Bakhit v Hartley Healy Pty Ltd [2025] QSC 352

Draft SUPREME COURT OF QUEENSLAND CITATION: Bakhit v Hartley Healy Pty Ltd [2025] QSC 352 PARTIES: HAMDE BAKHIT (plaintiff) v HARTLEY HEALY PTY LTD ACN 151 817 971 (defendant) FILE NO: BS 14554 of 2021 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 23 December 2025 DELIVERED AT: Brisbane HEARING DATE: 5 February 2024, 6 February 2024, 7 February 2024, 25 March 2024 and 18 April 2024 JUDGE: Sullivan J ORDER: The separate questions in BS No 14554 of 2021 are answered in the terms of Annexure “A” to these Reasons. The plaintiff’s claim is dismissed. CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the plaintiff was employed by the defendant, a corporate law firm – where the plaintiff alleges she was sexually harassed by an employed solicitor of the firm – where the plaintiff alleges the harassment occurred in breach of a tortious duty of care and in breach of contract – where, prior to this proceeding, the plaintiff commenced a claim with WorkCover Queensland in respect of the harassment – where the plaintiff subsequently withdrew her claim with WorkCover – where, prior to this proceeding, the plaintiff lodged a complaint under the Sex Discrimination Act 1984 (Cth) with the Australian Human Rights Commission alleging sexual harassment and victimisation in the defendant’s workplace – where the complaint was the subject of a conciliation conference and then an ‘in principle’ settlement – where the plaintiff and defendant executed a deed of settlement, which relevantly -- 1 of 49 -- 2 contained a release and discharge clause and a bar to proceeding and indemnity clause – where the plaintiff brought this proceeding alleging a breach of tortious duty of care and breach of contract – where the defendant relies upon the release and discharge clause to assert that the claims the subject of this proceeding have been released and discharged by the plaintiff – where the plaintiff submits the claims the subject of this proceeding are claims for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and accordingly fall within the qualification in the release and discharge clause – where the defendant submits it should be indemnified for its legal costs on a full solicitor client basis under the bar to proceeding and indemnity clause – where the Court directed two separate questions were to be heard and determined separately from other issues in the current proceeding – whether the plaintiff, by reason of the deed of settlement, has released and discharged the defendant from the current proceeding and is barred from pursuing the current proceeding – whether the plaintiff is liable to indemnify the defendant with respect to its legal costs incurred in this proceeding, on a full solicitor client basis Civil Proceedings Act 2011 (Qld), s 64 Fair Work Act 2009 (Cth) Sex Discrimination Act 1984 (Cth) Superannuation Guarantee (Administration) Act 1992 (Cth), s 30 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 5, s 9, s 10, s 11, s 30, s 38, s 108, s 109, s 109A, s 110, s 119, s 131, s 141, s 179, s 180, s 185, s 187, s 207B, s 236, s 237, s 239, s 270, s 271, s 288, s 305, s 305A, s 305E Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Australia & New Zealand Banking Group v Karam (2005) 64 NSWLR 149 Charrington & Co Ltd v Wooder [1914] AC 71 Crown Equipment Pty Ltd v ACN 098 568 702 Pty Ltd & Anor [2013] QSC 24 Greenall & Anor v Amaca Pty Ltd [2023] QSC 137 IBM Australia Pty Ltd v State of Queensland [2015] QSC 342 Karam v ANZ Banking Group Ltd [2001] NSWSC 709 Smith v MurphySchmidt Solicitors [2021] QCA 67 Tickner v Teys Australia Biloela Pty Ltd (2020) 4 QR 143; [2020] QSC 62 Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 WorkCover Queensland v Turner Freeman [2020] QCA 194 -- 2 of 49 -- 3 COUNSEL: A P J Collins, with J R Moxon, for the plaintiff C C Heyworth-Smith KC, with M A Eade, for the defendant SOLICITORS: Barry Nilsson for the plaintiff Hughes & Lewis Legal for the defendant Introduction [1] The plaintiff had been employed by the defendant, a corporate law firm, between 4 November 2013 and 26 June 2015, and then again between 2 November 2015 and 16 May 2016. [2] The plaintiff alleged in the current proceeding that in the period from early December 2015 to April 2016, she was allegedly the subject of sexual harassment by an employed solicitor within the firm. This sexual harassment is said to have occurred in breach of a tortious duty of care and in breach of contract. The defendant has substantively disputed the allegations of sexual harassment made by the plaintiff. [3] Prior to bringing the current proceeding, the plaintiff, in 2016, had commenced a claim with WorkCover in respect of the alleged sexual harassment at the defendant’s workplace. [4] By 27 September 2016, the plaintiff had obtained a Queensland Workers’ Compensation certificate from a Dr Michael Edwards, who had identified that the plaintiff’s preliminary diagnosis of psychological harm was consistent with the plaintiff’s allegations of sexual harassment in the defendant’s workplace. [5] By 19 October 2016, the plaintiff had withdrawn her claim with WorkCover. She advised WorkCover that it was causing her distress and she did not wish to go down that route any longer. [6] On 21 November 2016, the plaintiff lodged a complaint under the Sex Discrimination Act 1984 (Cth) with the Australian Human Rights Commission (“AHRC”), alleging sexual harassment and victimisation between 1 December 2015 to 16 May 2016 in the defendant’s workplace. She did so with the assistance of legal representatives from Shand Taylor Lawyers. It was accepted by the plaintiff’s counsel in this hearing that the complaint as lodged had, in effect, raised the same facts relied upon for the Supreme Court proceedings. This concession was correct. The complaint with the AHRC was in evidence and included a detailed 16- page statement of alleged facts and a description of alleged psychological injuries. [7] That complaint was then the subject of a conciliation conference which took place on 20 April 2017. The conference was largely conducted by telephone. At that conciliation conference, the plaintiff was assisted by an industrial advocate. The defendant was legally represented. As part of the conciliation conference, the plaintiff orally addressed the conference with the benefit of a prepared statement. I accept the evidence of Ms Dear, the industrial advocate, that Exhibit 2 in this -- 3 of 49 -- 4 proceeding was, or was very close to, the prepared statement used by the plaintiff in the conference. [8] The complaint was then the subject of an ‘in principle’ settlement at the conference reached on 20 April 2017. After the conciliation conference, the AHRC conciliator wrote to the parties by their assistants or representatives, setting out his understanding of the main bases of the ‘in principle’ settlement. This included the following statement: “…The parties will enter into a tripartite deed of settlement in full and final settlement of all claims. The deed will have clauses for mutual confidentiality, mutual non-disparagement, and mutual release. Next steps Rob [the defendant’s legal representative] will prepare a draft deed and forward this to Kerriann [the plaintiff’s industrial advocate] for review… The Commission will hold the matter open until we receive a copy of the fully executed deed or confirmation of the same…” [9] A draft deed of settlement was provided by the defendant’s legal representatives to the plaintiff’s industrial advocate on a date somewhere between 20 April 2017 and 2 May 2017. I accept the evidence of Ms Dear, that upon her receipt of the draft deed, she quickly forwarded it to the plaintiff in accordance with her usual practice. [10] The plaintiff executed the deed on 2 May 2017, and the defendant executed the deed on 16 May 2017 (“the deed”). [11] Under the deed, the defendant was to pay the plaintiff a settlement sum of $30,000. [12] Relevantly for the current proceeding, the deed contained a release and discharge clause, and a bar to proceeding and indemnity clause in the following terms: “7. RELEASE AND DISCHARGE 7.1 In consideration of Hartley Healy and Allen-Ankin [sic] taking the steps set out in clauses 2 to 6 of this Deed, Bakhit releases and discharges Hartley Healy and Allen-Ankins from all claims which she may have or may at any time have had or may at any time in the future have against Hartley Healy and/or Allen- Ankins in respect of or in connection with: (a) the Allegations; (b) the Discrimination complaint; and (c) any other matter relating to Bakhit’s employment with Hartley Healy or the cessation of that employment; other than any claim for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or for unpaid superannuation which she may be entitled to make. -- 4 of 49 -- 5 … 9. BAR TO PROCEEDINGS AND INDEMNITY 9.1 The parties agree that the terms of this Deed may be pleaded by any party as a bar to any Claims instituted by any party against another party in respect of any matter whatsoever referred to in this Deed, save for proceedings commenced for breach of this Deed. 9.2 Any party which breaches clause 9.1 of this Deed agrees to indemnify the other party in respect of any costs (on a full solicitor and client basis), charges, expenses, loss (including consequential loss), damages or any other detriment (whatsoever and howsoever arising) suffered by them as a result of the breach.” [13] In the current proceeding, the defendant relies upon cl 7.1 of the deed to assert that the breach of duty of care claim and breach of contract claim have been released and discharged by the plaintiff. The plaintiff, in turn, responded in her reply by asserting that the current breach of duty claim and breach of contract claim were claims “…for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)…”, and, accordingly, were not released and discharged by cl 7.1 of the deed. [14] The defendant also relies on cl 9.1 to plead the deed as a bar to the breach of duty of care and breach of contract claims, and cl 9.2 to give rise to a right for the defendant to receive its legal costs on a full solicitor/client basis. [15] The plaintiff disputes that cl 9.1 and 9.2 of the deed have the effect pleaded, again on the basis that cl 7.1 does not operate as a release and discharge of her pleaded claims. [16] The Court had directed that two questions were to be heard and determined separately from all the other issues in the current proceeding.1 Those two separate questions are: Question 1 Whether the plaintiff, by reason of a Deed of Settlement signed by her on 2 May 2017 and by the defendant on 16 May 2017: (i) has released and discharged the defendant from the proceeding; and (ii) is barred from pursuing the proceeding. Question 2 If the answer to either (i) or (ii) [of Question 1 above] is “yes”, whether the plaintiff is liable to indemnify the defendant with respect to the legal costs incurred by the defendant in the proceeding (on a full solicitor client basis). 1 Order of Ryan J dated 7 February 2023. -- 5 of 49 -- 6 Terms of the Settlement Agreement and Additional Facts [17] In addition to cl 7.1, cl 9.1 and cl 9.2, the deed contained four recitals which provided as follows: “A. Hartley Healy employed Bakhit between 4 November 2013 and 26 June 2015 and between 2 November 2015 and 16 May 2016 when her employment was terminated by Hartley Healy. B. Allen-Ankins was an agent of Hartley Healy for the purposes of anti discrimination legislation. C. Bakhit has made allegations against Hartley Healy and Allen- Ankins of unlawful discrimination in employment, sexual harassment and victimisation. These allegations are denied by Hartley Healy and Allen-Ankins. D. The parties have participated in a conciliation conference and have agreed to compromise their dispute, and desire to record their agreement in accordance with the terms set out in this Deed.” [18] Clause 1.1 relevantly provided, in part, as follows: “1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Deed, unless the context otherwise indicates: (a) “Allegations” means the allegations by Bakhit against Hartley Healy and Allen-Ankins of unlawful discrimination in employment, sexual harassment and victimisation (“Allegations”); (b) “Claim” includes any claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action or claim for compensation; (c) “Discrimination complaint” means the formal complaint of discrimination comprising the Allegations lodged by Bakhit with the Australian Human Rights Commission; …” [19] The deed contained, amongst other things, a withdrawal of the termination of the plaintiff’s employment, which was then substituted with her resignation. There was also a requirement for the provision of both a statement of service by the defendant and an expression of regret by the defendant. [20] Clause 6.1 provided for a Settlement Sum to be paid by the defendant to the plaintiff as follows: “6. SETTLEMENT 6.1 Hartley Healy will pay to Bakhit, on behalf of Hartley Healy and Allen-Ankins, the sum of THIRTY THOUSAND DOLLARS -- 6 of 49 -- 7 ($30,000.00) as compensation for hurt, humiliation or distress (“Settlement Sum”). 