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Coleman v Caesarstone Australia Pty Ltd[2021] QSC 125

Coleman v Caesarstone Australia Pty Ltd[2021] QSC 125

SUPREME COURT OF QUEENSLAND

CITATION:

Coleman v Caesarstone Australia Pty Ltd & Ors [2021] QSC 125

PARTIES:

JAMES EARNEST SHAYNE COLEMAN

(Applicant)

v

CAESARSTONE AUSTRALIA PTY LIMITED

(ABN 45 121 819 976)

(First Respondent)

and

SMARTSTONE AUSTRALIA PTY LTD

(ABN 19 148 937 008)

(Second Respondent

and

WK MARBLE AND GRANITE PTY LTD

(ABN 29 074 331 981)

(Third Respondent)

and

LAMINEX GROUP PTY LIMITED

(ABN 98 004 093 092)

(Fourth Respondent)

and

COSENTINO AUSTRALIA PTY LIMITED

(ABN 66 150 158 277)

(Fifth Respondent)

and

CARSILSTONE PTY LIMITED

(ACN 104 148 389)

(Sixth Respondent)

FILE NO/S:

5144/21

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

31 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2021

JUDGE:

Bowskill J

ORDERS:

THE COURT DECLARES THAT:

  1. On its proper construction, s 6(3)(b) of the Personal Injuries Proceedings Act 2002 (Qld) should be read as though it provided that “this Act does not apply to – (b) personal injury that is or results from a dust-related condition”.
  2. Accordingly, the Personal Injuries Proceedings Act 2002 (Qld) does not apply to personal injury suffered by the applicant as described in his proposed Claim and Statement of Claim, being exhibit ZPMS-07 to the affidavit of Zach Peter Murray Samuels filed 12 May 2021.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – SUPPLYING, OMITTING OR SUBSTITUTING WORDS – where the applicant has been diagnosed with accelerated silicosis, alleged to have been caused by his work as a stonemason, and also with a moderately severe adjustment disorder, caused by and secondary to the diagnosis of accelerated silicosis – where s 6(3)(b) of the Personal Injuries Proceedings Act 2002 expressly provides that the Act does not apply to personal injury that is a dust-related condition – where accelerated silicosis is a dust-related condition, as defined, but a psychiatric injury such as an adjustment disorder is not – where the purpose of the provision is to exempt sufferers of dust-related conditions like silicosis, who face a significant reduction in life expectancy, from the procedural requirements of the legislation, to ensure they are not hampered in obtaining an early hearing and resolution of their claims – where a literal interpretation of s 6(3)(b) does not achieve the purpose of the provision, because it would require sufferers of dust-related conditions who also suffer from secondary conditions, to engage in a dual claim process – whether the proper construction of s 6(3)(b) warrants reading words in to the section to give effect to the legislative intention

Personal Injuries Proceedings Act 2002 (Qld), s 6(3)(b)

Acts Interpretation Act 1954 (Qld), s 14A

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551

HFM043 v Republic of Nauru (2018) 359 ALR 176

Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586

R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214

Taylor v Owners-Strata Plan 11564 (2014) 253 CLR 531

Wentworth Securities v Jones [1980] AC 74

COUNSEL:

M Grant-Taylor QC and K Kluss, for the applicant

R Gray (sol), for the first respondent

C Bodenstein (sol), for the second defendant

D Crouch (sol), for the third defendant

S Steed (sol), for the fourth respondent

A Haworth (sol), for the fifth respondent

N Huynh (sol), for the sixth respondent

SOLICITORS:

