Jaye v Grahame Allen Earthmoving Pty Ltd

[1992] QCA 161

IN THE COURT OF APPEAL

[1992] QCA 161

SUPREME COURT OF QUEENSLAND

Appeal No. 97 of 1991

Before the Court of Appeal

The President

Mr. Justice McPherson JA

Mr. Justice Derrington

BETWEEN:

ANDREW JAYE
  (Plaintiff)                   

AND:

ANDREW DEXTER and GRAHAME
                ALLEN EARTHMOVING PTY. LTD.
  (Defendants)                  

AND:

THE WORKERS' COMPENSATION
  BOARD OF QUEENSLAND
  (Defendant by Election) Appellant

AND:

SUNCORP INSURANCE AND FINANCE
  (Third Party)       Respondent

JUDGMENT - DERRINGTON J.

Delivered the Twenty-fourth day of June 1992.
CATCHWORDS:

Insurance - Compulsory Motor Vehicle insurance - Workers' Compensation policy covering insured against liability to "deemed worker" - Whether motor vehicle cover also applies - Motor Vehicle Insurance Acts 1936-1988 s. 3(1).

Counsel:Mr. Griffin QC for Appellant.

Mr. Reid for Respondent.
Solicitors:   Peter Searles and Assoc. for the Appellant.
             Lyons for the Respondent.
Hearing date: 27th May 1992.IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 97 of 1991

Before the Court of Appeal

The President

Mr. Justice McPherson JA

Mr. Justice Derrington

BETWEEN:

ANDREW JAYE
  (Plaintiff)                   

AND:

ANDREW DEXTER and GRAHAME
                ALLEN EARTHMOVING PTY. LTD.
  (Defendants)                  

AND:

THE WORKERS' COMPENSATION
  BOARD OF QUEENSLAND
  (Defendant by Election) Appellant

AND:

SUNCORP INSURANCE AND FINANCE
  (Third Party)       Respondent

JUDGMENT - DERRINGTON J.

Delivered the Twenty-fourth day of June 1992.
MINUTE OF ORDER:

1. Appeal allowed with costs.

2. Declaration and Orders below set aside.

3. Declare that together with the appellant the respondent is liable to indemnify the second defendant against the claim of the plaintiff in this action, and further that the respondent is liable to make contribution to the appellant as co‑insurer in respect of its indemnity of the second defendant.

4. The Third Party shall pay the Defendant by Election's costs of the application below.

CATCHWORDS:

Insurance - Compulsory Motor Vehicle insurance - Workers' Compensation policy covering insured against liability to "deemed worker" - Whether motor vehicle cover also applies - Motor Vehicle Insurance Acts 1936-1988 s. 3(1).

Counsel:Mr. Griffin QC for Appellant.

Mr. Reid for Respondent.

Solicitors:   Peter Searles and Assoc. for the Appellant.
             Lyons for the Respondent.

Hearing date: 27th May 1992.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 97 of 1991

BETWEEN:

ANDREW JAYE

(Plaintiff)  

AND:

ANDREW DEXTER and GRAHAME
                ALLEN EARTHMOVING PTY. LTD.

(Defendants)                   

AND:

THE WORKERS' COMPENSATION
  BOARD OF QUEENSLAND

(Defendant by Election) Appellant

AND:

SUNCORP INSURANCE AND FINANCE
  (Third Party)        Respondent

JUDGMENT - DERRINGTON J.

Delivered the Twenty-fourth day of June 1992.

This is an appeal from a declaratory judgment below made upon agreed facts.  On 16th February 1989, the plaintiff was injured whilst employed by a contractor who was engaged by the second defendant to supply material and do certain work.  The last mentioned was the employer of the first defendant who, as its servant, negligently injured the plaintiff.  Although he was not an employee of the second defendant in the normal sense of the word, the plaintiff came within the extended meaning of the word "worker" as defined in the Workers' Compensation Acts 1916-1988. 
     His injuries were caused by through or in connection with a motor vehicle, owned by the second defendant and insured by the respondent, and the relevant liability arose in respect of that vehicle.  Consequently that insurance would have covered such liability unless it came within the description of a recent amendment to s. 3(1) of the Motor Vehicles Insurance Act 1936-1988 reading as follows:

"Liability by way of damages referred to in the first paragraph of this subsection does not include the liability of an employer incurred on or after 22 September 1988 to pay damages on account of accidental bodily injury (fatal or non-fatal) caused by, through or in connection with a motor vehicle to his employee (being a worker within the meaning of the Workers' Compensation Act 1916-1988) in circumstances such as would give an entitlement to the payment of compensation under that Act."

