Brisbane City Council v Workers' Compensation Board of Queensland

[1997] QCA 142

IN THE COURT OF APPEAL	[1997] QCA 142
SUPREME COURT OF QUEENSLAND
Brisbane

Appeal No. 6340 of 1996

[WCB (Qld) v. MMI & Anor.]

BETWEEN:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) Appellant

AND:

MUNICIPAL MUTUAL INSURANCE LIMITED ARBN 007509873

(Second Third Party) First Respondent

AND:

THE COUNCIL OF THE CITY OF HERVEY BAY

(Second Defendant) Second Respondent

Appeal No. 3929 of 1996

[BCC v. WCB (Qld) & Ors.]

BETWEEN:

BRISBANE CITY COUNCIL

(Defendant) Appellant

AND:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) First Respondent

AND:

GIO GENERAL LIMITED ACN 002861583

(Second Third Party) Second Respondent

AND:

C.E. HEATH CASUALTY & GENERAL INSURANCE LIMITED ACN 008482291

(Third Third Party) Third Respondent

ANDRE CLIVE FARMER (Plaintiff)

Appeal No. 3811 of 1996

[GIO & Anor. v. BCC & Anor.]

BETWEEN:

GIO GENERAL LIMITED ACN 002861583

(Second Third Party) First Appellant

AND:

C.E. HEATH CASUALTY & GENERAL INSURANCE LIMITED ACN 008482291

(Third Third Party) Second Appellant

AND:

BRISBANE CITY COUNCIL

(Defendant) First Respondent

AND:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) Second Respondent

ANDRE CLIVE FARMER (Plaintiff)

Davies J.A.
McPherson J.A.

Lee J.

Judgment delivered 3 June 1997

Joint reasons for judgment of Davies J.A. and Lee J.; McPherson J.A. concurring as to the orders made.

THE APPEAL FROM THE JUDGMENT OF THE SUPREME COURT WHICH IS APPEAL
NO. 6340 OF 1996 IS DISMISSED WITH COSTS.
IN THE APPEALS FROM THE JUDGMENT OF THE DISTRICT COURT WHICH ARE
APPEALS NOS. 3929 OF 1996 AND 3811 OF 1996 THE ORDERS MADE IN THE THIRD
PARTY PROCEEDINGS ARE SET ASIDE AND IN LIEU THE FOLLOWING IS
ORDERED:

1.          THERE IS TO BE JUDGMENT FOR THE BRISBANE CITY COUNCIL AGAINST WORKERS' COMPENSATION BOARD OF QUEENSLAND IN THE INDEMNITY PROCEEDINGS BETWEEN THEM;

2.          THE WORKERS' COMPENSATION BOARD IS TO PAY THE BRISBANE CITY COUNCIL'S COSTS OF DEFENDING THE PLAINTIFF'S CLAIM ON A SOLICITOR AND CLIENT BASIS, ITS COSTS OF THE THIRD PARTY PROCEEDINGS AND ITS COSTS OF THIS APPEAL; AND

3.          GIO GENERAL LIMITED AND C.E. HEATH CASUALTY & GENERAL INSURANCE LIMITED ARE TO HAVE THEIR COSTS OF THE THIRD PARTY PROCEEDINGS, INCLUDING RESERVED COSTS AND THE COSTS OF THIS APPEAL AGAINST BRISBANE CITY COUNCIL AND BRISBANE CITY COUNCIL IS TO HAVE AN ORDER THAT WORKERS' COMPENSATION BOARD INDEMNIFY IT IN RESPECT OF THOSE COSTS.

entitled to be indemnified by the Workers' Compensation Board (now
Workcover Qld) against its liability for that injury - whether injury
arose out of or in the course of employment.
Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of
Taxation (1981) 147 C.L.R. 297

Workers' Compensation Act 1990 ss.1.4, 2.1, 4.9, 5.4.

