QBE Insurance (Aust) Ltd v TIO
[2019] NTLC 20
•16 January 2019
CITATION:QBE Insurance v Territory Insurance Office (2019) NTLC 020
PARTIES:QBE Insurance (Australia) Limited
v
Territory Insurance Office
TITLE OF COURT: Work Health Court
JURISDICTION: Work Health
FILE NO(s):21419370
DELIVERED ON: 16 January 2019
DELIVERED AT: Darwin
HEARING DATE(s): 19, 20, 21, 22, and 23 June 2017
JUDGMENT OF: Chief Judge Lowndes
CATCHWORDS:
WORK HEALTH – LIABILITY AS BETWEEN APPROVED INSURERS –
PURPOSE AND EFFECT OF SECTION 126A OF THE RETURN TO WORK ACT
– RELEVANCE OF ACCEPTANCE OF LIABILITY – EXISTENCE OF AN
AGREEMENT WITHIN THE MEANING OF SECTION 126 (3) – WAIVER –
WHETHER THERE WAS A COMPENSABLE INJURY DURING PERIOD OF
RISK – STATUTORY PRECONDITIONS FOR ENTITLEMENT TO
COMPENSATION – MATERIAL CONTRIBUTION TO INCAPACITY –
APPORTIONMENT OF CONTRIBUTION BETWEEN INSURERS
Return to Work Act s 126A (2) and (3)
Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA
12 applied
REPRESENTATION:
Counsel:
Applicant:Mr D Churilov
Respondent: Mr M Doyle
Solicitors:
Applicant:Roussos Legal Advisory
Respondent: Hunt & Hunt
Judgment category classification: A
Judgment ID number: [2019] NTLC 020
Number of paragraphs: 234
IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIANo. 21419370
BETWEEN:
QBE Insurance (Australia) Limited
Applicant
AND:
Territory Insurance Office
Respondent
REASONS FOR JUDGMENT
(Delivered 16 January 2019)
CHIEF JUDGE LOWNDES
THE NATURE OF THE PROCEEDINGS IN THE WORK HEALTH COURT AND THE ISSUES TO BE DETERMINED
The applicant commenced proceedings in the Work Health Court pursuant to s 126A (3) of the Return To Work Act (NT), seeking full reimbursement by the respondent of $91,587.78, being statutory compensation paid by the applicant for the period from 27 August 2013 to 13 February 2014 to, or for, Mr Craig Webber (the worker) in discharge of the liability of Airnorth (the employer) under the Act, following the applicant's acceptance of the worker's claim for compensation.
By way of background, the employer's approved insurer for the period prior to 30 June 2010 was the respondent and for the period from 30 June 2010 the approved insurer was the applicant.
The applicant says that on 9 September 2013 the worker made a claim for worker's compensation under the Act for a mental injury suffered in the course of his employment as a result of being present at the scene of a plane crash at the Darwin International Airport on 22 March 2010. At all relevant times the employer was liable to pay compensation to or for the worker in respect of the injury under the provisions of the Act and at all relevant times the respondent, (being the approved insurer at the time of the plane crash) was wholly liable to indemnify the employer for its liability to pay compensation to or for the worker.
The applicant says that in accordance with, and solely by virtue of s 126A(1) of the Act, the applicant indemnified the employer for the full amount of its liability to pay compensation to or for the worker under the Act in respect of the March 2010 injury in the period from 27 August 2013 to 13 February 2014. The applicant further says that in accordance with s 126A(2) (a) of the Act it notified the respondent that the respondent may be liable to wholly indemnify the employer.
The applicant further alleges that on 14 February 2014 the respondent accepted liability to wholly indemnify the employer in respect of its liability to pay compensation to and for the worker and assumed sole administration and/or management of the claim under the Act. At all relevant times since 14 February 2014 the respondent has solely administered and /or managed the worker's claim.
The applicant says that the respondent has agreed to fully reimburse it for the amounts of statutory compensation paid by it, such agreement constituting an agreement within the meaning of s126A(3)(a) of the Act.
Accordingly, the applicant seeks full reimbursement of the monies paid or in the alternative as the Court determines in accordance with s 126A(3)(b) of the Act.
By way of answer to the applicant's claim for reimbursement the respondent denies that the worker's claim for compensation was specifically made in respect of, or confined to, the March 2010 incident, although it admits the worker suffered a mental injury as a result of being present at the scene of the plane crash.
The respondent alleges that the employer's liability to pay compensation to and for the worker arose out of not only the mental injury sustained as a result of the March 2010 incident but also out of an aggravation (occurring by way of a gradual process over a period of time) of that injury. It is alleged that the respondent's liability in respect of the subsequent injury arose due to the fact that the post 30 June 2010 employment duties and activities of the worker materially contributed to the aggravation of the earlier mental injury. In particular, the respondent says:
a.the nature and conditions of the worker's employment with Airnorth in the period from 1 July 2010 to 9 September 2013, including the demands of his workload and the additional responsibilities assumed in consequence of his promotion to the position of "Operations Centre Manager'' from 28 May 2-12 and/or
b.the worker's involvement and/or knowledge of, leading up to, during and following Airnorth's participation in a disaster relief recovery program, "Exercise Flame", run in conjunction with the Darwin International Airport in August 2013.
materially contributed (in the sense of being "the real, proximate or effective cause") to the aggravation of the original mental injury.
The respondent also alleges that the worker suffered a comorbid major depressive disorder that was of gradual onset over a period of time which was materially contributed to by the post 30 June 2010 employment duties and activities of the worker. Those duties and activities were the real, proximate or effective cause of the worker's major depressive disorder.
The respondent says that both the aggravation of the 2010 injury and the comorbid major depressive disorder, which occurred during the time the applicant was the approved insurer, resulted in or materially contributed to the worker’s incapacity for work.
The respondent denies the alleged agreement as to contribution between the two insurers; and submits that in accordance with s 126A of the Act the Court should consider apportioning the contribution between the applicant and the respondent on a 50-50 basis.
These proceedings give rise to a number of issues – namely:
a.What is the purpose and effect of s 126A of the Act;
b.What is the relevance (if any) of the applicant’s acceptance of liability to the determination of liability under s 126A of the Act as between approved insurers.
c.Was there an agreement between the applicant and the respondent within the meaning of s 126A (3).
d.Was there a waiver.
e.Did the worker suffer a compensable injury or injuries during the period the applicant was the approved insurer on risk.
f.Were the statutory preconditions for an entitlement to compensation satisfied.
g.Did any subsequent injuries result in or materially contribute to the worker’s incapacity or impairment.
h.If the employer was liable to pay compensation to the worker as a result of a subsequent injury or injuries, what is the proportion in respect of which the applicant and respondent should make contribution (indemnify in whole or part) in relation to the employer’s liability to pay compensation to the worker.
THE PURPOSE AND EFFECT OF SECTION 126A OF THE ACT
The proper construction and operation of s 126A of the Work Health Act (which was renamed the Workers Rehabilitation and Compensation Act) was comprehensively considered by Martin (BR) CJ, Mildren and Thomas JJ in Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12. The conclusions reached in that decision have equal application to s 126A of the Return to Work Act as that provision is in the same terms as s 126A under the previous legislation.
The Court of Appeal began by referring to the provisions of s 126A:
(1) Subject to subsection (2), where an employer is liable under this Act to pay compensation to a worker, the approved insurer of the employer at the time the claim is made shall indemnify the employer for the full amount of the employer’s liability to the worker notwithstanding that the approved insurer may allege that, at the time the injury was sustained or the disease was caused, the liability to indemnify the employer (whether in whole or in part) was that of another approved insurer.