6.2 The Settlement Sum will be paid in such manner as may be advised by Bakhit’s representatives, the Queensland Working Women’s Service Inc and will be paid within FOURTEEN (14) days of the provision of a signed copy of this Deed to the solicitors for Hartley Healy.” [21] Clauses 7 and 9 contained the release and discharge, and bar to proceeding and indemnity clauses as already reproduced. [22] Clause 11 provided for the withdrawal of the Discrimination complaint within 14 days of the plaintiff receiving the Settlement Sum, the statement of service, and the expression of regret. [23] Clause 13 provided certain mutual acknowledgements, including that the deed was made without admission by any of the parties. It provided as follows: “13. ACKNOWLEDGMENTS 13.1 It is hereby acknowledged by the parties that: (a) the agreement as set out in this Deed is legally binding upon them; (b) this Deed is made without admission of liability by either party; (c) they have entered into this Deed fully and voluntarily upon their own information and investigation; (d) they are aware that their advisers, agents or lawyers may discover facts different from or in addition to the facts that they now know or believe to be true with respect to a subject matter of this Deed, but that it is their intention to, and they do, fully and finally absolutely and forever settle according to the provisions of this Deed and any and all liabilities, claims, disputes and differences which now exist, may exist or have ever existed between them relating in any way to the matters the subject of this Deed, other than proceedings instituted by any of the parties for breach or enforcement of this Deed.” [24] Clause 14 contained a warranty by all parties that they had received legal advice, or had been given the opportunity to obtain such legal advice, prior to executing the deed. [25] Clause 16.2 contained an entire contract clause in the following terms: -- 7 of 49 -- 8 “16. GENERAL … 16.2 This Deed constitutes the sole and entire agreement between the parties in relation to the subject of this Deed and no warranties, representations, guarantees or other terms or conditions of whatever nature not contained and recorded herein, shall be of any force or effect in the enforcement of this Deed. …” [26] The defendant subsequently provided to the plaintiff the required statement of service, and the expression of regret, and also paid the Settlement Sum of $30,000 as contemplated by the deed. [27] It was accepted by both the plaintiff and defendant at this hearing that the release and discharge in cl 7.1 is validly operative in its terms. That is, if cl 7.1 is construed to have released and discharged the current proceeding, then the proceeding should be dismissed. [28] The plaintiff also accepted that if the answer to the first separate question is “yes”, then the answer to the second separate question will also be “yes”. Reduction of the issues contained in the separate questions [29] The ambit of the issues raised by the first separate question can be reduced by reason of two matters. [30] First, the plaintiff accepted in oral argument that the common law causes of action constituting the current proceeding were each a “Claim” as defined in the deed, in that each was a claim, action or right of action which the plaintiff had in respect of or in connection with: (a) the Allegations; (b) the Discrimination complaint; and (c) any other matter relating to the plaintiff’s employment with the defendant or the cessation of that employment. [31] The Allegations and Discrimination complaint effectively mirrored the allegations underlying the causes of action constituted by the current proceeding. The concession was clearly correct. [32] The effect of the concession by the plaintiff is that the cl 7.1 release and discharge operates in respect of the current proceeding unless the subject matter of the current proceeding meets the qualification expressed in the last three lines of cl 7.1. That qualification is expressed as being “…other than any claim for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or for unpaid superannuation which [the plaintiff] may be entitled to make”. -- 8 of 49 -- 9 [33] Accordingly, then, a refined real issue in this case is whether the claims within the current proceeding fall within the qualification to the release and discharge in cl 7.1 of the deed. [34] Secondly, the defendant conceded in oral argument that cl 9.1 of the deed only operated in respect of claims which had been released and discharged pursuant to cl 7.1. That is, despite the broad and unqualified words of cl 9.1, read as a whole within the full context of the deed, it was the objective common intention of both parties that cl 9.1 would not operate if the qualification in cl 7.1 was engaged. [35] Again, this was a correct concession to have been made. It cannot have been the intention of the parties that cl 9.1 would have a broader operation than cl 7.1. To have construed cl 9.1 otherwise would have been to render the cl 7.1 qualification nugatory. [36] Both of these matters, therefore, distil the real issue in this proceeding as being whether the causes of action in the current proceeding are “…claims for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or for unpaid superannuation which [the plaintiff] may be entitled to make.” Legislation [37] The arguments of both the plaintiff and the defendant involved detailed references to statutory provisions, particularly within the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCR Act”). It is necessary to reproduce a large number of those provisions in order for those arguments to be understood. I have used the reprint of the WCR Act which was in force from 9 October 2015 to 7 September 2016. [38] The first set of provisions appeared under Chapter 1 headed, “Preliminary”. [39] Section 5 relevantly provided, in part, as follows: “5 Workers’ compensation scheme (1) This Act establishes a workers’ compensation scheme for Queensland— (a) providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits; and (b) encouraging improved health and safety performance by employers. (2) The main provisions of the scheme provide the following for injuries sustained by workers in their employment— (a) compensation; (b) regulation of access to damages; (c) employers’ liability for compensation; -- 9 of 49 -- 10 (d) employers’ obligation to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self-insurer; (e) management of compensation claims by insurers; (f) injury management, emphasising rehabilitation of workers particularly for return to work; (g) procedures for assessment of injuries by appropriately qualified persons or by independent medical assessment tribunals; (h) rights of review of, and appeal against, decisions made under this Act. … (4) It is intended that the scheme should— (a) maintain a balance between— (i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and (ii) ensuring reasonable cost levels for employers; and (b) ensure that injured workers or dependants are treated fairly by insurers; and (c) provide for the protection of employers’ interests in relation to claims for damages for workers’ injuries; and (d) provide for employers and injured workers to participate in effective return to work programs; and (da) provide for workers or prospective workers not to be prejudiced in employment because they have sustained injury to which this Act or a former Act applies; and (e) provide for flexible insurance arrangements suited to the particular needs of industry. ...” [40] Section 9 provided as follows: “9 Meaning of compensation Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3 and 4 by an insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act.” [41] Section 10 provided as follows: -- 10 of 49 -- 11 “10 Meaning of damages (1) Damages is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to— (a) the worker; or (b) if the injury results in the worker’s death—a dependant of the deceased worker. (2) A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under— (a) another Act; or (b) a law of another State, the Commonwealth or of another country. (3) Also, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages for loss of consortium resulting from injury sustained by a worker.” [42] Section 38 provided as follows: “38 Meaning of permanent impairment A permanent impairment, from injury, is an impairment that is stable and stationary and not likely to improve with further medical or surgical treatment.” [43] The second set of provisions appeared under Chapter 3 headed, “Compensation”. [44] Section 108 provided as follows: “108 Compensation entitlement (1) Compensation is payable under this Act for an injury sustained by a worker. (2) However, if a worker’s injury is an aggravation mentioned in section 32 (3) (b) or (ba), the worker is entitled to compensation for the injury only to the extent of the effects of the aggravation. Note— See also division 5 in relation to the effect of compensation on a worker’s leave entitlements.” [45] Section 109 provided as follows: “109 Who must pay compensation (1) If an employer is a self-insurer, the employer must pay the compensation. -- 11 of 49 -- 12 (2) Otherwise, WorkCover must pay the compensation. (3) An employer who is not a self-insurer can not pay a worker an amount, either in compensation or instead of compensation, that is payable by WorkCover under the Act for an injury sustained by the worker. (4) However, an employer who is not a self-insurer may pay a worker an amount, either in compensation or instead of compensation, that is payable by WorkCover under the Act for an injury sustained by the worker if— (a) the worker has made an application for compensation under section 132; and (b) the employer has complied with section 133A. (5) Subsection (4) applies only until WorkCover has allowed a claimant’s application for compensation under section 134. (6) Subsections (2) and (3) are subject to section 66.” [46] Section 109A provided relevantly as follows: “109A When an employer contravenes obligation not to pay compensation payable by WorkCover (1) This section applies if an employer contravenes section 109 (3). (2) WorkCover may require the employer to pay WorkCover an amount by way of penalty equal to 50% of the employer’s premium for the period of insurance. (3) WorkCover may recover the amount from the employer— (a) as a debt; or (b) as an addition to a premium payable by the employer. (4) The employer may apply in writing to WorkCover to waive or reduce the penalty because of extenuating circumstances. ...” [47] Section 110 provided as follows: “110 Compensation entitlement can not be relinquished, assigned or subject to execution (1) A worker or another person can not relinquish an entitlement to compensation for an injury sustained by the worker or the person. (2) An agreement made by the worker or the person purporting to relinquish the entitlement is of no force or effect. (3) Compensation can not be assigned, charged, taken in execution, or attached, and a worker’s entitlement to compensation can not -- 12 of 49 -- 13 pass to another person by operation of law or otherwise, and no claim can be set off against the amount. (4) Subsection (3) is subject to subsection (5) and section 170 (2) (b). (5) If an employer pays to a worker an amount, for example wages, to which the worker is entitled as compensation for an injury, WorkCover may reimburse the employer for the amount paid to the extent of the worker’s entitlement for the injury instead of paying the worker.” [48] Section 119 provided as follows: “119 Entitlement to compensation ends if damages claim is finalised (1) This section applies if, for an injury, there is— (a) an entitlement to compensation; and (b) an entitlement to recover damages against an employer or another person. (2) An entitlement to compensation ends when settlement for damages is agreed or judgment for damages is given. (3) In this section— damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.” [49] Section 131 provided as follows: “131 Time for applying (1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises. (2) If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer’s liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged. (3) Subsection (2) does not apply if death is, or results from, the injury. (4) An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist. (5) An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant’s failure to lodge the application was due to— -- 13 of 49 -- 14 (a) mistake; or (b) the claimant’s absence from the State; or (c) a reasonable cause.” [50] Section 141 provided as follows: “141 Time from which compensation payable (1) The entitlement to compensation for an injury arises on the day the worker is assessed by— (a) a doctor; or (b) if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or (c) if the injury is an oral injury and the worker attends a dentist—the dentist. (2) However, any entitlement to weekly payment of compensation starts on— (a) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury—the day after the worker stops work because of the injury; or (b) if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury—the day the doctor, nurse practitioner or dentist assesses the injury. (3) Subsections (1) and (2) are not intended to limit any availability for compensation for the day of injury provided for under part 8. (4) Subsection (2) is subject to section 131 (2).” [51] Section 179 provided relevantly as follows: “179 Assessment of permanent impairment (1) An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment. (2) The insurer must have the degree of permanent impairment assessed— (a) for industrial deafness—by an audiologist; or (b) for a psychiatric or psychological injury—by a medical assessment tribunal; or (c) for another injury—by a doctor. -- 14 of 49 -- 15 (3) The degree of permanent impairment must be assessed in accordance with the GEPI to decide the DPI for the injury, and a report complying with the GEPI must be given to the insurer. ...” [52] Section 180 provided relevantly as follows: “180 Calculation of lump sum compensation (1) If, as a result of an assessment under section 179, a worker is entitled to lump sum compensation, the amount of the lump sum compensation must be calculated under a regulation having regard to the DPI. ...” [53] Section 185 provided as follows: “185 Insurer to give notice of assessment of permanent impairment (1) The insurer must, within 10 business days after receiving the assessment of the worker’s permanent impairment, give the worker a notice of assessment in the approved form. (2) To remove any doubt, it is declared that if a worker sustains multiple injuries in an event, the insurer must give the notice only after the worker’s DPI for all injuries has been decided. (3) The notice must state— (a) whether the worker has sustained permanent impairment from the injury; and (b) if the worker has sustained permanent impairment— (i) the DPI for the injury; and (ii) the amount of lump sum compensation under section 180 to which the worker is entitled for the injury; and (c) if the worker is entitled to additional lump sum compensation under chapter 3, part 10, division 4—the worker’s entitlement.” [54] Section 187 provided as follows: “187 Offer of lump sum compensation If the worker has an entitlement to lump sum compensation under section 180, the insurer must include, in the notice of assessment, an offer of lump sum compensation to the worker (the offer).” [55] The third set of provisions appeared under Chapter 3A, headed “Compensation Claim Costs”. -- 15 of 49 -- 16 [56] Section 207B provided relevantly as follows: “207B Insurer’s charge on damages for compensation paid (1) This section applies to— (a) an injury sustained by a worker in circumstances creating— (i) an entitlement to compensation; and (ii) a legal liability in the worker’s employer, or other person, to pay damages for the injury, independently of this Act; and (b) damages that an employer is not indemnified against under this Act. (2) An amount paid as