VBR Lawyers, for the applicant

Holman Webb Lawyers, for the first respondent

HBM Lawyers, for the second respondent

Mills Oakley, for the third respondent

Sparke Helmore Lawyers, for the fourth respondent

Lander & Rogers, for the fifth respondent

HWL Ebsworth, for the sixth respondent

  1. [1]
    The applicant is a young man, presently 35 years of age, who alleges he has sustained injuries as a result of occupational exposure to respirable crystalline silica dust during the course of his employment as a stonemason for various employers from about 2005 to about October 2018. The primary injury is accelerated silicosis. He has also been diagnosed with a moderately severe adjustment disorder with mixed anxiety and depressed mood, caused by and secondary to the diagnosis of accelerated silicosis.[1] Sadly, the evidence is that the applicant’s life expectancy is significantly reduced as a consequence of his silicosis condition. Dr Edwards, thoracic physician, considers that within four to five years the applicant will need to be considered for a lung transplantation which, if successful, would see him have a life expectancy of six to eight years following the transplant.[2]
  2. [2]
    The applicant applies for a declaration that the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) does not apply to any proceeding commenced by him in relation to his claim for damages caused by injuries suffered by him in the course of his employment as a stonemason between 2005 and October 2018.
  3. [3]
    As clarified at the hearing of the application, the declaration sought is in terms that the PIPA does not apply to personal injury suffered by the applicant as described in his proposed claim and statement of claim, which are exhibit ZPMS-07 to the affidavit of Mr Samuels filed 12 May 2021.
  4. [4]
    Paragraphs 13 and 14 of the proposed statement of claim plead that as a consequence of performing his duties as a stonemason, in the course of his employment with various employers, the applicant has developed accelerated silicosis. At paragraph 18(c) it is pleaded that “on account of [the applicant] developing accelerated silicosis”, among other things, he has developed a psychiatric disorder since diagnosed as adjustment disorder with mixed anxiety and depressed mood of moderate severity. Paragraph 19 then pleads that, “[i]n the premises, [the applicant], on account of his development of accelerated silicosis, has suffered damages” of the nature and in the amounts particularised in that paragraph.
  5. [5]
    It is apparent from the proposed pleading that the personal injury suffered by the applicant, to which the declaration sought relates, is accelerated silicosis and the adjustment disorder diagnosed which has resulted from the diagnosis of accelerated silicosis.
  6. [6]
    Section 6(3)(b) of the PIPA expressly declares that the PIPA does not apply to “personal injury that is a dust-related condition”.[3]
  7. [7]
    Personal injury is defined in schedule 1 of the PIPA to include, relevantly, psychological or psychiatric injury and disease.
  8. [8]
    The term “dust-related condition” is defined in schedule 1 to mean, under sub-section (a), any of a number of named diseases, one of which is silicosis; or, under sub-section (b), “any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust”.
  9. [9]
    Accelerated silicosis is a personal injury that is a dust-related condition, as defined. Therefore, the PIPA does not apply to that injury.
  10. [10]
    An adjustment disorder is a “personal injury” for the purposes of the PIPA, but it does not come within the express wording of the definition of “dust-related condition” in schedule 1 to the PIPA.
  11. [11]
    As a result, it has previously been assumed that the PIPA applied to the secondary psychiatric injury, such that plaintiffs in a similar position to the applicant were obliged to deal with the procedures under the PIPA, in so far as their psychiatric injury is concerned, even though they were not required to do so in relation to their primary injury, the dust-related condition.[4]
  12. [12]
    This is inconvenient, inefficient and costly. As counsel for the applicant submit, the majority of the applicant’s foreshadowed claim for damages for personal injury relates to his silicosis, which is governed by the common law and is not subject to the pre-proceeding requirements of the PIPA. However, if the PIPA is found to apply to his psychiatric injury, the applicant would be required to comply with the pre-proceeding requirements of the PIPA in relation to that injury before he could commence a proceeding against the respondents for the psychiatric injury. Even where that involves an application for leave to commence a proceeding under s 43 of the PIPA, that unnecessarily adds to the cost and delays associated with a claim.
  13. [13]
    The applicant submits that this does not facilitate the just and expeditious resolution of the real issues in the applicant’s claim, calling in aid the general principle articulated in r 5 of the Uniform Civil Procedure Rules 1999 (Qld). That rule articulates the overriding obligation of parties and the court in the conduct of civil proceedings. It does not, however, have a part to play in the exercise of statutory construction which this application calls for.
  14. [14]
    By this application, the applicant seeks to clarify the position, pressing for a declaration that the PIPA does not apply. The respondents all either consented to, or at least did not oppose, the making of the declaration sought. There was, therefore, no contradictor, in terms of legal argument.
  15. [15]
    The question is whether or not a psychiatric injury which is secondary to, and caused by, a “dust-related condition”, such as the applicant’s adjustment disorder, also falls within the exclusion under s 6(3)(b) of the PIPA – as a “personal injury that is a dust-related condition”.
  16. [16]
    The PIPA was enacted in 2002 (Act no. 24 of 2002). It emerges from the extrinsic material that the Act was introduced to address what was described at the time as an “insurance crisis”. More formally, the main purpose of the Act is described in s 4(1) as “to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury”. Section 4(2) provides that that main purpose is to be achieved generally by:
    1. (a)
      providing a procedure for the speedy resolution of claims for damages for personal injury to which the Act applies; and
    2. (b)
      promoting settlement of claims at an early stage wherever possible; and
    3. (c)
      ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and
    4. (d)
      putting reasonable limits on awards of damages based on claims; and
    5. (e)
      minimising the costs of claims; and
    6. (f)
      regulating inappropriate advertising and touting.
  17. [17]
    Section 6(3) was not originally enacted as part of the PIPA. It was inserted (with the definition of “dust-related condition”) by amendment made shortly afterwards, by the Personal Injuries Proceedings Amendment Act 2002 (Act no. 38 of 2002). There is nothing in the explanatory notes to the Bill which eventually became Act no. 38 of 2002 which deals with this. That appears to be because s 6(3) did not appear in the Bill when first introduced and was only added when the Bill was read for a third time, on 21 August 2002, following “amendments agreed to in committee”.
  18. [18]
    According to the Hansard report of proceedings in Parliament on 21 August 2002, the amendment was made after the issue was raised by a member of Parliament, at the request of one of his constituents:

“Mr PURCELL (Bulimba—ALP) (4.12 p.m.): I rise to support the Personal Injuries Proceedings Amendment Bill 2002 to amend the Personal Injuries Proceedings Act that passed through the House recently, which was introduced to look after, as the previous member said, the crisis in the insurance industry. Today I want to thank the minister for amendments he included in the amendment bill after being approached by me. He made his staff available in order to understand the concerns that a constituent of mine, Shirley White of the Queensland Asbestosis Related Disease Support Society, had brought to my attention and the concerns of Katie, who accompanied Shirley from Turner Freeman Solicitors. Amendments contained in this bill have been made to protect the most vulnerable people in our society—workers who, through no fault of their own, have had their lives dramatically shortened or destroyed after contracting asbestos, mesothelioma and other diseases.

The minister will move an amendment to the bill in the committee stage to clause 5(3)(b) relating to dust related conditions. The amendments also contain a very comprehensive list of dust related conditions in amendment No. 13 relating to the amendment of the schedule of the dictionary. Parts (a) and (b) pretty well cover any of those diseases that workers may contract. The reason for these amendments will allow the courts to assist such injured people so that their cases can be heard as quickly as possible not just in jurisdictions in Queensland but jurisdictions in other states. Some Queensland residents take their cases to the Dust Diseases Board of New South Wales because that is where the company's head office is or because the person who contracted these terrible diseases worked in New South Wales. …

When some people find out they have an asbestos related disease, they have a very short time to live. Some people are a little bit more fortunate — I will not say ‘lucky’ because they are not, because they have contracted this awful disease — in that they will live a little longer. Sometimes people can die within two or three months. This amendment now protects them in that it allows their hearing to be expedited. I commend the bill to the House.”[5]

  1. [19]
    The Attorney-General responded to this, later in the proceedings, as follows:

“Mr WELFORD: … The other amendments that we are proposing today in the context of protection for sufferers of asbestos related illnesses making claims through tribunals in southern states are not something which would have been on anyone’s mind, I suspect, when the original bill was passed by this House. In that context I pay tribute to the efforts of the member for Bulimba, who drew to my attention the situation involving sufferers of asbestos related illnesses and the procedures that they currently use to apply to the Dust Diseases Tribunal in New South Wales and how our proceedings legislation could affect their capacity to obtain an early hearing and resolution of their claims. It is for that reason that amendments I will be moving at the committee stage address that issue so as to effectively exempt sufferers of dust related diseases from key procedural requirements in the legislation. …”[6]

  1. [20]
    Around the same time, in 2003, the Civil Liability Act 2003 was enacted. Section 5(b) of this Act expressly provides that it does not apply in relation to any civil claim for damages for personal injury if the harm resulting from the breach of duty owed to the claimant is or includes “an injury that is a dust-related condition”.[7] The term “dust-related condition” is defined in schedule 2 to the Civil Liability Act in the same way as in the PIPA.
  2. [21]
    In 2010,[8] s 11 of the Limitation of Actions Act 1974 was amended to insert subsections (2), (3) and (4), so that s 11 now provides:

“11Actions in respect of personal injury

  1. (1)
    Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of 3 years from the date on which the cause of action arose.
  1. (2)
    However, a right of action relating to personal injury resulting from adust-related conditionis not subject to a limitation period under an Act or law or rule of law.
  1. (3)
    To remove any doubt, it is declared that personal injury resulting from adust-relatedconditiondoes not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.
  1. (4)
    In this section —

dust - related condition see the Civil Liability Act 2003, schedule 2.”[9]

  1. [22]
    The explanatory notes to the Civil Liability and Other Legislation Amendment Bill 2009, by which these amendments were enacted in 2010, included the following (at pp 2-3):

“While the retrospective removal of the statutory limitation period for dust-related conditions may adversely affect insurers and defendants, the amendment will mean that a person suffering from a dust-related condition will no longer need to make an application to the court to extend the limitation period before pursuing their claim. The retrospective removal of this hurdle will deliver significant benefits to those suffering from a dust-related condition by improving their access to justice and reducing the cost and stress associated with pursuing a claim. It is justified on the basis that:

  • many of the current cases of dust-related disease arise from exposure to asbestos during the 1950s, 1960s and 1970s when few, if any, adequate precautions were taken to protect workers and others; and
  • dust-related conditions are often characterised by a rapid onset of symptoms, with death sometimes occurring within a very short time from diagnosis. …”[10]
  1. [23]
    I mention the Civil Proceedings Act and Limitation of Actions Act provisions merely because they demonstrate subsequent steps taken by the legislature in relation to claims resulting from an injury which is a dust-related condition. I do not proceed on the basis that subsequent legislation informs the context within which s 6(3)(b) of the PIPA is to be construed. But it is informative of a consistent approach taken by the legislature in relation to dust-related conditions.
  2. [24]
    It is clear that the intention of Parliament in enacting s 6(3)(b) of the PIPA was to facilitate the early hearing and resolution of claims by people suffering from dust-related conditions, unhampered by the procedural requirements of the PIPA. Although, as s 4 of the PIPA records, one of the purposes of the changes brought about by that legislation was to provide a procedure for speedy resolution of claims, it is apparent that the Parliament accepted that the application of this new procedure may in fact impede or delay the claims of people suffering from dust-related conditions such that it was appropriate to exempt them.
  3. [25]
    The task in construing a statute is to ascertain the intended meaning of the words used, a process which must be undertaken having regard to the context for the provision.[11] In R v A2 (2019) 373 ALR 214, Kiefel CJ and Keane J reiterated that:

“[32]The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete.[12] This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.[13]

[33]Consideration of the context for the provision is undertaken at the first stage of the process of construction.[14] Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy.[15]…”

[35][Their Honours referred to cases, including Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47], emphasising the importance of the text of the provision] …

[36]These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

[37]None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC v Bankstown [at 408], that in a particular case, ‘if the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance’. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.”[16]

  1. [26]
    The relevance of the purpose of a statutory provision to the task of statutory construction is confirmed by s 14A(1) of the Acts Interpretation Act 1954 (Qld), which instructs that “[i]n the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation”.
  2. [27]
    The words used in s 6(3)(b) are: “this Act does not apply to … personal injury that is a dust-related condition”. Consistent with the approach that has previously been taken in matters of this kind, read literally, the exemption afforded by s 6(3)(b) only applies to personal injury that is [falls within the definition of] a “dust-related condition”. Accordingly, if a claimant also claims for personal injury that is not a dust-related condition (as defined), even if that injury results from[17] the dust-related condition, they are required to follow a dual process, one which is exempt from the PIPA and one which is not.
  3. [28]
    The question raised by this application is whether such a construction achieves the purpose of the provision, as it is informed by the context, including the legislative history and extrinsic materials referred to above.
  4. [29]
    The plain answer to that question, in my view, is that it does not. The clear purpose of the exemption provided for in s 6(3)(b) was to “effectively exempt sufferers of dust related diseases from key procedural requirements in the legislation”,[18] in order to ensure, as far as possible, that they were not hampered in their ability to obtain an early hearing and resolution of their claims. This was regarded as important because of the significant reduction in life-expectancy for sufferers of these deadly diseases. In that context, an interpretation of the exemption provision which would require a person claiming for a dust-related condition to comply with the procedural requirements of the legislation for a causally related personal injury that is not itself a “dust-related condition” is illogical, unreasonable and inconsistent with the clear purpose of the provision.
  5. [30]
    That cannot have been the intention of the Parliament. Rather, there is a strong basis to infer it was a matter overlooked inadvertently when the provision was enacted, as an amendment upon the third reading of the Bill. That is supported by the fact that the following year, in 2003, Parliament saw fit to draft the exemption provision in the Civil Liability Act in terms of harm which is or includes an injury that is a dust-related condition and, in 2010, when enacting the exemption from any limitation period, drafted this in terms of personal injury resulting from a dust-related condition.
  6. [31]
    An alternative construction – adopting the language used in the Limitation of Actions Act – is that the exemption in s 6(3)(b) applies to personal injury that is, or results from, a dust-related condition. Such a construction would achieve the purpose of the provision, by exempting the claim of a person suffering from a dust-related condition from the procedural requirements of the PIPA, regardless of whether their claim is limited to the dust-related condition, or also includes a secondary injury which results from the dust-related condition.
  7. [32]
    There are circumstances in which the purposive construction of a provision permits reading the provision as if it contained additional words. The court must exercise considerable caution before doing so, mindful of the limits of the judicial role. In Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592 Lord Nicholls of Birkenhead said:

“It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross’s admirable opuscule, Statutory Interpretation, 3rd ed (1995), pp 93-105. He comments, at p 103:

‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’

This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v Wrotham Park Settled Estates [1980] AC 74, 105-106.[19]

Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd v Schindler [1977] Ch 1, 18, Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation…”

  1. [33]
    In Taylor v Owners-Strata Plan 11564 (2014) 253 CLR 531 the majority (French CJ, Crennan and Bell JJ), at [39], endorsed the relevance of these “conditions” as prerequisites to reading a provision as though it contained additional words, although found it unnecessary to determine whether they are always, or even usually, necessary and sufficient “because the task remains the construction of the words the legislature has enacted”. Their Honours observed that what are referred to as Lord Diplock’s three conditions (as reformulated in Inco Europe) accord with the statements of principle in Cooper Brookes (Woollongong) Pty Ltd v The Commissioner of Taxation (1980) 147 CLR 297.[20]
  2. [34]
    Earlier, at [37] and [38], French CJ, Crennan and Bell JJ said:

“Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys[21] demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia,[22] the question of whether a construction ‘reads up’ a provision, giving it an extended operation, or ‘reads down’ a provision, confining its operation, may be moot.

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.”[23]

  1. [35]
    Whilst the minority (Gageler and Keane JJ) reached a different conclusion on the particular question of construction before the court, and did not expressly refer to Lord Diplock’s conditions, there was no real difference, as a matter of principle, between the majority and the minority in Taylor in terms of the proper limits on statutory construction where that may require reading words in to give effect to the legislative purpose. As Gageler and Keane JJ said, at [65] and [66]:

“Statutory construction involves attribution of legal meaning to statutory text, read in context. ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always’. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation.[24] The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative intention. Construction is not speculation, and it is not repair.

Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.”[25]

  1. [36]
    More recently, in HFM043 v Republic of Nauru (2018) 359 ALR 176, Kiefel CJ, Gageler and Nettle JJ said, at [24]:

“The task of construction of a statute is of the words which the legislature has enacted. Any modified meaning must be consistent with the language in fact used by the legislature.[26] Words may be implied to explain the meaning of its text.[27] The constructional task remains throughout to expound the meaning of the statutory text, not to remedy gaps disclosed in it or repair it.[28]