(2) Where an approved insurer who has indemnified an employer for the employer’s liability to pay compensation to a worker under this Act is aware that another approved insurer may be liable to indemnify the employer for all or a part of the compensation paid, the first mentioned insurer –
(a)shall notify the other insurer as soon as practicable after becoming aware of the insurer’s potential liability; and
(b)may, within 6 months after becoming aware of the other insurer’s potential liability or such longer period as the Court may allow –
(i)commence proceedings under Division 4 of Part VI to recover from the other insurer all or a part of the compensation paid; or
(ii)where other proceedings in respect of the claim for compensation have been commenced under that Division, join the other insurer as a party to those proceedings.
(3) Where an approved insurer has indemnified an employer for the employer’s liability to pay compensation to a worker under this Act and it is subsequently established that another approved insurer was liable to indemnify that employer in whole or in part, that other insurer shall reimburse the first mentioned insurer such amount or amounts –
(a)as agreed between the 2 insurers; or
(b)in the absence of such agreement, as the Court determines.
(4) In this section “approved insurer” includes –
(a)as self-insurer; and
(b)the Territory
It is clear from the judgment of Mildren J (with whom Martin (BR) CJ and Thomas J agreed) that an employer is liable under the Act to pay compensation to a worker if that worker suffers a compensable injury.[1] An injury is compensable if a worker suffers an injury within or outside the Territory and that injury results in or materially contributes to his or her:
a.death;
b.impairment; or
c.incapacity.[2]
As Mildren J went on to explain:[3]
“Injury” is defined by s 3 and it includes a physical or mental injury; or a disease; or the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing disease, provided that the injury arose out of or in the course of the worker’s employment.[4]
His Honour then observed that “where the injury results in or materially contributes to incapacity or impairment, subject to giving notice in accordance with s 80, the employer is liable to pay weekly payments or other compensation to the worker”.[5] Mildren J added: [6]
There is no reason to limit “injury” to a single injury. If the worker suffers a series of injuries which result in or materially contribute to his incapacity or impairment he is still entitled to compensation under the Act.
In accordance with ss 64 and 65 of the Act and the definition of “incapacity” in s 3 and consistent with the decisions in Arnotts Snack Products Pty ltd v Yacob (1985) 155 CLR 171, Foresight Pty Ltd v Maddick (1991) 1 NTLR 209 and Work Social Club v Rozycki (1998) 129 NTR 9, Mildren J stated that “the employer’s liability to pay compensation for incapacity does not arise until the incapacity results in financial loss”. [7]
His Honour went on to discuss certain circumstances that are relevant to the liability as between approved insurers pursuant to s 126A of the Act:[8]
In the normal course of events, the insurer who is at risk at the time when the employer becomes liable to pay compensation under the Act, is liable to indemnify the employer. This will frequently be at, or shortly after, the injury. In the case of a claim for weekly benefits, although the liability might not arise until months or years after the injury because the injury did not immediately result in financial loss, the insurer at risk at the time of the injury is the insurer liable to indemnify the employer against incapacity once it supervenes.[9] The employer is required under s 53 to pay compensation for weekly payments if the injury “results in or materially contributes” to his incapacity. Since the decision of the Privy Council in Bushby v Morris[10] an injury or incapacity may be attributable to more than one cause.[11]
If a worker suffers the incapacity as a result of more than one injury or if the incapacity is materially contributed to by more than one injury, the worker can claim in respect of each injury against his employer. If more than one employer is involved he may claim against each employer. Liability is attracted to each employer and each injury on risk at the time of each injury. It follows from this that if the incapacity results from or is materially contributed to by more than one injury, each employer, if there is more than one, is liable to pay the full amount of compensation payable under the Act in respect of the incapacity and each employer is entitled to indemnity from its respective insurer at the time of the relevant injury. Similarly, if there is only one employer, but more than one insurer, each insurer is liable to indemnify the employer for the full amount of the compensation payable in respect of the incapacity.
Mildren J then proceeds to discuss the right to recovery under s 126A of the Act:[12]
The purpose of s 126A(1) is to require the insurer of the employer at the time the claim is made by a worker to indemnify the employer for the full amount of the employer’s liability to the worker, notwithstanding that another insurer is wholly or partially liable to indemnify the employer. The words “at the time the claim is made” are ambiguous. What is the claim being referred to? I think the context suggests that it is the claim made by the worker. Until a claim is made in accordance with s 82, the machinery provisions of the Act dealing with acceptance, deferment or disputing liability are not triggered.[13] Once a claim for weekly compensation is accepted, the employer cannot cancel or reduce weekly payments, except as provided by s 69. One of the circumstances where the worker may cancel weekly payments under s69 without notice is where the worker has returned to work.[14] If the worker has ceased to be incapacitated for work, but has not returned to work, the statement required by s 69(1) must be accompanied by a medical certificate as required by s 69(3). If the worker, having returned to work suffers a further injury resulting in incapacity or otherwise becomes incapacitated as a result of the original injury, the worker would need to lodge a further claim under s 82. The worker, for example may have returned to work prematurely or may have returned to work on light duties but have been unable to perform them. In any event, it is the employer’s insurer at the time the claim is made who must indemnify the employer and this is so even if the incapacity giving rise to the claim is the result of, or was materially contributed to by, an injury which occurred at a time when that insurer was either not liable to indemnify the employer at all or only liable to provide a partial indemnity to the employer.
His Honour goes on to discuss the situations in which the insurer at the time of the claim may be required to indemnify the employer:[15]
The concept of partial liability to indemnity could arise when there are separate injuries both of which caused separate compensable consequences. There may an injury to the right arm, for example, resulting only in medical expenses under s 73, but no impairment and an earlier injury to the eft arm resulting in impairment as well as medical expenses. The claim for both injuries might arise at the same time. More usually, the two injuries may combine to a cause a single “permanent impairment” of the whole person.[16] In each of these situations, the insurer at the time of the claim must indemnify the employer.
Finally, his Honour points out the broader ambit of s126A (3): [17]
…I do not consider that s 126A(3) is limited to cases of double insurance. It may apply also to cases where the insurer liable at the time of the claim is obliged under s 126A (1) to indemnify an employer in circumstances where the injury giving rise to the incapacity occurred at a time when another insurer was on risk and it may also apply in relatively rare cases where there are separate injuries with separate consequences which apply to each insurer.
The applicant submitted that Parliament did not intend “the other/earlier insurer to have recourse to section 126A of the RTWA in order to recover compensation paid by it to or for the worker under the RTWA”, especially in “the case of having voluntarily assumed liability to make compensation payments”.[18]
The respondent made submissions to the contrary.[19]
With respect I agree with the submissions made by the respondent and reject the applicant’s submissions.
A submitted by the respondent, s126A(3) is “a substantive provision by which the Court is empowered to determine liability and apportion contribution between insurers of a single employer”: it is “a unique and direct source of the Court’s power”.[20] The Court is not “constrained in its power to determine ‘contribution’ between approved insurers only because of the lack of any specific reference to that term”: Allianz v TIO at [50] per Milden J and at [73] per Thomas J”.[21]
It must be borne in mind that s 126A is:[22]
a remedial provision [which] should be given a broad construction consistent with the purpose of the Act so as to give the most complete remedy consistent with the language employed and to which its words are fairly open: Allianz v TIO at [51] per Mildren J.
Therefore, s 126A(3 should be “interpreted as conferring wide and extensive powers upon the Court to apportion liability between insurers: Allianz v TIO.”[23]
As further submitted by the respondent, s 126A(3) is “ a stand-alone substantive provision” which permits the Court to determine and apportion liability as between the two approved insurers in the present case in the manner contended by the respondent.[24] This interpretation is supported by the Second Reading Speech which makes it clear that the one of the purposes of the reform to the Work Health Act was to enlarge the powers of the Court to “handle disputes between insurers where an attempt may have been made to transfer liability to a previous insurer”.[25]
Finally, the interpretation of s 126A(3) as conferring wide and extensive powers on the Work Health Court to determine liability and apportion contribution between insurers is in no way inconsistent with the detailed discussion of the purpose of s 126A in Allianz v TIO at [47] – [49] by Mildren J.