compensation to a person for an injury, to which there is an entitlement to payment of damages at a time or for a period before the person becomes entitled to payment of damages by an employer or another person, is a first charge on any amount of damages recovered by the person to the extent of the amount paid as compensation to the person. (3) An employer or other person from whom the damages are recoverable must pay the insurer the amount of the first charge or, if the damages are not more than the amount of the first charge, the whole of the damages. (4) Payment to the insurer under subsection (3), to the extent of the payment, satisfies the liability of the employer or other person for payment of the damages. (5) A person can not settle, for a sum less than the amount that is a first charge on damages under subsection (2), a claim for damages had by the person independently of this Act for an injury to which there is an entitlement to payment of damages without the insurer’s written consent. (6) If, without the insurer’s consent, a settlement mentioned in subsection (5) is made, then to the extent that the damages recovered are insufficient to meet all payments due to the insurer under this section— (a) the insurer is entitled to be indemnified by the employer or other person who is required by the settlement to pay the damages; and (b) to that end, the insurer is subrogated to the rights of the person who has sought the damages, as if the settlement had not been made. (7) If a person who has received compensation has not recovered, or taken proceedings to recover, damages for the injury from another person, other than the worker’s employer— -- 16 of 49 -- 17 (a) the insurer is entitled to be indemnified for the amount of the compensation by the other person to the extent of that person’s liability for the damages, so far as the amount of damages payable for the injury by that person extends; and (b) to that end, the insurer is subrogated to the rights of the person for the injury. (8) Payment made as indemnity under subsection (7), to the extent of the payment, satisfies the person’s liability on a judgment for damages for the injury. … (10) In this section— damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.” [57] The fourth set of provisions appeared under Chapter 5, headed “Access to Damages”. [58] Section 237 provided as follows: “237 General limitation on persons entitled to seek damages (1) The following are the only persons entitled to seek damages for an injury sustained by a worker— (a) the worker, if the worker— (i) has received a notice of assessment from the insurer for the injury; or (ii) has not received a notice of assessment for the injury, but— (A) has received a notice of assessment for any injury resulting from the same event (the assessed injury); and (B) for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or (iii) has a terminal condition; (b) a dependant of the deceased worker, if the injury results in the worker’s death and— (i) compensation for the worker’s death has been paid to, or for the benefit of, the dependant under chapter 3, part 11; or (ii) a certificate has been issued by the insurer to the dependant under section 132B. -- 17 of 49 -- 18 (2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter. (3) If a worker— (a) is required under section 239 to make an election to seek damages for an injury; and (b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury; the worker is not entitled to seek damages. (4) However, subsection (3) does not prevent a worker from seeking damages under section 266. (5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.” [59] Section 239 provided as follows: “239 Worker who is required to make election to seek damages (1) This section applies if a worker’s notice of assessment states that the worker’s DPI is less than 20%. (2) If, in the notice of assessment, the worker is offered a payment of lump sum compensation under chapter 3, part 10, division 3 for the injury, the worker is not entitled to both— (a) payment of lump sum compensation for the injury; and (b) damages for the injury. (3) If, in the notice of assessment, the worker is required to make an election to seek damages for the injury, the worker can not change the worker’s election— (a) if the worker has elected to seek damages for the injury— after notice of the election is given to the insurer; or (b) if the worker is taken, under section 189 (7), to have elected to seek damages for the injury—after the worker lodges a notice of claim.” [60] Section 270, provided as follows: “270 When damages are to be reduced (1) The amount of damages that an employer is legally liable to pay to a claimant for an injury must be reduced by the total amount paid or payable by an insurer by way of compensation for the injury. -- 18 of 49 -- 19 (2) However, the amount of damages must not be reduced by an amount paid under section 193. (3) This section does not limit the reduction of the amount of the damages by any other amount that the insurer or the claimant is legally liable to pay on account of the worker under another law.” [61] Section 271 provided as follows: “271 Assessment by court of total liability for damages (1) This section applies if— (a) damages are awarded for an injury; or (b) damages are to be paid in settlement of a claim for an injury. (2) To establish the reduction under section 270 (1) in damages for compensation paid, the claimant or insurer may apply to— (a) the court in which the proceeding is brought; or (b) if a proceeding has not been started—the Industrial Magistrates Court. ...” [62] Section 288 provided as follows: “288 Application of div 1 This division does not apply to a claim that is otherwise settled by negotiation between the parties.” [63] The division referred to in s 288 covered ss 288 to 292, which regulated compulsory conferences and the making of written final offers. [64] Section 305 provided as follows: “305 Definitions for pt 8 In this part— duty means any duty giving rise to a claim for damages, including the following— (a) a duty of care in tort; (b) a duty of care under contract that is concurrent and coextensive with a duty of care in tort; (c) another duty under statute or otherwise that is concurrent with a duty of care mentioned in paragraph (a) or (b). duty of care means a duty to take reasonable care or to exercise reasonable skill (or both duties).” -- 19 of 49 -- 20 [65] Section 305A provided as follows: “305A Provisions not to apply to particular injuries (1) The provisions of this part other than division 4, do not apply in relation to deciding liability for injury if the injury resulting from the breach of duty is or includes— (a) an injury that is a dust-related condition; or (b) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke. (2) To remove any doubt, it is declared that a breach of duty mentioned in subsection (1) includes a breach of duty giving rise to a dependency claim.” [66] Section 305E provided as follows: “305E Onus of proof In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.” Resolution of separate question one (a) Real issue [67] As identified previously, separate question one will be answered by a determination of the real issue, being whether the causes of action in the current proceeding are “…claims for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or for unpaid superannuation which [the plaintiff] may be entitled to make.” (b) Contentions of the plaintiff [68] First, the plaintiff commenced by referring to the legal principles relevant to the construction of discharge and release clauses, as summarised in IBM Australia Pty Ltd v State of Queensland [2015] QSC 342 by Martin J (as his Honour then was), at [38]-[45]. [69] Those principles included an objective approach to the construction of the relevant clause. It was said that in construing such a clause, regard should be had to the common intention of the parties constituted by what a reasonable person would have understood by the language in which the parties had chosen to express their agreement. This approach ordinarily required a consideration of the text, as well as the surrounding circumstances which were known to both parties, together with the purpose and object of the transaction. [70] Secondly, the plaintiff then turned to the text of the deed. In particular, it was noted that the phrase “statutory benefits” which appeared in the qualification to cl 7.1 was not defined within the deed, or within the WCR Act. -- 20 of 49 -- 21 [71] Thirdly, it was noted that the plaintiff was a worker within the meaning of s 11 of the WCR Act and the defendant was an employer within s 30 of the WCR Act. The plaintiff submitted that the defendant’s duty of care which it owed to her was subject to the operation of ss 305, 305A and 305E of the WCR Act. [72] Fourthly, having regard to those matters set out above, it was submitted that the plaintiff’s claim contained in the statement of claim was one for “…statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)…”, because the claims were authorised by, and could only be brought in compliance with, the WCR Act. [73] Whilst it was conceded that the foundations of the causes of action pleaded were within the common law, the claims were said to be a “benefit” that was bestowed by (and so “under”) the WCR Act. [74] Fifthly, reference was made to the decision of Crowley J in Greenall & Anor v Amaca Pty Ltd [2023] QSC 137, particularly at [72] and [78]-[81]. It was submitted by the plaintiff that Crowley J had correctly described s 237 of the WCR Act as “…a ‘gateway’ through which a person must pass to recover damages for an injury sustained by a worker.”2 [75] It was said that the function of s 237 of the WCR Act was to reinforce that the right to claim damages was one which existed only in accordance with the WCR Act. Whilst it was conceded that the WCR Act did not itself provide a cause of action or entitlement to damages, it was submitted that it was apparent from the statutory scheme that a worker can only claim those damages in accordance with the statutory scheme itself. [76] It was said that the claims could not be initiated or continued without the scheme, and therefore the claims for damages were authorised by, and could only be brought pursuant to the WCR Act. [77] Sixthly, the plaintiff submitted that Part 8 of Chapter 5 of the WCR Act (being ss 305 to 305K) set out the elements of the plaintiff’s causes of action, rather than via the common law. It was further said that in relation to the assessment of damages, it could only take place in conformity with Part 9 of Chapter 5 of the WCR Act (being ss 306 to 306V). [78] It was submitted that as the WCR Act controlled the elements of the causes of action and the relief available to the plaintiff, it therefore conferred the right to claim damages so as to reinforce that the plaintiff’s claims under the current proceeding were ones which existed by virtue of the WCR Act and were therefore “under” that statute. [79] Because the right to claim damages was said to be one conferred (in the sense of only being exercisable in accordance with the WCR Act) and regulated by the WCR Act, the claims were said to be an advantage conferred by the statute and were thus said to each be a “statutory benefit.” 2 Greenall at [82]. -- 21 of 49 -- 22 [80] Seventhly, it was submitted that s 110 of the WCR Act does not produce a different result. That section provided that a worker or another person cannot relinquish an entitlement to compensation for an injury sustained by the worker or the person,3 and that an agreement made by the worker or the person which purported to relinquish the entitlement was of no force or effect.4 [81] It was said by the plaintiff that the reference to “statutory benefits” within cl 7.1 of the deed should not be construed as only referring to “compensation” payable to a worker under Chapters 3, 4 and 4A of the WCR Act. This was said to be so because otherwise the qualification to cl 7.1 would have no work to do and would be entirely superfluous, as s 110 of the WCR Act already precludes the ability to contract out of that compensation. [82] It was also said that it would be inconsistent with the overall statutory scheme if a worker could claim against WorkCover for statutory compensation but be barred from exercising their rights under Chapter 5 of the WCR Act to claim damages. [83] The plaintiff submitted that construing the qualification as being limited to the “compensation” referred to would lead to an absurdity if WorkCover were then given the sole discretion as to the amount of statutory benefits which an employee would be paid, knowing that if WorkCover determined such amounts to be nil or minimal, then there would be no remedy for an employee to elect to take a benefit of Chapter 5 of the WCR Act. [84] The eighth contention raised by the plaintiff occurred late in the initial hearing. It had not been one dealt with in the written submissions which had been filed prior to the hearing, in accordance with pre-trial directions. [85] The contention was one which was appropriate for the Court to receive, albeit the contention then spawned a great deal of further submissions and ultimately, the leading of further evidence. [86] I turn then to the contention itself. The plaintiff submitted that if the defendant’s construction were correct, namely that “statutory benefits” were only the statutory “compensation” dealt with in Chapters 3, 3A and 4 of the WCR Act, then the qualification to the deed had no real work to do, because s 119 of the WCR Act would operate to deprive the plaintiff of her entitlement to those “statutory benefits”. The presence and operation of s 119 was therefore said to point against a narrow construction of the phrase “statutory benefits”. [87] It was accepted by the plaintiff, at a theoretical level, that the operation of s 119 of the WCR Act would not have precluded the parties from concluding a settlement which would have operated so as to deprive the plaintiff of nearly all of her benefits. This was said to be an option which was theoretically open for the parties to agree to. However, it was said by the plaintiff that by reference to orthodox principles of construction, such a scenario, if objectively intended, would have been one which would have been expressly stated. It was submitted that no such express statement appeared in cl 7.1 of the deed. 3 Section 110(1) of the WCR Act. 4 Section 110(2) of the WCR Act. -- 22 of 49 -- 23 [88] The orthodox principle of construction relied upon was said to be that identified by Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109, where