The appellant, which of course is the second defendant's workers' compensation insurer and admits its liability to provide indemnity, seeks a declaration that the motor vehicle policy also covers the insured's liability and that consequently it is entitled to contribution from that insurer, which is the respondent.  The latter argues that this paragraph in s. 3(1) of the Act had the effect that the cover did not extend to the present circumstances because the plaintiff was the insured's worker within the meaning of the Workers' Compensation Acts.  The appellant counters that this paragraph has no operation here so that the cover provided by such a policy applies in these circumstances.
     The only issue therefore is whether its reference to "the liability of an employer ... to his employee (being a worker within the meaning of the Workers' Compensation Act 1916-1988)" is limited to the occasion where the relationship of employer/employee in the usual sense obtains or whether it also has application where as her the plaintiff comes only within the extended definition of "worker" in the Workers' Compensation Acts.
     The provision is badly drafted.  Had it been intended that the cover should not extend to liability which is covered by a policy under the Workers' Compensation Acts, then it would have been easy to say so in simple terms: cf. Manufacturers' Mutual Insurance Co. Ltd. v. St. Lukes Hospital (1991) 6 A.N.Z.I.C. 61.068, where such an expression was used in a positive way to extend the cover of the workers' compensation policy.  It could easily be applied here in a reverse role.
     Because of its unfortunate drafting, it is not even clear whether the expression, "employee (being a worker within the meaning of the Workers' Compensation Act 1916-1988)", has the effect of applying the extended definition of "worker" to the meaning of the word "employee" as used in this context.  It is ambiguous; but even if it were to have that effect there is nothing to show that the same extension should apply to the term "employer".  It does not even have the express parenthetical addition as supplied to the word "employee", and it is a long and difficult journey to try to supply a similar but adjusted addition to it by necessary implication.
     Learned counsel for the respondent did not even argue that its meaning was impliedly extended in that way when the question was raised with him.  He submitted that all that was necessary was that the insured party be an employer, that is, an employer of anyone.  In that case he would be required to have a workers' compensation policy, which, it was said, would be sufficient to provide him with cover against liability to any person who might come within the extended definition of worker as referred to in the parenthetical extension of the corresponding expression, "employee".  For this reason, it was said, there was no reason to provided the same express addition to the reference to an employer in this paragraph. 
     This argument, while attractive in its simplicity, does not adequately explain the illogical distinction and exclusion which would follow in those cases where the person referred to is not an employer, within its ordinary meaning and is therefore uninsured, but where he has the relevant relationship with a claimant "worker", within its extended meaning.  Moreover, it fails to acknowledge the necessary relationship between the two parties which is implied by the whole expression, "his employee".  Finally, it is unlikely that the legislature would have intended to achieve this result in such an oblique and convoluted way.
     Learned counsel sought support by reference to the purpose for the amendment as explained to the House by the Honourable the Minister upon the second reading the bill, that is, that it was designed to "ensure that compulsory third party liability is restricted just to that - and is not extended to matters which are rightly workers' compensation ... claims". 
     The exclusion of cases such as the present one from that operation does not mean that the purpose referred to is not generally consummated, for the amendment would still have application in the great majority of cases where there is workers' compensation cover.  It is open whether the legislature may have had some reason for excluding the more remote and complicated cases of workers' compensation cover, such as the present, where artificial extensions of the employer/employee relationship are created.  It may have been thought fit in those cases to allow the motor vehicle cover to bear its share of the indemnity.
     For these reasons the "purposive" approach to the construction of this paragraph provides no assistance to the respondent in advancing a construction of the provision that would displace the plain and ordinary meaning of the cognate expressions, "employer" and "his employee". 
     This means that the paragraph under discussion has no application in a case such as this and the appeal should be upheld.
     Consequently the appellant's claim in its third party proceedings that the respondent's policy also provided cover to the second defendant against its liability to the plaintiff should succeed.  The declaration and dismissal of the third party's claim with costs made below should be set aside.  Because the issues of liability and quantum in respect of the plaintiff's claim have not yet been decided, no judgment can yet be given. 
     It is sufficient to declare that together with the appellant the respondent is liable to indemnify the second defendant against the claim of the plaintiff in this action, and further that the respondent is liable to make contribution to the appellant as co‑insurer in respect of its indemnity of the second defendant.    The respondent should pay the appellant's costs of the appeal and of the application before the primary Judge.