THE RELEVANCE OF THE APPLICANT’S ACCEPTANCE OF LIABILITY TO THE DETERMINATION OF LIABILITY UNDER S 126A
At the invitation of the Court the parties made supplementary submissions as to the relevance of the applicant’s decision to accept liability dated 13 September 2013 to the determination of liability under s 126A of the Act – and in particular to the following issue which was raised by the Court:[26]
Whether or not the acceptance of liability was in respect of one or two injuries may be significant. If liability was accepted in respect of two injuries then the only issue for the purposes of the present proceedings is whether the worker’s incapacity resulted from or was materially contributed to by more than one injury. The issue becomes merely a matter of medical causation – there being no need to examine whether an injury/injuries (as defined in the Act) occurred.
The applicant submitted that:[27]
…acceptance of liability in respect of Mr Webber’s claim for compensation was only in respect of the mental injury suffered by him as a result of being present at the scene of the plane crash on or about 22 March 2010. Specifically, there was no acceptance of liability for any purported mental injury suffered by Mr Webber on 29 August 2013 or for any purported gradual process aggravation mental injury referable to employment with Airnorth post 30 June 2010.
In the alternative, the applicant contends that if the Court finds to the contrary and “not decide for itself the question of whether the alleged gradual process aggravation mental injury as relied upon by the respondent is compensable in accordance with the RTWA[28] it would fall into error [because] acceptance of liability does not stop the applicant from re-opening the issue of liability
before the Court in this proceeding and putting in issue the compensability under the RWTA of the alleged gradual process aggravation mental injury as relied upon by the respondent”.[29] The applicant submits that “the correct legal approach requires the Court to consider for itself the question of the compensability under the RTWA of the alleged gradual process aggravation”. [30] The applicant submits that:[31]
…the Court’s task in this proceeding is to take into account all of the evidence adduced (including the medical and lay evidence which was not available as at the time of the liability decision conveyed by the applicant’s letter on 13/9/13) leading to the Court making its own findings and coming to its own decision in respect of the compensability under the RTWA of the gradual process aggravation mental injury …It would be an error of law were the Court only to consider the state of affairs as at the time of the liability decision.
In advancing its argument the applicant relies upon the following remarks made by the Court of Appeal in Disability Services of Central Australia v Regan [1998] NTCA 77; 8 NTLR 73, which it says supports the approach to be taken in the present proceedings:[32]
In dealing with an appeal under s 69, the Court is not called on to decide whether or not the employer was justified in the action it took because there was evidence to support the action. The question which has to be decided is whether, upon a consideration of all of the evidence in the case…the employer has proved the facts set out in the certificate, and if so, whether as a matter of law those facts support the conclusion that worker’s weekly compensation payments should be cancelled or reduced, as the case may be, as from the relevant date, which is 14 days after service of the Form 5 notice.
The applicant also relies on the following observations made in Carl Carlsen v AAT Kings Tours Pty Ltd [1999] 126 NTR 1 at [17]-[18]:[33]
In our opinion, there is nothing in the Work Health Act which goes so far as to create an estoppel when an employer accepts liability; or having failed to comply with s 85 is deemed to have accepted liability. In both cases the employer is obliged to make payments of compensation vide s85(2). Indeed, even if the employer defers making a decision, the employer is obliged to commence making payments: see s 85(4)(b). However, in those circumstances s 87(7) provides that the payments do not amount to an admission of liability and are irrecoverable by the employer notwithstanding that the employer may not be liable under the Act. It is questionable whether payments required to be made under s 85(2) can be recovered in all circumstances where the employer ultimately is found not to be liable.
It was held in Perfect v Northern Territory (1992) 107 FLR 428 at 435-6 per Mildren J that one of the objects of the provisions of Div 5 of Pt V of the Act was to ensure that a worker’s claim was dealt with speedily by his employer, and to that end, the time limits and the procedures laid down by s 85 for dealing with claims must be strictly complied with. Given the very short period of time within which an employer must accept, reject or defer a claim, and the consequences of failing to comply with the provisions, it would be surprising if the legislature had intended that a decision to admit liability was irreversible, even if mistakenly made, or made in the absence of information not then available which shows that the claim is groundless.
The applicant placed further reliance on the observations made by Angel J in Regan v Disability Services Pty Ltd [1998] NTSC 65 which were to the effect that an employer could have recourse to s 104 of the Act by way of a substantive application if it wished to reopen “the whole issue of liability”. [34] As pointed out in the Applicant’s Supplementary Submissions at [44]:
On appeal Mildren J (with Thomas and Priestley JJ agreeing) confirmed this was the case. The Court of Appeal further confirmed an employer’s (an consequently an approved insurers’) ability to challenge “whether there was ever an injury at all” as part of its application under s 104, or as part of a worker’s application to the Court if he/she had broaden the scope of the issues to be outside the Form 5 Notice: Disability Services CentralAustralia v Regan [1998] NTCA 77; 8 NTLR 73.
In further support of its contention the applicant points out that in “some instances an approved insurer can join the other approved insurer as a party to the proceeding which has already been commenced in respect of the claim for compensation (employer/worker dispute) (section 126A (2)(b)(ii) of the RTWA)”.[35] The applicant contends that “it would be a matter of great injustice, and illogicality, if in such a proceeding an employer (and consequently an approved insurer
subrogation) could re-open the issue of liability in the context of its dispute with a worker, but the same approved insurer could not do so in the context of its dispute with another approved insurer in the same proceeding and one involving the same factual/legal matrix”. [36] The applicant concludes:[37]
If it is the case that re-opening the issue of liability is permitted across the board in a proceeding involving a worker and two approved insurers….then it must equally be permitted in this proceeding which was commenced by the applicant in accordance with section 126A(2)(b)(ii) of the RTWA.
Finally, the applicant submits that its construction of s 126A – which allows the whole issue of liability to be re-opened – is consistent with and supported by the remedial nature of the section and its underlying rationale. [38]
The submissions made by the respondent in general accord with the tenor of the applicant’s submissions.
The primary submission made by the respondent is couched in these terms:[39]
The respondent respectfully submits that in the present case, which involves the determination of liability as between approved insurers under s 126A of the Return To Work Act, it is neither necessary nor appropriate to determine what injuries were accepted by QBE’s decision dated 13 September 2013.
The core issues between the parties are:
a.whether the worker suffered an injury arising out of or in the course of the employment within the meaning of section 4 of the Act in the period during which the applicant QBE was on risk; and
b.in the event that such an injury was suffered, whether incapacity and impairment (for which the worker has received admitted payments of compensation pursuant to Part 5 Division 3, Subdivisions B and D and Division 4 of the Act) resulted from or has been materially contributed to by such injury (refer s53).
The respondent proceeded to make the following submissions:[40]
Whether, as a matter of fact, the insurer making a payment of compensation by way of indemnification of the employer’s liability considered, at the time of the payment, that the payment was being made in respect of incapacity or impairment arising from a particular injury is largely if not wholly immaterial to that insurer’s right to seek reimbursement of contribution from the other. This must necessarily follow from the reasoning[41] of the Court of Appeal in Allianz v TIO [2008] NTCA 12; (2008) 23 NTLR 186 as to the purpose of s 126A, which reasoning is binding on this Court.