his Honour stated: “On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, “even though the construction adopted is not the most obvious, or the most grammatically accurate”, to use the words from earlier authority cited in Locke v. Dunlop…which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley’s Case…”5 (citations omitted) [89] The plaintiff submitted that the existence and operation of s 119 was an objective fact necessarily forming part of the background circumstances against which the deed was executed. [90] Ninthly, the plaintiff submitted that on her construction, the qualification to cl 7.1 still had work to do. The plaintiff said that the deed would exclude liability for breach of contract and negligence not regulated by the WCR Act, and other statutory causes of action. [91] Tenthly, the plaintiff rejected the defendant’s contention that the qualification to cl 7.1 was only present because the defendant was statutorily prohibited from contracting out of statutory compensation payable under the WCR Act. In support of that contention, the plaintiff submitted that only her construction gave both limbs of the qualification work to do. [92] The plaintiff said that the second part of the qualification to cl 7.1, namely the words “…other than any claim…for unpaid superannuation which [the plaintiff] may be entitled to make...”, was a reference to ensuring that any right which the plaintiff had to superannuation was preserved. It was submitted that this was particularly so in light of the operation of s 30 of the Superannuation Guarantee (Administration) Act 1992 (Cth). [93] It was said that only on the plaintiff’s construction did both the first part and the second part of the qualification have an operative effect. [94] Eleventhly, the plaintiff rejected the contention of the defendant that s 119 of the WCR Act was not directed to a claim for damages that was regulated by the WCR Act, but was rather directed to damages arising independently of the WCR Act which were not regulated by the WCR Act. [95] The defendant’s contention in this respect was said to be untenable. The plaintiff submitted that an obvious answer to it was that the language of s 119 had not contained such a significant qualification to its operation and no other sections within the WCR Act were pointed to as having established that significant qualification. Further, it was submitted by the plaintiff that s 119(5) contained a definition of damages for the purpose of that section which included “damages 5 See also Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 at 251. -- 23 of 49 -- 24 under a legal liability existing independently of this Act, whether or not within the meaning of section 10.” [96] The reference to legal liability within the meaning of s 10 of the WCR Act was said to have clearly indicated that s 119 had an application to damages claims regulated by the WCR Act. Further, the purpose of s 119 was said to have been to prevent a worker from accessing compensation and damages for the same injury, and that purpose provided no reason to limit the operation of s 119. [97] Twelfthly, the plaintiff made submissions which rejected the defendant’s submissions which sought to limit the operation of s 119 by reference to the proper construction and operation of other sections of the WCR Act. These submissions by the plaintiff were, in essence, responsive submissions and can be summarised briefly as follows: • In respect of the defendant’s contention that ss 207B and 270 of the WCR Act limited the scope of s 119, the plaintiff said that the defendant’s submissions were not made by reference to principles of orthodox statutory construction, but rather sought to retrofit the defendant’s preferred outcome onto the sections. • It was said by the plaintiff that the evident purpose of ss 207B and 270 of the WCR Act was to reinforce s 119 by preventing a worker from double- dipping. Those sections were said to prevent double dipping by different means, reflecting practicalities which arose from whether WorkCover was indemnifying the employer, or alternatively, whether the employer was self- insured. Section 207B of the WCR Act was said to be concerned with the situation where the employer was a self-insurer so that WorkCover had no direct control over the funds to be paid as damages, thereby necessitating the statutory charge created by that section. This was compared to the situation where WorkCover was indemnifying the employer, which was dealt with in s 270. • In particular, in relation to s 270 of the WCR Act, the plaintiff submitted that the word “payable”, as used in that section did not contemplate or require the continuation of compensation following the settlement of a damages claim. Rather, the use of the word “payable” was said to contemplate an amount of compensation that had been assessed but not yet paid, as opposed to contemplating a future assessment of compensation as contended for by the defendant. It was submitted that, in effect, both ss 207B and 270 of the WCR Act could be read consistently with the plaintiff’s construction of s 119 of the WCR Act. • The plaintiff said that there was nothing “perverse and absurd” about s 119 of the WCR Act operating in this way. The plaintiff submitted that no hierarchy as contended for by the defendant arose. This was because neither WorkCover nor an employer could compel a worker to settle a claim for damages. The worker had to choose to settle their claim. It was the worker’s act of settling his or her common law claim that brought the statutory compensation to an end by the operation of s 119. • The plaintiff contended that there was nothing in s 237 of the WCR Act (including in its immediate context and location in the WCR Act) which -- 24 of 49 -- 25 suggested that it was limited to circumstances where an employer was indemnified. • The plaintiff said that the purpose of ss 119, 207B and 239 of the WCR Act was simply to prevent a worker from recovering both compensation and damages, and nothing more. • The plaintiff rejected the contention of the defendant that the context in which s 119 of the WCR Act appeared, namely Division 5 Part 2 of Chapter 3, allowed the deducement of an intention to exclude the entitlement to compensation under the WCR Act in circumstances where an injured person had rights to payments or compensation from rights external to WorkCover’s indemnity of an employer. This contention of the defendant was said by the plaintiff to be a mere assertion. The plaintiff submitted that there was no attempt by the defendant to explain why its contention was so, or why s 119 was subject to the limitation that the right to compensation must arise in a circumstance where WorkCover did not indemnify an employer. • The plaintiff referred to certain examples which the defendant had given. The plaintiff submitted that these examples were conjured to fit the defendant’s construction, and were unhelpful to the proper construction task. The plaintiff submitted that the proper approach to be applied when construing the statute was to consider the text read in light of its context and purpose, as opposed to construing it by reference to hypothetical examples. • The plaintiff accepted that the explanatory note to what was to become s 119 had provided, in part, as follows:6 “Entitlement to compensation ends if damages claim is finalised Clause 119 replaces section 144 of the WorkCover Queensland Act 1996 and has not been changed. It applies if a worker is entitled to compensation under this legislation and has a right of action against their employer, or other person, to recover damages independently of this legislation (e.g. compulsory third party, public liability). It states that entitlement to compensation ceases when a damages action is settled (either by agreement or judgement).” The plaintiff submitted that merely because examples were given in the explanatory memorandum, that this did not dictate a conclusion that s 119 only applied where an employer was indemnified. Via the definition of damages in s 10 of the WCR Act, the right to claim damages against an employer for negligence was said to arise independently of the WCR Act, but for the reasons previously advanced, the plaintiff said that such a claim was still a “statutory benefit” conferred under the WCR Act. [98] Thirteenthly, the plaintiff rejected the defendant’s contention that s 119 of the WCR Act had no operation prior to a claimant complying with their obligations under s 237 of the WCR Act. The defendant’s submission in this respect was that a claimant did not have an entitlement to compensation until one of the conditions in 6 Explanatory Note - Workers’ Compensation and Rehabilitation Bill 2003 (Qld), p. 35. -- 25 of 49 -- 26 s 237 had occurred. The plaintiff contended that s 119 operated in accordance with its terms, regardless of whether one of the pre-conditions in s 237 had been satisfied. [99] The plaintiff stated that s 237 of the WCR Act was concerned with providing a gateway through which a claimant had to pass in order to “seek” damages, whereas s 119 of the WCR Act was concerned with the cessation of an entitlement to compensation. [100] The plaintiff submitted that there was nothing absurd about there having been a settlement for damages entered into prior to a worker complying with one of the conditions in s 237 of the WCR Act. The plaintiff said that the entitlement to compensation would be extinguished simply because the worker had chosen to settle the claim for damages, and that there might be any number of reasons why he or she would do so, including for a nil dollar amount. [101] Further, the plaintiff said there was no tension between ss 110 and 119 of the WCR Act. The plaintiff contended that the sections were directed to different things, with s 119 being part of a number of provisions aimed at stopping a worker from being doubly compensated for the same injury. The plaintiff criticised the submission of the defendant as being one which sought to put a gloss on the language of the WCR Act. [102] Fourteenthly, the plaintiff also disputed a contention of the defendant that the plaintiff had failed to establish that she had, as a matter of fact and law, an entitlement to compensation. The plaintiff submitted that her argument did not depend on whether she had such an entitlement at the time of settlement. The plaintiff said if the underlying common law damages claim was compromised, then whatever entitlement she had was extinguished upon the execution of the deed. It was this scenario which the plaintiff submitted would lead to the unreasonable result which the parties must have, objectively, been taken to have wished to avoid.7 [103] Finally, the plaintiff disputed the contention of the defendant to the effect that the defendant’s construction would still allow for a residual range of statutory benefits to be claimed under the WCR Act. This contention of the defendant was said by the plaintiff to be misconceived and divorced from the circumstances of the present proceeding. In this respect, the following submissions were made. [104] The plaintiff submitted that there was no ongoing “right to assessment” under the WCR Act because upon settlement of the damages claim, the plaintiff would have surrendered her entitlement to compensation. [105] The reference by the defendant to surviving statutory benefits under Chapter 4A of the WCR Act was said by the plaintiff to be both absurd and a red herring. The plaintiff submitted that Chapter 4A only applied where a worker had sustained a “serious personal injury”, such as spinal cord damage, traumatic brain injury, loss of limb or full thickness burns. There was never any suggestion that the plaintiff had suffered injuries of that kind. 7 Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235. -- 26 of 49 -- 27 [106] The plaintiff submitted that, in respect of the defendant’s contention that she was in a position to receive support services through WorkCover, there was no realistic prospect of that occurring because her application would be rejected. At most, the plaintiff said that she might receive some funds while the bureaucratic processes within WorkCover worked inevitably to the conclusion that the plaintiff was not entitled to compensation. In such a situation, the qualification in cl 7.1 of the deed would not be a carve out which served a real material purpose. [107] Further, it was said that it was irrelevant that WorkCover may, in its discretion, choose to confer a benefit on a worker. [108] At best, the plaintiff submitted, that the catalogue of “statutory benefits” assembled by the defendant amounted to the possibility that the plaintiff (or someone in her position) could receive support services while paperwork was processed within WorkCover, or that she had the right to a “grace and favour” type payment from WorkCover. (c) Contentions of the defendant [109] First, the defendant also referred to principles of construction broadly in accordance with those identified by the plaintiff. In doing so, specific reference was made to the eight principles articulated by Santow J in Karam v ANZ Banking Group Ltd [2001] NSWSC 709 at [406].8 [110] Secondly, the defendant observed that the qualification to cl 7.1 of the deed had two aspects. The first was in respect of “…any claim for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)…which [the plaintiff] may be entitled to…” and the second being “…any claim…for unpaid superannuation which [the plaintiff] may be entitled to...” [111] The defendant said that, properly construed, the parties only intended by both aspects of the qualification to exclude the purported release and discharge of liabilities, or claims which could not be contracted out of or released by force of statute. [112] Thirdly, in support of the last submission, the defendant relied on s 110 of the WCR Act, which it said prohibited a worker from releasing his or her rights to statutory compensation. The defendant submitted that s 110 complemented s 109(3) of the WCR Act, which prohibited an employer, who was not a self-insurer, from paying a worker any amount, either in compensation or instead of compensation, that was payable by WorkCover under the WCR Act for an injury sustained by the worker. [113] In a similar way, the defendant submitted that the second part of the qualification was intended to operate consistently with s 30 of the Superannuation Guarantee (Administration) Act 1992 (Cth), which prohibited any arrangement to reduce the amount of superannuation paid or payable to an employee (including a former employee). [114] The