Connor v Queensland Rail Ltd [2016] QSC 270

SUPREME COURT OF QUEENSLAND CITATION: Connor v Queensland Rail Ltd [2016] QSC 270 PARTIES: KRISTINA MARY CONNOR (Applicant) v QUEENSLAND RAIL LIMITED (First Respondent) WORKERS’ COMPENSATION REGULATOR (Second Respondent) FILE NO/S: BS No 8531 of 2016 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 24 November 2016 DELIVERED AT: Brisbane HEARING DATE: 27 September 2016 JUDGE: Martin J ORDER: 1. Application dismissed. 2. It is declared that the applicant, in making a claim for damages against QR arising out of any injury sustained in a work incident which occurred on 16 May 2013, has no entitlement to damages arising out of, or in consequence of the rejected injuries. CATCHWORDS: WORKERS’ COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF – ACTIONS FOR DAMAGES AGAINST EMPLOYER – STATUTORY CONSTRAINT ON ACTIONS FOR DAMAGES – EXCEPTIONS TO STATUTORY CONSTRAINT – OTHER CASES – where the applicant claimed for compensation said to have arisen from injuries sustained in the course of her employment with the first respondent (QR) – where QR, a self- insurer under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)(‘the Act’), accepted liability for several of the injuries but not for others – where the applicant unsuccessfully exercised some of her appeal rights – where QR issued the applicant with a notice of assessment in respect of the injuries for which it accepted liability – where the applicant then served QR with a notice of a claim for damages under s 275 of the Act claiming compensation for all of the injuries that she alleged -- 1 of 14 -- 2 she had suffered – whether the applicant’s common law right to sue for damages is preserved by s 237(1)(a)(ii) of the Act – whether s 237(1)(a)(ii) is a drafting error able to be corrected in accordance with accepted principles of statutory interpretation Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 5, s 32, s 185, s 237, s 244, s 245, s 275 Cooper Brookes (Wollongong) Pty Ltd v Federal Commisioner of Taxation (1981) 147 CLR 297, applied Inco Europe Pty Ltd v First Choice Distribution [2000] 1 WLR 586, cited Kuligowski v Metrobus (2004) 220 CLR 363, cited Lau v WorkCover Queensland [2003] 2 Qd R 53, cited Marshall v Watson (1972) 124 CLR 640, cited Minister for Immigration and Citizenship v SZIZO (2008) 238 CLR 642, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531, cited COUNSEL: M Black for the applicant R J Douglas QC for the first respondent M T Hickey for the second respondent SOLICITORS: Maurice Blackburn for the applicant Minter Ellison Lawyers for the first respondent Crown Law for the second respondent [1] The applicant was an employee of the first respondent (QR) when, on 16 July 2013, she suffered some workplace injuries. QR is a self-insurer under the Workers’ Compensation and Rehabilitation Act 20031 (the Act) and it accepted that it was liable for some of the injuries (the accepted injuries) but not others (the rejected injuries). Ms Connor has given QR a notice of claim for common law damages which relates to both the accepted and the rejected injuries. The question this application raises is: can Ms Connor seek damages for the rejected injuries? The injuries [2] Ms Connor was employed by QR as a train guard. In her notice of claim for damages (provided pursuant to s 275 of the Act) she describes how she was injured. She says that on 16 May 2013 she was positioned at the rear cab door using her foot to hold the door open when the door suddenly moved as the train “took off”. This caused her to be struck by the door. She was pushed off the train and dragged along the platform. [3] Shortly after the incident she lodged an application for compensation in respect of specified injuries. These were accepted by QR – “the accepted injuries”. 1 This is the version of the Act which applied from 1 July 2013. -- 2 of 14 -- 3 [4] In April 2015 Ms Connor sought to re-open her application for compensation to allege other injuries to her lumbar spine and a psychological injury. [5] These were rejected in July 2015 on the basis that she had not sustained an injury as defined in s 32 of the Act. [6] In October 2015 Ms Connor sought a review by the Workers’ Compensation Regulator of the July 2015 decision. The Regulator upheld that decision. There was no appeal to the Queensland Industrial Relations Commission. [7] In October 2015 Ms Connor sought a further re-opening to claim a right knee injury. That application was refused on the basis that it was not an injury within the meaning s 32 of the Act. No review by the Regulator was sought. The injuries alleged in April and October – lumbar spine, psychological and right knee – are referred to as “the rejected injuries”. [8] QR issued a notice of assessment under the Act in February 2016 in respect of the accepted injuries in which 0% permanent impairment was assigned to each of the injuries: bruised left cheek, soft tissue injury to the left buttock and abrasions of the right lower leg. Thus, Ms Connor had a nil whole person impairment. [9] In March 2016 Ms Connor caused a notice of claim for damages (under s 275 of the Act) to be served on QR. In it, Ms Connor includes a claim for the accepted injuries as well as the rejected injuries: “right knee – soft tissue injury”, “lumbar spine – soft tissue injury”, and “psychological injury – depression and anxiety”. The legislation [10] The Act sets out a regime for the claiming and payment of compensation and for the pursuit of common law damages. The regime needs to be considered in light of the objects of the Act which are, in s 4(2), defined as being an aid to the interpretation of the Act. [11] Section 5 refers to the workers’ compensation scheme and provides, among other things, that: “(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 -- 3 of 14 -- 4 (e) provide for flexible insurance arrangements suited to the particular needs of industry. (5) Because it is in the State’s interests that industry remain locally, nationally and internationally competitive, it is intended that compulsory insurance against injury in employment should not impose too heavy a burden on employers and the community.” [12] In brief, the relevant sections of the Act provide that the following steps are to be taken by a worker who claims to have a work-related injury: (a) Apply to the insurer for compensation (s 132) (b) The insurer decides to accept or reject the application (s 134) (c) If the insurer rejects the application, the worker may: (i) Seek a review by the Regulator and, if unsuccessful, (ii) Appeal to the Queensland Industrial Relations Commission (hearing de novo) and, if unsuccessful, (iii) Appeal to the Industrial Court. (d) If the worker’s application is accepted, either originally or after review/appeal, then the worker may seek damages if he or she falls into one of the categories in s 237. [13] The Act also provides that a worker may “ask for an assessment to decide if a worker has sustained a degree of permanent impairment from injury” – s 178(1). Chapter 3, Part 10, Division 2 of the Act sets out how the assessment is to take place. Section 185 provides: “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) However, if a worker sustains multiple injuries in an event, the insurer must give the notice only after the worker’s degree of permanent impairment from all the injuries has been assessed. …” [14] The applicant submits that she is entitled to seek damages for the rejected injuries because she comes within s 237(1)(a)(ii) of the Act. That section provides: “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— -- 4 of 14 -- 5 (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 WRI of 20% or more or, under section 239, the worker has elected to seek damages; (b) the worker, if the worker’s application for compensation was allowed and the injury has not been assessed for permanent impairment; (c) the worker, if— (i) the worker has lodged an application, for compensation for the injury, that is or has been the subject of a review or appeal under chapter 13; and (ii) the application has not been decided in or following the review or appeal; (d) the worker, if the worker has not lodged an application for compensation for the injury; (e) a dependant of the deceased worker, if the injury results in the worker’s death. (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 under subsection (1)(a)(ii) 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.” [15] The various paragraphs in s 237(1) are, by s 237(2), subject to further provisions in the following divisions of Chapter 5 Part 2. Section 237(2) provides that a worker’s entitlement to seek damages is subject to the provisions of Chapter 5, that is, s 233 to s 320 of the Act. [16] Section 244 applies Division 3, Subdivision 3 to a person mentioned in s 237(1)(a)(ii). In these circumstances, s 245 is relevant. It provides: -- 5 of 14 -- 6 “245 Claimant with more than 1 injury from an event (1) The claimant can not have, and the insurer can not decide to have, the injury assessed under chapter 3, part 10 to decide if the injury has resulted in a degree of permanent impairment. (2) The insurer can not decide that the claimant’s notice of claim does not comply with section 275 only because the claimant has not received a notice of assessment for the injury. (3) However, the claimant may seek damages for the injury only if the insurer decides that the claimant— (a) was a worker when the injury was sustained; and (b) has sustained an injury. (4) The insurer must make a decision for the purpose of subsection (3) within 3 months after— (a) the claimant gives, or is taken to have given, a complying notice of claim; or (b) the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275, with or without conditions; or (c) a court makes a declaration under section 297. (5) If the insurer is WorkCover, WorkCover must notify the claimant and the claimant’s employer of a decision it makes for the purpose of subsection (3). (6) If the insurer decides that the claimant— (a) was not a worker when the injury was sustained; or (b) has not sustained an injury; the notification must include written reasons for the decision. (7) If the insurer does not make a decision for the purpose of subsection (3) within the time mentioned in subsection (4), the claimant may have the failure to make a decision reviewed under chapter 13. (8) A person aggrieved by a decision made by the insurer for the purpose of subsection (3) may have the decision reviewed under chapter 13.” The submissions [17] Mr Black (for the applicant) submits that Ms Connor satisfies s 