Workers Compensation Board of Queensland v Technical Products Pty Ltd

[1988] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl5 of 1988

B e t w e e n -

THE WORKERS' COMPENSATION BOARD

OF QUEENSLAND

Appellant

and

TECHNICAL PRODUCTS PTY LTD

Respondent

WILSON J

DEANE J
DAWSON J

Workers(2)

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 28 JUNE 1988, AT 11.59 AM:

Copyright in the High Court of Australia

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MR I.D.F. CALLINAN± QC:  May it please the Court, I appear

with my earned friend, MR P.C.P. MUNRO, for the

appellant. ( instructed by Bradley & Co.)

MR G. DAVIES, QC: If it please the Court, I appear with

my learned friend, MR P.V. AMBROSE, for the

respondent. (instructed by B.J. Mclaughlin Ivey & Co.)

WILSON J:	Mr Callinan.
MR CALLINAN:	Your Honours, may I hand up an outline of

our argument.

WILSON J:	Yes, thank you.
MR CALLINAN:	Your Honours, it might also be convenient, I

think, if I hand up a number of copies of the

pamphlet of the Act. It contains, as separate

Acts, some subsequent Acts. By that I mean

subsequent to matters with which I think Your Honours

will be concerned. Largely, what I want to refer

to is to be found in the consolidated Act itself.

WILSON J:  Yes. Thank you, Mr Callinan, that will be helpful.

Yes, Mr Callinan.

MR CALLINAN:	Your Honours, this is an appeal from a decision of a Full Court constituted by Their Honours
Mr Justice Connolly, Mr Justice Shepherdson and
Mr Justice Vasta.  The matter before the Full Court
was a demurrer, a demurrer filed on behalf of the
appellant in respect of a claim by the respondent against the appellant for indemnity from the
Workers Compensation Fund in respect of an injury
by way of nervous shock sustained by the wife of the worker.

Your Honours, the plaintiff in the action,

the plaintiff's husband, had suffered severe

personal injuries at work and it is alleged that

those injuries caused - and I use the language

of the statement of claim of the respondent against

the appellant - but those injuries of the worker

husband caused the nervous shock which was sustained

by the plaintiff in the action. There then arose

for consideration the question whether the employer,

who might be liable in respect of those injuries,

could look to the Workers Compensation Fund for

indemnity. His Honour Mr Justice Connolly,

in a relatively short judgment, His Honour

Mr Justice Shepherdson, in a considerably longer

judgment, overruled the demurrer of the appellant.

His Honour Mr Justice Vasta would have upheld

·-:  the demurrer. .-

. , - - :.\

Your Honours, if I could go then immediately

to our outline - the question is one of statutory

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Workers(2)

interpretation of clause - and,Your Honours,

if I could go, perhaps, to paragraph 3 irrnnediately

and there we refer to the fact that the provision
for indemnity is contained in subsection 8(l)(b)
of the Act. Those words are incorporated in the

statutory form of policy. Now I will, in due course, come to those words in the section but, Your Honours, it might be more convenient if I invite you to

look first at the context of those words and

some other expressions and sections of the Act

which make it clear, in our submission, that there
is a legislative intention to ensure a recourse

by injured workmen ultimately to a solvent fund. The attainment of that intention is achieved by establishing a scheme of compulsory insurance of

and by employers.

Could I ask Your Honours first then to look

at some definitions in the Act which, we would

submit, manifest that intention and some other

sections of the Act which similarly manifest that

intention.

WILSON J:	The Board is the insurer, is it, Mr Callinan?
MR CALLINAN:	Your Honour, the history is that the legislation

was introduced in Queensland first in 1916. It

was undertaken largely thereafter for a long

period by private insurers. Ultimately, it came

to be undertaken by the State Government Insurance

Office, that was in 1962. Up until then there

had been private insurers,thereafter there were

really, three types of insurance: compulsory motor vehicles insurance; workers compensation insurance

not, unlike in some other States. In 1978 the

and all other forms of insurance. It became

separated in function from what was then established,
the Workers Compensation Board, which became the

sole and a compulsory insurer of all employers.

WILSON J:  Under the WORKERS' COMPENSATION ACT?

MR CALLINAN:  Under the WORKERSe COMPENSATION ACT. So

that in 1978 a number of amendments were effected

to the legislation to establish the Workers Compensation

Board as a separate corporation.

WILSON J: Yes, thank you.

MR CALLINAN:  Your Honours, that appears from a number

of the sections of the Act to which I do not think

I need refer in any detail.

WILSON J:  No. That explanation answers my question.