defendant submitted that no such equivalent restriction was placed on the ability of an individual claimant to settle a common law damages claim regulated by 8 Reversed on appeal in ANZ Banking Group Ltd v Karam (2005) 64 NSWLR 149 on other grounds. -- 27 of 49 -- 28 the WCR Act. Further, it was said that the WCR Act contemplated that very thing occurring. In this respect, Part 6 of Chapter 5 of the WCR Act was pointed to. Within that Part, s 288 was said to provide that the requirement on parties to a common law claim for damages to attend a compulsory conference did “not apply to a claim that [was] otherwise settled by negotiation between the parties.” In making this submission, the defendant also made reference to s 293, which contemplated that the common law damages claim could be settled before the start of a court proceeding. [115] Fourthly, the defendant relied upon the broad acknowledgment by the parties contained in cl 13.1(d) of the deed to support the contention that cl 7.1 was objectively intended to release and discharge each and every liability, claim, dispute and difference between the parties, except those which they could not contract out of. [116] Fifthly, whilst the defendant accepted that the phrase “statutory benefits” was not defined in the WCR Act, it submitted that the concepts of “compensation” and “damages” were generally defined in ss 9 and 10 respectively. [117] It was submitted that, as s 108 of the WCR Act recognised, the Act provided a statutory scheme for the provision of “compensation” which was a no-fault scheme. The compensation was said to be payable, either by WorkCover Queensland or, alternatively, by the employer if they were self-insured. The statutory compensation could be broadly categorised as follows: • Compensation under Chapter 3, comprising weekly payments of compensation until a maximum statutory amount was reached, and the payment of lump sum compensation for permanent impairment. • The provision of medical treatment, hospitalisation and rehabilitation under Chapter 4, where those costs of treatment and expenses were not paid to the worker but were instead directed to the service or treatment provider. • The provision of medical treatment, hospitalisation and rehabilitation under Chapter 4A, where a worker suffered what was defined to be a “serious personal injury”. [118] The defendant pointed to various authorities which were said to recognise the fundamental distinction between “compensation” within the s 9 definition and “damages” within the s 10 definition in the WCR Act. [119] Reference was made to Tickner v Teys Australia Biloela Pty Ltd (2020) 4 QR 143, where Crow J spoke of the distinction in the following terms:9 “ The effect of s 271, is that it requires a court to, firstly, make an assessment as to the damages and then the Court must make an assessment of the reduction for the total amount paid or payable by an insurer by way of compensation for injury. That is, the amount of damages needs to be assessed based on the factual findings made by a trial judge applying common law principles as modified by Ch 5, Pt 9 WCRA. Following the assessment of 9 Tickner v Teys Australia Biloela Pty Ltd (2020) 4 QR 143 at [8]. -- 28 of 49 -- 29 damages it is then necessary, using the same factual findings, for the Court to establish the reduction with reference to the total amount paid or payable by the insurer to compensate for the injury. The resulting difference is the amount the employer “is legally liable to pay”, which will form the judgment amount.” [120] Sixthly, it was said that, despite there being no definition of “statutory benefits”, there was language within the WCR Act that equated compensation with benefits. In particular, reference was made to ss 5(1)(a) and 5(4)(a)(i), which referred to the WCR Act establishing a workers’ compensation scheme for Queensland providing “benefits” for workers who sustain an injury in their employment, and for the relevant scheme maintaining a balance between fair and appropriate “benefits” for injured workers. [121] It was noted that in the decision of Crown Equipment Pty Ltd v ACN 098 568 702 Pty Ltd & Anor [2013] QSC 24, Ann Lyons J (as her Honour then was) at [10] and [59] used the terminology “statutory benefits” to refer to the statutory “compensation” entitlement found within the WCR Act. [122] Seventhly, the defendant submitted that on a plain and natural reading, a common law claim for damages was not a “benefit”, let alone a “statutory benefit”. Rather, it was submitted that an award of damages was a sum calculated to compensate for proven loss, the measure of which was to place the plaintiff in the position so far as money could, as if the tortious act or omission had never occurred. It was said that it would be a strained and awkward construction to read a claim for damages as a “statutory benefit” under the WCR Act. [123] Eighthly, it was said that s 237 of the WCR Act provided no support for the plaintiff. The defendant submitted that the section did not convert a claim for damages into a “statutory benefit”. Rather, s 237 was said to provide a limitation on those workers who were entitled to sue an employer. In that way, s 237 of the WCR Act was said to regulate access to the court to claim damages, but did not otherwise legislate the existence of the liability for damages, nor provide the statutory entitlement to sue. [124] On its proper construction, it was said that s 237 was a form of limitation, not a provision of a grant of a benefit. It operated to take away an existing right that a person would have had, apart from the section, to have commenced a common law damages claim against an employer. The defendant contended that, put simply, s 237 of the WCR Act was not the provision of a benefit but the imposition of a burden. [125] In this respect, the defendant relied upon the statement of Keane JA, as his Honour then was, in Watkin v GRM International Pty Ltd [2007] 1 Qd R 389, where his Honour stated:10 “ It is securely established that the provisions of s 237(1) of the WCRA exhaustively describe those persons who may seek damages, and s 237(5) denies a person who is not within any of 10 Watkin v GRM International Pty Ltd [2007] 1 Qd R 389 at [20]. -- 29 of 49 -- 30 those descriptions any entitlement to seek damages from the appellant for the injury in question. That this reflects the scope of s 237 of the WCRA was affirmed by each member of this Court in Hawthorne v Thiess Contractors P/L & Anor. In that regard, speaking of the precursor of s 237, McMurdo P said: “The appellant, not having complied with the provisions of the Act, was unable to seek damages for injury either under the Act or at common law.” (footnotes omitted) [126] The defendant submitted that an employer is liable to pay damages if (and only if) it has been negligent. That required that the employee establish, independently of the WCR Act, breach, causation and damage. The defendant submitted that is not a statutory right, entitlement, or benefit. It was a common law chose in action, access to which had been delimited. [127] The defendant contrasted this with the statutory right of compensation created under the WCR Act. That right could exist, even where there had been no negligence on the part of the employer. An example was given by the defendant of a scenario where a worker was injured through the explosion of a latent defect in the engine of a motor vehicle used in employment. The manufacturer of the engine may have been negligent, but the employer would not have been. It was said that the worker would still receive statutory compensation for his or her injuries from WorkCover or the employer if self-insured. It was submitted that s 237 of the WCR Act did not convert the right to statutory compensation into a claim for damages against the employer simply because the worker was assessed as having a particular permanent injury. [128] Ninthly, reliance was also placed on cl 9.1 of the deed and the broad terms of the bar to proceedings. It was pointed out that part of the settlement involved the converting of the termination of the employment of the plaintiff into a resignation by the plaintiff of her employment. In such a circumstance, it was submitted that it could only have been a common law breach of contract or negligence claim which the bar to the proceeding was aimed at. [129] Tenthly, the defendant said that the plaintiff’s suggestion that different words could have been used to achieve a clearer result was neither persuasive nor helpful in resolving the dispute as to the proper construction of the words actually used. In this respect, the defendant referred to Charrington & Co Ltd v Wooder [1914] AC 71 at 82, where Dunedin LJ stated as follows: “…I do not think it rests with either party to say to the other, “If the meaning is as you contend, why did you not express it otherwise?” Both contentions as to the true meaning can be expressed by a gloss…If either of these glosses had been expressed there would be no possibility of dispute. It therefore comes back to the question, What is the true interpretation of the expression in the contract?” [130] Eleventhly, in relation to the plaintiff’s contention arising from s 119 of the WCR Act, the defendant submitted that the operation of s 119 was irrelevant to the construction of the deed. -- 30 of 49 -- 31 [131] The defendant contended that the words in cl 7.1 of the deed, when read with the acknowledgment in cl 13.1 and the words in cl 9.1, unambiguously provide for the qualification to act as a “belt and braces” clause, namely one operating for the avoidance of doubt in respect of matters which could not be contracted out of. [132] Quite apart from what the defendant contended was the clear and unambiguous language of cl 7.1 of the deed construed in the context of the other clauses referred to above, the defendant said further that the operation of s 119 of the WCR Act should not be construed in a vacuum. The defendant submitted that the Court should not be asked to speculate as to whether s 119 of the WCR Act had any operation at the time the deed was entered into. [133] The defendant said that no evidence was led by the plaintiff as to whether s 119 of the WCR Act was notorious to the parties, or that the construction contended for by the plaintiff was commonly understood by the parties. It was submitted that s 119 was not referred to in the deed. [134] The defendant contended that if the plaintiff wanted to demonstrate that s 119 was relevant to the objective interpretation of the deed, it would be incumbent on the plaintiff to refer to background facts known to both parties that supported an objective intention that, because of the common understanding of the operation of s 119 of the WCR Act, “statutory benefits” were intended to cover something more than the “compensation” provided for under the WCR Act. [135] The defendant contended that, in the absence of any such jointly known background facts, the parties’ express intention was only to carve out “statutory benefits” under the WCR Act. This did not include common law damages claims. [136] The defendant submitted that, even if the plaintiff’s construction of s 119 of the WCR Act was correct, that would not warrant the Court finding that “statutory benefits under the WCR Act” extended to a right to claim for a liability arising independently of the WCR Act. That is, such a construction of s 119 would not change the parties’ objective intentions. [137] The defendant contended that, objectively construed, the parties’ intention was to sever entirely, once and for all, the entirety of their relationship and any possible liability arising from it. The qualification was made with respect to two possible rights, only because those rights could not be contracted out of. There was nothing within the deed itself which suggested that each of those rights were carved out for any other reason. It was said by the defendant that, at best for the plaintiff, the effect of s 119 of the WCR Act was that the carve out may appear capricious or unreasonable, but capricious or unreasonable outcomes do not amount to ambiguity. The defendant contended that the Court should not depart from the ordinary meaning of the words used, and that no construction choice arose. [138] In addition, the defendant contended that, even on the plaintiff’s construction of s 119 of the WCR Act, there remained several real and material “statutory benefits” under the WCR Act which the plaintiff would continue to enjoy, even if she lost her “entitlement to compensation” upon the execution of the deed. -- 31 of 49 -- 32 [139] Twelfthly, turning then to the proper construction s 119 of the WCR Act, the defendant said that if this issue was relevant to the interpretation of cl 7.1 of the deed, then on its proper construction: (a) section 119 did not deal with the settlement of a claim for damages for a liability which an employer is indemnified for under the WCR Act; or (b) alternatively, if it did, s 119 required two facts to be established in order to operate, namely: (i) the “entitlement to recover damages”, which was said to arise when the pre-requisites in s 237 of the WCR Act were met and the claim was one made against an employer who was indemnified under the WCR Act; and (ii) the “entitlement to compensation”, which was said to require the claimant to have an accepted “claim for compensation” after having made an application under s 131 of the WCR Act. [140] Thirteenthly, the defendant contended that, on the proper construction of s 119 of the WCR Act, that section was not directed to a claim in negligence against an employer for a breach of the employer’s duty of care, but rather, it was directed to liabilities for which an injured worker was entitled to claim damages which arose independently of the WCR Act and which were not regulated by the WCR Act at all. The examples given by the defendant were claims in negligence against a motorist or claims against an occupier. Those claims were said to arise either against a third party, or against an employer, where the claims were not regulated by the WCR Act. [141] Critically, the defendant said that it was the settlement of, or the giving of a judgment in respect of damages of such claims which ended the entitlement to compensation under the WCR Act by operation of s 119. [142] The converse proposition put forward by the defendant was that s 119 of the WCR Act applied to the settlement of claims for damages against another person or employer if the liability for damages that was settled, or the subject of a judgment, was not a liability for damages