237(1)(a)(ii) because: (a) she has not received a notice of assessment for the rejected injuries (s 237(1)(a)(ii)), (b) she has received a notice of assessment for the accepted injuries resulting from the same event (s 237(1)(a)(ii)(A)), and -- 6 of 14 -- 7 (c) she has elected to seek damages in relation to the accepted injuries (s 237(1)(a)(ii)(B)). [18] Mr Douglas QC (for QR) argues that the construction advanced by the applicant cannot be accepted because it would require that the insurer make a decision under s 245(4) which, it is submitted, has already been made under s 134. On the applicant’s case, a consequence of the inclusion in the notice of claim of the rejected injuries is that the insurer is obliged to make another decision – on the issues of whether the applicant is a “worker” (s 11 of the Act) and whether the applicant has suffered an “injury” (s 32 of the Act) – in respect of the rejected injuries. Mr Douglas QC contends that to subject the insurer to such an obligation entails “a lack of utility, involving duplication, further expense and uncertainty.” He further submits that “The previous rejection decisions ought stand for all purposes, including those under s 245(3). Thereby the claim for damages ought be confined to the accepted and assessed injuries.” [19] Mr Hickey (for the Regulator) adopted the submissions of QR and argued that the Act should not be construed so as to allow the applicant to re-agitate her case about the rejected injuries. He also submitted that the construction of the Act proposed by the applicant might lead to: (a) duplication of claims and conflicting decisions, (b) increased administrative, medical and legal costs for all parties to the workers’ compensation scheme and detract from the efficiency and effectiveness of the scheme, and (c) increased cost of workers compensation insurance premiums being payable by employers. Consideration [20] Part of the problem that arises when construing these (and other) parts of the Act is that the word “injury” is sometimes used when it is not intended to mean “injury” as defined in s 32 of the Act. What is often intended in those cases is: “alleged injury”. [21] Section 108(1) of the Act provides that “Compensation is payable under this Act for an injury sustained by a worker.” Compensation is paid, if the employer is a self-insurer, by the insurer, otherwise it is paid by WorkCover (s 109). Whether an application for compensation is accepted is a decision made by the insurer under s 134 and that decision is subject to review under Chapter 13. Thus, the decision as to whether an alleged injury is an injury as defined is made by the insurer, and that decision is amenable to review. [22] There are, though, sections of the Act in which the word “injury” is used both as “alleged injury” and “injury as defined”. For example, s 245(3) provides: “(3) However, the claimant may seek damages for the injury only if the insurer decides that the claimant— (a) was a worker when the injury was sustained; and (b) has sustained an injury.” (emphasis added) [23] Thus, in s 245(3), “injury” where it first appears must be an “alleged injury” otherwise a decision that it was an “injury as defined” would be unnecessary. -- 7 of 14 -- 8 [24] Section 245(6) contemplates a decision that an “alleged injury” may not be an “injury as defined”: “(6) If the insurer decides that the claimant— (a) was not a worker when the injury was sustained; or (b) has not sustained an injury; the notification must include written reasons for the decision.” [25] There is a further delineation to be observed in s 237 and s 245. Section 237(1) speaks of “an injury sustained” which, in s 237(1)(a)(ii), becomes “the injury”. In s 245 it is “the injury” which must be the subject of a decision by the insurer. The issue which arises is whether it is intended that “the injury” is one which has not already been the subject of a decision by the insurer. [26] A discussion of the principles to be applied when construing a statute usually commence with these statements in Project Blue Sky v Australian Broadcasting Authority:2 “Conflicting statutory provisions should be reconciled so far as is possible 69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed. 70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or 2 (1998) 194 CLR 355. -- 8 of 14 -- 9 insignificant, if by any other construction they may all be made useful and pertinent’.” (emphasis added, citations omitted) [27] The construction of s 237 and s 245 proposed by the applicant does not give rise to a direct conflict but to “competing sections” – a situation in which the insurer is required to take steps which are redundant, that is, it is required to repeat the decision making process it has already undertaken. And, further, it allows a worker whose application about a particular injury has already been rejected throughout the whole application/review/appeal process to engage the insurer again in the same process. That construction does not immediately suggest the “harmonious goals” referred to in Project Blue Sky at [70]. [28] Sub-sections 245(3) and (4), when referring to a decision by the insurer, do not, for example, impose a prerequisite that there be new evidence such as is sometimes required before a decision-maker is required to decide again. There