State of Queensland v WorkCover Queensland
[2010] QMC 19
•31 August 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
State of Queensland v WorkCover Queensland & Anor [2010] QMC 19
PARTIES:
STATE OF QUEENSLAND
(appellant)
v
WORKCOVER QUEENSLAND
(first respondent)
Q-COMP
(second respondent)
FILE NO/S:
MAG252573/09(7)
DIVISION:
Magistrates Courts – Industrial Magistrate
PROCEEDING:
Appeal against decision of Q-COMP
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
31 August 2010
DELIVERED AT:
Brisbane
HEARING DATE:
1 July 2010
MAGISTRATE:
Previtera T
ORDER:
1. The Appeal filed 9 December 2009 is dismissed.
2. The decision of Q-Comp dated 29 October 2009 is affirmed.CATCHWORDS:
INDUSTRIAL LAW – WORKERS COMPENSATION – APPEAL AGAINST ADMINISTRATIVE DECISION – whether worker’s claim for compensation is transmissible on the death of the worker
Workers’ Compensation and Rehabilitation Act Qld 2003, s 110(3), s 128A, s 128B, s 128C, s 128D, s 128E
Stephenson (as executrix of the estate of Dibble) v Human Rights and Equal Opportunity Commission and Another (1995) Federal Court Report 134
The United Collieries, Limited v. Isabella Simpson (or Hendry) 1909 AC 383
Schlenert v. HG Watson Contracting Co Pty Ltd (1979) 1 NSWLR 140
TNT Australia Pty Ltd v. Horne, as executrix of the estate of the late Douglas Horne (1995) 36 NSWLR 630
COUNSEL:
PB O’Neill for appellant
KF Holyoak for first respondent
SA McLeod for second respondent
SOLICITORS:
Crown Law for appellant
Bruce Thomas Lawyers for first respondent
Second respondent on own behalf
In this matter the State of Queensland is appealing, pursuant to s 550 of the Workers’ Compensation and Rehabilitation Act Qld 2003 (“the QLD Act”), a review decision by Q-COMP, which confirmed a decision of WorkCover Queensland.
The decision related to Jamie Templeton who submitted a workers’ compensation application prior to his death from a malignant melanoma. His application was approved after his death and his estate was paid the amount of the claim.
The issue arising for decision is whether an entitlement to compensation ends with the death of the claimant OR whether, despite the death, benefits can be paid to the worker’s estate.
Onus of Proof
The onus of proof lies on the State of Queensland to establish an error in the decision of Q-COMP.
Standard of Proof
The standard of proof is on the balance of probabilities.
Hearing de novo
Appeals of this type within this jurisdiction are conducted as hearings de novo.
Agreed Facts and issues
The following matters are not disputed:-
1. Mr Jamie Templeton (“the worker”) was employed by the State, in the Department of Transport and Main Roads, as a soil tester, in the Rockhampton and Emerald areas, from 12 May 1997.
2. On 8 April 2008, Mr Templeton was diagnosed with metastatic malignant melanoma, which is a personal injury for the purposes of section 32(1) of the QLD Act.
3. Mr Templeton’s employment was a significant contributing factor to this injury, from which he died on 29 September 2008.
4. Prior to his death, on 5 September 2008, Mr Templeton’s wife signed and submitted a workers’ compensation application on his behalf.
5. WorkCover accepted the application and by letter dated 24 June 2009, WorkCover advised the State that it was satisfied that Mr Templeton had an entitlement to compensation.
6. Following WorkCover’s decision in June 2009, the following payments were made to Mr Templeton’s estate:
(a) Lump sum compensation of $477 886.50, purportedly pursuant to s 128B of the QLD Act;
(b) A dependant lump sum of $63,939, purportedly pursuant to s 128D of the QLD Act; and
(c) Funeral benefits of $8,526.
