WOOLWORTHS GROUP LIMITED v DEBBIE JACKERMIS [2023] SASCA 31

On Appeal from SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL (THE FULL BENCH) [2022] SAET 74 Applicant: WOOLWORTHS GROUP LIMITED Counsel: MR B ROBERTS KC WITH MR B AUSTIN - Solicitor: BELINDA RANDELL LAWYERS Respondent: DEBBIE JACKERMIS Counsel: MR J WARREN KC WITH MS E THEODORE - Solicitor: PALIOS MEEGAN NICHOLSON Interested Party: RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA Counsel: MR D O’LEARY SC - Solicitor: MINTER ELLISON Hearing Date/s: 04/10/2022 File No/s: CIV-22-007317 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. WOOLWORTHS GROUP LIMITED v JACKERMIS [2023] SASCA 31 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Mazza) 30 March 2023 WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - LUMP SUM PAYMENTS - PERMANENT IMPAIRMENT AND LOSS STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY WORKERS' COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF - PREVENTION OF DOUBLE RECOVERY FROM EMPLOYER - EFFECT OF CLAIM OR PROCEEDINGS FOR OR RECEIPT OF COMPENSATION ON RIGHT TO DAMAGES - WHETHER COMPENSATION AND DAMAGES IN RESPECT OF SAME INJURY WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - INJURY, DISEASE OR DISABILITY - WHAT CONSTITUTES INJURY Application for leave to appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal The respondent commenced employment with the applicant in 2002. The applicant is a self-insured employer for the purposes of the of the Return to Work Act 2014 (SA) (‘RTWA’). -- 1 of 20 -- The respondent injured her right shoulder in the course of her employment. The date of her injury was fixed as 18 April 2016. The respondent was aged 50. The primary shoulder injury, scarring and subsequent issues with mastication and deglutition resulted in permanent impairment. As a result, the respondent sought lump sum compensation. The respondent’s overall whole person impairment (‘WPI’) was assessed as 17 per cent, with the applicant accepting that all the impairments resulted from the same cause and were combinable. The resultant entitlement under s 56 of the RTWA was $76,762. A determination to this effect was made on 17 April 2020. The respondent suffered a further work injury to her left shoulder on 21 July 2017, resulting in a permanent impairment. The respondent was aged 51. Her WPI was assessed as 13 per cent. The resultant entitlement under s 56 of the RTWA was $45,188.72. The applicant determined that this was a ‘new work injury’ within the meaning of s 56(6)(b)(ii), with the consequence that it was required to reduce the lump sum payable by the amount of the payment for the earlier entitlement. Deducting $76,762 from $45,188.72 resulted in a nil entitlement. The respondent brought an application for review on the basis that she had not suffered ‘a new work injury’ within the meaning of s 56(6)(b)(ii), as the subsequent injury was completely separate from the earlier one. She contended that the phrase ‘new work injury’ referred to an injury to the same body part The trial judge rejected the respondent’s construction. The Full Bench allowed the respondent’s appeal. It construed the phrase ‘a new work injury’ as referring to ‘a further work injury that occurs subsequently in time to an earlier work injury that gives rise to an entitlement to a lump sum under s 56 where a portion of the impairment is due to a previous injury which gave rise to an entitlement under the section’. The Full Bench held that as the respondent’s subsequent injury bore no relationship to the previous injury, no deduction was to be made. The primary issue on the appeal is the construction of the words ‘a new work injury’ as they appear in s 56(6)(b)(ii). Held (by the Court), granting leave to appeal on Ground 1 and allowing the appeal: 1. The phrase ‘a new work injury’ carries a wide connotation of any new injury. A contextual analysis does not render that broad reading ambiguous, notwithstanding a disclosed gap of operation of the sub-section. The phrase does not require a narrow construction. The respondent’s left shoulder injury was ‘a new work injury’ within the meaning of s 56(6)(b)(ii). 2. The decision of the Full Bench is set aside and the application for review is dismissed. Legislation Interpretation Act 2021 (SA) s 14; Return to Work Act 2014 (SA) ss 3, 4, 21, 22, 39, 55, 56, 58, referred to. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; Certain Lloyds Underwriters v Cross (2012) 248 CLR 378; CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586, [2000] 2 All ER 109; Jackermis v Woolworths (SA) Pty Ltd and Return to Work Corporation of SA [2021] SAET 175; Jackermis v Woolworths (SA) Pty Ltd and Return to Work Corporation of SA [2022] SAET 74; Marshall v Watson (1972) 124 CLR 640; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; Onody v Return to Work Corporation of South Australia (2019) 133 SASR 109; Pachalis v Return to Work Corporation of South Australia [2021] SASCFC 44; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; South West Water Authority v Rumble’s [1985] AC 609; Taylor v Public Service Board (NSW) (1976) 137 CLR 208; Western Bank Ltd v Schindler [1977] Ch 1, considered. -- 2 of 20 -- WOOLWORTHS GROUP LIMITED v JACKERMIS [2023] SASCA 31 Court of Appeal – Civil: Bleby and David JJA and Mazza AJA 1 THE COURT: This application for leave to appeal on a question of law raises a confined but important question of interpretation of s 56 of the Return to Work Act 2014 (SA) (‘RTWA’). 2 Section 56(1) of the RTWA provides that a worker, other than a seriously injured worker, is entitled to compensation for loss of future earning capacity by way of a lump sum, where the worker suffers a work injury resulting in permanent impairment as assessed under the Act. Section 56(6)(b)(ii) contemplates the situation where a worker suffers an injury that gives rise to an entitlement under s 56 and subsequently suffers ‘a new work injury’, resulting in a second entitlement under s 56. In such a case, there is to be a reduction in the lump sum payable in respect of the second entitlement by the amount of the payment for the earlier entitlement. The issue of construction arising on the appeal is the meaning of the phrase ‘a new work injury’. The relevant statutory provisions 3 On 11 August 2022, the RTWA underwent amendments that extended to certain subsections of s 56, although not s 56(6). This appeal is concerned with the Act as in force at the time of the respondent’s injuries, prior to the amendments. 