is no suggestion that anything has to have changed with respect to the applicant’s claim in order that the decision- making process be repeated. [29] The applicant’s construction also raises, apart from the obvious cost, delay and inconvenience, the possibility that an insurer might change its mind. A Notice of Claim may contain both assessed and accepted but unassessed injuries.3 Thus, in respect of an accepted but unassessed injury, it would be open to the insurer – subject to any question of an issue estoppel – in a decision made under s 245(3), to reject the claim and deny the worker (in the absence of a successful review/appeal) the ability to seek common law damages. This demonstrates an inconsistency with some of the objects of the Act, including s 5(4)(b), (c) and (da). [30] The cost to insurers of repeating the decision making process with additional exposure to review/appeals would be reflected in additional costs of operation which, in turn, would be likely to affect premiums. It follows that the postulated requirement that an insurer “remake” a decision is inconsistent with s 5(4)(a) and (5) to the extent that it increases the burden on employers. [31] No rational explanation was proffered for reading s 245 as requiring another decision to be made when the same decision-maker had already made a decision on the same materials. This objection to the applicant’s construction is strengthened in light of the issue estoppel which would arise where the matter had been the subject of review or appeal.4 [32] The context of s 237(1)(a)(i) is instructive. It assists to demonstrate that, where decisions have been made on the “worker” and “injury” issues they need not be made again. [33] Section 237(1)(a)(ii) contemplates a worker having received a notice of assessment. A notice of assessment cannot issue unless decisions on the “worker” and “injury” issues have been made in favour of the worker. Division 3 subdivision 1 does not require that another decision be made. 3 Lau v WorkCover Queensland [2003] 2 Qd R 53. 4 Kuligowski v Metrobus (2004) 220 CLR 363. -- 9 of 14 -- 10 [34] Section 237(1)(b) deals with a worker whose application has been allowed but where the injury has not yet been assessed. Division 4 does not require that another decision be made. [35] Section 237(1)(c) deals with a worker who has lodged an application which is the subject of review/appeal and which has not been decided. This would cover a review/appeal by either the worker or the insurer. Division 5 provides that a claimant may only seek damages after: (a) any review/appeal ends, and (b) the application for compensation is decided, and (c) the insurer gives the claimant a notice of assessment. This contemplates the ordinary procedures under the Act being followed with no requirement for another decision by the insurer. [36] Section 237(1)(d) deals with the situation where no decision has been made by the insurer because no application has been made. Division 6 requires a favourable decision from the insurer – but only one – before an action may be started. [37] Putting to one side s 237(1)(a)(ii), none of the provisions of Chapter 5 require more than one decision to be made by the insurer. They either assume that a favourable decision has been made or, in the case where an application has not been made, require that a favourable decision be made before an action may be started. [38] Section 237(1)(a)(ii) covers three possible situations: (a) the insurer has received an application and refused it and, for that reason, has not issued a notice of assessment, (b) the insurer has received an application and accepted it, but has not yet issued a notice of assessment, and (c) the insurer has not received an application and, therefore, could not issue a notice of assessment. [39] The third of those possibilities is similar to s 237(1)(d) but not identical as there has already been an acceptance (and, thus, a notice of assessment) of some injuries. [40] The second of those possibilities makes obvious the flaw in the applicant’s construction. Why would an insurer, having already accepted an application, have to decide it again? [41] The first of those possibilities would, putting to one side the problem of an issue estoppel, provide an applicant with an opportunity to repeat the review/appeal process when no other worker has that ability. [42] Many terms could be used to describe the type of result which occurs on the construction proposed by the applicant: irrational, inconvenient, anomalous, unlikely and unreasonable are just a few. The principles to be applied in these circumstances have been considered on many occasions. -- 10 of 14 -- 11 [43] In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation5 Gibbs CJ said that: “There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case…”6 He went on to say that the language used must be given its ordinary and grammatical meaning even if it leads to a result that may seem inconvenient and unjust provided: (a) it is clear and unambiguous, and (b) it is consistent and harmonious with the other provisions of the enactment, and (c) it can be intelligibly applied to the subject matter.7 [44] In the same case, Mason and Wilson JJ said that the propriety of departing from the literal interpretation is not confined to situations