  1. [37]
    This is a case in which, in my respectful view, a literal interpretation of the words used in s 6(3)(b) would defeat the object of that provision, rather than carry it into effect. A construction which extends the operation of the exemption not only to personal injury which is a dust-related condition, but also to personal injury which results from a dust-related condition, will promote the purpose of the legislation.
  2. [38]
    Acknowledging that satisfaction of the conditions set out in Wentworth Securities, and reformulated in Inco Europe, are not an end in themselves, in my view each of them is satisfied here:
    1. (a)
      First, it is possible to quite clearly identify the intended purpose of the exemption in s 6(3)(b) of the PIPA – to relieve claimants suffering from, and claiming in relation to, “dust-related conditions” from the procedural requirements of the PIPA.
    2. (b)
      Secondly, I am satisfied that by inadvertence, the draftsperson and Parliament failed to fully give effect to that purpose in s 6(3)(b), in so far as there has remained some doubt about whether a claimant who is suffering from secondary injury(ies), resulting from a “dust-related condition”, must comply with the legislation in relation to that secondary injury(ies), even though exempt in relation to their primary injury. It is illogical to think that Parliament intended to impose the additional burden of a dual process on sufferers of dust-related conditions, given the express purpose of the exemption.
    3. (c)
      Thirdly, it is possible to identify the substance of the provision Parliament would have made, had the error been noticed at the time. The words subsequently used by Parliament in enacting s 11(2) of the Limitation of Actions Act are a useful guide in this regard.
    4. (d)
      And, fourthly, it does not seem to me that the alteration in language I have proposed – to read s 6(3)(b) as though it extended to “personal injury that is or results from a dust-related condition” – is “too far-reaching”, or in any way at variance with the language used by the legislature. This is not a case of judicial legislation.
  3. [39]
    I am therefore satisfied it is appropriate to make the following declarations:
    1. (a)
      that on its proper construction s 6(3)(b) of the PIPA should be read as though it provided that “this Act does not apply to – (b) personal injury that is or results from a dust-related condition”; and
    2. (b)
      accordingly, the PIPA does not apply to personal injury suffered by the applicant as described in his proposed claim and statement of claim, being exhibit ZPMS-07 to the affidavit of Mr Samuels filed 12 May 2021.

Footnotes

[1] Affidavit of Mr Samuels, filed 12 May 2021, at p 9 (report of Dr Storor, psychiatrist) and p 19 (report of Dr Edwards, thoracic physician).

[2] Affidavit of Mr Samuels filed 12 May 2021, at p 29 (supplementary report of Dr Edwards, thoracic physician).

[3] Underlining added.

[4] I refer in this regard to a series of unpublished decisions made on the papers by Brown J, in relation to applications for leave under s 43 of the PIPA, and to the transcript of the hearing of a like application before Crow J, which were put before the court on the hearing of this application.

[5] Hansard, 21 August 2002, at p 3045. Underlining added.

[6] Hansard, 21 August 2002, at pp 3056-3057. Underlining added.

[7] Underlining added.

[8] Civil Liability and Other Legislation Amendment Act 2010 (Act No. 9 of 2010).

[9] Underlining added.

[10] Underlining added.

[11] R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214; [2019] HCA 35 at [32]-[33] and [36] per Kiefel CJ and Keane J.

[12] Referring to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

[13] Referring, inter alia, to Project Blue Sky at [78].

[14] Referring to CIC Insurance at 408 and Project Blue Sky at [69].

[15] Referring to CIC Insurance at 408.

[16] Underlining added; references omitted (other than where indicated). See also at [124] per Bell and Gageler JJ, at [148] per Nettle and Gordon JJ (expressing their agreement generally with the reasons of Kiefel CJ and Keane J) and at [163] per Edelman J.

[17] The phrase “results from” “invites an inquiry into causation”, importing the concept of causation as it is known to the law, without seeking to modify it : Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 at 44-45 per Mason JA; Comcare v Amorebieta (1996) 66 FCR 83 at 95. The word “results” in a relevantly similar context has been held to mean “succeeds as a consequence of the injury”, not in the sense of the necessary, natural, probable or only consequence, but as a consequence in fact: Ystradowen Colliery Co Ltd v Griffiths [1909] 2 KB 533 at 537 per Buckley LJ. See also Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 461-464 per Kirby P, Sheller and Powell JJA agreeing.

[18] See paragraph [19] above. Underlining added.

[19] Referred to in Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531 as Wentworth Securities v Jones [1980] AC 74.

[20] See also Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 at [52] per Kiefel CJ, Keane, Nettle and Edelman JJ.

[21] Director of Public Prosecutions (Vic) v Leys (2012) 196 ALR 96.

[22] (2007) 232 CLR 138.

[23] References omitted.

[24] Referring, for example, to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation 1981) 147 CLR 297 at 310-311 and 319-321 and MacAlister v The Queen (1990) 169 CLR 324 at 330.

[25] References, other than those referred to in the preceding footnote, omitted.

[26] Referring to Taylor at [39].

[27] Referring to Cooper Brookes at 310-311.

[28] Referring to Taylor at [39] and [65].

Close

Editorial Notes

  • Published Case Name:

    Coleman v Caesarstone Australia Pty Ltd & Ors

  • Shortened Case Name:

    Coleman v Caesarstone Australia Pty Ltd

  • MNC:

    [2021] QSC 125

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    31 May 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

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