(s 128D had not in fact been enacted at the time of the subject payments, but it is conceded that the lump sum payments were made under Chapter 3 Part 3 Division 5, s 128A of which applies the division to workers with latent onset injuries that are terminal conditions. S 128B of the QLD Act then provides that the worker is entitled to compensation for the latent onset injury calculated only under Division 5, subject to any reduction made under s 128C. S 128D provides that the worker’s dependants are entitled to lump sum compensation which an insurer may pay to the worker or to the worker’s dependants. (subsection 4 provides that the worker’s dependants are not entitled to further compensation under Chapter 3, Part 11). Chapter 3 Part 11 provides for compensation on a worker’s death, payable to the worker’s legal personal representative or to the dependants entitled to compensation. Part 11 does not apply if a worker dies because of a latent onset injury that is a terminal condition and the worker had received a payment of lump sum compensation or damages for the latent onset injury. S 128E provides that if a worker dies because of the latent onset injury and he/she has received a payment of lump sum under s 128B and, if the worker had dependants, an insurer had not paid the worker or dependants the compensation under s 128D, the compensation under s 128D for the dependants is payable to the worker’s legal personal representative or if there is no legal personal representative, to the worker’s dependants).
7. On 23 September 2009, the State sought a review by Q-COMP of WorkCover’s decision dated 24 June 2009, in relation to the lump sums. (There is no dispute about the payment of funeral expenses).
8. On 29 October 2009 Q-COMP confirmed WorkCover’s decision to accept the application for compensation. Q-COMP, however, declined to review Workcover’s decision to accept and continue determining Mr Templeton’s application despite his death, instead of seeking that his wife lodge a new application pursuant to Chapter 3 Part 11 of the QLD Act; on the grounds that it was not a reviewable decision within s 540(1)(a)(viii) of the QLD Act.
9. The parties now agree that Q-COMP was in error in this respect as the decision was reviewable under the QLD Act. Consequently, the issue is no longer a ground of appeal and does not arise for decision by this court.
The Appellant’s Position
Whilst the appellant does not dispute the entitlement of the worker’s estate to pursue a claim in respect of the worker’s death, it contends that the effect of s 110(3) of the QLD Act, in the absence of some other provision in that Act, is that the worker’s entitlement to compensation is not transmissible and dies with the worker; and that therefore, as it was undetermined at the date of the worker’s death, the claim under s 128B should have been set aside and a new claim should have been lodged by the dependants to be determined under Chapter 3, Part 11 (Compensation on worker’s death).[1]
[1] See Exhibit 6 – submissions of the appellant and supporting material.
The Respondents’ Position
The respondents submit that Chapter 3 Part 11 has no application because at the time of lodgement of the claim with Workcover, the worker was alive. Furthermore, there having been a payment of lump sum compensation for the latent onset injury pursuant to s 128B, Chapter 3 Part 11 compensation was not thereafter available to the dependants, by reason of the operation of s 194(2).
With respect to the transmissibility or otherwise of the entitlement to compensation, the respondent argues that:
1. the proper construction of the QLD Act is that the reference to worker must of necessity embrace the personal representative of the worker (on the basis that the personal representative is not another person but an office holder representing the legal personality of the deceased);
2. the restrictions in s 110(3), have no application to the transmission of what is a chose in action such that the application of the worker continued through the legal personality of the worker inhering in the executor as the personal representative of the worker;
3. there is, therefore, no passing of property to any other person by operation of law[2].
[2] See Exhibit 7 – submissions of the respondent and supporting material.
Relevant Legislation
Section 110 of the QLD Act provides:-
“110 Compensation entitlement can not be relinquished, assigned or subject to execution
(1) A worker or another person can not relinquish an entitlement to compensation for an injury sustained by the worker or the person.
(2) An agreement made by the worker or the person purporting to relinquish the entitlement is of no force or effect.
(3) Compensation can not be assigned, charged, taken in execution, or attached, and a worker’s entitlement to compensation can not pass to another person by operation of law or otherwise[3], and no claim can be set off against the amount.
(4) Subsection (3) is subject to subsection (5) and section 170(2)(b).
(5) If an employer pays to a worker an amount, for example wages, to which the worker is entitled as compensation for an injury, WorkCover may reimburse the employer for the amount paid to the extent of the worker’s entitlement for the injury instead of paying the worker.”
[3] My emphasis.
Issue for Determination
Was WorkCover prevented from making a payment of lump sum compensation to the deceased worker under section 128B of the QLD Act:-
1. by the application of section 110 ending the deceased worker’s entitlement to compensation;
2. in circumstances where the worker’s application for compensation was lodged prior to the worker’s death, but had not been determined by Workcover at the time of his death?[4]
[4] Exhibit 5.
