QBE Insurance (Aust) Ltd v TIO - [2019] NTLC 20

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 AUSTRALIA
No. 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NTLC 20
Decision Date: 16 January 2019

CaseChat Overview and Summary

The case of QBE Insurance (Aust) Ltd v TIO involves a dispute between two insurers regarding their respective liabilities in a work health and safety claim. The Local Court of the Northern Territory was tasked with determining the nature of the contribution between the two insurers, QBE Insurance (Aust) Ltd and TIO, concerning a worker’s claim for compensation. The claimant, an employee, made a claim on 9 September 2013, asserting injuries sustained in the course of employment. The employer, who was insured by both parties, faced potential liability for the compensation claim.

The central legal issue before the court was the determination of how the liability should be apportioned between the two insurers. Both insurers contested their respective shares of the liability, and the court needed to decide whether the liability should be shared equally or according to some other agreed-upon formula. The court had to consider the terms of the insurance policies, relevant legislative frameworks governing work health and safety, and any precedents or guidelines applicable to similar cases.

In delivering its decision, the court considered the nature of the insurance policies and the statutory provisions governing the liability of multiple insurers in such scenarios. The court noted that there was no explicit agreement between the insurers regarding the apportionment of liability. Given the absence of any specific guidelines or precedents dictating a different approach, the court concluded that a 50-50 apportionment was the most equitable solution. The court recognised the importance of ensuring that the employer, and by extension the employee, are fully indemnified for the compensation owed, while also balancing the equities between the insurers.

The court declared that both insurers were liable and remain liable to indemnify the employer in respect of the compensation paid or payable to the worker. The court ordered that each insurer should account to the other for 50% of the employer’s past and future liability to the worker. Furthermore, the court scheduled a future hearing to address the issue of costs between the parties. This decision ensures that the employer and the employee receive the necessary compensation without undue burden on either insurer, while also maintaining fairness in the financial responsibilities of the parties involved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 LowndesChief Judge of the Local Court of the Northern Territory

Ratio Decidendi

Legal Principle Established

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