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

The applicant sought a declaration that the Personal Injuries Proceedings Act 2002 (PIPA) did not apply to the psychiatric condition, which was sustained as a result of a dust disease (silicosis). Section 6(3)(b) of the PIPA excludes the operation of PIPA for a dust disease.

In declaring that the exclusion extended to the secondary psychiatric condition, by reading in the words “results from” Justice Bowskill considered the following.

  1. There was no dispute that the dust disease of silicosis was excluded from the operation of PIPA and that the adjustment disorder was because of the silicosis.
  2. Ordinarily, a psychiatric injury is a “personal injury” that would need to comply with the PIPA.
  3. In circumstances like the applicant’s whose life expectancy is considerably shortened and whose primary injury is excluded from PIPA, it is inconvenient, inefficient and costly to comply with PIPA solely for the psychiatric condition.
  4. The legislative history of PIPA included providing a procedure for the speedy resolution of claims for personal injuries and minimising the costs of claims. However, these aims were not consistent with requiring the applicant to comply with two separate procedures.
  5. The legislative history of PIPA did not originally exclude dust diseases until later when an amendment was made to exclude dust diseases. In discussing the need for the exclusion the debate referred to the need for persons with a dust disease to be able to have their claims heard as quickly as possible and to exempt sufferers from the procedural requirements of the PIPA.
  6. Later when the limitation period for dust diseases was abolished in section 11 of the Limitations of Actions Act 1974 (LAA), the exemption was for a personal injury “resulting from a dust-related condition”.
  7. By reference to In R v A2 (2019) 373 ALR 214, per Kiefel CJ and Keane J, the context of the provision under interpretation is part of the construction of the section. If the literal meaning does not confirm with the purpose or policy of the Act, it is appropriate to depart from the literal meaning it that which promotes the purpose of the section.
  8. By reference to the intent of parliament and as confirmed by the amendments to the LAA, it was to extend to all injuries which resulted from a dust disease.
  9. In considering whether to import additional words into the section, her Honour considered the test in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592, where 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…”

Accordingly, her Honour concluded:

[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.

[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:

(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.

 (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.

(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.

(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.

David Cormack

Brisbane Barrister & Mediator

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