Surprisingly, despite the fact that a provision similar in terms to section 110 has been included in workers’ compensation legislation in Queensland since 1916, the issue as to the effect, if any, of the current section 110 on the transmissibility upon death of an entitlement to compensation, has not previously been considered by any Queensland Court. Reference must therefore be had to decisions from other jurisdictions.
In support of its position, the appellant relies on the Full Federal Court decision of Stephenson (as executrix of the estate of Dibble) v Human Rights and Equal Opportunity Commission and Another[5], (“Stephenson”) in which the provisions of the Commonwealth Sex Discrimination Act 1984 (“the SDA”) were considered. In Stephenson, the female complainant lodged a complaint with the Human Rights and Equal Opportunity Commission (“the Commission”), following her exclusion from a hospital clinical trial on the grounds that she was at risk of pregnancy. The complaint alleged discrimination. The complainant died before the hearing and the issue of the survival of the complaint was referred to the Commission.
[5] (1995) Federal Court Report 134
The Commission held that the complaint lapsed on the complainant’s death because it likened it to the institution of a personal civil action and noted the common law rule that personal actions died with the person (“actio personalis moritur cum persona”). There being no express provision in the SDA as to what was to happen to a complaint upon the death of a complainant, the Commission held that the common law rule applied. Upon review, a single Judge of the Federal Court affirmed the Commission’s decision.
On appeal, the Full Federal Court found that common law rules were irrelevant where rights of action are created by statute, in which case guidance was to be sought in the statute itself as to whether a cause of action survived the death of a party.
The Full Federal Court referred to the public nature of the objects of the SDA, the primary purpose of the SDA (to eliminate discrimination); and the fact that death was not included as an exception to the obligation of the Commission to hold an inquiry into any matter referred to it[6] or as a ground for summarily terminating an enquiry.[7]
[6] S.59 of the SDA.
[7] S.79 of the SDA.
Consequently, the Full Federal Court found that the provisions of the SDA evinced an implied legislative intention that the complaint would continue after the death of the complainant.
Wilcox J’s approach in seeking guidance from the statute itself as to whether an action survives a party’s death, has since been followed in LC v. Public Trustee of Queensland[8] (involving an analysis of the provisions of the Property Law Act) by Douglas J., whose analysis and application of authorities was approved by the Queensland Court of Appeal in CAG v. The Public Trustee of Queensland (as the personalrepresentative of the estate of JM, deceased)[9].
[8] (2008) QSC 051
[9] (2008) QCA 252
Stephenson[10] was distinguished, however, in Northern Territory of Australia v Public Trustee of Northern Territory,[11] where it was held that a statutory right conferred by the Crimes (Victims Assistance) Act 1982, to apply for an assistance certificate for an injury resulting from an offence, vested in a victim immediately on suffering the injury and “The right… is not contingent on the bringing of an application…it is a cause of action and survives the victim’s death.[12]”
[10] (1995) Federal Court Report 134.
[11] (2001) NTSC 110
[12] per His Honour Mildren J.
In any event, there is a long line of authority, commencing with a decision of the House of Lords in 1909,[13] in relation to the specific issue under consideration in this case, that is, the nature of the right of workers’ compensation, when it arises and whether it is transmissible by death.
[13] The United Collieries, Limited v. Isabella Simpson (or Hendry) 1909 A.C. 383.
In The United Collieries, Limited v. Isabella Simpson (or Hendry),[14] (United Collieries), a worker died from injuries sustained during his employment, leaving a dependant mother who died three (3) months later, without having made any claim against the worker’s employer pursuant to the Workmen’s Compensation Act (UK) 1906 (“the UK Act”).
[14] 1909 AC 383
In similar terms to s 110(3) of the QLD Act, s 19 of the UK Act provided: “a weekly payment, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged or attached, and shall not pass to any other person by operation of law,[15] nor shall any claim be set off against the same”.
[15] My emphasis.