What is material to the latter right (if it exists) is simply whether an injury suffered during a period when the ‘target’ insurer was ‘on risk’ (if there was one) results in, or has materially contributed to, the incapacity or impairment in respect of which compensation has been paid. A corollary consideration is whether the act of one insurer in indemnifying the employer serves to discharge the other insurer of its coordinate liability”.[42]
The respondent submits consistent with the principles relevant to the application of s 126A as articulated by Mildren J in Allianz v TIO at [ ]:[43]
Liability to pay compensation arises in respect of the incapacity or impairment (or medical expenses incurred) consequent upon an injury (injuries). That is to say it is payable for the
effects of the injury; it is not payable for the injury itself.[44]
As regards the acceptance of the worker’s claim the respondent made the following submission:[45]
In a case such as the present, neither the form nor content of the claim form, or the decision by which the claim was accepted, are determinative of the factual issues in contest between the parties as articulated in paragraph 3 hereof (or more broadly) in the context of the exercise upon which the Court is required to embark under s 126A.
However, the respondent conceded that the worker’s claim form and the Notice of Decision may have some potential evidentiary value – it being a matter for the Court to attribute some value as it sees fit. [46]
The respondent made the following final submission: [47]
In conclusion, the respondent respectfully submits that notwithstanding any evidentiary value that may be attributed from the 9 September 2013 claim form and the 13 September decision, the Court is charged with the task of considering and making findings in the light of the evidence as a whole as to the core issues between the parties as identified in paragraph 3 hereof; and further the Court is not constrained in that exercise, in reference to the issue identified in 3.1, by the terms of the claim form and decision made in respect of it.[48]
Having considered the submissions of the two insurers, it follows from the reasoning of the Court of Appeal in Allianz v TIO, and in particular the language used in s 126A(3), that the court must determine the two core issues identified by the respondent in its submissions in light of the evidence as a whole which was adduced at the hearing. In discharging that function the Court is not confined to considering the evidence that was available at the time the worker lodged his claim and the claim was accepted by the applicant - including the claim form and the notice of decision and their contents. The Court must consider all further evidence that subsequently came to light and which was presented at the hearing. The latter is made abundantly clear by the following words (emphasis added) which appear in s 126A(3):
Where an approved insurer has indemnified an employer for the employer’s liability to pay compensation to a worker under tis Act and it is subsequently established that another approved insurer was liable to indemnify that employer in whole or in part (emphasis added) that other insurer shall reimburse the first mentioned insurer…
It also follows that whether the applicant accepted liability for not only the initial injury but also for a second subsequent injury is immaterial; though as submitted by the respondent the worker’s claim form and the notice of decision may have some evidentiary value which assists the Court in determining whether the worker suffered a compensable injury subsequent to the initial mental injury in March 2010.
A construction of s 126A which requires the Court determine for itself the whole question of liability as between approved insurers on the whole of the evidence is not only consistent with the remedial nature of the provision and its rationale but is also consistent with the jurisprudence that has evolved in relation to other comparable areas of worker’s compensation law in cases such as Disability Services of Central Australia v Regan [1998] NTCA 77; 8 NTLR 73; Carl Carlsen v AAT Kings Tours Pty Ltd [1999] 126 NTR 1 at [17]-[18]; Perfect v Northern Territory (1992) 107 FLR 428 at 435-6 per Mildren J; Regan v Disability Services Pty Ltd [1998] NTSC 65.
WAS THERE AN AGREEMENT BETWEEN THE INSURERS WITHIN THE MEANING OF SECTION 126 A (3) OF THE ACT
A crucial issue in these proceedings is whether there was ever an agreement between the parties as contemplated by s 126A (3) of the Act. If there were such an agreement then the Court has no jurisdiction to determine and apportion liability as between the applicant and the respondent.
Whilst it is clear that the subsection provides a mechanism for approved insurers to resolve potential disputes as to their respective liability to indemnify an employer in respect of its liability to pay compensation to a worker, and to reach an agreement as to reimbursement of monies paid by way of compensation to a worker, it is not immediately apparent how that process was intended to operate. Furthermore, it is not clear as to what would constitute an agreement within the meaning of the section.
The effect of s 126A is that it enables an insurer to commence proceedings in the Work Health Court against another insurer or to join another insurer in subsisting proceedings between a worker and an employer in respect of a claim for compensation for the purposes of establishing that the other insurer was in fact liable to indemnify the employer and claiming reimbursement of such amounts of compensation as have been paid by the first insurer in discharge of the employer’s liability to pay compensation to a worker. The section also empowers the Court to determine the amount or amounts to be reimbursed
However, s 126A(3) allows insurers to resolve a potential dispute between them as to their liability to indemnify an employer (where it is subsequently established that another insurer was liable to indemnify the employer in whole or in part) by reaching an agreement as to the amounts or amounts of compensation to be reimbursed - without recourse to legal proceedings in the Work Health Court. This construction of the subsection is not only consistent with the broad language of the provision, but also accords with statements made in the relevant Second Reading Speech as to the purpose of the section.[49] This process does not offend the “contracting out” provisions of s186A of the Act because s 126A(3) expressly permits insurers to resolve any disputes between them by agreement without invoking the jurisdiction of the Court.
In my opinion, s 126A(3) is so broadly expressed that it also allows insurers already involved in legal proceedings pursuant to s126A(2) to avail themselves of the mechanism provided for in s 126A(3) (a) at any time prior to the Court’s determination as to the amount or amounts of compensation to be reimbursed by one insurer.
However, the question that remains is what amounts to an “agreement” for the purposes of s126A(3). Neither the section nor the interpretation section of the Act (s3) provides any guidance as to the meaning of the words “agree” or agreement” as they appear respectively in ss 126A(3) (a) and (b).
First, it is necessary to consider the situation where two insurers may – rather than invoke the jurisdiction of the Court under s 126A – agree as to their respective liability and the amount or amounts to be reimbursed. In these circumstances the agreement must, in my opinion, satisfy the requirements of a legally binding agreement: in other words, an enforceable contract.
There are sound public policy reasons for imposing such a strict requirement. As an agreement under the relevant section has the effect of:
a. ousting the Court’s jurisdiction to hear and determine disputes relating to liability as between insurers and determine apportionment; and
b.depriving the parties of a statutory right to seek a determination of the Court under s 126A
the agreement must strictly conform to the requirements of an enforceable contract – and nothing short of that will suffice.
There is yet another and important reason why the agreement must be a legally binding agreement. In the event of one party defaulting under the agreement, the innocent party would be unable to enforce a non –binding agreement by way of legal action[50] under either the Return to Work Act or at common law (except possibly by way of the doctrine of promissory estoppel).
In order for a contract to be enforceable, the classic elements of a contract need to be present: an offer and acceptance coupled with consideration.
Whether an agreement has been reached is foremost determined by whether there has been an offer and an acceptance.
An offer is an expression of willingness to contract on the terms stated: Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 93 CLR 546 at 555 cited by JW Carter in Carter’s Guide to Australian Contract Law at [2.04].
It is important, of course, to distinguish an offer from an invitation to offer. The latter is not an offer because it is in effect nothing more than an expression of willingness to negotiate[51] – not an expression of willingness to contract on the terms stated.
As stated by Carter, “the acceptance of an offer may be defined simply as compliance with the requirements, if any, stated in the offer”.[52] Put another way a contract results when the offeree accepts the offer in accordance with its stated terms.[53] The acceptance must be unequivocal ie the offer and acceptance must correspond.[54]
The offer can only be accepted by the person to whom was made (the offeree);[55] and acceptance of an offer is not effective until such time as it has been communicated to the offeror.[56] Although the acceptance need not be communicated by the offeree, “it is not sufficient for the offeree merely to decide to accept the offer”.[57]
As pointed out by Carter, consideration is present if ‘the promise confers a benefit on the promisor or suffers some detriment” or if “the promise has purchased the promisor’s promise”.[58] Given the difficulties that can arise when identifying the consideration that has been provided for a promise, agreements are often expressed in a deed: “consideration is not required in contracts executed as a deed”. [59]
In the present case what is alleged is that the relevant agreement came into existence as a result of conduct between the two insurers prior to the filing of the Originating Application and subsequent Statement of Claim as well during the course of proceedings. This is not a case where the alleged agreement came into existence independently of and prior to the commencement of legal proceedings. However, as mentioned earlier, the applicant is able, in the circumstances, to seek to rely upon the alleged agreement.