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Workers(2)

MR CALLINAN:  Yes, thank you, Your Honour. Your Honours,

I wanted then to refer to the definition of

injury which appears on page 5 in section 3 of the

pamphlet copy of the Act that I have handed up.

Your Honours, we want to refer to that to point defined without, in any ways, limiting the operation
out - this will not be a novel proposition to

and scope of section 9 of the Act as a personal

injury arising out of or in the course of employment.

The legislative thrust is plainly, therefore, in

respect of injuries arising out of or in the course
of employment, as those expressions have been

construed on a number of occasions by the courts.

Your Honours, we then wanted to point to the

definition of "worker" on the next page in the

same section and to point out that it is a very extended

definition designed to incorporate persons who might

not ordinarily be regarded as being in an employee/

employer relationship. So there is that extended

definition and, in particular, we wanted to point

to _section 3(4) on page 8 of the_

pamphlet copy in which the words appear:

Any reference to a worker who has been

injured, where the worker is dead, includes
a reference to his legal personal representative

or to his dependants or other person to

whom or for whose benefit compensation is

payable.

We refer, at this stage, to that subsection for

two reasons. Again, there seems to be some emphasis

upon an injury to a worker, save in the exceptional

case of a worker whose injuries result in his death

in which event the definition is extended to cover

his personal representatives or dependants. That

is one reason why we refer to it. The other

reason why we refer to it at this stage is that

His Honour Mr Justice Shepherdson, who wrote the	long judgment in the Full Court, seemed to regard
himself as being bound in this case to decide the issue having regard to a decision of this Court in McDOWELL, which is referred to in the
reasons and I will come to it shortly. That was a case in which the question was whether a widow who had received damages pursuant to Lord Campbell's
claim was obliged to refund out of those damages workers compensation which had been received by her
husband before he died. He had suffered an injury
which, ultimately, caused his death but there was
-,.-,-,~,::._; ,'<:: f periodical workeT.:'. r:'01:lpe,.,.!':' '.:ti'"''!"_ pa.yment s. a delay between the injury and his death and he
She instituted proceeding under LORD CAMPBELL'S ACT
and this Court held, reversing the decision of the
Full Court, that out of those damages, in accordance

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Workers(2)

with a section to which I will refer, she was obliged

to refund, or to have deducted from the damages,
the workers compensation payments received by her

husband before the death. In that case this Court

construed the words "in respect of" widely, words

which also appear in the section which falls

to be construed by Your Honours in this case.

His Honour Mr Justice Shepherdson seems to have

regarded himself as being in some way bound by that

decision, resolved this matter in the way in which

His Honour did. But our proposition in relation to

all of that is, as His Honour Mr Justice Gibbs

pointed out, as he then was, in McDOWELL's case, the use of the words or the meaning of the words depends

very much upon the context. His Honour thought that -

as, indeed, did His Honour Mr Justice Aickin and
other members of the Court in that case - thought

that the words "in that context" had to be given

a very broad construction.

We simply will make the submission that

the case very much depended upon - that is, McDOWELL's

case - depended upon its own facts and depended

upon the construction of the section under consideration

there and was not determinative of the matter before

Your Honours here. So if I may pass on then, after

having pointed to section 3(4), I wanted then to

point to section 3(c) relating to the powers of the

Board, the Workers Compensation Board. I merely

wanted to point out that the Board's function,

among other things, is to:

make recommendations to the Minister as to -

(a) the bases on which -

(i) rates of premium to be charged in connection

with policies and other insurance contracts;

(ii) benefits to be paid to injured workers

and their dependants.

So that, again, the role of the Board seems to be

a role related to benefits, damages and other

benefits to be paid to injured workers and their

dependants. There is no suggestion there of any

benefits to be paid to persons other than dependants,

that is, persons who might have a cause of action

against an employer otherwise arising than in the

course of employment. Could I just point out that

there is also provision for a recommendation to be

made in relation to merit or other bonus payments

and one might think that those recommendations

would depend, to some extent, upon the degree of

safety which the employer effects in ·the work place.

we s·irnp ly ref er tu tbi.:. and oLher pro vis ions

to point to the likelihood that the Act is really

concerned only with employer, employees and dependants

of the latter.

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Workers(2)
WILSON J:	Although the Act uses the word "damages" in section 8 and "benefits" is not the same word, is it?

MR CALLINAN:  No, it is not. Your Honour, there is some

provision in another section of the Act to which

I will come shortly for rehabilitation payments which seem to be treated as being in a different

category from either compensation or damages and it may be that the term "benefit" is designed to

comprehend those payments of that kind.