4 The Objects of the RTWA are set out in s 3. It is not necessary to set them all out here. For present purposes, s 3(2)(c) provides that one objective of the Act is to provide a reasonable balance between the interests of workers and the interests of employers. 5 Section 21(2) sets out the criteria for determining whether an injured worker qualifies as a seriously injured worker: 21—Seriously injured workers … (2) For the purposes of this Act, a seriously injured worker is a worker whose work injury has resulted in permanent impairment and the degree of whole person impairment has been assessed under Division 5 for the purposes of this Act to be 30% or more. 6 Section 22, in Division 5 of Part 2, establishes a scheme for assessing the degree of impairment. Relevantly, it provides: 22—Assessment of permanent impairment (1) This section sets out a scheme for assessing the degree of impairment (being whole person impairment) that applies to a work injury that results in permanent impairment. -- 3 of 20 -- [2023] SASCA 31 The Court 2 (2) An assessment under this section— (a) must be made in accordance with the Impairment Assessment Guidelines; and (b) must be made by a medical practitioner who holds a current accreditation under this section. (3) The Minister will publish guidelines (the Impairment Assessment Guidelines) for the purposes of the assessment of permanent impairment (being whole person impairment). … (6) An amendment or substitution in relation to the Impairment Assessment Guidelines under subsection (4)(f) will only apply in respect of an injury occurring on or after the date the amendment or substitution takes effect. (7) An assessment of the degree of impairment resulting from an injury— (a) must not be made until there is evidence that the injury has stabilised; and (b) must, subject to subsection (8), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and (c) must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines. (8) An assessment must take into account the following principles: (a) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury; (b) impairments from unrelated injuries or causes are to be disregarded in making an assessment; (c) impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines); … (g) any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre-existing condition) that caused the worker to suffer an impairment before the relevant work injury is to be deducted for the purposes of an assessment, subject to any provision to the contrary made by the Impairment Assessment Guidelines; (h) assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines. -- 4 of 20 -- [2023] SASCA 31 The Court 3 … (10) Subject to subsections (11) to (15) (inclusive), only 1 assessment may be made in respect of the degree of permanent impairment of a worker from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently develop or manifest itself or develop after the assessment of impairment is made will not be assessed). … (13) Subsection (10) operates subject to any assessment made under Part 8 (and the exercise of any adjudicative function by the Tribunal or a court). … 7 Section 39(3) imposes a 104-week limitation period to the entitlement to weekly payments for a worker other than a seriously injured worker, from the date on which incapacity for work first occurs. Section 56 then ameliorates that limitation period by making further provision for payment of a lump sum for economic loss: 56—Lump sum payments—economic loss (1) Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for loss of future earning capacity by way of a lump sum. (2) An entitlement does not arise under this section if the worker's degree of whole person impairment from physical injury is less than 5%. (3) An entitlement does not arise under this section in relation to— (a) a psychiatric injury or consequential mental harm; or (b) noise induced hearing loss. (4) Subject to this section, the lump sum will be an amount determined as follows: LS = PS × AF × HWF where LS is the lump sum PS is the prescribed sum that applies in relation to the worker's whole person impairment AF is the age factor applying in relation to the injured worker HWF is the hours worked factor applying in relation to the injured worker. (5) If a worker suffers 2 or more work injuries arising from the same trauma, the injuries may together be treated as 1 injury to the extent set out in the -- 5 of 20 -- [2023] SASCA 31 The Court 4 Impairment Assessment Guidelines (and assessed together using any combination or other principle set out in the Impairment Assessment Guidelines). (6) If— (a) a worker suffers a work injury that gives rise to an entitlement under this section; and (b) the worker subsequently suffers— (i) an aggravation, acceleration, exacerbation, deterioration or recurrence of the injury referred to in paragraph (a); or (ii) a new work injury, and the worker, as a result, has a second entitlement under this section, there will be a reduction of the lump sum payable under this section in respect of the second entitlement by the amount of the payment for the earlier entitlement unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines (and then this subsection will apply in relation to any third or subsequent entitlement in the same way in order to ensure that each lump sum previously paid is taken into account as new entitlements arise). (7) For the purposes of this section, any degree of impairment will be assessed in accordance with Part 2 Division 5 (and the Impairment Assessment Guidelines). (8) Only 1 claim may be made under this Division in respect of any impairment or impairments that result from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently manifest itself or develop after the assessment of impairment is made will not be compensable). (9) Subsection (8) does not apply in any circumstances prescribed by the regulations. (10) Compensation is not payable under this section after the death of the worker concerned. (11) In the operation of this section, in no case can the lump sum exceed the prescribed sum adjusted by the age factor. 