Workcover Queensland v Turner Freeman

[2019] QDC 166

DISTRICT COURT OF QUEENSLAND

CITATION:

Workcover Queensland v Turner Freeman & Anor [2019] QDC 166

PARTIES:

WORKCOVER QUEENSLAND
(applicant)

v

TURNER FREEMAN
(first respondent)

and

DOROTHY IRENE BOLT (EXECUTOR OF THE ESTATE OF NOEL WILLIAM BOLT)
(second respondent)

FILE NO/S:

2515/19

DIVISION:

Civil

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2019, ex tempore

JUDGE:

Everson DCJ

ORDER:

Application dismissed.

CATCHWORDS:

WORKERS COMPENSATION – DAMAGES – COMPENSATION - APPLICATION - where spouse makes claim for funeral expenses and compensation independently of damages – where entitlement for compensation is not subject to settlement for damages or judgment for damages – whether compensation recoverable

Succession Act 1981

Workers Compensation and Rehabilitation Act 2003

Foyster v The Minister for Education (1985) WASC (8 March 195)

State Government Inusrance Office (Queensland) v Public Curator of Queensland [1976] Qd R 281

COUNSEL:

A S Mellick for the applicant

A Kitchin for the respondents

SOLICITORS:

BT Lawyers for the applicant

Turner Freeman Lawyers for the respondents

1. In this proceeding the applicant seeks to recover the sum of $71,348.70 from the trust account of the first respondent which it asserts was wrongly paid to the second respondent. 

1. The second respondent (“Mrs Bolt”) is the executor of the estate of her late husband, Noel William Bolt (“Mr Bolt”). He sustained pleural lung disease from exposure to asbestos in the course of his employment. He commenced a claim for damages for personal injuries caused by negligence in the Brisbane District Court on 8 January 2018 (“the action for damages”). Mr Bolt died on 23 July 2018 from heart failure which was significantly contributed to by the pleural lung disease caused by his exposure to asbestos in the course of his employment. Mrs Bolt brought an application pursuant to s 66 of the Succession Act 1981 to be substituted in the action for damages in place of her husband and an order to this effect was made on 21 December 2018.  The action for damages therefore survived for the benefit of Mr Bolt’s estate.  It was settled for the “all up” sum of $130,000.00 on 10 January 2019.  Mrs Bolt and the defendant signed a deed of release which was in general terms.  The only reference to the applicant was in clause 2.2 which stated that Mrs Bolt authorised the defendant to pay from the settlement sum to the applicant payment, if any “as stated in a Payment/Recovery History Summary Report”.  The applicant indicated to the defendant that no compensation had been paid to Mr Bolt and no deduction was made in this regard. 

1. The Workers Compensation and Rehabilitation Act 2003 (“WCRA”) provides for compensation on a worker’s death in Chapter 3, Part 11. Relevantly, s 196 is in the following terms:

“196  To whom payments made for death of worker

(1)Compensation for the death of a worker is payable—

(a)to the worker’s legal personal representative; or

(b)if there is no legal personal representative—

(i)    so…