McDowell v Baker

[1979] HCA 44

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason and Aickin JJ.

McDOWELL v. BAKER

(1979) 144 CLR 413

28 September 1979

Workers' Compensation (Q.)—Practice

Workers' Compensation (Q.)—Death of worker—Negligence of employer—Liability for workers' compensation—Reduction of damages &hich employer legally liable to pay by total amount of compensation prescribed by Act—Damages under Lord Campbell's Act—Whether legal liability in employer to pay damages in respect of injury in respect of &hich deceased worker entitled to receive compensation prescribed by Act—Workers' Compensation Act, 1916-1966 (Q.), s. 9A*. Practice—High Court—Appeal from Supreme Court of a State—Competency—Appeal as of right—Whether appeal brought on a ground that relates to the quantum of damages in respect of death or personal injury—Judiciary Act 1903 (Cth), s. 35 (4). (1979) 144 CLR 413 at pp 415-416 * (1979) 144 CLR 413 at pp. 415-416

Decisions

September 28.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this case by my brother Gibbs. I agree with his conclusion that the terms of s. 9A (1) of the Workers' Compensation Act, 1916-1966 (Q.), are applicable to this case and require that the amount of damages awarded to the respondent in this action be reduced by the amount of compensation paid to the deceased worker. I also agree with the reasons which my brother gives for that conclusion. (at p414)

2. I would allow the appeal. (at p414)

GIBBS J. On 18th June 1971 the husband of the respondent sustained an injury in the course of his employment by the appellant. He was paid $12,680 as compensation under the Workers' Compensation Act, 1916-1966 (Q.) ("the Act"); that was his full entitlement under the Act. On 22nd July 1974 he died as a result of the injury. Thereafter the respondent, as administratrix of his estate, brought an action in the Supreme Court of Queensland against two defendants, one of whom was the appellant, claiming (inter alia) damages under s. 12 of the Common Law Practice Act of 1867 (Q.) (the Queensland equivalent of Lord Campbell's Act) on behalf of four children of the deceased as well as on her own behalf. At the trial, liability was admitted and judgment was given for the respondent against both defendants for $55,500, which sum was apportioned between the respondent and the four children. The learned trial judge rejected an application by the defendants to deduct from the damages the amount of $12,680 which had been paid as workers' compensation. The present appellant appealed to the Full Court of the Supreme Court, claiming that the judgment against him should be reduced by $12,680, but the appeal was dismissed. The appellant now appeals to this Court. (at p415)

2. The respondent has objected to the competency of the appeal. In the light of Moller v. Roy (1975) 132 CLR 622 it could not be suggested that when final judgment was pronounced for an amount greater than $20,000, the fact that the amount by which the judgment was said to be excessive was less than $20,000 meant that the appeal was incompetent. The argument submitted in support of the objection to competency was that the appeal was brought "on a ground that relates to the quantum of any damages in respect of death or personal injury" within s. 35 (4) of the Judiciary Act and therefore required special leave. In Cocks v. Sheppard (1979) 53 ALJR 591 , I dealt with the effect of s. 35 (4) and concluded that "the quantum of any damages" in that section means the amount of damages assessed and not the amount of damages recoverable. It follows from the reasoning which was accepted in that case that the present appeal is not brought on a ground "that relates to the quantum of any damages" within s. 35 (4), because the ground on which the appeal is brought, in substance, is that the appellant is not liable to pay the amount of damages assessed, but only that amount reduced by the workers' compensation paid. I would accordingly overrule the objection to competency. (at p415)

3. The question which falls for decision on the appeal depends on the proper construction of ss. 9A and 3 (4) of the Act. At the relevant time, sub-section (1) of s. 9A provided as follows:

"(1) Where an injury in respect whereof a worker is entitled under sub-sections (1) or (2) of section nine of this Act to receive compensation from the Workers' Compensation Fund was received by the worker under circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury (except an injury in respect whereof the employer is required by some other Act to provide against such liability as prescribed by such other Act) - (a) the amount of such damages which the employer is legally liable to pay shall, notwithstanding any other Act or law, be reduced by the total amount of the compensation (which shall include medical, hospital, travelling and other expenses) prescribed by this Act to be made from the Fund in respect of the injury in question; and (b) subject to this section, the worker or his dependents shall receive from the Workers' Compensation Fund such reduced amount. The Court by which damages are awarded in respect of an injury to which this section applies, or out of which moneys paid into Court in an action brought in respect of any such injury are ordered to be paid, shall upon the application of the Office, worker or employer determine the total amount of compensation prescribed by this Act that is to be paid from the fund in respect of such injury and that determination shall be binding upon the Office and the worker."