Your Honours, could I next refer to page 18,

section 4, and I refer to it principally for the

purposes of completeness because it does certainly

say that the Board is authorized to carry on the

business of accident insurance. So the Board does

seem to be authorized to carry on business other

than necessarily business confined to worker

and employer insurance, if I can use that comprehensive

term for both workers compensation and connnon law

damages.

Then section 4(b) really points to, certainly -

if I can put it this way - a leaning at least towards

employer and employees. Then subsection (2):

All policies of accident insurance and of other insurance issued by the Insurance Connnissioner or the State Government Insurance Office

under this Act and subsisting innnediately

prior to the date of commencement of the

WORKERS' COMPENSATION ACT AMENDMENT ACT 1978

shall, on and from that date, be deemed to

be policies issued by the Board and the

provisions of this Act shall, with respect

to such policies, apply and extend

accordingly.

So not surprisingly all policies issued under the

Act or deemed to be issued by the Board following upon the change in 1978 are to be governed by the

Act.

WILSON J:  But that is purely transitional.

MR CALLINAN:  Yes, it is, it is. But section 5 "Workers'

Compensation Fund":

The fund called the "Workers' Compensation

Fund" kept at the State Government Insurance

Office (Queensland) and in existence immediately prior to the date of commencement of the

WORKERS' COMPENSATION ACT AMENDEMENT ACT 1978

shall be continued in existence -

....... ,.... ..

again, that is transitional. Then:

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Workers(2)

All moneys standing at credit in the Workers'

Compensation Fund ..... shall be transferred to

that fund.

And, then, the paragraph after next:

All premiums and other moneys received by or

on behalf of the Board under this. Act shall be

paid into the fund.

It is a fund, we would submit, for workers compensation and damages in relation thereto. It

is not designed to be a fund to which, ultimately,

strangers may have access and by that we mean
access by way of a claim against an employer in

a different capacity from his capacity as employer

who, in turn, might look to the fund for indemnity.

Your Honours, I should have pointed at the beginning, if I could just draw attention to it now, the longer

title to the Act; this is on page 2:

An Act to Amend the Law with respect to

Compensation to Disabled Workers.

As, perhaps, a guide to construction or an aid to

construction, the Court might look at that.

Your Honours, it is against that background then
that I come to section 8 of the Act on page 21
which is, of course, the section in particular, 8(l)(b)

upon which- the respondent relied and·· which formed the

basis of the majority decision below.

Every employer shall be legally liable

to pay the compensation which this Act

prescribes a worker employed by him shall

receive out of the Workers' Compensation

Fund in accordance with this Act.

Again, the thrust is in relation to a worker

employed by an employer.	And the obligation of
an ,employer:

Every employer shall insure himself and

keep himself insured with the Board against

all sums for which, in respect of injury

to any worker employed by him, he may become

legally liable by way of -

(a) compensation underithis Act; and

(b) -

which is of particular relevance here -

in the case of injury as aforesaid -

and Your Honours, for the purposes of the construction,
can really omit all words down to the word "damages"

appearing on the fourth last line of that paragraph,

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Workers(2)

so that relevantly it will read:

Every employer -

and I am starting from the beginning again -

Every employer shall insure himself .....

against all sums for which, in respect of

injury to any worker employed by him, he

may become legally liable by way of -

(b) in the case of injury as aforesaid .....

damages arising under circumstances creating

also, independently of this Act, a legal

liability in the employer to pay damages in

respect of that injury.

Now, Your Honours, what is contended, of course,

is that an action for nervous shock creates a

liability in the employer independently of this

Act and is in relation to an injury, as it were,

in respect of the injury to the employee. Now,

that seems to be the basis, with respect, to the

majority decision below. It may be of some

significance, we would submit, that in

Mr Justice Shepherdson's paraphrase of the section,

which appears at page 13 of the appeal book,

His Honour has omitted the words "in the case

of injury as aforesaid". At-page- 11

His Honour Mr .. Justice Shepherdson had set out the subsection somewhat more fully and then His Honour

paraphrased it at page 13 and he leaves out the

words "in the case of injury as aforesaid". Now,
we respectfully submit that that is a significant

omission because, Yo.ur Honours, the reference to

"in the case of injury as aforesaid" requires that

the injury be an injury of the kind defined - to

which I have referred already - which is an injury

arising out of or in the course of employment or,

to put it another way "an injury to any worker"

which is the phrase used in the second paragraph

of subsection (1) immediately before paragraph (a).