It seems to me that in the circumstances of this case the relevant agreement would have to consist of either an enforceable contract as discussed above or duly signed consent orders reflecting the agreement between the parties. The latter would be enforceable as orders of the Court.
The question that needs to be answered is whether the Court can be satisfied that the applicant and respondent entered into an agreement constituted by an enforceable contract or consent orders. The question is whether objectively considered, the conduct of the two insurers in this case clearly demonstrates that an agreement was reached between the parties in either manner.
The negotiations and correspondence between the two insurers in respect of the alleged agreement are to be found in Exhibit A3. It is necessary to examine those documents in order to determine on an objective analysis whether an agreement within the meaning of s 126A(3) was reached, such as to preclude the Court from determining liability as between the two insurers pursuant to the section (as contended by the applicant).
The first document in the Exhibit is a letter from the legal representative of QBE to TIO dated 28 November 2013 and sent via email. That correspondence contains a claim made against TIO under s 126A WRCA in respect of compensation paid by QBE to the worker.
The second communication is an email from QBE’s legal representative to TIO (sent on 5 December 2013) which is in the nature of a follow up to its earlier letter.
The next communication contained in Exhibit A3 is a further email from the legal representative for QBE to TIO sent on 16 December 2013, following up the absence of a response to their earlier email.
That email is followed by a response by way of email from the legal representative for TIO sent on 17 December 2013, who advised that he was in the process of seeking instructions regarding the matters raised by QBE’s legal representative.
The next document in the Exhibit is an email from the legal representative of QBE to TIO’s legal representative sent on 19 December 2013. That email reiterated the claim against TIO and threatened the commencement of proceedings in the Work Health Court in the event of the claim not being accepted by 23 December 2013.
That correspondence was followed by an email sent by the legal representative to TIO’s legal representative on 2 January 2014. The contents of that email are set out in full:
I refer to your telephone conversation with Melanie Blackman on 23 December 13. I understand you were to send us a letter by COB 23 December 13 about TIO taking over the claim. We have not received anything yet.
On 19 December 13, Nicole Waterhouse (Ramsay Health/Northside Clinic) sought from QBE a three week extension to Mr Webber’s admission to Northside, based on the recommendation of Dr Prem Naidoo. I attach a copy of Dr Niadoo’s report dated 19 December 13.
I also attach Margaret Grant’s (Northside Clinic) letter to QBE dated 30 Decembers 13 regarding the Day Program, which is scheduled to commence on 13 Jan 14. You will see Ms Grant notes Mr Webber’s request that he attend the Program two times per week, over a three month period.
This is the sort of decision that TIO should be making. I encourage you to write to us as soon as practicable to confirm TIO is taking over the management of this claim.
After that, we can then articulate the costs claimed from QBE (both claim expenses and legal costs).
Unless you contact us to the contrary, on or after Mon 6 Jan 14, Monica Nancarow of QBE will contact Ms Bianca Portelli-Reidy to discuss the mechanics of the changeover (as QBE will need to negotiate over to TIO the provider agreements (Northside Clinic etc).
This correspondence was followed by an email from Monica Nancarrow to TIO which was sent on 10 January 2014. The following are extracts from that email:
… Thank you for meeting with me on Tuesday 7/1/14 to discuss ongoing management of this claim……..You were to meet with others within TIO and advise how to handle the changeover….
You requested that QBE continue to manage the claim for the present as TIO were still assessing circumstances…
That email was followed by a letter dated 3 February 2014 from QBE’s legal representative to TIO’s legal representative (which was sent by email), requesting advice as to what steps had been taken by TIO in assuming conduct of the claim.
The next document in the Exhibit is an email sent by QBE to TIO on 14 February 2014 which, inter alia, stated:
As agreed, we have informed both Craig Webber and Leigh Greig that TIO will be taking over management of this claim and you mentioned that you would be liaising directly with the Northside Clinic regarding Craig’s readmission.
QBE will provide TIO with a notice of recovery within the next week.
This communication is followed by a letter dated 16 April 2014 (one day prior to the filling of the Originating Application in the Work Health Court) from QBE’s legal representative to TIO’s legal representative. That letter stated that QBE seeks reimbursement for compensation and legal costs paid during the period 27 August 2012 and 13 February 2014. A schedule of costs was enclosed. The claim was for $77,344.10 for compensation paid together with legal costs of $3500, making a total of $80,844.10.
The next document contained in Exhibit A3 is an email from TIO’s legal representative to QBE’s legal representative sent on 18 May 2014 requesting copies of tax invoices relating to the management of the worker’s claim by QBE.
This was followed by an email from QBE’s legal representative to TIO’s legal representative (which was sent on 29 May 2014) advising that an Application was filed in the Work Health Court on 17 April 2014 and that the TIO would be served with the Application “if there no is outcome satisfactory to QBE”. The email went on to impose and outline the following timetable:
In relation to time frames, we indicate the following:
a.Monica Nancarrow to meet with Melanie Lister by 3 Jun 14.
b.QBE and TIO to agree the amount to be reimbursed by 6 Jun 14.
c.TIO to pay QBE the amount set out in the Schedule ($77,344.10) or as agreed, by 10 Jun 14.
Regarding legal costs, in our letter dated 16 April 14, we claimed $3500 on behalf of QBE. Since then, there have been further costs and the claim for costs is $4500.
Please confirm the time table by Friday this week.
The next communication between the parties occurred on 24 June 2014 when QBE’s legal representative sent an email to TIO’s legal representative pointing out that QBE has not been contacted by TIO to agree the amount to be reimbursed and TIO has not made any payment to QBE. The email also inquired as to whether the legal representative for TIO had instructions to accept service of the Application filed in the Work Health Court.
TIO’s legal representative sent a letter to QBE’s legal representative on 26 June 2014 confirming instructions to accept service of the Application.
The next document contained in Exhibit A3 is a letter from TIO’s legal representative to QBE’s legal representative dated 24 September 2014 in relation to ongoing discovery and the upcoming Directions Conference.
This correspondence was followed by a long letter from QBE’s legal representative to TIO’s legal representative dated 24 September 2014. That letter enclosed a Schedule of Claims Expenses as at 24 September 2014 (totally $91,587.78). The letter went on to deal with:
a. the worker’s claim for worker’s compensation;
b. TIO’s liability for Mr Webber’s medical condition;
c. the steps taken by QBE since the claim was made (including correspondence with TIO about assuming management of the claim);
d. correspondence after TIO assumed management of the claim;
e. costs and interest on account of the efforts made by QBE before and after the making of the Application in attempting to come to an agreement about the matter;
f. reservation of rights to pursue any other cause of action against the TIO (including estoppel by conduct); and
g. QBE’s claim.[60]
The next communication is a letter from TIO’s legal representative to QBE’s legal representative dated 6 January 2015 which stated:
We refer to our conversation on 18 December 2014.
In addition to managing the worker’s claim, TIO have instructed us that they will reimburse QBE for amounts paid to/or for the worker for the period 27 November 2013 to date. Accordingly, can you please provide us with an updated schedule of QBEs claims expenses.
In light of the above we feel there is no longer any need for QBE to continue with their current application against TIO in the Work Health Court. We ask QBE withdraw their application and file and serve a Notice of Discontinuance at the earliest convenience.
The final correspondence contained in Exhibit A3 is a letter from QBE’s legal representative to TIO’s legal representative dated 21 January 2015. The letter begins by referring to the matters stated in the earlier letter from TIO’s legal representative. It then goes on to refer to the Schedule setting out a claim for $91587.78. The letter states that QBE is seeking reimbursement of the amounts paid by it to, or for, the worker along with interest and costs. The letter attaches a draft Consent Order in that regard, pointing out that the calculation of interest is subject to change (depending on when the amount is paid). The draft consent order provided for payment by the TIO of QBE’s costs at 100% of the Supreme Court Scale – certified for counsel, to be taxed in default of agreement. The correspondence ended with:
We look forward to your reply and to your agreement regarding the Consent Order.