Most of the remaining provisions of s. 9A relate to matters of procedure and need not be mentioned, but perhaps I should refer to sub-s. (4A), which enables the Court to "order the worker to submit himself to a personal medical examination" and to enter judgment against the plaintiff if the worker has persistently and wilfully refused to comply with the order without reasonable excuse. The provisions of s. 3 (4) are as follows: "Any reference to a worker who has been injured, where the worker is dead, includes a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable." (at p416)

4. Before I turn to consider the effect of the provisions of those sections, it is convenient to refer very briefly to the scheme of the Act and to something of its history. Section 9 of the Act confers upon a worker who has received an injury in the circumstances set out in that section, or if the worker is dead upon his dependants, the right to receive out of the Workers' Compensation Fund ("the Fund") created by the Act compensation in accordance with the Act. Although s. 8 declares that the employer is legally liable to pay the compensation, and is obliged to keep himself insured with the State Government Insurance Office (Queensland) ("the Office") against that liability, the worker has no right to be paid compensation except out of the Fund. If the injury to the worker was caused by negligence, the Act does not prevent the worker or his dependants from pursuing an action for damages against the employer or any other person, but it does contain provisions designed to prevent recovery of both damages and compensation. In its original form, the Act contained, in s. 16, provisions based on s. 1 (2) (b) of the Workmen's Compensation Act, 1897 (U.K.), which gave the worker an option to claim compensation or take proceedings against the employer independently of the Act. The Act also contained, in cl. 24 of the schedule, provisions based on s. 6 of the Workmen's Compensation Act, 1906 (U.K.), which dealt with the recovery of damages from a person other than the employer (a "stranger"). In cl. 24 the expression "some other person" was substituted for the words "some person other than the employer" which had appeared in s. 6 of the Act of 1906 and the clause, literally read, appears to refer to the recovery of damages from any person other than the Office, and therefore to include the case in which damages are recovered from the employer. However, having regard to the history of the clause, and to the provision which it contains entitling the Office to be indemnified by the other person liable to pay damages (which would be inappropriate in the case of an insured employer), I consider that it must be confined, as its side note suggests, to the recovery of damages from a stranger. For those reasons it has, in my opinion, no bearing on the present case. The application of the provisions of s. 1 (2) (b) of the Workmen's Compensation Act, 1897, and its successors, including s. 16, to actions brought by dependants under Lord Campbell's Act has depended on the effect of provisions corresponding to s. 3 (4) of the Act, and has been the subject of much judicial consideration to which Dixon J. referred in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62, at pp 89-90 : "As to the repeated efforts of the courts of England, Scotland and Ireland during those fifty years to settle its meaning and application they may be described as fifty years of failure." However, it was established, particularly by the decisions of the House of Lords in Kinneil Cannel and Coking Coal Co. v. Waddell (1931) AC 575 and Avery v. London and North Eastern Railway Co. (1938) AC 606 that for the purposes of sections such as s. 16, each dependant of a deceased worker had a separate option, which each could exercise independently of the other and in a different way, so that proceedings by one dependant did not operate to affect proceedings by another. It therefore became possible for dependants who split their claims to recover the full amount of compensation payable under the Act and damages as well. (at p417)

5. In 1955 the Act was amended by the insertion in the schedule of cl. 24A which (to state the matter shortly) provides that a worker is not entitled to receive compensation at any time after damages become recoverable by him either from his employer or from a stranger, and that any compensation paid before damages become recoverable shall be a first charge on the damages. At the same time, s. 6 and cl. 24 were amended to provide that each of those provisions applies subject to cl. 24A. However, since the dependants of a deceased worker still had separate and unconnected rights to compensation, cl. 24A did not entirely prevent double recovery when the dependants split their claims. It was accordingly held in Haigh v. State Government Insurance Office (Q.) (1962) Qd R 534 that although the compensation paid to or for the benefit of a particular dependant was a charge upon the damages payable for the benefit of that dependant, the total amount paid as compensation was not a charge upon the damages payable for the benefit of all dependants. (at p418)