Unlike the QLD Act under consideration, s 13 of the UK Act also included a definition of workman by stating that “any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependants”.[16]
[16] (1909) AC 383 at page 385
In United Collieries, it was held that;
1. whether a claim under the legislation survives the death of the worker, or other person entitled to make a claim, depends “solely on the meaning of the statute itself, gathered from its own language without the addition of anything that is not necessarily implied..”[17]
2. the maxim “actio personalis moritur cum persona” (personal actions die with the person) was not applicable to cases under workers’ compensation legislation. Lord McNaughton stated that the application of that maxim “is limited to actions in which remedy is sought for a tort, or for something which involves, at any rate, the notion of wrong doing. Liability under the Workmen’s Compensation Act has no connection with any wrong doing…”.
[17] per Lord McNaughton.
Their Lordships considered the nature of the liability of the employer under the statute, the nature of the right to compensation and when it arises, and, in particular, whether it was transmissible.
Their Lordships held that the right of a sole dependant of a deceased workman to make a claim and take proceedings under the UK Act, passes to the executor of the dependant who has died without having made a claim.
Lord Loreburn likened the liability to a debt, while Lord Shaw considered it “…especially preferable among debts” and “the insurer’s liability to the employer is, …..to be transferred to and vest in the workman… on both sides of the account, whether as a liability and debt of the employer on the one hand, or a right and asset of the dependant on the other, I think the principle of transmissibility applies” In speaking of the worker’s right, Lord Loreburn added “It seems to follow that it arises on the workman’s death, unless some other event is fixed. … … It seems to me, therefore, that, as the person represented by the Respondent was the only dependant, her representative may properly claim all that she was entitled to, the right being transmissible as property. …it seems anomalous to enforce payment when no dependant is still living to require support. The Act, however, provides a fixed sum, and this must be taken as the statutory provision, whether in the event it is needed or not”. Lord McNaughton stated that the liability fell upon the employer upon the happening of the accident rather than the making of a claim. “…the act itself treats the liability as the subsisting liability from the very moment of the accident and as a present right”.
The decision in United Collieries has been approved and applied in other States in Australia. In Schlenert v. HG Watson Contracting Co Pty Ltd[18], (“Schlenert”) His Honour Hutley JA, in delivering the judgement of the New South Wales Supreme Court, stated:-
“The vested rights given by the Workers’ Compensation Act are transmissible on death, except where the statute provides otherwise …their nature was authoritatively determined by the House of Lords in United Collieries v. Simpson.”
[18] (1979) 1 NSW LR 140
Schlenert concerned the provisions of the Workers’ Compensation Act NSW 1926 (“the 1926 NSW Act”). S 55(1), (drafted in similar terms to s 19 of the UK Act) provided:- “a weekly payment, or a sum paid by way of redemption thereof, or a lump sum payable under this Act, shall not be capable of being assigned, charged, or attached and shall not pass to any other person by operation of law, nor shall any claim be set off against the same”. Unlike the UK Act, s 55(2) provided “Sub-section 1 has no effect to the extent to which, but for this sub-section, it would operate to prevent the satisfaction of an obligation by the worker to maintain another person pursuant to an order of a court of competent jurisdiction.”
S 6(2) of the 1926 NSW Act, in similar terms to s 13 of the UK Act, provided that “any reference to a worker who has been injured shall, when the worker is dead, include a reference to his legal personal representative or to his dependants, or other person to whom or for whose benefit compensation is payable.”
It was held that if a worker became entitled to a lump sum payment of compensation pursuant to s 16 of the 1926 NSW Act, and the amount payable was statutorily increased after the date of his injury, but before the date of hearing, it was the latter amount to which the worker was entitled because of the express terms of the Workers’ Compensation (Rates) Amendment Act 1977.
Schlenert also decided that if a worker, entitled to a lump sum payment of compensation, died before the statutory amendment was made and before his claim for compensation had been heard, his personal representative was entitled to be paid compensation at the higher rate in his or his representative’s capacity for the benefit of the worker’s estate.
Importantly, it was held that this entitlement of the personal representative was not because s 55(1) was modified by s 6(2) of the 1926 NSW Act. His Honour Hutley JA’s view was that such an argument was incorrect and nonsensical because there was also an extended definition of “worker” in the 1906 UK Act and it made no difference to the decision in United Collieries.