It cannot be inferred from the correspondence and conduct of the parties that the parties entered into an enforceable contract as regards the reimbursement of compensation or the apportionment of contribution between the insurers.
First, it is doubtful whether, strictly speaking, the applicant ever made an “offer” in the contractual sense. The letter from QBE’s legal representative to the TIO of 5 December 2013 inviting it to reimburse the expenses paid by QBE might be considered to be nothing more than an invitation to treat or at the highest an offer to settle the matter in advance of litigation. Otherwise the correspondence from QBE’s legal representative is replete with the language of “claims and demands”. However, the analysis that follows proceeds on the basis that the applicant made an offer in the contractual sense.
Bearing in mind that any agreement under the relevant subsection must relate to the amount or amounts to be reimbursed, the email sent by the legal representative for QBE to TIO’s legal representative on 29 May 2014 is especially telling. That email indicated that QBE and TIO were yet to agree the amount to be reimbursed and TIO to pay QBE the amount set out in the Schedule ($77,344.10) or as agreed by a fixed date. That email must definitely does not evidence any acceptance of any offer made by the applicant.
The email sent by QBE’s legal representative to the TIO’s legal representative on 24 June 2014 still leaves at large agreement as to the amount to be reimbursed.
The long letter sent by the legal representative for QBE to TIO’s legal representative on 24 September 2014 was nothing short of an adamant claim or demand, but at best an invitation to treat[61] - but nonetheless treated as an offer for present purposes. Almost 4 months later TIO’s legal representative advised by way of letter dated 6 January 2015 that “in addition to managing the worker’s claim, TIO have instructed us that they will reimburse QBE for amounts paid to/or for the worker for the period 27 November 2013 to date”. In that same letter QBE was requested to provide an updated schedule of payments. Clearly, this correspondence could not be considered to be an acceptance of any offer made by the applicant. I respectfully agree with the submission made on behalf of the respondent that the subject correspondence was merely a statement of intention, subject to verification of the amounts of compensation that had been paid and due consideration thereof.[62]
It is patently clear from the correspondence passing between the parties that no enforceable contract came into existence. If there were an offer (in the contractual sense) no such offer was accepted by the respondent or communicated to the applicant. At its highest, what was communicated was a decision to accept the offer subject to further information.
But even if there were an acceptance of an offer, the applicant has failed to prove the presence of consideration. Whilst I accept the difficulties in the present case of identifying the nature of the consideration,[63] those difficulties could have been overcome by reducing the agreement
(constituted by an offer and acceptance) to writing in the form of an executed deed. A deed would have overcome the absence of consideration. No such deed was executed in the present case.
The applicant’s reliance on the draft consent orders (including relevant correspondence) as evidence of the relevant agreement is equally problematic.
Throughout its correspondence with the TIO and its legal representative QBE claimed not only reimbursement of compensation that had been paid to or for the worker, but also interest and legal costs. The claim for interest and costs was so inextricably linked to the claim for reimbursement that it is simply not possible to disentangle one claim from the other. Insofar as the claims amounted to an offer (in the strict contractual sense) the various components of the offer were inseparable such that the offer as expressed was not capable of being accepted unless all of its elements were accepted.[64]
It is clear on the evidence that there was never full acceptance of the offer- nor any part thereof. Even if the letter dated 6 January 2015 from TIO’s legal representative to QBE’s legal representative were to be considered an acceptance of an offer to reimburse QBE (which is found not to have been the case) that acceptance did not extend to the payment of interest and legal costs.
The fact that subsequently QBE’s legal representative submitted under cover of its letter dated 21 January 2015 a draft consent order which dealt with all three components of the purported offer (reimbursement of compensation paid, interest and legal costs) does not advance the applicant’s case. It is particularly telling that the letter concluded with the sentence: “We look forward to your reply and to your agreement regarding the consent order”. Neither the TIO nor its legal representative ever communicated agreement with the consent order. It is trite law that acceptance can never be implied from silence.[65]
Significantly, the consent orders, which were clearly intended to encapsulate and record the agreement between the parties, were never signed by TIO’s legal representative on behalf of the TIO. Therefore no agreement for the purposes of s 126A(3) ever came into existence.
WAIVER
The applicant submitted that by virtue of the respondent’s conduct prior to and during the course of the proceedings the respondent has “deliberately and voluntarily adopted a position which has brought about a change in the relationship of the parties” and has thereby “waived its claim for a set off and/or to seek any contribution from the Applicant in respect of the statutory compensation paid, or to be paid, to or for Mr Webber under the RTWA”.[66]
The conduct sought to be relied upon to establish the waiver was:[67]
a.the respondent’s voluntary assumption of administration/management of the worker’s claim for compensation;
b.the respondent’s assumption of being the sole indemnifier of the employer in respect of compensation paid to or for the worker under the Act in the period from 14 February 2014 and ongoing;
c.the respondent’s agreement to reimburse the compensation paid to or for the worker under the Applicant (either in the period from 27 August 2013 to 13 February 2014 or from 27 November 2013 to 13 February 2014).
The applicant further submitted:[68]
Waiver can be inferred from the Respondent’s deliberate conduct. Its function is to hold the parties to the relationship brought about by it and to ensure “fair dealing in the conduct of litigation”. No detriment is required to be demonstrated by the Applicant since putting the parties back to their earlier relationship, in these circumstances, is itself a detriment:
“…And, in a sense, so it is, for there could be no certainty that the parties would thereafter secure the rights against each other that marked the relationship brought about by the failure to take an available point… (Commonwealth v Verwayen [1990] HCA per 39 per Gaudron J at [26].
The respondent submitted that the applicant’s estoppel/waiver argument is not sustainable because of the absence of any evidence of relevant detriment.[69] The respondent also submitted that “there is absolutely no evidence of any agreement by TIO to say that it was going to waive its rights for the future to ever come back and ask QBE for contribution in respect of the payments it made”.[70] The respondent further submitted that just because “an insurer picks up the liability, indemnifies the employer, that doesn’t amount to a waiver of rights against another insurer”.[71] In conclusion, the respondent submitted:[72]
So it’s being suggested …that somehow by TIO actually making payments under its policy, that meant that it had brought about a state of affairs which was inconsistent with making a claim against the other insurer in the future.
…the indemnification of the employer under a policy of insurance doesn’t amount to a waiver of rights for contribution against another insurer. They are separate liabilities and obligations,
Waiver is a very complex area of the law characterized by a lack of coherence or consistency.[73] This is neither the time nor place to exhaustively analyse the law of waiver, especially given the limited submissions received from both parties on this contentious point. However, in my opinion, the issue of waiver can be readily disposed by applying some basic principles governing the concept of waiver.
In my opinion, the applicant’s argument based on the concept of waiver cannot be sustained.
The primary meaning of “waiver” is a unilateral abandonment of a right or claim “in such a way that the other party is entitled to plead the abandonment by way of confession or avoidance if the right is thereafter asserted and is either express or implied from conduct”.[74]
Where the waiver is not express, “it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver”.[75] However, mere acts of indulgence will not amount to waiver; and a party may not benefit from the waiver unless that party has altered their position in reliance on it.[76]
In order for waiver to be established there “must be unequivocal words or conduct, including a deliberate abstention from asserting a right up to the latest point in time for its assertion”.[77]
A careful analysis of the correspondence between the applicant and the respondent as contained in Exhibit R 3 does not disclose an express waiver. Nor it can be inferred from the correspondence that the respondent unilaterally abandoned rights or claims under s 126A of the Act. There is an absence of unequivocal words or conduct on the part of the applicant evincing an abandonment of legal rights. Furthermore, there is no evidence of “a deliberate abstention [ on the part of the respondent] from asserting a right up to the latest point in time for its assertion”.
