Workers' Compensation Board of Queensland v Technical Products Pty Ltd

[1988] HCA 49

HIGH COURT OF AUSTRALIA

Wilson, Deane, Dawson, Toohey and Gaudron JJ.

WORKERS' COMPENSATION BOARD (Q) v. TECHNICAL PRODUCTS PTY LTD (1988)

(1988) 165 CLR 642

27 September 1988

Workers' Compensation (Q.)

Workers' Compensation (Q.)—Insurance—Statutory insurance—Whether extending to accident insurance—Employer's statutory duty to insure against liability to pay damages in respect of inquiry—Damages for nervous shock sustained by wife of injured worker consequent on his injury—Policy of statute to provide only for injuries arising in course of employment—Whether enlarged by "in respect of"—Workers' Compensation Act 1916 (Q.), ss. 8(1), 9A.

Hearing

Brisbane, 1988, June 28.
Canberra, 1988, September 27. #DATE 27:9:1988
APPEAL from the Supreme Court of Queensland.

In 1981 the husband of Patricia Hart sustained serious injury in the course of his employment with Technical Products Pty Ltd. As a consequence she alleged that she suffered nervous shock and resulting psychiatric illness. She sued the company for damages. Claiming indemnity, it joined as a third party the Workers' Compensation Board of Queensland which demurred to the plaintiff's statement of claim on the ground that she had no entitlement under the Workers' Compensation Act 1916 (Q.). The Full Court of the Supreme Court of Queensland (Connolly and Shepherdson JJ., Vasta J. dissenting) overruled the demurrer. By special leave, the Board appealed to the High Court.

I.D.F. Callinan Q.C. (with him P.D.P. Munro), for the appellant. An employer insuring under the Workers' Compensation Act 1916 (Q.) is not entitled to an indemnity from the Workers' Compensation Board to meet an award of damages for nervous shock in favour of a person other than a worker. The scheme of the Act provides for compensating injuries arising in the course of employment and to ensure by compulsory insurance resort to a solvent fund. It does not provide access for claims by strangers. The provision in s. 8(1)(b) of the Act for "damages in respect of that injury" does not extend to a person like the plaintiff whose claim, if sustainable, must be by reason of a duty of care owed directly not derivatively. The words "in respect of" in s. 8(1) are governed by their context which does not permit of a wider construction here: State Government Insurance Office (Q.) v. Rees (1979) 144 CLR 549, at p 561. The majority in the Full Court misconstrued McDowell v. Baker (1979) 144 CLR 413, at pp 419, 427-428. (He also referred to Unsworth v. Commissioner for Railways (1958) 101 CLR 73.) As the plaintiff sues for damages in respect of her own injury and not in respect of that suffered by her husband, she has no cause of action against the Board.

G.L. Davies Q.C. (with him P.V. Ambrose), for the respondent. The plaintiff's damages are prima facie in respect of her husband's injury because of the width of meaning of the phrase "in respect of": McDowell v. Baker (1979) 144 CLR, at p 419. That phrase may refer to cases where the damages arise out of personal injury to someone other than the particular plaintiff: Unsworth v. Commissioner for Railways (1958) 101 CLR, at pp 87-88; State Government Insurance Office (Q.) v. Crittenden (1966) 117 CLR 412, at pp 416, 418-419, 421, 422. All that is necessary is a connexion between the injury to the worker and the damages claimed by the plaintiff. Here the plaintiff's claim for nervous shock is to be taken as a claim for damages in respect of injury to the worker. (DAWSON J. That connexion confuses liability in the calculation of damages. The Act refers to legal liability in the employer to pay damages in respect of the relevant injury. Damages in respect of one injury are not damages in respect of another injury.) They can be in respect of both, as is demonstrated by motor vehicle insurance cases: State Government Insurance Office (Q.) v. Crittenden. Cases under workers' compensation legislation in New South Wales support this view: Rheem Australia Ltd. v. Manufacturers' Mutual Insurance Ltd. (1984) 2 NSWLR 370; Manufacturers' Mutual Insurance Ltd. v. Australian Gaslight Co. Unreported, Supreme Court of N.S.W. (Clarke J.), 7 April 1987. (He also referred to State Government Insurance Office (Q.) v. Brisbane Stevedoring Pty. Ltd. (1969) 123 CLR 228, at pp 239-240, 250-251, 254-255.) Under the Workers' Compensation Act 1916, damages are not confined to workers or some other limited class, and it is appropriate that ss. 8 and 9A be given a wide interpretation.

I.D.F. Callinan Q.C., in reply.
Cur.adv.vult.