8 The values of the inputs set out in s 56 are the subject of s 55 and Schedule 7. The minimum threshold of five per cent whole person impairment (WPI) correlates with $5,000 (indexed) and then rises exponentially to the maximum 29 per cent WPI, which correlates with $350,000 (indexed). The age factor is calculated by reference to the worker’s age at the relevant date, being the date on which the relevant injury occurs.1 Schedule 6 sets out the percentage to be applied for a particular age. The percentage is 100 per cent where the worker’s age at the 1 RWTA, s 5(16)(a). -- 6 of 20 -- [2023] SASCA 31 The Court 5 relevant date (in years) is 25 or less. Thereafter, the percentage reduces, reaching zero per cent for a worker aged 70 or more. 9 Section 58(1) provides an entitlement to a lump sum payment for non-economic loss: 58—Lump sum payments—non-economic loss (1) Subject to this Act, if a worker suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non- economic loss by way of a lump sum. 10 This entitlement also has a minimum threshold of at least five per cent WPI, as assessed under Division 5 of Part 2 and the Impairment Assessment Guidelines.2 Unlike the entitlement in relation to economic loss, this entitlement is not limited to workers other than seriously injured workers. Section 58(7) sets out the circumstances in which there may be a reduction where compensation for non-economic loss has been previously paid (comparable to, but not the same as, that of s 56(6) in respect of economic loss): (7) If— (a) a work injury consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior work injury; and (b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment, there will be a reduction of the lump sum payable under this section in respect of the injury by the amount of the previous payment unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines. Background 11 The respondent commenced employment with the applicant in 2002. The applicant is a self-insured employer for the purposes of the RTWA. 12 The respondent injured her right shoulder in the course of her employment. The date of her injury was fixed as 18 April 2016. She was aged 50. Her injury required surgery and resulted in some scarring. The respondent subsequently developed issues with mastication and deglutition, due to the medication she was taking for her injury. The primary injury, scarring and subsequent issues with mastication and deglutition have resulted in permanent impairment. 13 The respondent sought lump sum compensation in respect of these impairments. Her WPI was assessed as 13 per cent for the right shoulder injury, four per cent for mastication and deglutition and one per cent for scarring. The applicant accepted that all these impairments resulted from the same cause and 2 RTWA, ss 58(2), (8). -- 7 of 20 -- [2023] SASCA 31 The Court 6 were combinable, pursuant to s 22(8)(c). The overall assessment was 17 per cent WPI. 14 The applicant determined the respondent’s lump sum entitlements under ss 56 and 58 of the RTWA. For the purposes of s 56, the relevant prescribed sum was $109,660. The age factor was 70. The hours worked factor was full time. The resultant entitlement was $76,762. A determination to this effect was made on 17 April 2020. 15 The respondent suffered a further work injury to her left shoulder on 21 July 2017, resulting in a permanent impairment. She was aged 51 at the time. Pursuant to s 22 of the RTWA, her WPI was assessed at 13 per cent. The applicant determined her lump sum entitlements under ss 56 and 58 in respect of this subsequent injury. For the purposes of s 56, the relevant prescribed sum was $66,454. The age factor was 68. The hours worked factor was full time. The resultant entitlement was $45,188.72. 16 The applicant determined that the injury the respondent sustained on 21 July 2017 was a ‘new work injury’ for the purposes of s 56(6)(b)(ii). It reasoned that in connection with her entitlement under s 56, it was required to reduce the lump sum payable by the amount of the payment for the earlier entitlement. It therefore deducted $76,762 from $45,188.72 and determined that the respondent had a nil entitlement. 17 The respondent brought an application for review. She contended that she had not suffered ‘a new work injury’ within the meaning of s 56(6)(b)(ii), as the subsequent injury was completely separate from the earlier one. This contention relied on construing the phrase ‘a new work injury’ as being coloured by the words in s 56(6)(b)(i), that is, ‘an aggravation, acceleration, exacerbation, deterioration or recurrence of the injury’.3 The judge summarised the respondent’s argument, which differed materially from the argument made before this Court:4 [Counsel] submitted that it was entirely rational why Parliament would limit the amount payable for economic loss in connection with a subsequent injury, if that injury comprised of [sic] either an aggravation, acceleration, exacerbation, deterioration or recurrence of the original injury or if the subsequent injury could not be so described but was to the same body part. He said that in both instances it might be expected that there would be a significant overlap between loss of earning capacity that might result from each injury. Thus, for example, if a worker received a s 56 payment based on a 15% whole person impairment for the right shoulder and then suffered a further injury to the right shoulder that also resulted in a 15% whole person impairment assessment, the earlier assessment would be deducted from the later assessment. [Counsel] submitted that the logic of this is that because the same body part is involved, the later injury’s impact upon the worker’s capacity to earn is likely to be minimal. (Emphasis added) 3 [2021] SAET 175 at [25]. 4 [2021] SAET 175 at [26]. -- 8 of 20 -- [2023] SASCA 31 The Court 7 18 On the respondent’s argument before the trial judge, then, the phrase ‘a new work injury’ referred to an injury that did not come within the description in s 56(6)(b)(i), but was limited, despite the absence of any textual reference, to an injury to the same body part. 19 The trial judge rejected the respondent’s construction. He interpreted the phrase ‘a new work injury’ as referring to any new work injury, in accordance with its plain language.5 One aspect of his reasoning was that there would be uncertainty in many cases as to what would constitute the same body part.6 He held that the respondent had established a second entitlement, but after deducting the amount payable by reference to an earlier entitlement, the outcome was a nil further payment. 