In my opinion, the applicant’s argument based on the concept of waiver cannot be sustained.
DID THE WORKER SUFFER A COMPENSABLE INJURY OR INJURIES DURING THE PERIOD THE APPLICANT WAS THE APPROVED INSURER ON RISK
A core issue to be determined by the Court is whether the worker suffered an injury or injuries subsequent to the initial mental injury in March 2010 during the period the applicant was the approved insurer on risk.
As is apparent from the Defence and Counterclaim the respondent alleges that the worker suffered two subsequent injuries, the first being in the nature of a gradual process aggravation mental injury and the second being in the form of a comorbid major depressive disorder. The respondent alleges that the employer was liable under the Act to pay compensation to the worker in respect of both injuries and that the applicant, as the approved insurer during the period that these injuries were sustained, was liable to indemnify the employer for the full amount of the employer’s liability to the worker.
It is accepted between the parties that the respondent bears the onus of establishing the occurrence of these injuries and the liability of the employer to pay compensation to the worker as well as the liability of the applicant (as the approved insurer) to indemnify the employer.
In the circumstances the contribution made by the major depressive disorder is inseparable from the contribution made by the aggravation injury; and the contribution made by the former injury must be considered to be part and parcel of the contribution made by the latter injury.
Accordingly I find that the initial mental injury and the subsequent aggravation injury contributed equally to the worker’s incapacity; and even when the major depressive major disorder is introduced into the equation the respective contributions made by the initial mental injury and the aggravation injury/ major depressive disorder to the worker’s incapacity would remain equal.
I would add that if one were to exclude the effect of the aggravation injury, it would be open on the evidence to find that the initial mental injury and the subsequent major depressive disorder contributed equally to the worker’s incapacity for work.
In my opinion the contribution between the two insurers should be apportioned on a 50-50 basis.
FINAL DECISION
The Court makes a declaration that the applicant and respondent were liable and remain liable to indemnify the employer in respect of the compensation paid or payable on behalf of the employer to the worker following the making of the worker’s claim on 9 September 2013.
The Court makes the following orders:
a.That the applicant and respondent account to each in respect of payments of compensation paid or payable to the worker on the basis that each share 50% of the employer’s past and future liability to the worker.
b.That the applicant and respondent account to each other.
The Court will hear the parties in due course as to the question of costs.
Dated 16 January 2019
………………………………..
Dr John Lowndes
Chief Judge of the Local Court of the Northern Territory
[1] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [21].
[2] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [21].
[3] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [24].
[4] Mildren J referred to s 4 of the Act which defines the expression “arises out of or in the course of the worker’s employment”.
[5] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [25].
[6] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [25].
[7] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [26].
[8] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [27] – [28].
[9] Manufacturers Mutual Insurance Ltd v Ors v National Employers’ Mutual General Insurance Association Ltd & Ors (1991) 6 ANZ Insurance cases 61-038 at 76; Accident Compensation Commision v C E Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525 at 526.
[10] [1980] 1 NSWLR 81.
[11] Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525 at 527.
[12] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [40].
[13] See s 85 of the Act.
[14] See s 69(2) (a) of the Act.
[15] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [41].
[16] See s 70, s 71 and s 72 of the Act.
[17] Allianz Australia Insurance Limited and Territory Insurance Office [2008] NTCA 12 at [50].
[18] See [43] – [65] of the Applicant’s Submissions dated 4 September 2017 and in particular [55] and [61] – [62]. See also the applicant’s oral submissions: pages 43-44 and pages 53-54 of the transcript of proceedings on 5 September 2017.
[19] See [22] – [31] of the Respondent’s Written Submissions dated 4 September 2017. See also the respondent’s oral submissions: pages 62 – 64 of the transcript of proceedings on 5 September 2017.
[20] See [26] of the Respondent’s Written Submissions dated 4 September 2017. See Work Health Administration Act ss 14(a)(ii), 14 (c), 14 (d), (15(2) and 15(3).
[21] See [24] of the Respondent’s Written Submissions dated 4 September 2017.
[22] See [25] of the Respondent’s Written Submissions dated 4 September 2017.
[23] See [27] of the Respondent’s Written Submissions dated 4 September 2017.
[24] See [28.2] of the Respondent’s Written Submissions dated 4 September 2017.
[25] See [28.7] of the Respondent’s Written Submissions dated 4 September 2017.
[26] See email dated 27 November 2018 to the parties raising the issue and inviting further submissions.
[27] See [12] of the Applicant’s Supplementary Submissions.
[28] With the respondent carrying the onus of proof in establishing that Mr Webber’s employment with Airnorth post 30/6/10 was the real, proximate or effective cause of such injury.
[29] See [13] of the Applicant’s Supplementary Submissions.
[30] See [38] of the Applicant’s Supplementary Submissions.
[31] See [39] of the Applicant’s Supplementary Submissions.
[32]See [40] of the Applicant’s Supplementary Submissions.
[33] See [41] of the Applicant’s Supplementary Submissions.
[34] See [43] of the Applicant’s Supplementary Submissions.
[35] See [46] of the Applicant’s Supplementary Submissions.
[36] See [47] of the Applicant’s Supplementary Submissions.
[37] See [47] of the Applicant’s Supplementary Submissions.
[38] See [45] and [48] of the Applicant’s Supplementary Submissions.
[39] See [2] – [3] of the Respondents’ Supplementary Submissions.
[40] See [5] – [6] of the Respondent’s Supplementary Submissions.
[41] “The purpose of section 126A(1) is to require the insurer of the employer at the time the claim is made by a worker to indemnify the employer for the full amount of the employer’s liability to the worker, notwithstanding that another insurer is wholly or partially liable to indemnify the employer”: per Mildren j at p 1797, [40]. “(Another) underlying purpose is to enable the insurer who has met a claim to obtain reimbursement, in whole or in part, from another insurer who was liable to indemnify the employer in whole or in part”: per Mildren J at p 200 [47].
[42] “The question is what is the risk or happening which gave rise to the insured’s loss or liability and is each insurer liable to indemnify [the employer] against that loss in whole or in part. In such a case as this, the relevant happening is the incapacity resulting from or materially contributed to by the respective injuries, because it is that happening which gave rise to the loss against which each insurer is liable to indemnify the employer. If one insurer had met [the employer’s claim, [the employer] could not have sought indemnity form the other in respect of the worker’s claim for weekly payments arising from his incapacity”: per Mildren J at p 196 [35].
[43] See [7] and [8] of the Respondent’s Supplementary Submissions.
[44] Williams v Metropolitan Coal Ltd (1948) 76 CLR 431 per Starke J at 444; Hicks v Bridgestone Australia Ltd [1997] NTCA 65 per Martin CJ, Gallop. See also dicta of the South Australia Full Supreme Court in Cristea v Workers Rehabilitation & Compensation Corporation (1963) 61 SASR 487 at p 489 per King CJ and in Mitsubishi Motors Australia v Harbord (1997) 69 SASR 75 at p 82 per Doyle CJ.
[45] See [9] of the Respondent’s Supplementary Submissions.
[46] See [10] –[19] of the Respondent’s Supplementary Submissions.
[47] See [20] of the Respondent’s Supplementary Submissions.
[48] The core issues are those described in the respondent’s primary submission referred to above, p 11 . The issue identified in 3.1 of the respondent’s submissions is whether the worker suffered an injury arising out of or in the course of the employment within the meaning of section 4 of the Act in the period during which the applicant QBE was on risk.
[49] The Second Reading Speech contains this statement:
“ [ The Bill gives] the Work Health Court power to handle disputes between insurers where an attempt may have been made to transfer liability to a previous insurer. The Bill makes it clear also that liability will rest with the current insurer until such time as the matter is resolved either between the insurers or by the court”.
