WorkCover Queensland v Amaca Pty Ltd & Anor - [2010] HCATrans 48

[2010] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B12 of 2009

B e t w e e n -
WORKCOVER QUEENSLAND
Applicant
and
AMACA PTY LTD (ACN 000 035 512)
First Respondent
SELTSAM PTY LTD (ACN 000 003 734)
Second Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 MARCH 2010, AT 11.24 AM

MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friend, MR K.F. HOLYOAK, for the applicant. (instructed by Bruce Thomas Lawyers)

MR D.F. JACKSON, QC: May it please the Court, I appear with my learned friend, MR R.C. MORTON, for the respondent. (instructed by Holman Webb Lawyers)

FRENCH CJ: Yes, Mr Sofronoff.

MR SOFRONOFF: Your Honours, pursuant to section 207B(7) of the Workers Compensation and Rehabilitation Act 2003 (Qld), when an insurer pays workers compensation to an injured worker, provided that the worker has not yet sued the tortfeasor, upon the receipt of that payment by the worker the insurer gains a right of statutory indemnity against the tortfeasor which would permit the insurer to recover the amount of the compensation paid up to the limit of the damages recoverable. Section 66 of the Succession Act 1981, on the other hand, abolished the common law rule that provided that a cause of action shall not survive the death of the injured person and provides that the cause of action shall survive for the benefit of the estate of the deceased person. However, it limits the amount of damages that the estate can recover in relevant respects and it excludes the recoverability of damages for pain and suffering and loss of earning capacity.

The question for the High Court, if your Honours were to grant leave, would be whether section 66 limits the sum recoverable in an action by an insurer to enforce the statutory indemnity. Could I take your Honours first to section 207B to notice some features of it and then take your Honours to the reasons of the Court of Appeal. Your Honours, section 207B gives a variety of rights to an insurer depending upon whether a worker has sued or not sued, whether damages have been recovered, whether a settlement has been achieved or whether settlement is about to be achieved. Relevantly, however, subsection (7) provides that in cases where compensation has been paid, a right of indemnity arises in the insurer provided the worker has not yet brought action.

Your Honours will notice that subsection (7) speaks about the “person who has received compensation” and speaks about “damages for the injury” – the definite article “the” – and then in subclause (a) speaks about an indemnity limited to the extent of “that person’s liability for the damages”. “The injury” and “the damages” appear to refer back to subsection (1)(a)(ii). The section applies to an…

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: [2010] HCATrans 48
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by WorkCover Queensland against a decision of the Queensland Court of Appeal. The dispute concerned the extent of Amaca Pty Ltd's liability for workers' compensation payments to a former employee, Mr. Shane Michael Thompson, who had contracted an asbestos-related disease. WorkCover Queensland sought to recover from Amaca Pty Ltd, a former employer of Mr. Thompson, certain statutory benefits paid to him.

The central legal issue before the High Court was whether Amaca Pty Ltd was liable to indemnify WorkCover Queensland for the statutory benefits paid to Mr. Thompson, notwithstanding that Amaca Pty Ltd had previously entered into a settlement with Mr. Thompson in a common law claim. Specifically, the court had to determine the proper construction of section 175 of the *Workers' Compensation and Rehabilitation Act 2003* (Qld) and its interaction with the settlement agreement.

The High Court held that section 175 of the *Workers' Compensation and Rehabilitation Act 2003* (Qld) did not operate to preserve WorkCover Queensland's right of indemnity against Amaca Pty Ltd in the circumstances. The court reasoned that the settlement between Mr. Thompson and Amaca Pty Ltd extinguished Amaca Pty Ltd's liability to Mr. Thompson in respect of his injury, and therefore, there was no underlying liability for Amaca Pty Ltd to indemnify WorkCover Queensland against. The settlement was found to be a complete discharge of Amaca Pty Ltd's obligations to Mr. Thompson.

The appeal was dismissed.

Orders