Counsel:	Mr. J. Griffin Q.C., with him Mr. A. J. Williams for the appellant in Appeal No. 6340 of 1996, the first respondent in Appeal No. 3929 of 1996 and the second respondent in Appeal No. 3811 of 1996. Mr. S. C. Williams Q.C for the first respondent in Appeal No. 6340 of 1996, the second and third respondents in Appeal No. 3929 of 1996 and the appellants in Appeal No. 3811 of 1996. Mr. R. J. Douglas for the appellant in Appeal No. 3929 of 1996 and the first respondent in Appeal No. 3811 of 1996. Mr. S. J. Given for the second respondent in Appeal No. 6340 of 1996.
Solicitors:	Baker, O'Brien & Toll, Bundaberg, by their town agents Conroy & Associates for the appellant in Appeal No. 6340 of 1996, the first respondent in Appeal No. 3929 of 1996 and the second respondent in Appeal No. 3811 of 1996. Standish Partners for the first respondent in Appeal No. 6340 of 1996. Quinlan, Miller & Treston for the second and third respondents in Appeal No. 3929 of 1996 and the appellants in Appeal No. 3811 of 1996. Brisbane City Council for the appellant in Appeal No. 3929 of 1996 and the first respondent in Appeal No. 3811 of 1996. Morton and Morton, Maryborough, for the second respondent in Appeal No. 6340 of 1996.
Hearing Date:	29 April 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before Davies J.A.
McPherson J.A.
Lee J.

Appeal No. 6340 of 1996

[WCB (Qld) v. MMI & Anor.]

BETWEEN:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) Appellant

AND:

MUNICIPAL MUTUAL INSURANCE LIMITED ARBN 007509873

(Second Third Party) First Respondent

AND:

THE COUNCIL OF THE CITY OF HERVEY BAY

(Second Defendant) Second Respondent

Appeal No. 3929 of 1996

[BCC v. WCB (Qld) & Ors.]

BETWEEN:

BRISBANE CITY COUNCIL

(Defendant) Appellant

AND:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) First Respondent

AND:

GIO GENERAL LIMITED ACN 002861583

(Second Third Party) Second Respondent

AND:

C.E. HEATH CASUALTY & GENERAL INSURANCE LIMITED ACN 008482291

(Third Third Party) Third Respondent

ANDRE CLIVE FARMER (Plaintiff)

Appeal No. 3811 of 1996

[GIO & Anor. v. BCC & Anor.]
BETWEEN:

GIO GENERAL LIMITED ACN 002861583

(Second Third Party) First Appellant

AND:

C.E. HEATH CASUALTY & GENERAL INSURANCE LIMITED ACN 008482291

(Third Third Party) Second Appellant

AND:

BRISBANE CITY COUNCIL

(Defendant) First Respondent

AND:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) Second Respondent

ANDRE CLIVE FARMER (Plaintiff)

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND LEE J.

Judgment delivered 3 June 1997

These are three appeals, one against a judgment of the Supreme Court given on 11 July 1996

and two against a judgment of the District Court given on 18 April 1996. They were heard together

because they raise a single issue of construction of the Workers' Compensation Act 1990. The second

and third appeals also raise a further question, depending on the Court's decision on the first question,

and a question of costs which, in one form or another, must be resolved.

The question of construction of the Workers' Compensation Act is whether the employer of a

worker who is injured by the negligence of the employer on his journey home from work is entitled to

be indemnified by the Workers' Compensation Board (now Workcover Qld) against its liability for that

injury; or whether that would be so only where the negligence is in breach of the employer's duty, as

an employer, to the worker. The question arises in the following way.

In each case a worker was employed by a local authority; in the Supreme Court action by the

Hervey Bay City Council, in the District Court action by the Brisbane City Council. In each case he

was injured (in the first case causing his death) by the negligence (assumed in the first case; found by the trial Judge in the second) of the employer. But that negligence was not negligence as employer. In

each case it arose from conduct of the employer as a local authority upon a road; in the first case, it

was alleged, by leaving excessive quantities of screening material on a road; in the second case, it was

found, by causing water from a fire hydrant to gush across a road striking the front wheel of the plaintiff's

motor cycle. In each case the injury was sustained on the worker's way home from work.

By s.4.9(2) of the Act every employer is obliged to insure and remain insured with the Board

under a policy in respect of -

"(a)	the employer's legal liability to pay compensation under this Act; and
(b)	the employer's legal liability existing independently of this Act to pay damages in respect of injury to a worker employed by the employer, being a liability within the cover of accident insurance as defined in section 2.1."

