WorkCover Queensland v Amaca Pty Ltd

WorkCover Queensland appealed to the High Court of Australia against a decision of the Court of Appeal of Queensland concerning the quantum of indemnity recoverable by WorkCover from third parties. WorkCover had paid $340,000 in compensation to a worker, Mr Thomson, who had contracted mesothelioma due to asbestos exposure from products manufactured and supplied by the respondents. Mr Thomson died before initiating any legal proceedings. WorkCover sought to recover the compensation paid from the respondents pursuant to section 207B(7) of the *Workers' Compensation and Rehabilitation Act 2003* (Qld) (the Compensation Act), which grants an insurer a right of indemnity against a third party to the extent of that party's liability for damages.

The central legal issues before the High Court were whether section 66(2) of the *Succession Act 1981* (Qld) limited the amount recoverable by WorkCover under its statutory right of indemnity, and the nature of the cause of action created by section 207B(7) of the Compensation Act. Specifically, the Court had to determine if the limitation on damages recoverable in an action brought for the benefit of a deceased person's estate under section 66(1) of the Succession Act also applied to an insurer's claim for indemnity under section 207B(7) of the Compensation Act, particularly when the worker died before commencing proceedings.

The High Court reasoned that section 66(2) of the Succession Act limits damages recoverable in an action brought for the benefit of a deceased person's estate. However, the right of indemnity conferred by section 207B(7) of the Compensation Act is a statutory cause of action distinct from any cause of action the deceased worker might have had. The Court held that the liability of the third party under section 207B(7) is to be assessed by reference to the amount for which they would be liable at the time of judgment in the indemnity proceedings, taking into account all relevant limitations, rather than the amount of damages that would have been recovered in a hypothetical action brought by the deceased or their estate. Consequently, the limitations imposed by section 66(2) of the Succession Act, which apply to actions brought for the benefit of an estate, do not apply to an action brought by WorkCover seeking indemnity under section 207B(7) of the Compensation Act.

The High Court allowed the appeal, setting aside the answers of the Court of Appeal to questions 4 and 5 of the case stated. The Court ordered that question 4 be answered "No," meaning that the quantum of indemnity WorkCover is entitled to recover is not reduced by the operation of section 66 of the Succession Act. The respondents were ordered to pay WorkCover's costs of the appeal.