20 The Full Bench allowed the respondent’s appeal. It held that, in the circumstances, there should have been no reduction on account of the amount determined to be payable for the first entitlement under s 56.7 21 Importantly for the Full Bench’s reasoning, the respondent offered a different construction from that advanced before the single judge. The Full Bench accepted this different construction, holding that the phrase ‘a new work injury’ referred to:8 … a further work injury that occurs subsequently in time to an earlier work injury that gives rise to an entitlement to a lump sum under s 56 where a portion of the impairment is due to a previous injury which gave rise to an entitlement under the section. 22 As the respondent’s subsequent injury bore no relationship to the previous injury, it followed that no deduction was to be made. On this appeal from that decision, the applicant and the interested party, Return to Work Corporation of South Australia, contend that the phrase ‘a new work injury’, in context, should not be confined in the manner held by the Full Bench. 23 The grounds of appeal identify the complaints the appellant advances in support of its construction of the subsection: 1. The Full Bench erred in law in concluding (at [108] and [109]) that the phrase “a new work injury” in section 56(6)(b)(ii) … means “an injury where a portion of the impairment is due to a previous injury which gave rise to an entitlement under the section” in circumstances where: 1.1 The statutory text … read in context, is not ambiguous; 1.2 the Full Bench has read into the statute words (“where a portion of the impairment is due to a previous injury which gave rise to an entitlement under the section”) in circumstances where the recognised criteria for doing so are not present; and 5 [2021] SAET 175 at [52]. 6 [2021] SAET 175 at [51]. 7 [2022] SAET 74. 8 [2022] SAET 74 at [109]. -- 9 of 20 -- [2023] SASCA 31 The Court 8 1.3 has construed the purpose of section 56(6) by reference to s 56(1) alone rather than accounting for the statutory distinction between entitlements for economic loss applicable to non-seriously injured workers in contradistinction to seriously injured workers. 2. Further and/or alternatively, the Full Bench erred in law in concluding (at [107] and [108]) that the phrase “a new work injury” … is ambiguous and does not manifest by the plainest text that subsequent entitlements for any new work injury of any kind fall within the operation of s 56(6). 3. Further or alternatively, the Full Bench has erred in law in failing to find that section 56(11) operates as a statutory limit on entitlements for economic loss payable under section 56, such that successive work injuries that each give rise to whole person impairments of 29% or less cannot result in successive lump sum payments under s 56(6) beyond the limit identified in s 56(11) read with Schedule 7. 24 Grounds 2 and 3 are raised in the alternative to Ground 1. The primary issue on appeal is the construction of the words ‘a new work injury’ as they appear in s 56(6)(b)(ii). The approach to statutory construction 25 The applicable principles are well understood. In any exercise of statutory interpretation, it is necessary to start with the language of the provisions.9 Those provisions must be construed in the context of the language of the statute as a whole.10 In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality explained that the primary object of statutory construction:11 … is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute12. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”.13 In Commissioner for Railways (NSW) v Agalianos,14 Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. (Footnotes in original) 26 The Court is to give the words used the meaning that the legislature is taken to have intended them to have.15 That will ordinarily correspond with the grammatical meaning of the section. However, the context, the consequences of a particular construction and the purpose of the statute may sometimes require a 9 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-162 (Higgins J). 10 CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 11 (1998) 194 CLR 355 at [69]. 12 See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ. 13 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble’s [1985] AC 609 at 617, per Lord Scarman, “in the context of the legislation as a whole”. 14 (1955) 92 CLR 390 at 397. 15 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 321 (Brennan J). -- 10 of 20 -- [2023] SASCA 31 The Court 9 non-literal interpretation to be adopted.16 Further, absent an examination of context and purpose, a literal interpretation may be impossible, or meaningless. 27 Having said that, as the appellant emphasised, considerations of context and purpose do not amount to an invitation to rewrite the legislation. As French CJ and Hayne J said in Certain Lloyds Underwriters v Cross:17 The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. (Footnote omitted) 28 To that end, as the plurality said in In Taylor v The Owners – Strata Plan 11564:18 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.19 It is answered against a construction that fills “gaps disclosed in legislation”20 or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.21 (Footnotes in original) 29 This observation has particular significance to the present matter. The construction of s 56(6)(b)(ii) Textual breadth and the competing, narrower interpretation 30 The phrase ‘a new work injury’ is textually unconfined. As the interested party submitted, a purely textual reading of the phrase would suggest an injury ‘appearing for the first time’ or ‘being the later or latest of two or more things’.22 In its unadorned state, the phrase carries a wide connotation of any new injury. The phrase is not, of course, unadorned; it appears in a statutory context and gives effect to a legislative purpose. For the purposes of the construction exercise, it is helpful to have in mind at the outset the meaning that the context and purpose are 16 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ). 17 (2012) 248 CLR 378 at [26] (French CJ). See also at [89] (Kiefel J). 18 (2014) 253 CLR 531 at [38] (French CJ, Crennan and Bell JJ). 19 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at 651-652 [9] per French CJ and Bell J. 20 Marshall v Watson (1972) 124 CLR 640 at 649 per Stephen J. 21 Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ, cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115. 