We submit, the use of expression "in the case

of injury as aforesaid" is a deliberate usage and
is designed to ensure that the injury is an injury
to the worker, that is, the only injury compensable

by way of damages and in respect of which the fund may provide indemnity. If it were necessary to go

as far as that we would say that if otherwise one

were minded to give the words "in respect of"
a wide interpretation, the use of that expression
"in the case of injury as aforesaid" would operate

to cut down that wide ambit that the expression

might otherwise ·oe giv1;:n. But L-::ally che wo1:·ds

at the end of paragraph (b) "in respect of that

injury" make it clear, we would submit, that what

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Workers(2)

is being spoken of is an injury as aforesaid which

is an injury to a worker both by definition and

by reference to the earlier expressions used in

section 8 itself.

WILSON J:  You referred earlier to the "nervous shock"

in terms of injury, but why is not the claim
simply for damages in respect of the injury to

the worker? That is the question.

MR CALLINAN:  That is the question and that is what the

Full Court held by a majority and did so upon the basis that, in our submission, the words "in respect

of" have always to be given and must be given in

section 8 a very wide interpretation. That is one

basis. The other basis, it seemed to be, and perhaps

it is not very different from what I have already

said, seems to be certainly, so far as His Honour

Mr Justice Shepherdson was concerned, that

His Honour was in some way bound by the decision

in McDOWELL V BAKER, necessarily to give the

phrase "in respect of" wherever it was used in

the WORKERS' COMPENSATION ACT a wide construction.

With respect to what Your Honour the presiding

judge has said is the question in the case, we

answer it by submitting that it is governed -

the words "in respect of" are governed by the

contextual references which I have already given

Your Honours and some further ones which I will

words in paragraph (b) 11 in the case of injury also give Your Honours and by the introductory

as aforesaid".

TOOHEY J:  Those words do not get you home, Mr Callinan,

do they, of themselves?

MR CALLINAN:  No, and I do not want to be taken as

submitting that they would alone necessarily

get me home, Your Honour.

TOOHEY J: That simply identifies the injury as the injury

to a worker but you are still left with the question whether

the damages are awarded in respect of that injury

or not?

MR CALLINAN:  Yes, I agree with that. But it is, we would

submit, another statutory indication that the

injuries which will ultimately be recompensed,

or the damages in respect of which will ultimately
come from the fund, are intended to be injuries

to the worker or damages sustained by a worker.

Your Honours, I then wanted to refer to section 9,

which relates to compeni::;ation.

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Workers(2)

A worker who has received an injury arising

out of or in the course of his employment (and,

in the case of the death of the worker, his

dependants) shall, subject to this Act, receive
out of the fund compensation in accordance

with this Act.

And then there follow a number of provisions relating

to the circumstances in which a worker will be

entitled to compensation, such as on his journeys

to and from work. Whilst iIIllllediately, of course,

conceding that the section is concerned with

compensation and not co!Illilon law damages it is,

again, another statutory indication, we would

submit, of the legislative intention to which I

have already referred. I then wanted to go,

Your Honours, to section 9A on page 28. It is actually a little more convenient to read this

section, Your Honours, by reference to the

reasons for judgment in the record book at page 18,

the reasons for judgment of His Honour

Mr Justice Shepherdson. I say that because there

is an error in the printed version of the Act.

Your Honours, this was the section which fell

for consideration in McDOWELL V BAKER, principally

this section. Your Honours will see that it is

the section which makes provision for the refund

of workers compensation .

9A. Where an injury in respect whereof a

worker is entitled ..... to receive
compensation from the fund was received .....
under circumstances creating also,

independently of this Act, a legal liability

in the employer to pay damages in respect

of that injury -

that is the phrase there, "in respect of that

injury" -	(except an injury in respect of which
the employer is required by some other Act
..... to provide against -

and I shorten it but that is the effect of it -

(a) the amount of such damages which the

employer is legally liable to pay shall,

notwithstanding any other Act or law, be

reduced by the total amount of the

compensation (which shall include -

various 2xpenses -

prescribed by this Act to be made from the

Fund in respect of the injury in question;

and

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(b) subject to this section, the worker or

his dependants shall receive from the

Workers' Compensation Fund such reduced

amount.

Now, Your Honours, we would submit that that is the

clearest possible indication that the Board should

be entitled to look to a reduction of any reduction

of any damages to the extent of any workers

compensation which has been paid. It is, in short,

another very clear statutory indication that the

fund is to be available in respect of the injuries

actually sustained by the worker and confined to

those injuries only.

(Continued on page 12)

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MR CALLINAN (continuing):	Your Honours, one could also

refer, for example, to subsection (2A):

Where a worker has suffered an injury

on or after 1 November, 1978 under

circumstances creating a legal

liability in the employer to pay damages

in respect of that injury, but the

employer against whom it is sought

to establish liability is dead or

cannot be served -

and then there is a procedure for serving the fund.