6. It was against this background that s. 9A was inserted by the Workers' Compensation Acts Amendment Act of 1962 (Q.). Sub-section (6) of s. 9A provides that s. 16 and cl. 24A do not apply to an injury in respect whereof the provisions of s. 9A apply; no reference is made to cl. 24, no doubt because it was regarded as inapplicable to actions against an employer. By the same statute, an important amendment was made to s. 8 of the Act. Thereafter, every employer became liable to insure himself against all sums for which, in respect of injury to any worker employed by him, he might become legally liable, not only by way of compensation under the Act but also, in case of injury suffered on or after 1st July 1963 (with an immaterial exception) by way of damages arising under circumstances creating also, independently of the Act, a legal liability in the employer to pay damages in respect of that injury. Thereafter both compensation and damages at common law in respect of an injury to a worker became payable out of the Fund. (at p418)

7. The provisions of sub-s. (4A) of s. 9A did not appear in their original form but were inserted by amendment in 1966. Other amendments have been made to these provisions but they are immaterial. (at p418)

8. I now return to consider the provisions of s. 9A. There is no doubt that the conditions precedent, stated in the introductory words of s. 9A (1), are satisfied in the present case. The injury sustained by the deceased worker was one in respect of which the deceased was entitled to receive compensation from the Fund, and it was received under circumstances creating also, independently of the Act, a legal liability in the appellant, the employer, to pay damages in respect of that injury. Although the liability of the appellant to the deceased has not been directly established in legal proceedings, the respondent could not have obtained judgment in the action brought under s. 12 of the Common Law Practice Act unless the death had been caused by a wrongful act, neglect or default which, if death had not ensued, would have entitled the deceased to maintain an action and recover damages. It was not disputed that the amount of any damages which the appellant was legally liable to pay to the deceased himself would have had to be reduced by the amount of compensation paid. However, the only damages which are subject to reduction under s. 9A (1) (a) are those described in that paragraph as "such damages", which means "damages in respect of that injury". The question is whether the damages awarded to the respondent answer that description. Damages under s. 12 of the Common Law Practice Act are not accurately described as damages in respect of the injury received by the deceased person: see Unsworth v. Commissioner for Railways (1958) 101 CLR 73, at p 90 , and cases there cited. Nevertheless, the words "in respect of" "have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer": Trustees Executors &Agency Co. Ltd. v. Reilly (1941) VLR 110, at p 111 , cited in State Government Insurance Office (Q.) v. Crittenden (1966) 117 CLR 412, at p 416 . Accordingly, it has been held that in an appropriate context a reference to "damages in respect of personal injury" will extend to damages under s. 12 of the Common Law Practice Act: Unsworth v. Commissioner for Railways (1958) 101 CLR, at pp 87-88, 90-91 ; State Government Insurance Office (Q.) v. Crittenden (1966) 117 CLR, at pp 415-417 . In Medaris v. Lars Halvorsen and Sons Pty. Ltd. (1943) 44 SR (NSW) 71 , the Court considered the effect of s. 63 (5) of the Workers' Compensation Act, 1926 (N.S.W.), as amended, which provided as follows:

"Where judgment is obtained against an employer independently of this Act, in respect of the injury any payments by way of compensation under this Act in respect of the injury ... shall be, to the extent of such payments, a satisfaction of the judgment."