22 Macquarie Dictionary, 3rd ed, p 1448. -- 11 of 20 -- [2023] SASCA 31 The Court 10 said by the respondent and the Full Bench to require of the phrase, ‘a new work injury’. As identified above, the Full Bench construed the phrase as meaning:23 … a further work injury that occurs subsequently in time to an earlier work injury that gives rise to an entitlement to a lump sum under s 56 where a portion of the impairment is due to a previous injury which gave rise to an entitlement under the section. (Emphasis added) 31 We will refer to this as ‘the narrow construction’. The Full Bench reached the narrow construction having concluded that the phrase ‘a new work injury’ is ambiguous, and that the context and legislative policy considerations, including the text of s 56(6) as a whole, ‘strongly indicates a narrower construction’.24 32 The appellant’s attack on this construction initially characterised it as an impermissible reading in of words that focus on the policy of the legislation and relegate the language of the text to a subsidiary consideration. The respondent, and by implication the Full Bench, characterised this construction as a necessary reading down of an ambiguous phrase. 33 There was no suggestion that reading down was required to avoid invalidity. Moreover, on its face, the phrase ‘a new work injury’ does not appear to be ambiguous. However, the effect of the respondent’s submission, as we understood it, is that when read in context, there is a latent ambiguity that renders absurd a literal, broad interpretation. The narrower construction was required in that it best achieved the objects of the Act25 and was necessary to avoid absurd outcomes. 34 To assess this contention, and its detail, it is necessary to construe the phrase in context. Contextual and purposive considerations 35 The immediate context of the phrase in s 56(6)(b) under consideration is that the worker ‘subsequently suffers … a new work injury’. This expresses a temporal connection between the original work injury and the ‘new work injury’. 36 This temporal connection applies to the incidents in both subparagraphs 56(6)(b)(i) and (ii). The contemplated ‘aggravation, acceleration, exacerbation, deterioration or recurrence’ referred to in subparagraph (i) is of the injury referred to in s 56(6)(a). Subparagraph (ii), on the other hand, uses the indefinite article. That carries a suggestion, at least, of an injury with no connection to that in sub-section (i). As we will come to, the word ‘new’ is capable of contributing to that connotation of separation. 37 Section 4(1) of the RTWA defines ‘injury’ to include ‘an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or 23 [2022] SAET 74 at [109]. 24 [2022] SAET 74 at [107]. 25 Legislation Interpretation Act 2021 (SA), s 14. -- 12 of 20 -- [2023] SASCA 31 The Court 11 recurrence of a prior injury’. As with all definitions in this section, this is expressed to be ‘unless the contrary intention appears’. The incorporation in s 56(6)(b)(i) of this same wording, by reference to the injury identified in s 56(6)(a), suggests that the concept of ‘a new work injury’ in s 56(6)(b)(ii) does not include that covered by s 56(6)(b)(i), notwithstanding the extended definition of ‘injury’ in s 4(1). 38 However, the Full Bench accepted the respondent’s submission that the wide construction of the phrase would render otiose the description of further injury in s 56(6)(b)(i).26 That acceptance appears to have been based on an unstated premise that a ‘wide’ construction of the phrase would necessarily extend to the concept addressed by subparagraph (i). The difficulty with this is that it is possible, on the one hand, to accept that the phrase ‘a new work injury’ is broad on its ordinary construction, but also to accept that the context may necessarily require some limit to its reach. Here, subparagraph (i) provides a clear contextual indicator that the phrase ‘a new work injury’ does not extend to its subject matter. That does not provide a great deal of guidance as to what other restriction, if any, is properly applied to the phrase. 39 We therefore do not accept that a broad reading of s 56(6)(b)(ii) would necessarily render the previous subparagraph otiose. They are to be read together. Subparagraph (ii) may be read broadly but not so as to extend to the subject matter of subparagraph (i). That does not otherwise assist with the interpretive task at hand. 40 This conclusion provokes one further immediate observation. As the appellant observed, it is not at all clear how the narrow construction of subparagraph (ii) would differ in its operation from the ‘aggravation [etc.]’ formulation in subparagraph (i). If anything, the narrow construction would tend to render subparagraph (i) otiose. 41 The existence of distinct fields of operation of the two subparagraphs is consistent with the structure of s 7. Section 7(1) provides that the RTWA applies to an injury only if the injury arises from employment. Section 7(2) provides the test for when an injury arises from employment. Section 7(3) makes separate provision in this regard where the injury is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury. 42 The Full Bench noted:27 However, the phrase in s 56(6)(b)(i) is useful and pertinent upon the construction advanced by the appellant. The part of the phrase in s 56(6)(b)(i) referring to ‘an aggravation, execration, exacerbation, deterioration or recurrence…’ also appears in s 7(3) as a type of work injury for the purposes of the RTW Act. Relevantly s 7(3) provides that such injuries are only compensable to the extent of and for the duration of the relevant aggravation, acceleration, 26 [2022] SAET 74 at [64]. 27 [2022] SAET 74 at [64]-[65]. -- 13 of 20 -- [2023] SASCA 31 The Court 12 exacerbation, deterioration or recurrence. The use of the word ‘or’ before leading to ‘a new work injury’ in 56(6)(b) … is a means of linkage of a common feature, being the relevant connection of impairment, with an earlier injury that gave rise to an entitlement under s 56. The two limbs of sub-placita (i) and (ii) preserves the phrase in sub-placitum (i) and its construction in a manner consistent with s 7(3). (Footnotes omitted) 43 We do not accept this reasoning. An ordinary reading of the word ‘or’ as appears between subparagraphs (i) an (ii) is disjunctive, in the sense that the sub-section is setting out two separate categories of ‘injury’ on which s 56(6)(b) operates. To impute that the word ‘or’ is ‘a means of linkage of a common feature’, being the connection of impairment with an earlier injury, is to assume the proposition for which the structure of the section is being invoked to support. To the contrary, if inclusion of the concept of ‘a new work injury’ in a subparagraph so disjoined from subparagraph (i) is a structural indicator of anything, it is of severance from any relationship with the prior injury. 