WorkCover Queensland v Amaca P/L - [2009] QCA 72

SUPREME COURT OF QUEENSLAND

CITATION:

WorkCover Qld v AMACA P/L & Anor [2009] QCA 72

PARTIES:

WORKCOVER QUEENSLAND
(plaintiff)
v
AMACA PTY LTD
ACN 000 035 512
(first defendant/first respondent)
SELTSAM PTY LTD
ACN 000 003 734
(second defendant/second respondent)

FILE NO/S:

Appeal No 8872 of 2008
SC No 5399 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Case Stated

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2008

JUDGES:

de Jersey CJ, McMurdo P and Muir JA
Separate reasons for judgment of each member of the Court, de Jersey CJ and Muir JA concurring as to the orders made, McMurdo P dissenting in part

ORDER:

The questions in the Amended Case Stated are answered as follows:
Question 1: The damages are to be assessed as at the date of judgment in that proceeding.
Question 2: No
Question 3: On the assumption to be made, the extracted words refer to the respective respondent’s liability for the whole of the damages.
Question 4: Yes
Question 5: The plaintiff WorkCover Queensland should pay three-quarters of the respondents’ costs, to be assessed on the standard basis, if not agreed.

CATCHWORDS:

WORKERS’ COMPENSATION – APPEALS, JUDICIAL REVIEW AND CASES STATED – CASE STATED – WorkCover paid compensation to a worker who contracted and died from mesothelioma – worker did not commence damages actions against manufacturers and suppliers of the asbestos – WorkCover sued those entities for the amount of the compensation – nature of insurer’s indemnity under s 272(7) Workers Compensation and Rehabilitation Act 2003 (Qld) – date at which damages fall to be assessed – whether that assessment is affected by s 66 Succession Act 1981 (Qld) where worker died before proceeding commenced to enforce indemnity – whether s 272(7) Workers Compensation and Rehabilitation Act 2003 (Qld) converts common law solidary liability of concurrent wrongdoers into proportionate liability

Civil Liability Act 2003 (Qld), s 31
Law Reform Act 1995 (Qld), s 7
Succession Act 1981 (Qld), s 66
Uniform Civil Procedure Rules 1999 (Qld), r 781
Workers Compensation and Rehabilitation Act 2003 (Qld), s 207B(7), s 272(7) (renumbered and relocated)

Government Insurance Office (NSW) v C E McDonald (NSW) Pty Ltd (1991) 25 NSWLR 492, considered
J Blackwood & Son v Skilled Engineering [2008] NSWCA 142, considered
Smith's Dock Co v John Readhead & Sons Ltd (1912) 81 LJKB 808; [1912] 2 KB 323, considered
Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321; [1974] HCA 5, considered
Tooth & Co Ltd v Tillyer (1956) 95 CLR 605; [1956] HCA 49, considered
Transport Accident Commission v Murray (2005) 12 VR 314; [2005] VSCA 174, considered
Turner v George Weston Foods Ltd (2007) 4 DDCR 571; [2007] NSWCA 67, approved
VWA v Kenman Kandy Pty Ltd (2002) 6 VR 666; [2002] VSCA 190, considered
WorkCover Queensland v Seltsam Pty Ltd (2001) 53 NSWLR 518; [2001] NSWCA 457, considered
Workers’ Compensation…

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: [2009] QCA 72
Decision Date: 27 March 2009

CaseChat Overview and Summary

WorkCover Queensland, the appellant, sought to recover compensation it had paid to a worker who contracted and died from mesothelioma from the manufacturers and suppliers of the asbestos. The worker had not commenced actions for damages against these entities. WorkCover Queensland commenced proceedings against those entities and subsequently made an application for a case to be stated to the Supreme Court of Queensland. The primary judge certified questions on the nature of WorkCover Queensland’s indemnity under section 272(7) of the Workers Compensation and Rehabilitation Act 2003 (Qld), the date at which damages are to be assessed, the effect of section 66 of the Succession Act 1981 (Qld), and whether section 272(7) converted the common law solidary liability of concurrent wrongdoers into proportionate liability. The manufacturers and suppliers of the asbestos appealed to the Court of Appeal. The Court of Appeal considered the certified questions, including the date at which damages are to be assessed, the effect of section 66 of the Succession Act 1981 (Qld), and whether section 272(7) converted the common law solidary liability of concurrent wrongdoers into proportionate liability. The Court of Appeal held that the damages are to be assessed as at the date of judgment in the proceeding. The Court of Appeal also held that section 66 of the Succession Act 1981 (Qld) does not affect the assessment of damages. The Court of Appeal further held that section 272(7) does not convert the common law solidary liability of concurrent wrongdoers into proportionate liability. The Court of Appeal answered the certified questions as set out in the orders.