Again it is only an indication, but again it is

an indication, we would submit, of the intention

to confine the rights to the employee

only. Your Honours, subsection (4A) on page JU -

I am sorry, I was looking at the pamphlet copy

of the Act, we have gone beyond the area of the

error, Your Honours, one can return to the pamphlet

if need be - but subsection (4A):

In respect of a claim to which

subsection (2) of this section applies,

the Court concerned may, upon the

application of any party to the action

or proceedings ..... and upon such

terms as the Court deems just -

and Your Honours will notice these words -

order the worker to submit himself to

a personal medical examination by

the duly qualified medical practitioner

or practitioners named in the order.

Now that is, we would submit, a very clear indication

indeed that the Act is concerned with injuries to

workers and not to others.	Then the last paragraph
of subsection (4A):

If, in the opinion of the Court concerned, the worker has persistently

and wilfully refused to comply with the

order ..... the Court may enter judgment against the plaintiff in the action or

proceedings upon such terms as it deems

fit.

So what is contemplated there is that there will

always be an identity - a complete coincidence

between the worker and the plaintiff. The worker

is to be the plaintiff and no other, we would

submit. And then subsection (5):

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Workers(2)

The provisions, other than this

section of this Act relating to the

recovery by a worker from his employer

of damages for which the employer is,

independently of this Act, legally

liable in respect of injury to such

worker, shall apply subject to this

section.

Again the reference is to employer/employee, to

worker and, Your Honours, by subsection (5) section 9A

seems to be given some pararr01m.tcy_ · over other sections

of the Act. And having regard to that, we would

submit, the very clear statutory indications to which

I have referred have to be born in mind if

construing, for example, subsection 8(1)(b) of the·

Act to which I have referred Your Honours. Then

section 14, if I could go to that section at page 33,

section 14(1)(A)(i):

If the worker leaves any dependants -

again it is a section eoncemed 'We' appreciate with
compensation and not damages but none the less the
indications are that the benefits under the Act,

using that term comprehensively, are designed to be provided in favour of workers and not others.

Section 14B at page 46 is to a similar effect.
The reference again is to workers. Could I refer,

Your Honours, to section 14C at page 50 again

a section designed with a means of assessment of

disability in order to qualify a worker for

compensation and not for damages. But,none the less,

once again the emphasis is plainly upon the

entitlement of workers; indeed there is no suggestion

that anybody else might be so entitled. I need

not refer to the section in detail .What it does is

establish a number of medical boards of various

medical specialities to which, pursuant to

subsection (4) on page 53 of the pamphlet copy of the

Act:

The General Manager may refer .....

claim for compensation ..... in respect of

any alleged injury.

Your Honours, I did mention, in response to a question

from Your Honour the presiding judge, that there

did seem to be some provision elsewhere in the Act

for benefits other than what might be strictly

called, "compensation" on the one hand and

"damages" on the other. That appears from

section 14D of the Act, which deals with, among other

things, rehabilitation expenses,	in particular at
subsection (2) Bt pagP. 56.	I only refer to i·,: for

Bl1'7/2/SR	13
Workers(2)

the purpose of answering Your Honour's question.

Could I go then, Your Honours, to section 15 of the

Act at page 60:

The provisions set forth in the Schedule to this Act shall be applicable

to the business of accident insurance

undertaken by the Board and to

proceedings for and consequent upon the

recovery of compensation under this Act.

And there are some similar indications to those to

which I have referred in the schedule and I will

come to that shortly.	Your Honours, could I go next,
however, to section 16:

Nothing in this Act shall affect

any civil liability of the employer when

the injury was caused by the personal
negligence or wilful act of the employer

or of some person.

Now I refer to that, Your Honours, because of the

use of the word "injury" and, of course, injury is
defined, we would submit, clearly and exclusively as

an injury arising out of or in the course of

employment. And no matter how extended a meaning one

might seek to give to the word "arising out of the

employment" or "arising out of the course of

employment" it would not comprehend, particularly

in the context in which the definition appears and
the definition itself, could not possibly comprehend

an injury to someone other than an employee. But the use

of the word "injury" there again, we would submit,

makes a claim that all injuries which might

ultimately be the subject of reimbursement from the

fund have to be injuries to an employee.

Then in section 16(2):

If compensation or damages has

already been recovered by the claimant

in respect of the injury -

and we would make the same submissions in respect

of the usage for the word "injury" there as we have

already made. It must be an injury to the worker

arising out of or in the course of the employment.

