Exit Distraction Free Reading Mode
- Selected for Reporting
[2021] QSC 125
This decision will be vitally important to persons suffering from silicosis and other dust related conditions in terms of the timely progression of claims for associated psychological injury. The issue arising was whether the applicant’s psychiatric condition, caused by and secondary to his diagnosis of accelerated silicosis, fell within the exception to the application of the Personal Injuries Proceedings Act 2002 in s 6(3)(b) as being “personal injury that is a dust-related condition”. Her Honour held that it did and endorsed a logical reading of the section in order to give proper effect to the legislative intention.
Bowskill J
31 May 2021
The applicant, aged only 35, allegedly suffered a raft of grave injuries resulting from some 13 years’ employment as a stonemason. [1]. He sought a declaration that the Personal Injuries Proceedings Act 2002 (“the Act”) did not apply to any proceeding commenced by him in relation to his claim for damages caused by injuries suffered by him in performing the duties of his employment. That was particularly relevant in relation to his diagnosis with a moderately severe adjustment disorder with mixed anxiety and depressed mood, consequential to the primary diagnosis of accelerated silicosis. [1], [2].
The application of the Personal Injuries Proceedings Act 2002
Section 6(3)(b) of the Act specifies that it has no application to “personal injury that is a dust-related condition”.
Pursuant to Sch 1, ‘personal injury’ includes psychological or psychiatric injury and disease, whereas “dust-related condition” is defined 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”.
The quandary arising was that the application of the Act to an adjustment disorder, being a “personal injury”, but not falling within the express wording of the definition of “dust-related condition” in Sch 1 was unclear. In that regard her Honour noted that prior to this action it had been assumed as a matter of course that the Act applied to secondary psychiatric injuries, with the result that claimants for both types of injury were bound by the procedures under the PIPA in so far as their psychiatric injury was concerned, but not required to do so in relation to their primary injury, the dust-related condition. [11]. That was an anomaly which resulted in inconvenience, inefficiency and cost. [12].
The applicant’s position
Referring to r 5 Uniform Civil Procedure Rules 1999, the applicant argued that if the Act applied to his diagnosis with a moderately severe adjustment disorder with mixed anxiety and depressed mood, consequential to his primary diagnosis, that would impede the just and expeditious resolution of the real issues central to his claim. [13]. He sought to clarify the position by way of a declaration. [14].
The intention of the Act: did a secondary psychiatric injury caused by a “dust-related condition” fall within the exclusion under s 6(3)(b)?
Whilst the explanatory notes to the Bill did not assist her Honour’s consideration of this issue, the Hansard transcript indicated that it had been Parliament’s intention when introducing the amendment to “facilitate the early hearing and resolution of claims by people suffering from dust-related conditions, unhampered by the procedural requirements of the PIPA”. [18], [19], [24]. That proposition was supported by the fact that a consistent approach was clearly taken by the legislature in both the Civil Proceedings Act and Limitation of Actions Act provisions applicable to dust-related conditions, both drafted with a view to facilitating the expedient resolution of such claims. [20]–[23].
The fundamental task for her Honour in construing the statute was to ascertain the intended meaning of the words used having regard to the context of the provision: see R v A2 (2019) 373 ALR 214; [2019] HCA 35, [32]–[33] and [36] per Kiefel CJ and Keane J. Importantly, in R v A2, [37], Kiefel CJ and Keane J confirmed that “[w]hen 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”.
Justice Bowskill took the view that in this case, a literal construction would not achieve the purpose of the section. [28], [29]. Rather, it was apparent that such a construction, which subjected claimants to engage in a cumbersome dual claims process, was “illogical, unreasonable and inconsistent with the clear purpose of the provision” and was thus to be rejected. [29]. A literal interpretation of the wording in s 6(3)(b) “would defeat the object of that provision, rather than carry it into effect”. [37].
Given the above, she was prepared to instead take a logical approach to the interpretation of the Act, preferring a construction which extended the operation of the exemption. Such a construction would promote the purpose of the legislation. [37]. She held that the Act does not apply to secondary psychological injuries arising from a dust-related condition.
Accordingly, she was satisfied that it was appropriate to make the declaration sought, worded as follows:
“[O]n its proper construction, s 6(3)(b) of the [Personal Injuries Proceedings Act 2002] 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’.” [39].
In her view, it was probable that the undesirable doubt as to whether a claimant suffering from secondary injury caused from a “dust-related condition” needed to comply with the legislation in relation to that secondary injury (albeit being exempt in relation to their primary injury) had arisen due to mere inadvertence on behalf of both the draftsperson and the Parliament. [38].
A Jarro