which an employer was indemnified against pursuant to the WCR Act. A number of submissions were advanced in aid of that proposition as follows. [143] The proposition was said to be compelled by the terms and operation of ss 109, 109A, 110, 119, 207B, 270 and 271 of the WCR Act. [144] The defendant submitted that s 109 of the WCR Act covered a situation where WorkCover must pay the compensation. Under that section, an employer was said to be prohibited from paying a worker an amount either in compensation, or instead of compensation, that was payable under the Act by WorkCover. [145] Section 109A of the WCR Act provided for a penalty to be imposed on the employer if it made such a payment which was prohibited by s 109. -- 32 of 49 -- 33 [146] Section 110 of the WCR Act was said to complement the operation of s 109. It was said to do so in part by prohibiting the making of any agreement which purports to relinquish a worker’s entitlement to compensation. [147] Those two provisions were said to demonstrate one of the manifest purposes of the WCR Act, namely to create an entitlement for an injured worker to participate in the statutory scheme. This was said to be done by providing for an employer to be indemnified by WorkCover under the WCR Act, whilst also providing for that employer to be effectively prohibited from stopping an injured worker participating in such a scheme. [148] Turning then to s 207B of the WCR Act. That section was then said to provide for the imposition of a statutory charge on damages recoverable by a worker who has claimed compensation under the WCR Act. That charge was said to apply to damages recoverable from an employer (or other person), except for those damages that an employer was indemnified for by WorkCover, or where the employer was self-insured. [149] The defendant highlighted that under s 207B of the WCR Act: (a) any amount paid by WorkCover had the benefit of a first charge on any amount of damages recovered; (b) a worker could not settle without WorkCover’s written consent for a sum less than the value secured by the first charge on damages; (c) if there was a settlement for less than the amount secured by the first charge, then WorkCover would be subrogated to the rights of the worker as if the settlement had never been made; and (d) if the worker had not sued the employer or third party at all, WorkCover was subrogated to the rights of the worker for the injury. [150] The defendant sought to contrast the position under s 207B of the WCR Act with that under s 270. [151] The defendant submitted that s 270 provided that any damages that an employer was liable to pay must be reduced by the total amount paid or payable by WorkCover. The defendant said that the reference to “payable” in s 270 was a reference to what would be payable by WorkCover in the future under the compensation scheme. The defendant said that, to the extent there was a debate about what would be payable in the future, that could be resolved by the Court pursuant to s 271. I pause to note that s 271 of the WCR Act does not itself use the word “paid” and “payable”, but only refers to “compensation paid”. [152] It was within this textual context that the defendant said s 119 of the WCR Act was to be construed. [153] The defendant contended that in this context, s 119 of the WCR Act should not be interpreted as applying to the settlement of damages against an employer who was indemnified by WorkCover for a claim for damages regulated by the WCR Act. The defendant said that the opposite construction would produce a perverse and absurd result because: -- 33 of 49 -- 34 (a) the employer could not make any payment for or instead of compensation to the person so that any settlement between the person and the employer (as here) could never be the payment of or commensurate to weekly compensation, medical treatment or expenses, or “lump sum” compensation governed by the WCR Act ‘no fault’ scheme; (b) WorkCover, as statutory insurer for the employer, could not, in any settlement of damages, include any amount for compensation paid or payable by it, so that the person would not recover damages for any future weekly compensation, any future treatment and rehabilitation expenses, or any ‘lump sum’ compensation; and (c) the mere fact of settlement would immediately end the person’s entitlement to compensation, being the very thing both the employer (personally) and WorkCover (as insurer) were unable to provide to the person by way of settlement. [154] The defendant submitted that this cannot have been Parliament’s intention, as it would permit WorkCover to avoid paying compensation in a ‘no fault’ scheme whilst simultaneously reducing its liability for damages. The defendant also said that it would also render the operation of s 110 of the WCR Act nugatory, because s 110 would have the practical effect of relinquishing a worker’s entitlement to compensation. [155] Accordingly, the defendant contended that there was a hierarchy of provisions within the WCR Act. This was said to be achieved by regarding s 119 as only applying to liability which WorkCover did not indemnify. When this construction was applied, the absurdity referred to above was said not to arise, and s 119 of the WCR Act applied naturally to the settlement of damages for any liability external to, and otherwise not regulated by, the WCR Act. [156] In that respect, it was said that there was a harmonious and uniform operation between: (a) sections 119 and 207B of the WCR Act (applying to those liabilities which were not indemnified by WorkCover); and (b) sections 110 and 270 of the WCR Act (applying to those liabilities which were indemnified by WorkCover). [157] The defendant said that this sat neatly with Parliament’s intention for persons not to be compensated twice. In the case of a situation where the worker received damages arising from a liability that WorkCover did not indemnify, WorkCover would receive the amount of compensation it had paid via the statutory charge under s 207B of the WCR Act and otherwise was not required to pay anything more because the entitlement to compensation ceased pursuant to s 119 of the WCR Act. [158] The defendant said that the effect was that the loss, both past and future, was sheeted on to the tortfeasor being a person WorkCover was not required to indemnify. [159] For a liability that WorkCover was required to indemnify, it was said that both past and future compensation would be deducted from any award of damages pursuant to -- 34 of 49 -- 35 s 237 of the WCR Act, and an employer would be prohibited from paying compensation or paying anything instead of compensation. It was said that in this way the injured person would have received, and would continue to receive, compensation to the full extent of the scheme in accordance with the object and purpose of the Act without there being a “double dip”. [160] The defendant sought to illustrate why s 119 of the WCR Act ought not be given the construction contended for by the plaintiff. It gave examples of where a worker suffered an injury and where that worker had initially contended that it was his or her employer who was liable to him or her in negligence. The defendant added to the scenario further facts, namely that the worker subsequently identified that, in fact, the liability lay with a third party occupier or a third party motorist who caused the injury, and not the employer who was factually and legally blameless in terms of negligence. It was said in that factual circumstance, if the worker then settled with an employer on a ‘walk-away’ basis with mutual releases and discharges, on the plaintiff’s construction of s 119, the person would be denied the ‘no fault’ compensation under the WCR Act. It was said that this would be so, even if the person did not wish to proceed against the third party occupier or motorist for whatever reason, or where any settlement for damages against the third party may take years to come to fruition. It was said in the meantime the person would be unable to work or afford medical treatment or rehabilitation. This was submitted to be an absurd outcome. [161] The defendant then submitted that, regardless of the other submissions made above, s 119 of the WCR Act only applied to a liability of an employer arising independently of the WCR Act in circumstances where the employer was indemnified by WorkCover. The defendant said that the meaning of “entitlement to recover damages” in s 119(1)(b) was a reference to a person who had met the requirements of s 237 of the WCR Act. [162] The defendant submitted that s 237 of the WCR Act was a provision of limitation which regulated access to damages against an employer for a liability arising independently of the WCR Act. It was said to confine the categories of people who were “entitled to seek damages” against an employer. [163] The “notice of assessment” referred to in ss 237(1)(a)(i) and 237(1)(a)(ii) of the WCR Act was said to be a reference to the operation of Part 10 Division 2 of Chapter 3 of the WCR Act. In particular, s 179 of the WCR Act provided for WorkCover, or the person claiming, to ask WorkCover to have the person’s injury assessed so as to decide if the injury had resulted in a degree of permanent impairment (“DPI”). Under s 185, WorkCover then was to give notice of the assessment of any DPI to the injured person. For any assessment greater than zero per cent, the DPI would then equate to an offer made by WorkCover for the payment of lump sum compensation in accordance with ss 180 and 187 of the WCR Act. [164] It was said that s 239 of the WCR Act then mandated that an election was required to be made by a worker who suffered an injury that was assessed to be less than 20 per cent DPI. Those persons were entitled either to a lump sum payment, or to seek damages against the employer, but not both. [165] The defendant contended that a person entitled to “seek damages” was one who: -- 35 of 49 -- 36 (a) had received a notice of assessment with a DPI of more than 20 per cent for at least one injury; or (b) had received a notice of assessment of a DPI less than 20 per cent, who had then elected to seek damages, and who had not received lump sum compensation; or (c) had a terminal condition. [166] The defendant said that it necessarily followed, as a matter of logic and common sense, that unless and until a person was entitled to seek damages against an employer, they could have no “entitlement to recover damages”. The defendant said that the effect of s 237 was that a person was not entitled to seek damages and had no entitlement to recover them until a notice of assessment had been issued. [167] The defendant submitted that the above construction accorded with the statutory scheme, and said further that there was a discernible statutory intention in ss 109, 110, 237 and 270 of the WCR Act to the effect that the statutory compensation scheme would run its course for a person who had suffered an injury, where the circumstances also gave rise to a liability to which an employer was indemnified by WorkCover. [168] The defendant submitted that any construction of s 119 of the WCR Act which allowed for a settlement of a damages claim, to extinguish a person’s entitlement to compensation prior to s 237 being met, would be one which was absurd. The defendant said that such a construction would see a worker receive nothing in exchange for their entitlement to compensation, being the one thing that a person could not relinquish. [169] The defendant said that its construction ameliorated a tension between s 110 and s 119 which existed on the plaintiff’s contended for construction. This was because, on the defendant’s construction: (a) a person had the benefit of the statutory compensation scheme until a notice of assessment issues (save for cases of terminal conditions); and (b) the entitlement to compensation ended if a claim for damages was settled after that point. [170] The defendant submitted that its construction was not inconsistent with the purpose of s 119 of the WCR Act, which was to ensure that a worker never recovered twice in respect of the same injury by the payment of damages and compensation. It was said that the defendant’s construction did not render that purpose nugatory. [171] The defendant said that it, as an employer, could not pay an amount of compensation to the plaintiff, as a result of s 109, and that the corollary was that the plaintiff never had an entitlement to payment of compensation from the defendant, nor could she relinquish her rights to it, and WorkCover, as the statutory insurer, was not liable to pay damages for any amount that had been or would be paid as compensation. [172] The defendant rejected the plaintiff’s contention which was said to be to the effect that the qualification to cl 7.1 of the deed conferred no value if the defendant’s -- 36 of 49 -- 37 construction were correct, because on such a construction once a claimant was issued with a notice of assessment, the plaintiff said the entitlement to compensation would end. [173] It was submitted by the defendant that this particular contention by the plaintiff was misconceived, as a notice of assessment could only be issued if a worker has sustained a DPI from the injury and either the worker or WorkCover sought to have the person assessed. In order for there to be a DPI to be assessed for an injury, the injury must be “stable and stationary and not likely to improve with further medical or surgical treatment”.11 Unless and until that time occurs, a worker is entitled to compensation weekly (if fully or partially incapacitated for work), and to medical and rehabilitation costs and expenses, pursuant to Part 9 of Chapter 3, and Chapters 4 and 4A respectively. [174] In addition, it was said by the defendant that following a notice of assessment, a worker would be entitled to lump sum compensation for any permanent impairment.12 [175] The defendant said that these were the very things that fall within the meaning of “statutory benefits” under the deed. The defendant said that on its construction of s 119 of the WCR Act, all of those benefits remain. [176] The defendant referred to the decision in WorkCover Queensland v Turner Freeman [2020] QCA 194, and the obiter dictum of Williams J, that if a dependent settled a s 64 Civil Proceedings Act 2011 (Qld) wrongful death proceeding, then s 119(2) of the WCR Act would operate so as to end any entitlement to compensation. The defendant submitted that the other members of the Court had not joined in on this statement, that the statement was obiter, and that the issue underlying the statement should