In referring to s 19 of the UK Act in United Collieries, Hutley JA said; “The rights of the worker’s dependant mother to a lump sum payment which the House of Lords held was transmissible to her executrix were subject to the restrictions similar to those in Section 55 of the Act under consideration”, and “their Lordships appear not to have regarded the vesting in the executrix as a passing by operation of law, so that Section 19 did not apply”.
In discussing the nature of the vested rights given by the 1926 NSW Act, and why a vesting in a personal representative is not a passing by operation of law, Hutley JA stated “Rights given to legal personal representatives are construed as though they were derived from the deceased, and such representatives are made accountable as such[19]….The vested rights given by the Workers’ Compensation Act are transmissible on death, except where the statute provides otherwise..”[20] …The matter may be approached in another way”.
[19] National Trustees Executors & Agency Co. of Australia LTD v. Federal Commissioner of Taxation (1954) 91 CLR 540 at 579 per Kitto.J.
[20] S.59 (3) of the 1926 NSW Act did provide otherwise in relation to the death of a dependant prior to a claim being made or determined.
In Hutley JA’s view, Section 16 of the 1926 NSW Act (which prescribed the compensation to be paid for an injury of a particular kind), gave a right to the worker which his death did not destroy and which, in fact, passed to his representative.
In another New South Wales decision, TNT Australia Pty Ltd v.Horne, as executrix of the estate of the late Douglas Horne[21](“TNT”), the issue for determination was whether the estate of a worker who passed away five weeks after a fall rendering him a quadriplegic, was entitled to recover an award for lump sum compensation when the worker’s widow’s claim for benefits as a dependant (made after the worker had passed away) had been accepted and paid.
[21] (1995) 36 NSWLR 630
TNT was dealing with Section 273(i) of the Workers Compensation Act NSW 1987, (“the 1987 NSW Act”) which provided, in terms similar to s 19 of the 1906 UK Act AND s 55(1) of the 1926 NSW Act (and subsequently, s 110 of the QLD Act);
“(1) Compensation under this Act or the former Act:
(a) Is not capable of being assigned, charged or attached; and
(b) does not pass to any other person by operation of law[22], nor shall any claim be set off against that compensation.
[22] My emphasis
Additionally, however, (as in s 55(2) of the 1926 NSW Act under consideration in Schlenert), s 273(ii) provided:-
(2) Sub-section (i) has no effect to the extent to which (but for this sub-section) it would operate to prevent:
(a) The satisfaction of an obligation by the worker to maintain another person pursuant to an order of a court of competent jurisdiction; or
(b) The passing of accrued vested rights of a deceased worker to the legal personal representative …. “
In TNT, it was held (Rolfe A-JA dissenting) that the rights of a worker under the 1987 NSW Act are accrued and vested at the moment of the happening of the jurisdictional fact of injury, so that should a worker who is entitled to lump sum benefits under s 66 of that Act die, the worker’s estate is entitled to receive the compensation due under that section.
In TNT, Kirby P (as he then was) traced the long line of authority which has stood for more than a century as supporting “the fundamental principle of survival of accrued rights to statutory workers’ compensation benefits in favour of the workers’ estate,” Kirby P also referred to the decision of the Full Court of the Supreme Court of NSW in Stevens v. Railway Commissioners for NSW[23] and the words of Ferguson J (with whom James J and Stephen J concurred), “In my opinion…there was an accrued right to the workman immediately on the happening of the injury to have his compensation determined in accordance with the then existing law, and the Court should not interpret the amending Act as interfering with that right unless the words are so framed that no other reasonable interpretation is possible”[24].
[23] (1930) 31 SR (NSW) 138
[24] (1930) 31 SR (NSW) 138 at 143.
Kirby P continued “Upon this reasoning, the deceased worker in the present case likewise enjoyed an “accrued right” immediately on the happening of his injury to have his compensation determined. The fact that, by pre-occupation with his medical problems, he did not live long enough to enforce that “accrued right” (as theoretically he might by high expedition of his claim and an urgent hearing) did not affect the character of the right. It had “accrued” to him, in the sense that it was available. It had “vested” in him as a legal entitlement. It had simply not been quantified and enforced. But these deficiencies were unimportant to the nature of the “right” for succession law. The right which had “accrued” was a right of property which passed upon the worker’s death, as any other right in the nature of a statutory chose in action, to the legal personal representative. It would require clear disentitling legislation to take that right away from the estate to which it had passed;”[25]
[25] My underlining.