It was held that this provision extended to actions under the New South Wales equivalent to Lord Campbell's Act. It was pointed out that payments of compensation made under the Workers' Compensation Act, 1926 (N.S.W.) are made "in respect of" the worker's injury whether payable in respect of incapacity or death, and that the phrase "in respect of the injury" has a special significance when used in that Act (1943) 44 SR (NSW), at pp 76, 80 . That decision has been held to be distinguishable in some cases decided on statutes differently worded (see Georgeson v. Metropolitan Transport Trust (1958) Tas SR 70 and Entwisle v. Balough (1969) VR 471 ), and in Meyer v. Hadfields Steel Works Ltd. (1962) NSWR 645 , two members of the Court appear not to have accepted all that was said in the judgments in that case. (Medaris v. Lars Halvorsen and Sons Pty. Ltd. was not discussed when Meyer v. Hadfields Steel Works Ltd. was affirmed in this Court (1962) 108 CLR 171 .) However, the decision was followed in Tesoriero v. Government Insurance Office (1970) 2 NSWR 175 , and so far as it concerns the meaning of the phrase "in respect of the injury" it is supported by Unsworth v. Commissioner for Railways (1958) 101 CLR 73 and State Government Insurance Office (Q.) v. Crittenden (1966) 117 CLR 412 . (at p420)

9. The reference to "dependants" in s. 9A (1) (b) indicates that the damages "in respect of that injury", which may be reduced under that section, include damages under s. 12 of the Common Law Practice Act. An action under s. 12 is the most notable case in which the dependants of a worker can receive damages in respect of an injury to the worker, giving those words their widest meaning. Section 9A reveals an intention to protect the Fund, which is the source of the payment of both damages and compensation, and to ensure that all compensation payable in respect of an injury is fully deducted from any damages payable in respect of that injury, even where there are several claimants proceeding in different rights. The section appears to be designed to remedy the deficiencies that had appeared in the provisions of s. 16 and cl. 24A, in so far as the latter section affects the Fund. The respondents in their argument in the present case placed some reliance on State Government Insurance Office (Q.) v. Public Curator of Queensland (1976) Qd R 281 , but in that case the claim was against a stranger, and s. 9A had no application - the case depended on cl. 24A of the schedule. (at p420)

10. The learned judges in the Court below considered that the provisions of s. 9A would only apply in the present case if the reference to "worker" in that section included the respondent by reason of the operation of s. 3(4). They said: "To be a 'worker' she had to be a person 'to whom or for whose benefit compensation is payable'. She did not answer this description." However, as will have appeared from what I have already said, the application of s. 9A does not depend upon the operation of s. 3(4). The words of par. (a) of s. 9A (1) do not refer to damages which the employer is liable to pay to "the worker"; no doubt the omission of those words was quite deliberate, having regard to decisions on the earlier provisions. Paragraph (b) does refer to "the worker" but adds the words "or his dependents", and it is because the respondent and her children are dependants of the deceased worker that the amount which they are to receive from the Fund as damages is to be reduced by the total amount of compensation prescribed by the Act to be made from the Fund in respect of the injury. (at p421)

11. Although in my respectful opinion s. 3 (4) has no bearing on the case, I should add that, in my opinion, the words "to whom or for whose benefit compensation is payable" do not govern the word "dependants" in that sub-section. Sub-section 3 (4) refers to three classes - (1) the legal personal representative, (2) the dependants, and (3) any other person to whom or for whose benefit compensation is payable. Under the provisions of the Act, in certain circumstances compensation is payable to persons who are not dependants - for example, parents (see s. 14 (1) (A) (iv)). In any case, it appears to have been incorrect to assume that no compensation was payable to the respondent in the present case, because the effect of the proviso to s. 14 (1) (A) (i) is that the dependants of a deceased worker are entitled to a specified amount of compensation notwithstanding that the amount already paid to the deceased equalled the maximum payable. (at p421)

12. For the reasons I have given, I conclude that the present case is governed by s. 9A (1) and that the damages should have been reduced by the total amount of compensation payable in respect of the injury. (at p421)

13. I would accordingly allow the appeal. (at p421)

STEPHEN J. I would allow this appeal for the reasons stated by Aickin J. (at p421)

MASON J. I would allow this appeal for the reasons given by Aickin J. (at p421)

AICKIN J. This is an appeal from a decision of the Full Court of the Supreme Court of Queensland by which it dismissed an appeal from a decision of Douglas J. (at p421)

2. The respondent's husband, one Eric George Baker, was injured in an industrial accident on or about 18th June 1971. He suffered severe injuries as a result of which he died on 22nd July 1974. In the period between the date of the accident and the date of his death he received various amounts of workers' compensation from the Workers' Compensation Fund created under the Workers' Compensation Act, 1916-1966, as amended from time to time, now the Workers' Compensation Act, 1916-1974 (Q.) ("the Act"). The payments so received as workers' compensation from the Fund totalled $12,680, being the maximum amount then payable under the Act. If he had been killed in the accident his dependants would have been entitled to receive that sum as compensation under the Act. (at p422)

