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Statutory construction and the rule against double compensation September 11, 2015

STATUTORY INTERPRETATION – application of general law principles to statutory compensation scheme – construing two statutes of the same legislature conformably – whether provisions of one statute picked up by second statute

WORKERS’ COMPENSATION – dust diseases – whether qualified claimant entitled to payment of benefit – whether Dust Diseases Board entitled to refuse claim where damages recovered – whether general law prohibition on double recovery applies to a claim for compensation under Workers’ Compensation (Dust Diseases) 1942 (NSW)

Workers’ Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270

Basten JA at [1];
Macfarlan JA at [25];
Sackville AJA at [61]

  1. A principle against permitting double recovery is undoubtedly ingrained in the general law (see for example Parry v Cleaver [1970] AC 1 at 13 per Lord Reid). However, applications of it have largely, if not wholly, been in the context of claims, such as common law claims for damages for negligence, under which the plaintiff must prove that he or she has suffered a loss. That loss cannot be established if the plaintiff has already been compensated for it by some other means.
  2. Thus, in Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 the High Court held that a plaintiff’s common law damages should be reduced by the amount of compensation payments he had received under the DD Act because those payments were made as compensation for injury and as a substitute or partial substitute for lost wages (at 18). Indeed, in some circumstances it is appropriate to make a deduction from common law damages in respect of DD Act payments for which entitlement has not been established but which may become payable in the future (Downes v Amaca Pty Ltd [2010] NSWCA 76; 78 NSWLR 451). This position may of course be varied by statute (see for example s 12D of the DD Act).
  3. Consideration of the issue of double recovery must however be approached differently where the injured person’s claim is not one for common law damages, alleging the suffering of loss, but is instead a statutory claim such as that of Mr Arentz (or now, his estate) under s 8 of the DD Act. A conclusion that the DDB is entitled to resist a claim for compensation under s 8 of the DD Act on the basis of an allegation of double recovery would require a finding that, taking into account its general purpose and policy, the Act manifests a legislative intention that that be the case (see Lacey v Attorney General for the State of Queensland [2011] HCA 10; 242 CLR 573 at [43]). The process of statutory construction involved in determining this issue must begin and end with the text of the statute but context and purpose must also be considered (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] quoted in Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22]; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; 250 CLR 523 at [47]).
  4. The ingrained general law principle against double recovery to which I have referred would no doubt be relevant to the task of construction if the statutory language were amenable to more than one interpretation. For the reasons that follow, I do not however consider this to be the case.

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