His Honour then referred to Hutley JA’s judgement in Schlenert, acknowledging His Honour as an expert in the law of succession, and agreeing with the latter’s finding that s 6(2) of the 1926 NSW Act had no purpose, which was the true explanation for its deletion from the 1987 NSW Act under consideration in TNT, rather than any intended withdrawal of the rights of legal personal representatives.
Kirby P added that generally, workers’ compensation legislation is to be construed beneficially to uphold, in case of ambiguity, the entitlements of the worker and not to take such entitlements away.
Having regard to Schlenert and TNT, the absence of an extended definition of “worker” in the QLD Act does not assist the appellant’s argument that a worker’s entitlement is not transmissible upon the worker’s death, to his legal personal representative.
The appellant argues that the dissenting judgement of Rolfe AJA in TNT, in analysing Section 273 of the 1987 NSW Act is correct and is to be preferred over the majority decision on the basis that s 110 of the QLD Act does not include a provision similar to s 273(2). Rolf AJA was of the view that, but for the exceptions in subsection (2) of Section 273, compensation would not pass to any other person, which included a legal personal representative. The appellant argues that the effect of s 110(3) of the QLD Act is the same. Rolf AJA stated that the purpose of subsection (1)”is to prevent “compensation passing from a person entitled to it under the Act in satisfaction of financial claims others may have against the injured worker; ie compensation is intended to be used for the purpose for which it was awarded, namely to compensate the worker entitled thereto as contemplated by the Act ”.
Rolfe AJA’s position, assumes, however, in this court’s view, that the worker and the office of his/her personal representative are to be distinguished each from the other; when the legal position is to the contrary and has long been settled and accepted.
For example, Isaacs J said in Maddock v. Registrar of Titles (Victoria), [26] when reviewing the authorities on the issue, stated “the executor represents the person of his testator, and as Lord Dunedin recently said in a Scottish case … his personality for the purpose of holding and dealing with the testator’s property, which only comes to him as an adjunct of his office, is in law that of the testator himself”. His Honour, when explaining why an executor may not deal with a testator’s goods added “The answer and reason is, I think obvious. It is because they are not his goods; he is only the distributor and dispenser of them for the benefit of creditors, the legatees and the next of kin of the testator”[27]
[26] (1915) 19 CLR 681.
[27] In the judgement the words “his goods” appeared in italics.
An executor or personal representative is not a trustee of the testator’s goods. The principle, that transmission of any form of property to a personal representative does not create a trust and no beneficial interest is created in any person, including the beneficiaries under the will, was established by a majority decision in Livingstone v. Commission of Stamp Duties.[28] It has since been affirmed in the leading judgment of the Privy Council in Commissioner of Stamp Duties (Queensland) v. Livingstone[29], where, in referring to the vesting of property in the personal representative, it was stated “the whole of the property was his, he held it for the purpose of carrying out the functions and duties of administration, not for his own benefit and these duties would be enforced upon by the Court of Chancellery if application had to be made for that purpose by a creditor or beneficiary interested in the estate”.
[28] (1960) 107 CLR 411
[29] (1965) A.C. 694, particularly at 707 and 708
This court therefore accepts the submission of the respondents that, because the only interest of a person in an unadministered estate is a personal right of due administration and no propriety interests are created on the part of any beneficiary, there is no passing of property to any other person by operation of law. The passing of property to the office holder of the personal representative is a continuation of the legal personality of the deceased person for the purpose of the payment of debts and distribution.
Furthermore, since TNT, in the Full Court of the Supreme Court of South Australia decision in Suck v. State Government Insurance Commission[30] (“Suck”) the approach in United Collieries was again adopted. In Suck, no claim for workers’ compensation or for assessment of such compensation had been made at the time of death of a worker who had retired before a diagnosis of lung cancer was made and who died within two months of being diagnosed.
[30] (2003) SASC 93
The legal personal representative of the retired worker sued the State Government Insurance Commission because the insurers were in liquidation. The Insurance Commission denied that the retired worker was entitled to compensation and rejected the claim on the basis that no right to compensation had vested in the deceased as at the date of his death, no assessment of any entitlement had been made prior to his death and no assessment could be made after his death; but that in any event, any entitlement did not survive his death.