[50] See [37] of the Respondent’s written submissions dated 4 September 2017.
[51] Burrows, A. (2009). Offer and Acceptance. A Casebook on Contract (2nd ed., pp. 5). Portland, OR, North America: Hart Publishing. (Original work published 2007).
[52] JW Carter Carter’s Guide to Australian Contract Law at [2.23].
[53] Carter n 52 at [2-43].
[54] Carter n 52 at [2-25].
[55] Carter n 52 at [2-23].
[56] Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria)(1957) 98 CLR 93 at 111 cited by Carter n 52 at [2-26].
[57] Carter n 52 at [2-26].
[58] Carter n 52 at [3-02].
[59] Carter n 52 at [3.05].
[60] The letter stated that as at 24 September 2014, QBE claims:
(a) $91, 587.78
(b) $3, 928.61 interest
(c) $9400 plus GST for legal costs.
[61] See the respondent’s oral submissions at page 115 of the transcript of proceedings on 1 June 2017.
[62] See the respondent’s oral submissions at page 115 of the transcript of proceedings on 1 June 2017.
[63] Neither counsel attempted to express a view as to what might amount to consideration in the circumstances of the present case.
[64] Put another way, even if the offer to reimburse QBE was accepted (which is not the case), that acceptance alone – without acceptance of the other two elements of the offer- would at best be only a counter offer, which remained to be either accepted or rejected by the applicant.
[65] Carter n 52 at [2-28].
[66] See [66] of the Applicant’s Submissions dated 4 September 2017.
[67] See [66] of the Applicant’s Submissions dated 4 September 2017.
[68] See [66] of the Applicant’s Submissions dated 4 September 2017.
[69] See [47] of the Respondent’s Submissions dated 4 September 2017.
[70] See the oral submissions of the respondent at p 64 of the transcript of proceedings on 5 September 2017
[71] See the respondent’s oral submissions at p 74 of the transcript of proceedings on 5 September 2017.
[72] See the respondent’s oral submissions at p 74 of the transcript of proceedings on 5 September 2017.
[73] Carter n 52 at [7.26].
[74] See 16(2) Halsbury’s Laws of England 4th ed para 385 reproduced in Words and Phrases Legally Defined 4th ed Vol 2 L-Z p 1296. See also JRL Davis Contract General Principles Laws of Australia at [7.6.30].
[75] See 16(2) Halsbury’s Laws of England n 74.
[76] See 16(2) Halsbury’s Laws of England n 74..
[77] See Commonwealth v Verwayen (1990) 170 CLR 394 referred to by Davis n 74 at [7.6.1380].
[78] See City Centre Cold Store Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 739; HIH Casualty & General Insurance Ltd v Waterwell Shipping Inc (1998) NSWSC 436; Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005]NSWCA 66.
[79] See [7] of the Applicant’s Submissions dated 4 September 2017.
[80] See [8] of the Applicant’s Submissions dated 4 September 2017,
[81] See [9] – [13] of the Applicant’s Submissions dated 4 September 2017. See also [8] – [24] of the Applicant’s Supplementary Submissions dated 12 October 2018.
[82] See [7.4] of the Respondent’s Supplementary Submissions dated 12 October 2018.
[83] See Evans v Northern Territory of Australia (unreported decision of the Work Health Court delivered on 31 January 1996 per Trigg SM, p12.
[84] Part of Exhibit A10.
[85] However, this is not consistent with Dr Fernando’s medical certificate which mentions that the worker saw a psychologist on two occasions, but then stopped consulting him or her.
[86] Mr Hargrave was the General Manager for Engineering at Airnorth up until 2017.
[87] As previously noted that it had been proposed from the outset in the course of the planning process the worker would be in effect the communication or operations centre hub for Airnorth in dealing with the Airnorth response to the mock scenario disaster. As stated by Foster it was intended that the worker would have a critical and integral role in Exercise Flame.
[88] See the applicant’s oral submissions at page 18 of the transcript of proceedings on 5 September 2017.
[89] [1982] 56 ALJR 833 at 835.
[90] [1982] 56 ALJR 833 at 835.
[91] C.P. Mills Workers Compensation NSW Butterworths 1969, p 169.
[92] Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 637 per Windeyer J.
[93] Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 637 per Windeyer J.
[94] Alternatively, the worker’s underlying psychiatric condition was made symptomatic: Commonwealth Banking Corporation v Burns (unreported FC No G352/89 20 July 1990.
[95] See p 28 above.
[96] Mills n 91, p 172.
[97] The worker’s exposure to the plane crash is irrelevant to the determination of the real, proximate or effective cause of the aggravation injury.
[98] See [7.5] of the Respondent’s Supplementary Submissions dated 12 October 2018.
[99] Section 80 (1) provides that a person shall not be entitled to compensation unless notice of the relevant injury has, as soon as practicable, been given to the worker’s employer. Subsection (2) provides that an employer who receives a claim for compensation shall be deemed to have been given notice of the injury to which it relates.
Section 81 provides for the form of notice of injury which may be given either orally or in writing and is to include the name and address of the person injured and the date on which the injury occurred and the cause of the injury.
Section 82 provides for the form of claim which must be in the approved form and be accompanied by a statement of fitness for work in a form approved by the Authority.
[100] See [76] of the Applicant’s Submissions dated 4 September 2017.
[101] See [77] of the Applicant’s Submissions dated 4 September 2017.
[102] See [78] of the Applicant’s Submissions dated 4 September 2017.
[103] Global Insulation Contractors (NSW) P/L v Keating [2012] NTSC 04 at [69].
[104] Global Insulation Contractors (NSW) P/L v Keating [2012] NTSC 04 at [69].
[105] As discussed for example in Thompson v Groote Eylandt Mining Co Ltd (2003) 173 FLR 72.
[106] Global Insulation Contractors (NSW) P/L v Keating [2012] NTSC 04 at [75].
[107] R5 /199.
[108] R5/310. It should be noted that on 29 July 2013 the worker accessed the employee assistance and consulted Michelle Maher at Darwin Consultant Psychologists.
[109] In the claim form the injury was again labelled “PTSD”.
[110] The complexity of arriving at a proper diagnosis is demonstrated by the fact that Dr Hundertmark’s diagnosis was that the worker had suffered a major depressive disorder rather than PTSD. Furthermore, the mental injury which occurred in March 2010 was diagnosed by Drs Shakih and Farnbach as sub-clinical PTSD which developed into fully blown PTSD. Both doctors also diagnosed a comorbid major depressive disorder.
[111] Incapacity means “an inability or limited ability to undertake paid work because of an injury”.
[112] See [40] of the Respondent’s Written Submissions dated 4 September 2017.
[113] See [38] – [39] of the Respondent’s Written Submissions dated 4 September 2017.
[114] Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
[115] See Repatriation Commission v Bendy (1989) 10 AAR 323 at 325 cited in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 320.
[116] Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
[117] Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.
[118] This statement received judicial approval in Harris v South [1998] NTCA and Allianz v TIO [2008] NTCA 12 at [21-28] and [38] per Mildren J: see [42] of the Respondent’s Written Submissions dated 4 September 2017.
[119] See [43] of the Respondent’s Written Submissions dated 4 September 2017.
[120] This can be inferred from the evidence.
[121] See [43] of the Respondent’s Written Submissions dated 4 September 2017.
[122] See [10] of the Respondent’s Supplementary Submissions dated 12 October 2018.
[123] See [12] of the Applicant’s Supplementary Submissions dated 12 October 2018
[124] This was acknowledged by the applicant in its oral submissions at p 45 of the transcript of proceedings on 5 September 2017.
[125] See the applicant’s oral submissions at p 45 of the transcript of proceedings on 5 September 2017.
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