The term "accident insurance" is defined in s.2.1 to mean

"insurance by which an employer is indemnified against all sums for which the employer may become legally liable, in respect of injury to a worker employed by the employer, in respect of -

(a) compensation under this Act;
and

(b)         damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay such damages, other than a liability against which the employer is required to provide in accordance with some other Act of Queensland or a law of another State or a Territory of the Commonwealth, or of the Commonwealth or of another country;".

The term "injury" is relevantly defined in that section to mean "personal injury arising out of or in the

course of employment". No other definitions are relevant to the present question.

The obligation to insure, and consequently the extent of the indemnity in respect of the

employer's legal liability to pay damages, is therefore one:

(a)         in respect of personal injury arising out of or in the course of employment (definition of

"injury" in s.2.1);

(b)         to a worker employed by the employer (s.4.9(2)(b));

(c)         but not one in respect of liability against which the employer is required to provide by

some other law (definition of "accident insurance" in s.2.1 para.(b)).

The other point which should be noted about s.4.9(2) and those definitions is that the obligation to insure

and the insurance are in respect both of the liability to pay compensation under the Act and the liability

to pay damages. The only differences which are stated to exist between the two liabilities are that one

is to pay compensation under the Act whilst the other is a liability existing independently of the Act to

pay damages in respect of injury to a worker employed by the employer; and that, in the second case,

the liability is limited to one other than a liability against which the employer is required to provide

indemnity under some other law.

The first limitation which counsel for the Workers' Compensation Board seeks to impose on

the extent of the indemnity in respect of the employer's legal liability to pay damages is that the liability

must be one for breach of a duty arising out of the relationship of employer and employee. That

limitation cannot be inferred from anything contained in ss.4.9 or 2.1. Nor was it contended that any

other section of the Act required any such limitation.

Nor do the stated objects of the Act require some such limitation to be imposed. Unsurprisingly

they are stated broadly. Paragraphs (a) and (e) of s.1.4 are the most directly relevant. They provide

that the objects of the Act are:

"(a)	to provide for the maintenance of a system of accident insurance providing adequate and suitable cover for workers who suffer injury and for dependants of workers whose deaths result from injury;
...
(e)	to protect the interests of employers in relation to claims for damages on account of injury to a worker;".

It can be seen that neither of these requires any such limitation. Indeed the highest that an
argument can be put for such a limitation, although it was not put this way in this Court, is that the Act

appears to be, or more accurately, perhaps, has been assumed to be, one involving exclusively the

relationship between employers as employers and workers as employees. But that general impression

or assumption is not borne out by any provision of the Act. And whilst it is true that a literal

interpretation will be departed from in "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" (Cooper Brookes

(Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297 at 321) there are

no provisions in this Act requiring such limitation or disclosing a policy which would require it.

Accordingly we would not impose any such limitation on the plain meaning of the Act.

The second limitation sought to be imposed on the extent of the indemnity in respect of the

employer's legal liability to pay damages is that the worker in each of these cases did not sustain injury

"arising out of or in the course of his employment" because the extended meaning of that phrase in

s.5.4(2) does not apply to indemnity granted pursuant to the obligation in s.4.9(2)(b). Section 5.4(2)

extends the meaning of the phrase "arising out of or in the course of employment" to include the case

where the worker is travelling between his place of employment and his home as each of the workers

was here. It may be noted that, if this limitation were to apply, it would also apply to indemnity in

respect of liability for breach of duty as employer.

The argument for this limitation relies on the fact that s.5.4 is in Part 5 of the Act headed

"ENTITLEMENT TO COMPENSATION". It is submitted therefore that it is limited in its operation

to an entitlement to compensation under s.5.1. Reliance for this submission was placed on s.14(1) of

the Acts Interpretation Act 1954 which provides that a heading to a part of an Act is part of the Act

and that, consequently, that heading limits the operation of s.5.4. There are two difficulties with this

submission.

The first is that the relevant provisions of the Act are re-enactments of materially identical

provisions in earlier legislation in which there were no part headings. This is not merely a case in which,

as s.14C of the Acts Interpretation Act would contemplate, a provision enacted later appears to

express the same idea as that contained in an earlier provision but in different words. Here the current

and earlier provisions are in materially identical words. We do not think therefore that the addition of

the part heading should result in any different construction from that which it had before.