A case was, therefore, stated to the Full Court of the Supreme Court to determine whether the worker had a vested right to compensation at the time of his death, whether there was a right to assessment of compensation after death and whether either or both of these survived his death so as to be enforceable at the suit of the personal legal representative.
As in the 1906 UK Act and the 1926 NSW Act, the South Australian legislation included a definition of worker to include a reference to the legal personal representative of the worker and to the dependants.
The Full Court held that whether a claim under Workers’ Compensation legislation survives the death of a worker is decided by interpretation of the statute concerned, rather than on the basis of a maximum such as actio personalis moritur cum persona. In the court’s view, the right to compensation was vested at the time of death and passed to the personal representative. It was held that the liability of an employer in such a case is not contingent on a claim being made before the death of the worker or the death of the person entitled to claim compensation.
The decision of Dwyer v South Australia[31] was referred to as was the New South Wales case of Daniels and Commissioner for Railways[32] in which dictum of Williams J in Daniels case was quoted; “thus the deceased worker had in his lifetime a right to compensation under section 16 of the Act, and this right, it is agreed, was not discharged by a payment at the time of his death” and “at the time of the deceased’s death the right to compensation that arose on the day of the deceased worker’s claim continued…to subsist at the time of his death.” Reference was also made to the decision of Mohr J, with whom King CJ agreed, in the decision of Executor Trustee and Agency Company of South Australia v General Motors Holden Limited,[33] in which it was stated that the right to compensation “becomes…something akin to property to which the worker becomes entitled once the injury is suffered”.
[31] (1979) 46 SAIR (part 2) 170
[32] (1973) WCR (NSW) 18
[33] (1981) 29 SASR 166
The QLD Act
In determining any legislative intent as to whether or not a statutory entitlement to compensation is transmissible on death, an examination of the provisions of the QLD Act reveals the following:-
1. There are no specific, clear or unambiguous provisions in the QLD Act indicating that a statutory entitlement to compensation is not transmissible on death.
2. One of the objects of the QLD Act as stated in s 5(1)(a) of the QLD Act is to establish a workers’ compensation scheme for Queensland- providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits.
3. S 46(1) provides that an employer is legally liable for compensation for injuries sustained by a worker employed by the employer.
4. S 48(1) provides that every employer must insure and remain insured against injury sustained by the worker for legal liability for compensation and damages.
5. Chapter 3 Part 2 Division 4 of the QLD Act (s 116-119) deals with the issue of when an entitlement to compensation ends. There is no mention of death.
6. Chapter 3 Part 3 Division 5 (s 128A-128E) deals with workers with latent onset injuries that are terminal conditions, that is, injuries of the kind suffered by Mr. Templeton in this case. Contrary to the submission of the appellant, there is no statement in that Division that any provided amounts must be paid to the worker. Rather, it speaks of an entitlement of the worker.
7. There is no mention that the entitlement to compensation in s 128B ceases upon death.
8. There are, however, provisions within Division 5 (s 128C) to reduce the amount payable under s 128B so as to avoid an overlap or overpayments or double dipping.
9. S 128D and E (introduced after the death of the worker in this case) deal with rights arising upon death. S 128D(4) makes it clear that if dependants receive a payment under s 128D, they are not entitled to further compensation under chapter 3 Part 11. This court accepts the respondents’ submissions that the provisions are alternative to, and not cumulative of, the rights appearing in Chapter 3 Part 3 Division 5 (s 128A – 128E). Therefore, whilst provision is made in Chapter 3 Part 3 Division 5 for latent onset injuries, the worker or the worker’s personal representative, (if the worker has not so applied prior to death) may not seek the latent onset injury terminal compensation payment, but could make application under Chapter 3 Part 11 instead.
10. S 134(1) provides “A claimant’s application for compensation must be allowed or rejected in the first instance by the insurer.” Against the appellant’s argument that Workcover should have closed or dismissed the claim under s 128B and sought an application from the dependants under chapter 3 Part 11; there is no provision which allows for the closure or dismissal of a claim which has been validly made under s 131, in respect of an extant right arising otherwise under the Act, due to death.