44 The next contextual feature is provided by s 58(7). Whereas s 56 provides for lump sum compensation for economic loss, s 58 does so in respect of non-economic loss. Section 58(7), like s 56(6), addresses the situation where compensation has been paid in respect of a previous work injury. It deploys the language used in s 56(6)(b)(i). There is no provision that corresponds to s 56(6)(b)(ii). That is, there is no provision for reduction of lump sum compensation for non-economic loss in the case of ‘a new work injury’. As a matter of comparative context, it appears that s 58 is designed to have a broader operation of lump sum compensation for non-economic loss than s 56 is for economic loss. 45 The appellant offered an apparent justification for this difference, or rather an explanation as to why this difference need not be seen as arbitrary. There is an apparent overarching purpose in these provisions to avoid double compensation. That object clearly enough furthers the objective, expressed in s 3(3)(c) of the Act, of providing a reasonable balance between the interests of workers and the interests of employers. In the case of non-economic loss, addressed by s 58, reduction of compensation in the event of an aggravation, etc., of a prior work injury, is explicable as a measure to avoid double compensation, as it is in the case of economic loss under s 56. 46 As the appellant put it, the prospect of (further) compensation for non-economic loss for a new work injury, read as extending to an entirely separate work injury, does not raise the same spectre of double compensation. By contrast, there is a logic in extending the purpose of avoiding double compensation in the case of ‘a new work injury’ to compensation for economic loss. Section 56 represents an allowance of sorts for loss of future earning capacity, not a calculation of likely loss. There is some logic to the proposition that only the higher WPI be taken to be the measure of loss of earning capacity, in that should a -- 14 of 20 -- [2023] SASCA 31 The Court 13 subsequent injury result in a higher WPI, only the incremental increase is further compensated. 47 For the reasons explained below, if this is the logic of the difference between s 56(6) and 58(7), it is not perfectly executed. The limits of that execution are relevant to a complete contextual and purposive analysis. At this stage, it is sufficient to note that there is, at least, an available rationale for a broad reading of ‘a new work injury’ in s 56(6)(b)(ii), in circumstances where no such basis for reduction exists in s 58(7). 48 The Full Bench placed considerable weight on the apparent purpose in the RTWA of avoiding double compensation, referring to this Court’s decision in Pachalis v Return to Work Corporation of South Australia.28 By reference to the construction of the relationship between s 22(8)(b) and 22(8)(g) in that case, the Full Bench looked to characterise the limits of the risk of double compensation:29 Not all subsequent injuries to the same part of the body or relevant body system, when assessing impairments by reference to the IAG, come within the ambit of ‘an aggravation, acceleration, exacerbation, deterioration or recurrence’ of the earlier injury. However, if the injury and resultant impairment is to the same body part or system then, absent a relevant reduction related to a prior impairment, double compensation may follow the assessment of the second or further subsequent injury. Regard must be had to the methodology of assessment of impairment provided in the [Impairment Assessment Guidelines] (and where relevant the American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition (AMA 5)) which includes reference to not only body parts but also systems. The dominant provision for the assessment of permanent impairment is s 22. There are sub-sections which operate harmoniously to achieve an outcome where an injured worker is compensated for a permanent impairment arising from a work injury, but which also seek to ensure that the injured worker is not compensated for impairment that does not arise from the work injury. In Paschalis v Return to Work Corporation of South Australia30 Livesey and Bleby JJ addressed sub-sections 22(8)(b) and 22(8)(g) and stated: … the Act is intended only to compensate work injuries and impairments caused by work injuries. That is clear from the objects and scheme of the Act as a whole. On their face, and when read together, ss 22(8)(b) and 22(8)(g) express the same legislative intention: only a work injury, or an impairment to the extent that it is attributable to a work injury, is to be assessed and compensated.31 [citations omitted] A concern to avoid double compensation does not arise where a subsequent injury involving an impairment does not include a portion of impairment due to a previous injury. (Footnotes in original) 28 [2021] SASCFC 44. 29 [2022] SAET 74 at [68]-[71]. 30 [2021] SASCFC 44. 31 Ibid [198]. -- 15 of 20 -- [2023] SASCA 31 The Court 14 49 It followed, in the Full Bench’s view, that not characterising the injury to the right shoulder in the present case as ‘a new work injury’ did not give rise to any risk of double compensation:32 In this case, if the injury to the left shoulder gave rise to an incapacity for work, then even though there was no relevant connection between that injury and impairment and the earlier injury to the right shoulder and resultant impairment so that no question of double compensation arose under s 56(6), it was held that the appellant receive none of the entitlement of $45,188.70. This is notwithstanding that the injury to the left shoulder gave rise to an entitlement to claim weekly payments but was also limited to a maximum period of 104 weeks from the first day of incapacity. 