Then section 17:

It is not lawful for any employer or any person on his behalf to ..... take

or receive any money from any worker,

whether by way of deduction from wages

BlT7/3/SR	14
Workers(2)

or otherwise howsoever, in respect

of any liability under this Act or to

pay damages independently of this Act.

Again, we would submit, it plainly was not within

the contemplation of the legislature that anyone

might benefit from the fund, either directly or

indirectly, unless he were a worker or employee
for the employer seeking his indemnity under the

policy.

Then, Your Honours, the schedule commences

at page 65, that is the schedule referred to in

section 15 of the Act. Could I refer Your Honours

to page 72, section 5:

When any worker has received an

injury, it shall be the duty of the

employer forthwith ..... to report particulars

thereof -

and so on. Then section 6:

Any worker applying for or in

receipt of compensation under this Act

is required, if requested by the Board ..... to submit himself for medical examination -

at any time and so on. But again we refer to the

reference to:

Any worker applying for or in

receipt of compensation.

Then the third paragraph:

Whenever any worker or the

Board has required an application for

compensation to be heard and determined

by an Industrial Magistrate -

and so on. Then section 8:

If the Board is satisfied that an

application for compensation is well

founded, it may, in its discretion .....

advance to the worker such sum or sums

on account of compensation.

Section 9A:

When a worker employed by the State

is injured no compensation ..... shall be

paid -

for the period during which Le receives his full

salary. I am paraphrasing, but again the reference

is to the worker. Again in section 11> the proviso:

BlT7/4/SR	15
Workers(2)

Provided that where the worker was

at the date of the injury under twenty-one

years of age.

We would submit, that the reference in section 12

to "dependants" is plainly a reference to dependants

of the worker. Then section 15 defines the

refers to a worker. Section 22 refers to a worker

entitlements of dependants in the case of death.

and then could I draw Your Honour's attention to

section 23, which perhaps requires a little more

consideration:

If, within the time limited by

this Act for making application for

compensation, an action is brought to

recover damages independently of this

Act -

and there ·are the words "in respect of" but of

course, we emphasize the words "an injury" -

and it is determined in such action

that the injury is one for which the

employer is not liable in such action,

but that there is a liability to pay

compensation under this Act, the action

shall be dismissed.

Now, it would be a rather unusual result if the

action were to be dismissed if it were an action
available to a third party, that is a person who is

not a worker, if that action were to be dismissed

simply because the worker had been paid compensation.

So that would be, we would submit, an extremely

unlikely result and again, we would submit, that

all of that shows that the suits available or the

suits which ultimately give recourse to the fund are

to be suits by a worker. Then section 23(2} of

the schedule, I need not read it, but the same

submissions may be made regarding it. Section 24: When the injury for which compensation

is payable by the Board under this Act

was caused under circumstances creating also
a legal liability in some other person to
pay damages in respect thereof -

(i)         The worker may both take proceedings

against that person to recover damages and

may apply for compensation. ; ... but is not

entitled to recover both ..... .

(ii) If the worker has recovered

compensation under this Act.

BlT7/5/SR	16
Workers(2)

Then section 24A on the next page:

Subject to this clause, in respect

of an injury received under circumstances
creating both -

(a) Independently of this Act, a legal

liability in some person, whether the
employer or a person other than the

employer, to pay damages in respect of

that injury; and

(b)	A claim for compensation under this
Act,

a worker may both take proceedings to

recover those damages and apply for

compensation.

Nothing, we would submit, could be clearer than

that section as indeed is the rest of the Act

speaking of injuries to a worker and claims for

damages by a worker confined to his own injury.

WILSON J:  I think the Court may need to adjourn now,

Mr Callinan, if that is convenient?

MR CALLINAN:  As Your Honour pleases.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.22 PM:

WILSON J: Yes, Mr Callinan?

MR CALLINAN:	Your Honours,~I.was referring to page 78 of of the schedule, 24A and could I draw Your Honour's	the pamphlet copy of the Act and to some provisions
attention to subsection (3):

If a worker to whom this clause applies who has received compensation

under this Act has not, independently

of this Act, recovered any damages from

the employer.

So again it is a statutory indication.	Then in
the next paragraph:

-~, ~··

If, subsequently to that employer

or other person paying under such

indemnity, the worker recovers damages

BlT7/6/SR	17
Workers(2)

against him, the payment under the

indemnity shall to the extent thereof,

satisfy the liability.

Then subsection (4)

A worker -

and this, we submit, is a very strong indication -
A worker shall not settle or

compromise, for a sum less than the

amount of compensation charged on

those damages, any claim for damages

had by him independently of this Act

in respect of an injury to which this

clause applies.