11. The effect of s 141 of the QLD Act (which provides the time for which the compensation is payable, which in this case, is from the time the worker had been diagnosed by his GP), the worker’s right had vested at the time of his diagnosis.
12. S 144A and 144B provide for when the entitlement to compensation stops. They do not mention death.
13. S 204 of the QLD Act gives effect to the scenario in the United Collieries case, that is, if a dependant dies after the death of the worker but prior to the payment of any compensation the compensation payable between the date of the two deaths is made payable to the estate of the dependant.
14. S 200O, s 201A, s 202 and s 204 provide for amounts of compensation to be paid. They are all liquidated sums; debts or claims for which a right to compensation is considered by the authorities discussed above to be analogous.
Given the statement of the nature of the right of an entitlement to compensation, and there being no statutory provision providing that the entitlement to compensation ceases on the worker’s death, further support for the respondents’ argument is found in s 45 of the Succession Act 1981 which this courts accepts applies. S 45 provides:
”45 Devolution of property on death
(1) The property to which a deceased person was entitled for an interest not ceasing on his or her death (other than property of which the deceased person was trustee) shall on his or her death and notwithstanding any testamentary disposition devolve to and vest in his or her executor [34]and if more than 1 as joint tenants, or, if there is no executor or no executor able and willing to act, the public trustee.”
[34] My underlining.
The combined effect is that the transmissibility of the entitlement to compensation is not the passing of a right to another person by operation of law. The personal representative is not another person but an office holder representing the legal personality of the deceased. The legal personality of the deceased continues in that de facto form.
Consequently, the reference to worker in Sections 128A and 128B must include the worker’s legal personal representative. As such the restrictions in s 110(3) have no application to what is the transmission of a chose in action of the deceased worker to the deceased worker’s personal representative. Hutley JA in Schlenert made it clear that the rights of a worker are maintained by him through his personal representative. Those rights “ he notionally still has … as the House of Lords decided in Simpson’s case the death of the worker does not destroy his rights which are passed to his representative. They pass with all incidents including in this case, the added benefits given by the legislator” As to the employer’s liability, Hutley JA was of the view that “unless he discharged or settled the claim before (the relevant amended statute) came into force, the employer cannot now discharge it without paying the amount fixed by that Act”.
As a result, WorkCover was legally obliged to accept the claim which was validly made by a living worker when lodged and which continued through the legal personality of the worker, inhering in the executor as the personal representative of the worker. She exercised the legal personality of the worker in pursuing the worker’s rights. She was not exercising her own rights. Workcover had no choice but to consider the claim either accepting it or rejecting it. If accepted, Workcover was required to make payment of it regardless of the death of the worker, unless the worker (or the worker’s personal representative after death) withdrew that application.
This position is not altered by the contents of the explanatory memoranda in the Workers’ Compensation and Rehabilitation and Other Acts Amendment Bill 2007 and the Workplace Health and Safety and Other Legislation Amendment Bill 2008; or the speech of a Member of Parliament regarding the passage of the 2008 Bill.
Whilst s 14B of the Acts Interpretation Act 1954 permits reference to extrinsic material such as Explanatory memoranda to aid in the interpretation of a section of an Act, this court considers that there must be regard to the wider context of the legislation and its objects and the problem which it was designed to overcome.
Wilcox J in Stephenson stated “…the exercise is really one of determining what result best accords with the scope and purpose of the Act, as disclosed by the provisions that were inserted in it… eschewing speculation as to what (if any) subjective views members of the parliament might have had when they enacted the legislation. ….it is…a useful check on the cogency of the objective reasoning to stand back for a moment and ask whether the result is so out of line with general community opinion that it would have been rejected by parliament, if the issue had arisen in debate”.
As Kirby P opined in TNT, “..if a new disqualifying entitlement is to be produced, reversing in effect the law which has stood on the subject since the House of Lords spoke in 1909, it is the work of parliament and not of the court. If parliament is to reverse such a long line of legal authority it should do so clearly.”
The QLD Parliament, in this court’s view, has not done so at all. It would be an unjust result indeed, if s 110(3) was to be construed to distinguish between workers who die of a terminal condition before their claim is determined and workers who die of a terminal condition after their claim is determined.
For all of the reasons indicated above, this court dismisses the appeal and affirms the decision of Workcover.
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