50 The significance of this observation appears to be that a narrower construction of ‘a new work injury’ in subparagraph (i), so as to limit it in the manner found, would give rise to no issue of double compensation. That an outcome would not transgress or undermine an identified policy of the Act is, of course, relevant. This aspect of the Full Bench’s analysis shows up one of the limits to the logic offered by the appellant for the distinction between the reach of each of s 56(6) and s 58(7). However, that distinction still exists, and serves a form of logic, even if not a complete one. 51 Further, however, the avoidance of double compensation is not the only relevant purpose of the RTWA. As the interested party submitted, s 56 itself, by the very inclusion of s 56(6)(b)(ii), evinces a policy that entitlements to lump sum payments for economic loss are to be subject to reduction in a way that entitlements to lump sum payments for non-economic loss are not. As already noted, the scheme for lump sum payments for economic loss has been established in recognition of the distinction in the Act between seriously injured and non-seriously injured workers. This distinction, which is not applied in s 58, supports a purpose of not providing for open-ended compensation for economic loss for non-seriously injured workers. It does not result in an absurdity for the legislation to place a limit on the accrual of compensation for economic loss in the case of successive injuries. Again, this is an allowance provision, not one of compensation for actual loss. 52 Neither approach is positively inconsistent with the object of avoiding double compensation. However, that object is not the only one being served. Further, the fact that the Full Bench’s narrower reading of the phrase ‘a new work injury’ is not inconsistent with this object does not provide a strong indicator that it is required, in circumstances where the immediate text and context do not establish any link between the original work injury and the ‘new work injury’. 53 The issue of timing of assessments raises a more forceful objection to the broader construction. The Full Bench explained this issue in the following way:33 The sequence of events referred to in s 56(6) is relevant to its construction. The text plainly contemplates not only that there be a subsequent injury which occurs at a later point in time 32 [2022] SAET 74 at [104]. 33 [2022] SAET 74 at [73]-[75]. -- 16 of 20 -- [2023] SASCA 31 The Court 15 from the earlier work injury but that the assessment of impairment for the subsequent injury also takes place at a later point in time. The circumstances in which that will always occur is where the subsequent assessment of impairment incorporates a prior assessment. In this case, the first injury in time was to the right shoulder with consequential impairments related to scarring following surgery and for impairment in mastication and deglutition. In time, the impairment was also assessed first. Chapter 1.13 of the IAG mandates that assessments of permanent impairment are only to be conducted when the injury has stabilised, and the assessor considers that the degree of WPI of the worker is fully ascertainable. More severe injuries may take longer to reach maximum medical improvement (MMI) and, as a result, the assessment of permanent impairment is not always chronologically in the same order as the occurrence of the injuries. In this case, if the injury to the left shoulder had reached MMI first and had been assessed first giving rise to an entitlement under s 56(6)(a), then because the injury to the right shoulder did not occur subsequently in time, any subsequent assessment and entitlement for the right shoulder would not, by reference to the plain meaning of the text, give rise to a reduction under s 56(6)(b). Such an outcome would be inconsistent with the stated objects of the construction of s 56(6) held by the trial judge but is not inconsistent with the construction advanced by the appellant. (Emphasis added) 54 In other words, on a broad construction of ‘a new work injury’ (and a literal construction of s 56(6)), where the earlier entitlement is in relation to a second or subsequent injury, s 56(6) cannot be applied to impose a reduction. That would not appear to be an issue on the narrower construction. Section 22(8)(g) provides that any portion of an impairment that is due to a previous injury that caused the worker to suffer an impairment before the relevant work injury is to be deducted for the purposes of an assessment. The worker will present for assessment in relation to injuries that occurred on different dates, such that the impairments will be assessed chronologically by date of injury. 55 The respondent understandably placed considerable weight on this anomaly. She submitted that it would be ‘beyond arbitrary, indeed absurd’, if the total entitlement under s 56 depended on the order of assessment of impairments. 56 Clearly enough, the construction contended for by the appellant has the potential to give rise to inconsistencies. The appellant suggested that this gave rise to a relatively uncommon anomaly that would fall outside the usual case. The respondent disputed this. That dispute can be put to one side: this is an exercise in statutory interpretation directed to a question of law only. 57 The respondent relied, in this regard, on this Court’s decision in Onody v Return to Work Corporation of South Australia.34 This was a case of noise induced hearing loss. It concerned, in particular, the relationship between s 22(8)(g) and s 58(7). Blue J noted, critically, that each of ss 58(7), 58(8) (which provides that the degree of impairment is to be assessed in accordance with s 22) and s 22(8)(g) is 34 (2019) 133 SASR 109. -- 17 of 20 -- [2023] SASCA 31 The Court 16 expressed to be subject to any provision to the contrary made by the Impairment Assessment Guidelines. Then:35 In a case in which a worker received prior compensation for a prior work injury, the prima facie operation of subsection 58(7) and subsection 58(8)/section 22(8)(g) would result in a double deduction, ie the previous impairment deduction pursuant to subsection 58(8) and section 22(8)(g) and the prior payment deduction pursuant to subsection 58(7), but for the existence of the two provisos. The legislature explicitly recognised the potential for double deduction by incorporating the two provisos. It gave power to the Minister in making the Guidelines to override the prima facie effect of section 22(8)(g) by providing that the pre-existing impairment deduction is “subject to any provision to the contrary made by the Impairment Assessment Guidelines”. In a reciprocal manner, it provided in subsection 58(7) that the prior payment deduction is to be made “unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines”. The purpose and effect of the two provisos is to enable the Guidelines to avoid a double deduction being made under both provisions, which would be manifestly unfair. 