3. After his death the respondent, as administratrix of his estate, instituted proceedings against the appellant, his employer, claiming $80,000 as damages for and on her own behalf as his widow and for and on behalf of his children caused by negligence and/or breach of statutory duty by the appellant. This claim was made under s. 12 of the Common Law Practice Acts 1867-1974 (Lord Campbell's Act). Douglas J. held that she was entitled to succeed and awarded the sum of $55,000 together with interest since the date of issue of the writ. It was contended before him that the amount of workers' compensation received by the deceased should be deducted from the damages assessed by reason of s. 9A of the Act. (at p422)

4. The questions arising in this appeal turn on certain specific provisions of the Act, which it is necessary to set out in full. It is first necessary to note the extended meaning given to the word "worker" by s. 3 (4) of the Act which is as follows:

"Any reference to a worker who has been injured, where the worker is dead, includes a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable."

Section 8 (1) requires each employer to insure against liability for workers' compensation and against liability for claims at common law arising out of injury to any worker. Section 9 (1) provides that each worker who receives a relevant injury "... shall receive out of the Workers' Compensation Fund compensation in accordance with this Act..." (at p422)

5. Section 9A, which was introduced in 1962 so far as material, provides as follows:

"(1) Where an injury in respect whereof a worker is entitled under sub-section (1) or (2) of section nine of this Act to receive compensation from the Workers' Compensation Fund was received by the worker under circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury (except an injury in respect whereof the employer is required by some other Act to provide against such liability as prescribed by such other Act) - (a) the amount of such damages which the employer is legally liable to pay shall, notwithstanding any other Act or law, be reduced by the total amount of the compensation (which shall include medical, hospital, travelling and other expenses) prescribed by this Act to be made from the Fund in respect of the injury in question; and (b) subject to this section, the worker or his dependents shall receive from the Worker's Compensation Fund such reduced amount. The Court by which damages are awarded in respect of an injury to which this section applies, or out of which moneys paid into Court in an action brought in respect of any such injury are ordered to be paid, shall upon the application of the Office, worker or employer determine the total amount of compensation prescribed by this Act that is to be paid from the fund in respect of such injury and that determination shall be binding upon the Office and the worker. (2) Where in respect of an injury to which sub-section (1) of this section applies, a worker claims, by or in any action or other proceedings whatsoever in any Court, against his employer any sum for damages which the worker alleges the employer is legally liable to pay in respect of such injury, then the worker shall serve upon the Office a copy of the writ of summons, summons, notice, order, counter-claim or other process by which that claim is made and shall before any other step is taken by him in such action or other proceedings file in the Court concerned an affidavit as to such service. The Office may at any time during the proceedings taken or had to enforce the claim elect to be joined with the employer by filing in the Court concerned a notice in writing to that effect. This subsection does not apply - (a) where the action or other proceedings is or are taken outside Queensland; or (b) to any application for the leave of the Court concerned to issue any process a copy whereof is required by this subsection to be served upon the Office. (3) If the Office files in the Court concerned the notice of election referred to in subsection (2) of this section in respect of a claim to which that subsection applies - (a) the Office shall be entitled to the conduct on behalf of the employer of all proceedings had or taken to enforce the claim, and for the settlement of any question arising with respect thereto, unless the Office, by writing, permits the employer to conduct such proceedings; (b) the employer shall immediately when required by the Office so to do sign and execute all such documents as the Office may from time to time consider necessary to enable the proceedings as aforesaid to be conducted by the Office: Provided that if the employer is absent from Queensland, or cannot be found by the Office, or fails, by refusing or being unable so to do or by any reason otherwise soever, to sign or execute all or any documents so required to be signed or executed by him, all such documents as are required by the Office to be signed or executed and which are not signed or executed may be signed and executed on behalf of that employer by the Office. (4) Every claim to which subsection (2) of this section applies, made by or in an action or other proceedings in the Supreme Court of Queensland or a District Court in Queensland shall be heard and determined by a Judge without a jury. (4A) In respect of a claim to which subsection (2) of this section applies, the Court concerned may, upon the application of any party to the action or proceedings by which the claim is made and upon such terms as the Court deems just, order the worker to submit himself to a personal medical examination by the duly qualified medical practitioner or practitioners named in the order. The Court concerned may discharge or vary any such order. The Court concerned may adjourn the action or proceedings as it deems necessary or expedient to enable compliance with the order. If, in the opinion of the Court concerned, the worker has persistently and wilfully refused to comply with the order without reasonable excuse, the Court may enter judgment against the plaintiff in the action or proceedings upon such terms as it deems fit. (5) The provisions, other than this section of this Act relating to the recovery by a worker from his employer of damages for which the employer is, independently of this Act, legally liable in respect of injury to such worker, shall apply subject to this section. (6) Section sixteen and clause 24A of the Schedule to this Act do not apply to an injury in respect whereof the provisions of this section apply."