So one has exactly the same sort of language as

appears in section 8(l)(b) and again we point to it
as a statutory indication, as we do to

section 24A( 5) :

For the purposes of section 16

hereof, clause 24 of the Schedule hereto

and this clause, compensation ..... in

respect of an injury to a worker shall

be deemed to include medical, hospital,

travelling, and other expenses.

Your Honours, those are the principal, we would

submit, statutory indications in the Act itself.

Could we go then to the policy. The form of policy

appears at page 143 of the pamphlet copy and

Your Honours will see that there is a continuing

reference to "State Government Insurance Office

(Queensland)", but by virtue - - -

WILSON J:	What page is this, Mr Callinan?
MR CALLINAN:	Page 143.
WILSON J: Page 143, sorry, yes.
MR CALLINAN:	By virtue of section 4A(5) State Government

Insurance Office (Queensland) should be read as

Workers Compensation Board. Your Honours will

recollect I mentioned how the two establishments were

separated by amendments in 1978. But, Your Honours,

for present purposes, we simply make the point that the language of the indemnity clause is the same as the language of section 8, section 8(l)(b) and (a), but we also make the point, Your Honours, that the

policy is issued, as appears from its terms, on

the L:,.,itn of ::hs £1.ppli~ation and under the

provisions of the Act:

BlT7/7/SR	18
Workers(2)

and is subject to the provisions of

the said Acts and of the regulations
made thereunder, all of which shall be

deemed to be incorporated in and to

form part of this policy.

Your Honours, that reference to the fact that the

policy is issued pursuant to and, of course subject

to the Act, is a convenient starting point for a

brief ref~rence to some of the judgments in the

court below. Could I go, and I can be brief about

this b~cause I appreciate, with respect, that

Your Honours have read them, could I go to page 7

of the reasons of His Honour Mr Justice Connolly,

who said at about line 31:

It is true that section 9A of the WORKERS'

COMPENSATION ACT ..... assumes that the

only persons who may acquire a cause of

action against an employer in respect of injury sustained by a worker ..... are the

worker himself, on the one hand and,

where he is dead, his personal representatives

or dependents.

So His Honour refers, we would submit, to the clear

statutory intent and then says:

This however provides no sufficient warrant

for cutting down the language of
section 8(l)(b); or of the statutory form
of policy (now form 2 in the First Schedule) .....
in which the risk insured is stated

precisely in the words of section 8(1).

Then over the page - or rather before that, His Honour

says:

Obviously enough, this assumption explains

the lacunae, if such they be, in section 9A,

to which my brother has referred and which

were strongly relied on by Mr Griffin.

But even if one were tempted, in the

performance of the court's duty to read

the statute as a whole, to read down
section 8(l)(b), it is scarcely permissible
for this reason to depart from the language
of what must be treated as the contract
of the parties.

We simply make the point that the contract of the parties is the contract to be ascertained by reference to the whole of the Act and not simply to the policy which of course is governed by the Act

and to one suhqp~ti0~ ian1_~~ 0 ~ fTom n~her sections of

the Act and which itself is capable, readily capable

we would submit, of the constructions fqr which we

contend. Your Honours, could I go then to relevant

BlT7/8/SR	19
Workers(2)

portions, we would submit, which really express

the ratio of the reasons for judgment of

His Honour Mr Justice Shepherdson and for that

purpose I can go immediately to page 13 of the

record, because the first part deals with some

deficiencies which His Honour perceived in the

pleadings or in the demurrer. I have made the

point, Your Honours, in relation to His Honour's

paraphrase on that page of subsection l(b) of

the ommission of the key words, we say key words,

which refer to the injury , "injury as afo'resaid", which has

to be construed as we submit as an injury to a

worker.

Then on pages 14, 15 and 16, His Honour

really discusses the genesis of the ~ause of

action in rr.odern times of nervo1.1s shock in Australia.

Then at page 16, at about line 5, His Honour said:

The phrase "in respect of" has

been construed in courts of high

authority in Australia.

And His Honour referred to a passage from the

judgment of His Honour Mr Justice Gibbs in

McDOWELL V BAKER and in that context could we simply

refer Your Honours to the reservation, we submit,
that His Honour, with respect, correctly made in

relation to the construction of that phrase at

page 419 of the report j,n McDOWELL V BAKER.

His Honour at about point 6, the reference of course

is (197~) 144 CLR 403 and I am referring to page 419

at about point 5, after referring to UNSWORTH

His Honour said:

Nevertheless, the words "in respect of"

"have the widest possible meaning of any

expression intended to convey some
connexion or relation between the two

subject-matters to which the words refer".