not have considered the argument. It was submitted that the statement ought not be followed. (d) Resolution of the contentions [177] I have resolved the real issue for question one by concluding that the causes of action in the present proceeding are not “…claims for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or for paid superannuation which [the plaintiff] may have been entitled to make.” Accordingly, the causes of action in the present proceeding have been released and discharged by cl 7.1 of the deed. My reasoning for this conclusion is set out below. [178] There was little dispute between the parties as to the proper rules of construction applicable to a release and discharge. I adopt the summary of general principles governing the construction of such release and discharge clauses as articulated by Martin J (as his Honour then was) in IBM Australia Pty Ltd v State of Queensland [2015] QSC 342 at [38]-[45]. As in that decision, I adopt the list of relevant principles which had been developed by Santow J in Karam v ANZ Banking Group Ltd [2001] NSWSC 709 at [406]. It is appropriate to set them out as follows: “(1) In construing a release…the Court should ascribe to the release the meaning that the release would convey to a reasonable person 11 Section 38 of the WCR Act. 12 See ss 180, 185 and 187 of the WCR Act. -- 37 of 49 -- 38 having all the background knowledge which would reasonably have been available to the parties at the time that they signed the document containing the release: ICS v West Bromwich BS [1998] 1 All ER 98 per Lord Hoffman at 114. (2) In order for the Court to give effect to what in an objective sense the contracting parties intended, it is clear that a party may agree to release claims or rights of which it is unaware and of which it could not be aware, provided clear language is used to make plain that that is its intention: see Salkeld v Vernon (1758) 1 Eden 64, 28 ER 608 per Lord Keeper Henley. (3) Consistent with this emphasis on intention, general words in a release are limited to what was specifically in the contemplation of the parties at the time when the release was given: Grant v John Grant and Sons (1954) 91 CLR 112 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Iletrait Pty Limited v McInnes (NSWCA, 17 April 1997, unreported) per Priestley JA with whom Grove AJA and Handley JA agreed). (4) Although there are no special rules of construction, such as a contra proferentem requirement, in the absence of clear language courts have been slow to infer that a party intended to surrender rights and claims of which it was unaware and could not have been aware: BCCL v Ali [2001] 1 All ER961 at 966 per Lord Bingham, (contrast Lord Nicholls in BCCL v Ali (supra) at 971- 72 who was of the view that for the purposes of construction a general release is simply a term in the contract). (5) Although each release should be considered against its own matrix of facts, an example of this line of “cautionary principle” (Lord Bingham’s phrase) is the frequently cited judgment of the High Court of Australia in Grant v John Grant & Sons Pty Limited (supra), where Dixon CJ, Fullagar, Kitto and Taylor JJ (at 125) referred with approval to the proposition put by Sir Frederick Pollock in his “Principles of Contract” (Stevens: London, 1950) 13th ed at 412, that “in equity a release shall not be construed as applying to something of which the party executing it was ignorant.” (6) Despite the fact that, strictly speaking, releases are subject to no special rules of construction, a transaction in which one party agrees in general terms to release another from any claims upon it does have special features: BCCL v Ali at 984 per Lord Hoffman. (7) In such circumstances it may well be appropriate to imply an obligation upon the beneficiary of such a release to disclose the existence of claims of which it actually knows and which it also realises might not be known to the other party: BCCL v Ali at 984 per Lord Hoffman, for such an obligation is consistent with a concern to protect parties from sharp practice, by preventing advantage being taken of the known ignorance of the conceding -- 38 of 49 -- 39 party; BCCL v Ali per Lord Nicholls at 973. (The Bank made no such disclosure here.) (8) Most recently in this Court in Amaca Pty Limited formerly known as James Hardie & Coy Pty Limited v CSR Limited [2001] NSWSC 324, Bergin J adopted the principles of construction broadly as outlined above, including the “cautionary principle” and taking into account the purpose of the contract and the circumstances in which made.” [179] In addition, I have also had regard to the general observations of the High Court in Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 at 129-130: “From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances, including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor.” [180] Having identified those principles, I turn to the individual reasoning behind my conclusion. [181] First, the appropriate place to start in the construction of cl 7.1 of the deed is the concession by the plaintiff that the main portion of cl 7.1 (ie excluding the qualification in the last three lines commencing with the words “…other than…”) was wide enough to capture the common law damages causes of action for breach of a duty of care, and for breach of contract in relation to the alleged sexual harassment. That is, the language of the main portion of cl 7.1 read within the context of the deed, was wide enough to cover the entirety of the causes of action constituted by the current proceeding. [182] The question then is, what does the qualification mean by the words “…other than any claim for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or for unpaid superannuation which [the plaintiff] may be entitled to make.” In particular, do the pleaded causes of action fall within the qualification so that they are not thereby released and discharged. [183] Critical to the qualification are the words “…any claim for statutory benefits under” the WCR Act “…which [the plaintiff] may be entitled to make.” Those words invite an examination of the provisions of the WCR Act to assist in determining what they mean. This is particularly so, as cl 7.1 itself references the WCR Act specifically. [184] Within the WCR Act, there is a fundamental distinction between statutory “compensation” which is created under the WCR Act itself, and the concept of “damages”, which are damages for injury in respect of legal liabilities which have been created independently of the WCR Act. [185] That distinction starts to emerge in s 5 of the WCR Act. Section 5(1) relevantly states: -- 39 of 49 -- 40 “5 Workers’ compensation scheme (1) This Act establishes a workers’ compensation scheme for Queensland— (a) providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits…” [186] Section 5(2) of the WCR Act then relevantly states that the main provisions of the scheme provide the following for injuries sustained by workers in their employment: “… (a) compensation; … (b) regulation of access to damages; (c) employers’ liability for compensation; …” [187] Section 5(4) of the WCR Act then relevantly states: “(4) It is intended that the scheme should— (a) maintain a balance between— (i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and (ii) ensuring reasonable cost levels for employers; and … (c) provide for the protection of employers’ interests in relation to claims for damages for workers’ injuries; and ...” [188] The distinction is then made patently clear in the definitional sections which are then used to inform the operative portions of the WCR Act. [189] Section 9 of the WCR Act defined the term “compensation” as follows: “9 Meaning of compensation Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3, 4 and 4A by an insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act.” [190] Section 10 of the WCR Act defined the term “damages” as follows: -- 40 of 49 -- 41 “10 Meaning of damages (1) Damages is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to— (a) the worker; or (b) if the injury results in the worker’s death—a dependant of the deceased worker. (2) A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under— (a) another Act; or (b) a law of another State, the Commonwealth or of another country. …” [191] “Compensation” on the one part is a benefit created “under” Chapters 3, 4 and 4A of the WCR Act. “Damages”, on the other part, are damages in respect of legal liabilities created independently of the WCR Act. “Damages” will therefore include damages payable under a legal liability arising at common law for a breach of a tortious duty of care, or in contract arising from a breach of a contractual duty of care. [192] This patent distinction between a benefit created solely by the statute and legal liabilities created independently of the WCR Act has been repeatedly emphasised by decisions of this Court. Such decisions include Smith v MurphySchmidt Solicitors [2021] QCA 67 per Morrison JA (with whom Boddice J and Rafter AJ agreed) at [55]-[65], and particularly at [58]; Greenall & Anor v Amaca Pty Ltd [2023] QSC 137 per Crowley J, particularly at [78]-[82]; and Watkin v GRM International Pty Ltd [2007] 1 Qd R 389 at [8] per Keane JA (with whom McMurdo P and Cullinane J agreed). [193] In the context of this fundamental distinction established by the WCR Act, it is only the concept of “compensation” which would meet the description of a “statutory benefit under” the WCR Act. Section 9 makes clear that “compensation” is a reference to amounts payable “under” Chapters 3, 4 and 4A. The “compensation” is entirely a creature of the WCR Act. It is clearly a monetary benefit created by statute in favour of workers and dependents. [194] A claim for s 9 “compensation” payable under Chapters 3, 4 and 4A of the WCR Act fits naturally within the ordinary meaning of the relevant part of the qualification’s text. Namely, “…any claim for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003…which [the plaintiff] may be entitled to...” [195] This is to be contrasted with the concept dealt with by the definition of “damages” in s 10 of the WCR Act. It refers to damages in respect of legal liabilities created entirely independently of the WCR Act. As s 5(2)(b) of the WCR Act also -- 41 of 49 -- 42 contemplates, Chapter 5 of the WCR Act regulates access to the “damages”, but does not create the legal liability for such damages. The WCR Act in no sense creates a benefit for the worker in the form of “damages”. [196] The underlying common law causes of actions for such “damages” simply do not fit within the ordinary meaning of a “statutory benefit”. A finding that the textual description of “…a claim for statutory benefits under…” [the WCR Act], includes a common law claim for damages created outside the WCR Act would be to require an unacceptable degree of violence to the text of cl 7.1 of the deed, read in light of the fundamental distinction dealt with above. The plaintiff’s construction is therefore not supported by the text of cl 7.1 read in light of the context referred to. [197] Secondly, this initial examination of the context of the introductory provisions of the WCR Act is, in my view, not displaced by a consideration of later provisions of the WCR Act. [198] The plaintiff sought to rely upon s 237 within Chapter 5 of the WCR Act as reinforcing its contention that the right to claim damages was one which existed only in accordance with the WCR Act. In one sense, that may be so. [199] The WCR Act regulates access to such “damages”. As part of this regulation of access, s 237 imposes constraints on the persons who may pursue s 10 “damages”. [200] As Crowley J observed in Greenall & Anor v Amaca Pty Ltd [2023] QSC 137, s 237 is a “…gateway through which a person must pass to recover damages for an injury sustained by a worker.”13 That description by Crowley J was entirely unsurprising, and is an accurate description of the operation of s 237 of the WCR Act. [201] Section 237(1) imposes a series of conditions, one of which needs to be met in order for a person to be entitled to “seek” damages. However, s 237(1) does not provide a “statutory benefit”. By reference to the definition of “damages” in s 10 of the WCR Act, the damages referred to have their existence in legal liabilities arising independently of the WCR Act, which necessarily includes arising independently of s 237. In no sense does s 237 either create, or reinforce the creation of, a claim for statutory benefits. More accurately, s 237 operates to curtail rights which otherwise exist in an ordinary person to seek to pursue damages for legal liabilities which have arisen independently of the WCR Act. It is an impediment not a benefit. [202] Section 237 is simply an illustration of the WCR Act’s regulation of access to those damages which have arisen independently of the WCR Act. This conclusion is consistent with the decision in Watkin v GRM International Pty Ltd [2007] 1 Qd R 389. That authority stands for the proposition that s 237 of the WCR Act is concerned with the imposition of a limitation on certain person’s entitlement to “seek” damages. If, but for the WCR Act, a worker could have pursued his or her common law damages claim, a statutory constraint on that right is not a “statutory benefit”, in the ordinary sense of those words. [203] The WCR Act modifies certain elements of the underlying independently accrued common law causes of action. For example, there is statutory modification of elements of the causes of action, and of the damages which are to be assessed. In 13 Greenall at [82]. -- 42 of 49 -- 43 this regard, reference may be had to ss 305 to 306P of the WCR Act. However, none of those statutory modifications convert the pre-existing legal liabilities which have been created independently of the WCR Act into claims for “statutory benefits” under the WCR Act. [204] Thirdly, the legal liabilities created independently of the WCR Act, adverted to in the definition of s 10, represent common law choses in action which accrue in the ordinary way, and do not cease to exist by reason of anything within the WCR Act. That position is one which is plain from the sections referred to above. However, to the extent that there was any doubt on the matter, such doubt is removed by reason of s 236(2) of the WCR Act. That provision commences with the words “To remove any doubt…”, and then proceeds to declare that the limitation period provided by s 11 of the Limitation of Actions Act 1974 (Qld) applicable to an action for damages, effectively within the s 10 definition, “…is and always has been, the same