Section 14 (1) (A) (i) deals with the amount of compensation where death results from injury as follows:

"Where death results from the injury -
(i) If the worker leaves any dependants wholly dependent upon his earnings at the time of his death the sum of $15,000.
In addition, if the dependants of the worker consist of or include either of the following persons wholly dependent upon his earnings, namely a widow or a woman who has lived in a connubial relationship with him for a continuous period of three years at the least terminating on his death, there shall be payable the sum of $400 in respect of -
(a) each child or step-child of the worker or each child or step-child of the woman referred to in this paragraph;
(b) each brother or sister of the worker,
who in any case was at the time of death of the worker totally or mainly dependent upon the earnings of the worker and who is under sixteen years of age or, being of or over the age of sixteen years but under the age of twenty-one years is receiving full-time education at a school, college, university or similar institution:
Provided that the amount of any weekly payments made under this Act and any lump sum in redemption thereof and any lump sum paid as compensation under this Act shall be deducted from such sum; but no such deduction shall be made so as to reduce the amount payable in respect of the dependants of the worker under this subsection below $2,500;"
The figures quoted are from the Act as amended to 1974. Clauses 24 and 24A of the Schedule are as follows:

"24. When the injury for which compensation is payable by the Office under this Act was caused under circumstances creating also a legal liability in some other person to pay damages in respect thereof - (i) The worker may both take proceedings against that person to recover damages and may apply for compensation under this Act, but is not entitled to recover both damages and compensation; and (ii) If the worker has recovered compensation under this Act, the Office shall be entitled to be indemnified by the person so liable to pay damages as aforesaid, and all questions as to the right to and amount of any such indemnity shall in default of agreement be settled by action or, if the parties consent, by an Industrial Magistrate under this Act. This clause applies subject to clause 24A of this Schedule. 24A. (1) Subject to this clause, in respect of an injury received under circumstances creating both - (a) Independently of this Act, a legal liability in some person, whether the employer or a person other than the employer, to pay damages in respect of that injury; and (b) A claim for compensation under this Act, a worker may both take proceedings to recover those damages and apply for compensation under this Act according to his entitlement thereto, but such a worker is not entitled to receive compensation under this Act at any time (or in the case of compensation under provision (B) of subsection one of section fourteen of this Act, in respect of any period of time) after those damages become recoverable by him. (2) Any amount of compensation (which shall include medical, hospital, travelling, and other expenses) under this Act paid in respect of an injury to a worker to whom this clause applies at a time or in respect of a period of time before damages become recoverable by him from the employer or, as the case may be, other person legally liable therefor, shall be a first charge upon those damages. The employer or other person from whom those damages are recoverable shall pay to the Office any sum charged thereon by virtue of this subclause or, if those damages are insufficient to meet that charge, the whole of those damages, and that payment shall, to the extent thereof, satisfy the liability of that employer or other person for payment of those damages. (3) If a worker to whom this clause applies who has received compensation under this Act has not, independently of this Act, recovered any damages from the employer or, as the case may be, other person legally liable therefor, the Office shall be entitled to be indemnified by that employer or other person to the extent of his liability.