Orders

Orders of the court

The questions in the Amended Case Stated are answered as follows:

Question 1: The damages are to be assessed as at the date of judgment in that proceeding.

Question 2: No

Question 3: On the assumption to be made, the extracted words refer to the respective respondent’s liability for the whole of the damages.

Question 4: Yes

Question 5: The plaintiff WorkCover Queensland should pay three-quarters of the respondents’ costs, to be assessed on the standard basis, if not agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	WorkCover Qld v AMACA P/L & Anor [2009] QCA 72
PARTIES:	WORKCOVER QUEENSLAND (plaintiff) v AMACA PTY LTD ACN 000 035 512 (first defendant/first respondent) SELTSAM PTY LTD ACN 000 003 734 (second defendant/second respondent)
FILE NO/S:	Appeal No 8872 of 2008 SC No 5399 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Case Stated
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	24 November 2008
JUDGES:	de Jersey CJ, McMurdo P and Muir JA Separate reasons for judgment of each member of the Court, de Jersey CJ and Muir JA concurring as to the orders made, McMurdo P dissenting in part
ORDER:	The questions in the Amended Case Stated are answered as follows: Question 1: The damages are to be assessed as at the date of judgment in that proceeding. Question 2: No Question 3: On the assumption to be made, the extracted words refer to the respective respondent’s liability for the whole of the damages. Question 4: Yes Question 5: The plaintiff WorkCover Queensland should pay three-quarters of the respondents’ costs, to be assessed on the standard basis, if not agreed.
CATCHWORDS:	WORKERS’ COMPENSATION – APPEALS, JUDICIAL REVIEW AND CASES STATED – CASE STATED – WorkCover paid compensation to a worker who contracted and died from mesothelioma – worker did not commence damages actions against manufacturers and suppliers of the asbestos – WorkCover sued those entities for the amount of the compensation – nature of insurer’s indemnity under s 272(7) Workers Compensation and Rehabilitation Act 2003 (Qld) – date at which damages fall to be assessed – whether that assessment is affected by s 66 Succession Act 1981 (Qld) where worker died before proceeding commenced to enforce indemnity – whether s 272(7) Workers Compensation and Rehabilitation Act 2003 (Qld) converts common law solidary liability of concurrent wrongdoers into proportionate liability Civil Liability Act 2003 (Qld), s 31 Law Reform Act 1995 (Qld), s 7 Succession Act 1981 (Qld), s 66 Uniform Civil Procedure Rules 1999 (Qld), r 781 Workers Compensation and Rehabilitation Act 2003 (Qld), s 207B(7), s 272(7) (renumbered and relocated) Government Insurance Office (NSW) v C E McDonald (NSW) Pty Ltd (1991) 25 NSWLR 492, considered J Blackwood & Son v Skilled Engineering [2008] NSWCA 142, considered Smith's Dock Co v John Readhead & Sons Ltd (1912) 81 LJKB 808; [1912] 2 KB 323, considered Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321; [1974] HCA 5, considered Tooth & Co Ltd v Tillyer (1956) 95 CLR 605; [1956] HCA 49, considered Transport Accident Commission v Murray (2005) 12 VR 314; [2005] VSCA 174, considered Turner v George Weston Foods Ltd (2007) 4 DDCR 571; [2007] NSWCA 67, approved VWA v Kenman Kandy Pty Ltd (2002) 6 VR 666; [2002] VSCA 190, considered WorkCover Queensland v Seltsam Pty Ltd (2001) 53 NSWLR 518; [2001] NSWCA 457, considered Workers’ Compensation…