The second difficulty is that the definition of "injury" in s.2.1, which plainly applies both to legal

liability to pay compensation and to legal liability existing independently of the Act to pay damages in

respect of injury to a worker, limits the meaning of injury to "personal injury arising out of or in the

course of employment". Section 5.4, by giving that phrase an extended meaning, thereby extends the

definition of injury in s.2.1. In our view therefore there is no reason to limit the operation of s.5.4(2) to

a claim for compensation. Consequently in each of the present cases the injury to the worker arose out

of or in the course of his employment.

It is true that this construction of the Act will infrequently, as in these cases, require the

Workers' Compensation Board or its successor to indemnify an employer against liability for its

negligence causing personal injury to an employee where that negligence does not arise out of the relationship of employer and employee. But there is nothing in the terms of the Act which indicates that

that result is contrary to the statutory intention. Indeed it may well have been the intention of the

legislature to state the liability to indemnify in this way in order to avoid disputes as to whether

negligence of an employer causing personal injury to an employee was negligence in the capacity of the

employer or as to whether, at common law, the employee's injury arose out of or was incurred in the

course of employment.

The Workers' Compensation Board (now its successor Workcover Qld) was therefore, in each

case, obliged to indemnify the local authority defendant against any judgment against it. It is conceded

that, in that event, the other insurer in the District Court action was not liable to indemnify the Brisbane

City Council.

It is also conceded, or at least the contrary was not argued, that, in the District Court action,

the unsuccessful insurer should be obliged to indemnify the Brisbane City Council against its liability for

costs to the successful insurer and that is plainly right.

The result is that the appeal from the judgment of the Supreme Court which is Appeal No. 6340

of 1996 must be dismissed with costs. In the appeals from the judgment of the District Court which are

Appeals Nos. 3811 of 1996 and 3929 of 1996 the orders made in the third party proceedings should

be set aside and in lieu the following orders should be made:

1.          There should be judgment for the Brisbane City Council against Workers' Compensation Board

in the indemnity proceedings between them;

2.          The Workers' Compensation Board should pay the Brisbane City Council's costs of defending

the plaintiff's claim on a solicitor and client basis, its costs of the third party proceedings and its

costs of this appeal; and

3.          GIO General Limited and C.E. Heath Casualty and General Insurance Limited should have their

costs of the third party proceedings, including reserved costs and the costs of this appeal against

Brisbane City Council and Brisbane City Council should have an order that Workers'

Compensation Board indemnify it in respect of those costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before Davies J.A.
McPherson J.A.
Lee J.

Appeal No. 6340 of 1996

[WCB (Qld) v. MMI & Anor.]

BETWEEN:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) Appellant

AND:

MUNICIPAL MUTUAL INSURANCE LIMITED ARBN 007509873

(Second Third Party) First Respondent

AND:

THE COUNCIL OF THE CITY OF HERVEY BAY

(Second Defendant) Second Respondent

Appeal No. 3929 of 1996

[BCC v. WCB (Qld) & Ors.]

BETWEEN:

BRISBANE CITY COUNCIL

(Defendant) Appellant

AND:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) First Respondent

AND:

GIO GENERAL LIMITED ACN 002861583

(Second Third Party) Second Respondent

AND:

C.E. HEATH CASUALTY & GENERAL INSURANCE LIMITED ACN 008482291

(Third Third Party) Third Respondent

ANDRE CLIVE FARMER (Plaintiff)

Appeal No. 3811 of 1996

[GIO & Anor. v. BCC & Anor.]

BETWEEN:

GIO GENERAL LIMITED ACN 002861583

(Second Third Party) First Appellant

AND:

C.E. HEATH CASUALTY & GENERAL INSURANCE LIMITED ACN 008482291

(Third Third Party) Second Appellant

AND:

BRISBANE CITY COUNCIL

(Defendant) First Respondent

AND:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(First Third Party) Second Respondent

ANDRE CLIVE FARMER (Plaintiff)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 3 June 1997

I agree with the orders proposed by Davies J.A. and Lee J. and with the reasons they have

given for disposing of these three appeals.