58 The scheme, then, is designed to avoid double deductions by the device of the Minister overriding the pre-existing impairment deduction when both would otherwise apply. Blue J then observed:36 For the sake of completeness, I observe that section 56 entitles a worker who suffers a work injury resulting in permanent impairment, subject to certain conditions, to payment of a lump sum for loss of future earning capacity calculated by reference to the worker’s age and proportion of hours worked compared to full-time employment but without reference to rate of remuneration. Section 56 adopts a similar regime to section 58 by reference to degree of impairment, including subsection 56(6) which is the equivalent of subsection 58(7), subsection 56(7) which is the equivalent of subsection 58(8) and subsection 56(2) which is the equivalent of subsection 58(2). 59 The respondent did not rely on Onody directly for the interpretation of the phrase ‘a new work injury’. Rather, she relied on it to demonstrate that s 56 was governed by the same purposes of the avoidance of double compensation and double deduction.37 The purpose of avoiding double compensation had the potential to be frustrated on the broad interpretation of ‘a new work injury’ in circumstances where the earlier entitlement related to the second or subsequent injury. 60 At one level of abstraction, it can be accepted that ss 58 and 56 share broadly consistent purposes of avoiding double compensation and double deduction. However, it remains necessary to interpret the words in s 56(6)(b)(ii), that do not appear in s 58(7), in accordance with the accepted tenets of statutory interpretation. The respondent’s demand of consistency requires, at its essence, a reading of the words ‘a new work injury’ in a specifically tailored way to link the new injury to the original injury where there is nothing in the text of s 56(6)(b)(ii) to indicate 35 Onody v Return to Work Corporation of South Australia (2019) 133 SASR 109 at [15]-[16] (Blue J). 36 Onody v Return to Work Corporation of South Australia (2019) 133 SASR 109 at [20] (Blue J). 37 See further, Onody v Return to Work Corporation of South Australia (2019) 133 SASR 109 at [65] (Stanley J). -- 18 of 20 -- [2023] SASCA 31 The Court 17 this. If anything, the text contra-indicates this approach. Indeed, while the existence of the anomaly on the broader interpretation may be accepted, it also highlights the apparent lack of difference, on the narrow construction, between subparagraph (i) and subparagraph (ii). 61 The respondent also submitted that on the broader construction, the word ‘new’ would be otiose. This construction, she submitted, contemplates an injury giving rise to an entitlement, and an injury subsequently suffered giving rise to a second entitlement. The important aspect of operation on the broad construction is that the injury is subsequently suffered: the word ‘new’ adds nothing. We do not find this submission persuasive. If anything, the word ‘new’ connotes something quite separate from the original injury, in contradistinction to the aggravation, etc., the subject of subparagraph (i). 62 The respondent then submitted that the proviso to the reduction in the chaussette of s 56(6), ‘unless such a reduction is incorporated into the provisions of the Impairment Assessment Guidelines’ evinces an intention that the purpose of the reduction is to avoid double compensation. This applies to both subparagraphs (i) and (ii). Again, that such a purpose exists is undoubted. As the appellant submitted, however, that purpose is evident in the first phrase of the chaussette of the sub-section, requiring the reduction in the first place. The proviso to the reduction ensures that there not be a double deduction. This does not provide any further purposive basis for the narrow construction of ‘a new work injury’. 63 The interpretation urged by the respondent looks to fill a ‘gap disclosed in the legislation’38 by reference to an identified purpose. This is a gap positively created by the legislature, by the insertion of a provision in s 56(6) that is not present in s 58(7). Section 56(6), by its different drafting, demonstrates a separate purpose that entitlements to lump sum amounts of compensation for economic loss are subject to reduction not just in cases of aggravation, etc., of an original work injury. 64 To achieve completely the purpose of avoiding double compensation, purely by adopting the narrow construction, would in our view be to use one identified legislative purpose to close a gap created by the drafting in a way that the text is not capable of supporting and, indeed, contra-indicates. Further, it would be to read the phrase in subparagraph (ii) in a way that would render doubtful any separate operation of subparagraph (i). The legislature has manifestly required subparagraph (ii) to have a distinct operation from that of subparagraph (i). The presence of the words in subparagraph (ii) is indicative of a legislative policy with respect to reductions in lump sum compensation for economic loss that is different from that with respect to non-economic loss. 38 See Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531 at [38] (French CJ, Crennan and Bell JJ). -- 19 of 20 -- [2023] SASCA 31 The Court 18 65 We are not satisfied that the disclosed gap of operation on the broader reading, identified by the respondent and given weight by the Full Bench, requires the conclusion that the words ‘a new work injury’ are ambiguous and that the narrow construction is thereby required. The respondent’s left shoulder injury was ‘a new work injury’ within the meaning of s 56(6)(b)(ii). 66 This conclusion is sufficient to allow the appeal on Ground 1. These reasons indicate that the complaint in Ground 2 is also established, but this is properly seen as an error in reasoning going to the construction of the phrase ‘a new work injury’, which is the subject of the complaint in Ground 1. Ground 3 is expressed in the alternative. It is not necessary to decide whether s 56(11) operates as a statutory limit on entitlements for economic loss payable under s 56(6), such that successive lump sum payments under s 56(6) cannot exceed the limit identified in s 56(11) read with Schedule 7. The appellant did not address this ground in submissions. Conclusion 67 We grant leave to appeal on Ground 1. We allow the appeal, set aside the decision of the Full Bench and order that the application for review be dismissed. -- 20 of 20 --