as would have been applicable to that action if the WCR Act had not been enacted.” [205] Section 236(2) by its express terms makes plain that the cause of action is, and remains, the action which was created independently of the WCR Act. The s 11 Limitation of Actions Act 1974 (Qld) time limit runs in the usual way in respect of the accrual of that action. [206] Fourthly, it may be accepted that the position would have been clear beyond argument if, instead of “statutory benefits”, the words “compensation as defined in s 9 of the WCR Act”, had been used. The failure to use such absolutely clear language, however, does not point either way to the proper construction of the qualification. [207] Fifthly, I note that Ann Lyons J in Crown Equipment Pty Ltd v ACN 098 568 702 Pty Ltd & Anor [2013] QSC 24 at [10] and [59] used the phrase “statutory benefits” to refer to the statutory “compensation” entitlement found within the WCR Act. However, this point carries little weight. There was no suggestion in the evidence that both parties were mutually aware of the decision of Crown Equipment and the use in that decision of the term “statutory benefits” as a descriptor for “compensation”. At most, it illustrates the force of what has already been observed; that it is only the concept of a claim for “compensation” that fits within the ambit of the text of cl 7.1, being a “…claim for statutory benefits…” under the WCR Act. [208] Sixthly, there is a logical and compelling justification for the qualification being objectively construed as referring to “compensation”. [209] Section 110 of the WCR Act relevantly provides as follows: “110 Compensation entitlement can not be relinquished, assigned or subject to execution (1) A worker or another person can not relinquish an entitlement to compensation for an injury sustained by the worker or the person. (2) An agreement made by the worker or the person purporting to relinquish the entitlement is of no force or effect. …” -- 43 of 49 -- 44 [210] Section 110(1) creates a legal constraint on a worker relinquishing an entitlement to compensation. The language of the section is broad in effect and, in its terms, would likely have caught within its compass an agreement which purported to have such an effect. [211] Section 110(2) complements the broad effect of s 110(1) by specifically dealing with an agreement which purports to have the prohibited effect. It makes clear that “an agreement” purporting to relinquish the entitlement is of no force or effect. [212] Sections 110(1) and (2) are forms of “no contracting out” provisions. Such provisions can be found in a variety of legislation, but most often in legislation which is protective of the interests of consumers or particular identified sections of the community; in this case, workers. [213] It is both logical, and, indeed, essential, for a person drafting a release and discharge clause which, in its terms, is broad enough to constitute an agreement to relinquish an entitlement to “compensation”, to include a qualification to the effect that the release and discharge does not operate to relinquish such a “compensation” entitlement. [214] If such a qualification were not included in such a release and discharge clause, then s 110(2) of the WCR Act would operate so as to render the entire release and discharge clause of no force or effect. The offending operation of the clause could not readily be severed by the application of the doctrine of severance. [215] For the above reasons, the inclusion of a qualification in respect of “compensation” claims was not merely a matter of including a “belts and braces” provision, as was adverted to in argument. It was a logical and essential qualification in order to ensure the release and discharge clause had force and effect. [216] There is also a logical reason for the inclusion of the second part of the qualification which refers to a “…claim…for unpaid superannuation which [the plaintiff] may be entitled to make.” [217] Section 30 of the Superannuation Guarantee (Administration) Act 1992 (Cth) relevantly is as follows: “30 Arrangements to avoid payment of superannuation guarantee charge If: (a) an employer makes an arrangement; and (b) as a result of the arrangement the employer’s superannuation guarantee shortfall for a quarter is reduced; and (c) in the Commissioner’s opinion the arrangement was made solely or principally for the purpose of avoiding payment of superannuation guarantee charge otherwise than in accordance with this Act; -- 44 of 49 -- 45 the employer is liable to pay for the quarter an amount of superannuation guarantee charge equal to the amount that, in the Commissioner’s opinion, the employer would have been liable to pay if the arrangement had not been made.” [218] In order to avoid the penalty which may be imposed by s 30 of the Superannuation Guarantee (Administration) Act 1992 (Cth), it is logical that this second part of the qualification be included. Both parties submitted that it was the effect of s 30 which was sought to be avoided by this second part of the qualification. [219] Seventhly, I turn to the plaintiff’s contention based on the operation of s 119 of the WCR Act. It was submitted that if the release and discharge in cl 7.1 of the deed was construed as applying to the common law tortious and contract causes of action within the current proceeding, then s 119 would have the effect of bringing the plaintiff’s entitlement to “compensation” to an end. The plaintiff said that this would be a capricious, unreasonable, inconvenient or unjust consequence. [220] Relying upon the statement by Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109, it was submitted that if two constructions were open on the language of the release and discharge, the construction which would avoid the capricious, unreasonable, inconsistent or unjust consequence ought to be preferred, even if it is not the most obvious or the most grammatically accurate. [221] It was this contention which ultimately spawned a number of lengthy supplementary submissions and the leading of further evidence by the defendant. [222] Ultimately, I have determined that it is unnecessary to resolve the many and varied statutory construction questions thrown up in argument, particularly by the defendant. I do so for the following reasons: • The construction of the qualification contended for by the plaintiff is not open on the language used within cl 7.1 of the deed. For the reasons expressed above, a claim for damages which arises independently of the WCR Act could not be fairly accommodated within the textual description of “any claim for statutory benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)…which [the plaintiff] may be entitled to make.” The plaintiff’s proposed construction is simply not open on the language used and the context of the distinction between “compensation” and “damages” in the WCR Act. • Further, there is a logical and compelling reason for the qualification to be construed as a reference to a claim for “compensation”. Without such a relevant qualification in respect of a claim for “compensation”, cl 7.1 of the deed, in my view, would be rendered of no force or effect by reason of s 110(2) of the WCR Act. • I do not accept that a rejection of the construction proposed by the plaintiff leads to a capricious, unreasonable, inconvenient or unjust consequence. There was no evidence led by the parties of any pre-settlement communication which sought to specifically preserve a particular claim for compensation under the WCR Act. Properly understood, what the qualification did was to ensure the release and discharge clause did not -- 45 of 49 -- 46 contract out of any entitlement to compensation under the WCR Act to the extent one existed. However, the clause did not purport to ensure that a particular entitlement for compensation was actively preserved. Any actual right to an entitlement for compensation was simply left to the operation of the WCR Act itself. • It is correct to observe that within the overall scheme promulgated by the WCR Act, there are a number of general themes which can be discerned. The first of these is that a worker will not be allowed to double dip by receiving and retaining both compensation and damages. There are a number of different mechanisms within the WCR Act designed to prevent double dipping. Another theme in the WCR Act is that a worker is, generally, with some exceptions,14 at liberty to compromise his or her damages claim. These two themes interact in various places within the WCR Act. Whilst a damages claim can generally be settled, such a settlement will not be allowed to facilitate the prohibited double dipping. It is within this context that s 119 operates in circumstances where there is an entitlement to compensation and an entitlement to recover damages against an employer or another person. Section 119(2) makes clear that, in those circumstances, the entitlement to compensation ends when a settlement for damages is agreed, or a judgment for damages is given. • I ultimately do not need to determine the proper operation of s 119 of the WCR Act in the circumstances of this proceeding. This is because, even acting on the assumption most favourable to the plaintiff, namely, that cl 7.1 of the deed brought the plaintiff’s right to compensation to an end, I conclude that such an operation of s 119 would not be one which resulted in a capricious, unreasonable, inconvenient or unjust consequence. Section 119 simply provides machinery for the avoidance of a worker double dipping. The worker in every case has control of whether he or she ultimately compromises a claim for the recovery of damages. It is only when he or she enters into a settlement for such damages, or judgment is delivered for such damages, that s 119 is engaged. • As with much of the WCR Act, a worker ought to seek legal advice to ensure that they understand the proper workings of the WCR Act. It is a matter for a worker whether a particular settlement of damages is or is not in his or her interest at the point of settlement. The qualification, in accordance with the construction I have adopted above, operates in a logical and essential fashion in order to maintain the force and effect of the broader release and discharge in cl 7.1 of the deed. The release and discharge clause itself was part of the price which was paid for the benefits which were bargained for from the defendant. Those benefits included the payment of $30,000 to the plaintiff. If that bargain has subsequently come to be viewed as a bad bargain, that change of view does not provide a basis for the court to rewrite the clear words of the contract in a way which is not open on the text of the relevant clause. • Within the deed itself, there was an acknowledgment by both parties that they had received legal advice or an opportunity to receive legal advice in relation 14 Section 207B of the WCR Act. -- 46 of 49 -- 47 to the deed. The plaintiff had, to the knowledge of both parties, an industrial advocate assisting her at the conciliation conference and the draft deed had been sent to that industrial advocate. To the extent s 119 of the WCR Act had the effect of bringing an end to any entitlement to compensation, that was simply a consequence of the operation of the WCR Act. The plaintiff is simply left to the benefits which she had bargained for as part of the settlement of the “damages”. [223] Eighthly, I note the content of the email of 20 April 2017 sent from the conciliator to the parties’ representatives, which has been extracted above. At a simplistic level, it would support the construction of cl 7.1 promoted by the defendant. [224] However, I have not had regard to that email for such a purpose. Whilst it does form part of the background context, it merely articulated the conciliator’s subjective understanding of the ‘in principle’ agreement which had been reached at the conciliation conference. The conciliator’s understanding included that the parties would “…enter into a tripartite deed of settlement in full and final settlement of all claims”, and that the deed would have clauses for mutual confidentiality, mutual non-disparagement and mutual release. [225] The email did not prove an objective fact known to both parties, other than the subjective understanding of the conciliator. Knowledge of that subjective understanding was irrelevant to the construction question. [226] In conclusion, for the reasons stated above, I am of the view that all of the causes of action within the current proceeding have been released and discharged by cl 7.1 of the deed. The bar to proceeding clause in cl 9.1 will also be operative in favour of the defendant such that the defendant was authorised to plead the terms of the deed as a bar to the entire current proceeding. [227] The resolution of the real issue is therefore in the negative. The answer to both parts of separate question one is therefore yes. Resolution of separate question two [228] The plaintiff has conceded that if the answer to separate question one is yes, then the answer to separate question two is yes. I agree that this naturally follows. [229] The defendant has brought a counterclaim. I will hear from the defendant as to what consequential order should be made, if any, in respect of the progress of the counterclaim, or if cl 9.2 is sought to be used in aid of a costs order in respect of the dismissal of the plaintiff’s claim. Conclusion [230] For the reasons set out above, the answers to the separate questions posed are: (a) Q1(i): Yes; (b) Q1(ii): Yes; and (c) Q2: Yes. -- 47 of 49 -- 48 [231] These separate questions and their answers are more fully set out in Annexure “A” to these reasons. [232] In light of the answers to separate questions 1(i) and 1(ii), it follows that I must dismiss the plaintiff’s claim. [233] I will otherwise hear from the parties as to directions for costs submissions and any other consequential orders which should be made in consequence of the answers. -- 48 of 49 -- 49 ANNEXURE “A” - SC No 14554 of 2021 Separate Questions and Answers Question 1: Whether the plaintiff, by reason of a Deed of Settlement signed by her on 2 May 2017 and by the Defendant on 16 May 2017: (i) has released and discharged the defendant from the proceeding? Answer: YES and (ii) is barred from pursuing the proceeding? Answer: YES Question 2: If the answer to either (i) or (ii) [in Question 1 above] is “yes”, whether the plaintiff is liable to indemnify the defendant with respect to the legal costs incurred by the defendant in the proceeding (on a full solicitor client basis)? Answer: YES -- 49 of 49 --