If, subsequently to that employer or other person paying under such indemnity, the worker recovers damages against him, the payment under the indemnity shall to the extent thereof, satisfy the liability of that employer or other person." (at p426)

7. Douglas J. held that the respondent was not a "worker" within the extended definitions in s. 3 (4) because she was not a person "to whom or for whose benefit compensation is payable" and that therefore s. 9A did not apply. (at p426)

8. The Full Court agreed with the reasons of Douglas J. and did not deliver any separate reasons for judgment. It appears that his reason for that conclusion was the fact that the deceased had already been paid the maximum entitlement under the Act and that that payment exhausted any amount which would otherwise have been available to his dependants including the appellant (his widow). The only passage in his judgment dealing with this matter is as follows:
". . . In this case the deceased had received his full entitlement of workers' compensation before he died. None of it under the statute was payable to or recoverable by the plaintiff. To be a 'worker' she had to be a person 'to whom or for whose benefit compensation is payable'. She did not answer this description. In my opinion that is the simple answer to the submission."
With due respect that appears to me to overlook the latter part of the proviso to s. 14 (1) (A) (i).

9. Section 14 (1) (A) deals with payments on the death of a worker leaving dependants and fixes the amounts payable to them.

10. The proviso is as follows:

". . . Provided that the amount of any weekly payments made under this Act and any lump sum in redemption thereof and any lump sum paid as compensation under this Act shall be deducted from such sum; but no such deduction shall be made so as to reduce the amount payable in respect of the dependants of the worker under this subsection below $2,500;"

Notwithstanding the fact that the payments to the deceased equalled the maximum then payable under the Act, that proviso would not result in the dependants not being entitled to compensation because $2,500, or its equivalent at the relevant time, would have been payable to the dependants. The dependants who would have been entitled to that sum are those on whose behalf the present proceedings were brought by the widow as administratrix of the estate of the deceased, namely the widow herself and her children. The fact that the action under Lord Campbell's Act is brought by the legal personal representative can make no difference because she is suing, not on behalf of the estate, but on behalf of the dependants. A claim under Lord Campbell's Act is in substance, though not in form, a claim by each of the individual dependants on whose behalf it is brought. (at p427)

11. It is necessary to consider the decision in State Government Insurance Office (Q.) v. Public Curator of Queensland (1976) Qd R 281 . That case, though relied on by the respondent, throws no light on the present problem. It was argued for the respondent that the "legal liability" of the employer referred to in s. 9A (1) is one in respect of the injury by reason of which compensation was paid, whereas on the death of the worker a new and different cause of action arose enabling his dependants to recover. This involves equating the phrase "legal liability" with "cause of action" and concluding that the proviso had nothing whatever to say in respect of claims by dependants, notwithstanding that par. (b) of s. 9A (1) obviously contemplates situations where the worker has died as a result of the injury. (at p427)

12. In my opinion the section is not directed to causes of action but to the simpler conception of liability for a compensable injury, that is to say, all liabilities which may arise therefrom. It uses general language when it speaks of "the amount of such damages which the employer is liable to pay", thus concentrating on the liability of the employer to pay otherwise than under the Act, and not upon the recipient of the payment. Circumstances "creating . . . independently of this Act, a legal liability in the employer to pay damages in respect of that injury . . ." may be either negligence or breach of a relevant statutory duty, each giving rise to a liability to pay damages. The damages may be payable to the worker or to his dependants, depending on the circumstances, and I can see nothing in the language or the apparent policy of the section to suggest that it is confined to damages payable to the worker. Both those damages and damages payable to dependants under Lord Campbell's Act are properly described as "in respect of that injury". (at p428)

13. It is true that the worker had a cause of action based on the common law and his dependants had, on his death, one based on a statute, but each arose out of the same "injury". That injury was of the kind described in s. 8 (1) and was the foundation of both his claims and his dependants claims, whether for compensation or for damages. (at p428)

14. The word "liability" and the phrase "legal liability" are both very general expressions which take their precise meaning and application from their context and the purpose of the legislation, as the observations of Barwick C.J. in Tickle Industries Pty. Ltd. v. Hann (1974) 130 CLR 321, at pp 330-331 show. Here it seems to me that the purpose of s. 9A is to extend the provision against "double recovery" beyond the area already contained in s. 16 and cll. 24 and 24A and in that context the purpose would be defeated if "legal liability" were construed as referring only to a specific cause of action available only to the worker himself. (at p428)