where a court concludes that the legislature could not have intended an absurd or irrational operation – “It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.”8 [45] There is a limit to the departure which may occur. To adopt a meaning which is not reasonably open is not interpretation, which is a judicial function, but amendment, which is a legislative function.9 Thus, where the meaning of an expression is unambiguous when considered in context it is to be given that meaning even if it leads to unreasonable consequences.10 [46] It is open, though, to give words a meaning which will serve the obvious purpose of the Act. In Minister for Immigration and Citizenship v SZIZO11 French CJ and Bell J concluded that one reading of a particular section would lead to an irrational result. In those circumstances, they said: “9 …A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text. If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a “realistic solution” to the difficulty. In the twelfth edition of Maxwell’s On the Interpretation of Statutes the approaches which can be taken in dealing with statutory language whose ordinary meaning is plainly at odds with the statutory purpose were explained: ‘Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction 5 (1981) 147 CLR 297. 6 Ibid at 304. 7 Ibid at 305. 8 Ibid at 321. 9 Marshall v Watson (1972) 124 CLR 640 at 649. 10 Cooper Brookes (Wollongong) Pty Ltd v Federal Commisioner of Taxation (1981) 147 CLR 297 at 305, 310 and 320. 11 (2008) 238 CLR 642. -- 11 of 14 -- 12 may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.’ This approach is reflected in decisions of the Courts of the United Kingdom. In Inco Europe Ltd v First Choice Distribution, Lord Nicholls of Birkenhead restated the need for the Court to correct obvious drafting errors. He referred to the third edition of Cross’ Statutory Interpretation: ‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’ The limits of the judicial role, as pointed out by Lord Nicholls, require that the courts ‘abstain from any course which might have the appearance of judicial legislation’. Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of ‘crucial importance’. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.” (emphasis added, citations omitted) [47] In Taylor v Owners – Strata Plan 1156412 a majority of the High Court13 revisited the issue of adding or omitting words and the conditions which have to exist before either step can be taken. They said: “37 Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. …38 The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’. 12 (2014) 253 CLR 531. 13 French CJ, Crennan and Bell JJ. -- 12 of 14 -- 13 39 Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution (a firm)) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that ‘the modified construction is reasonably open having regard to the statutory scheme’ because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, ‘[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.’” (emphasis added, citations omitted) [48] In order that s 237(1)(a)(ii) and s 245 be read together in a way which is rational and consistent with both the context of those provisions and the objects of the Act it is necessary to consider whether s 245 should be read as if it contained some words which confined the operation of s 245(3). [49] It is important to bear in mind that it is not the province of the court to decide the construction simply on the basis that it makes it more convenient for one of the parties it affects. But, as Lord Nicholls of Birkenhead said in Inco Europe Pty Ltd v First Choice Distribution:14 “It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross’s admirable opuscule, Statutory Interpretation, 3rd ed. (1995), pp. 103-105. He comments, at p. 103: ‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’ This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the 14 [2000] 1 WLR 586 at 592. -- 13 of 14 -- 14 legislature. So the courts exercise considerable caution before adding or omitting or substituting words.” [50] Section 245(3) contains a drafting error. It does not make any sense, and it is inconsistent with the objects and the rest of the Act, to require an insurer to engage in a series of steps which have already been undertaken. The proper construction of the Act would be to read s 245(3) as if, after the word “However”, it contained words to the effect “where the insurer has not already decided the matters in this subsection”. That reading allows for the situation where an application has been made but not decided – but it does not allow an unsuccessful applicant to have a second bite of the cherry. Conclusion [51] The applicant sought a declaration that she was entitled to seek damages for the rejected injuries. On the construction of the relevant section which I favour that declaration cannot be made. QR sought a declaration with contrary intent and, for the purposes of clarity, I think it appropriate that such a declaration be made. [52] The application is dismissed. It is declared that the applicant, in making a claim for damages against QR arising out of any injury sustained in a work incident which occurred on 16 May 2013, has no entitlement to damages arising out of, or in consequence of the rejected injuries. -- 14 of 14 --