was sufficient for the laws of Victoria to apply to the worker’s claim against his employer. The determination also allowed the worker to satisfy the first limb of s129MB(2) of theAccident Compensation Act governing the choice of law provisions which apply to claims for damages commenced against defendants other than a worker’s employer. However, given the alleged negligence or breach of contract did not occur in Victoria, the worker did not satisfy the second limb of s129MB(2) and the choice of law provisions of the Accident Compensation Act did not apply to his claims against two Western Australian based defendants.
Judge Ginnane then considered the choice of law provisions of the Workers’ Compensation & Injury Management Act 1981 (WA). This time round, the worker satisfied the second limb of s93AB(2) on the basis the alleged negligence or breach of contract occurred in Western Australia. However, he could not satisfy the first limb of this section, being his employment was connected with Western Australia. The effect of this finding meant that the statutory choice of law provisions in both the Accident Compensation Act and the Workers’ Compensation & Injury Management Act did not apply to the worker’s claims against the two Western Australian based defendants.
On appeal, the worker argued that Judge Ginnane erred in his interpretation of ss129MA and 192MB of theAccident Compensation Act and ss93AB(1) and (2) of the Workers’ Compensation & Injury Management Act. In determining this ground of appeal, the Court of Appeal conducted an analysis of the principles of statutory interpretation and how these applied to the relevant provisions and constructions of both Acts and their amendments further to the cross border legislation introduced in 2003/2004. While the preferred construction of the relevant legislation resulted in different approaches for claims against employers and non-employers, the Court of Appeal found this was neither irrational or absurd. It also made sense in the context of a claim made against a non-employer whose has business operations and products with no connection with Victoria to have a reasonable expectation that their liability for events occurring in their jurisdiction would be governed by the laws of that jurisdiction (and not the laws of an unfamiliar jurisdiction).
The worker also argued that Judge Ginnane failed to give sufficient weight to the differences between the workers’ compensation schemes in Western Australia and Victoria and that they could not operate consistently and harmoniously. While the Court of Appeal accepted Judge Ginnane’s construction of the applicable legislation may result in one set of statutory provisions governing a claim against an employer and another governing a claim against a non-employer in the same proceedings, it found the plain and rational meaning of the legislation prevailed and could not be rejected to avoid particular inconveniences and difficulties. Instead, the relevant court was required to do the best it could in determining the outcome of a particular case and in accordance with the available heads of damages and caps on recoverable amounts which applied to each claim.
The Court of Appeal ultimately upheld Judge Ginnane’s decision and found that the conditions of ss129MA and 192MB of the Accident Compensation Act and ss93AB(1) and (2) of the Workers’ Compensation Act which modified the common law choice of law principles were not met. As a result, the common law choice of law rules applied to the worker’s claims against the two Western Australian based defendants. The effect of this finding means that the substantive law of the place of the alleged wrong (Western Australia) and its applicable limitation period legislation governs the rights of these parties while the worker’s claim against his employer is governed by the substantive laws of Victoria. However, all claims are governed by the procedural laws of Victoria, where the proceedings were commenced.
The recent Court of Appeal decision confirms there remains difficulties associated with personal injury claims containing a cross-border element despite a uniform legislative scheme. It also serves as a reminder that the same substantive laws will not necessarily apply to all tortfeasors potentially liable for a worker’s damages and different limitation periods for commencing actions may apply. A worker’s damages may also be quantified differently as against each tortfeasor, depending on what legislative scheme applies.