15. I have not so far dealt with the operation of the extended meaning given to the term "worker" by s. 3 (4). It is clear enough, that, although the opening words of s. 3 (1), i.e. ". . . unless the context otherwise indicates . . .", do not directly apply to sub-s. (4), the latter sub-section can only apply where the context permits and that within a single section a substitution may be made in one place, though not in another. Thus in s. 9A it would seem that the substitution could be made where the word "worker" first appears because dependants may be entitled to receive compensation but that no such substitution can be made where the word "worker" second appears, for it is only the worker himself who can "receive an injury". (at p428)

16. The provisions of s. 9A (1) (a) are silent as to the persons to whom the employer is liable to pay damages and no doubt deliberately so. It is unlikely that the draftsman was unaware of the right of dependants to obtain damages under Lord Campbell's Act and that damage would, according to the circumstances, be payable to the worker or to his dependants. In such circumstances it would be natural enough not to elaborate on the expression "such damages which the employer is legally liable to pay", for their operation would be clear to the informed reader, notwithstanding the reference to the two possibilities in par. (b) which refers to "the worker or his dependants" being entitled to receive from the Fund "such reduced amount" of damages. Such damages are payable out of the Fund because by s. 8 the employer must insure with the Office against liability to workers arising independently of the Act. (at p429)

17. The words "subject to this section" in s. 9A (1) (b) present a problem of construction for it is not easy to see in what way the balance of the section may qualify that part of s. 9A but it may perhaps be intended to refer to the quantification of the total compensation prescribed by the Act, which may be determined by the Court awarding damages, as it may not have been done prior to the award of damages. (at p429)

18. It does not appear to me to matter that the amount that was paid to the deceased was different from that which was payable to the dependants under the Act. That is not inconsistent with the policy that the worker and/or his dependants shall not receive more than the greater of the maximum compensation to which they may be entitled and the damages to which they may be entitled. (at p429)

19. If the respondent's argument that s. 9A has no application were accepted it would be necessary to consider whether s. 16 and clauses 24 and 24A would apply. Section 16 and cl. 24A are excluded where s. 9A applies, but there is no express exclusion of cl. 24. It may have been assumed that cl. 24 applies only to claims against defendants other than the employer, as the side note asserts, but the words "some other person" are general and would ordinarily include the employer. Whatever its intended operation, it has at least since 1960 been subject to cl. 24A. Sub-clause (2) of cl. 24A provides as follows:

"Any amount of compensation (which shall include medical, hospital, travelling, and other expenses) under this Act paid in respect of an injury to a worker to whom this clause applies at a time or in respect of a period of time before damages become recoverable by him from the employer or, as the case may be, other person legally liable therefor, shall be a first charge upon those damages.

The employer or other person from whom those damages are recoverable shall pay to the Office any sum charged thereon by virtue of this subclause or, if those damages are insufficient to meet that charge, the whole of those damages, and that payment shall, to the extent thereof, satisfy the liability of that employer or other person for payment of those damages." (at p429)

20. Damages would "become recoverable" when judgment was entered, and if s. 3 (4) requires that "recoverable by him" be read "recoverable by his dependants" in cases where he has died the result would be that the amount of compensation previously paid would be deducted by the judgment debtor and paid to the Office and payment of the balance to the worker or his dependants, as the case may be, would satisfy the judgment debt, thus achieving the same result as s. 9A. (at p429)

21. In the result therefore I am of opinion that this appeal should be allowed. (at p429)

22. In lieu of the order made by the Full Court it should be ordered that the appeal to that Court be allowed with costs and that the order of the trial judge be varied by reducing the amount of damages awarded by the total amount of compensation paid to the deceased and that the amount of damages apportioned by the trial judge to each dependant be reduced proportionately. (at p429)

Orders

Appeal allowed with costs.

Order that the judgment of the Full Court of the Supreme Court of Queensland be set aside and in lieu thereof it be ordered:
(1) that the appeal to that Court be allowed with costs;
(2) that the judgment of Douglas J. be varied by reducing the amount of damages awarded by the total amount of compensation paid to the deceased and that the amount of damages apportioned by Douglas J. to each dependant be reduced proportionately.