Now that is the passage quoted by Mr Justice Shepherdson

and after the citations, His Honour said:

Accordingly, it has been held that in

an appropriate context -

and we simply make the point that as always the

words have to be taken in their context and it would,

with great respect, have been more appropriate to

refer or would have been appropriate to refer to

that obvious qualification when one quotes from the

judgment - - -

DA-W::iON J: Section 12 cf 4.:he CGMMON LAW PR.:\CTICE ACT is the - - - ?

MR CALLINAN:  LORD CAMPBELL'S ACT, Your Honour, as dependants.

BlT7/9/SR	20	MR CALLINAN, QC 28/6/88
Wotkers(2)

DAWSON J:  One can understand the injuries extending to

death but that is a quite different situation?

MR CALLINAN: Exactly, Your Honour. With respect, as

His Honour Mr Justice Aickin points out in the

same case, and I will give Your Honours that passage

shortly, His Honour also could readily understand

that refers - - -

DAWSON J:	I mean death is a sort of injury, anyway?
MR CALLINAN:	And then, of course, His Honour points to

express words in the Act which are designed to

comprehend dependa~ts who have an entitlement under

LORD CAMPBELL'S ACT against an employer. So, with

respect, everything that was said in McDOWELL,

we would submit, is consistent with the question or

the proposition Your Honour Mr Justice Dawson put

to me. His Honour, as I say, picked up that

passage and then he referred to various other sections

of the Act. He set out in full section 9A, discusses

again the argument and then at page 23, His Honour

goes to a passage from the judgment of His Honour

Mr Justice Aicken at pages 427 and 428 of McDOWELL.

And His Honour seemed to think in some way that

this passage and the passage from the judgment of

His Honour Mr Justice Gibbs had necessarily led

to the conclusion which he reached. But we would

submit that that is not, with respect, so:

In my opinion the section is not

directed to causes of action but to the
simpler conception of liability for a

compensable injury, that is to say, all

liabilities which may arise therefrom.

It uses general language when it speaks

of "the amount of such damages which the employer is liable to pay", thus concentrating on the liability of the

employer to pay otherwise than under the

Act, and not upon the recipient of the

payment. Circumstances "creating .....

independently of this Act, a legal

liability in the employer to pay damages

in respect of that injury ... " may be

either negligence or breach of a

relevant statutory duty, each giving rise

to a liability to pay damages. The damages

may be payable to the worker or to his

dependants, depending on the circumstances,

and I can see nothing in the language or

the apparent policy of the section to

suggest that it is confined to damages
payable to the worker.

His Honour is obviously speaking in the context of worker and dependants who have rights pursuant to

LORD CAMPBELL's ACT:

BlT7/10/SR	21
Workers(2)

Both these damages and damages payable

to dependants under LORD CAMPBELL'S ACT

are properly described as "in respect

of that injury".

Which is, with respect, precisely what Your Honour

Mr Justice Dawson put to me a moment ago. One

can easily comprehend that a death arising out of

the injuries would have been within the contemplation

of the legislature:

It is true that the worker had a

cause of action based on the common law
and his dependants had, on his death, one

based on a statute, but each arose out

of the same "injury".

Now we make that point, the same injury. What the

Court here is concerned with is are:. two injuries -

two different quite separate injuries:

That injury was of the kind described in
section 8(1) and was the foundation of

both his claims and his dependants claims,

whether for compensation or for damages.

We would submit that the passage supports the

argument which we put forward rather than the conclusion

which His Honour reached. His Honour further then

discusses the argument which was advanced below and

at page 25 said:

(Continued on page 23)

B1T7/ll/SR	22
Workers(2)

MR CALLINAN (continuing):

Mr Griffin also relied upon the concluding

words of the last paragraph to sub-s 9A~l)

name 1 y " th a t de t e rm in a t ion sh a 11 be b ind in g

upon the Board and the worker" as indicating

thats 8(1) should be construed in the manner

for which he has contended.

And His Honour discusses that argument. And then,

at the foot of the page, page 25, His Honour says:

I turn now to s 9A(2) to which sub-section

Mr Griffin pointed in support of his submission as to the construction to be placed on s 8(1). He submitted that Mrs Hart not being a "worker" even under s 3(4) is not obliged to serve the

Board as required bys 9A(2) -

What His Honour is speaking about there 1s a prov1s1on

in the Act which is to the effect that one cannot

proceed with the action until such time as the

Workers Compensation Board has been served, that

is, the Board as well as the employer defendant - and further that the Board cannot elect to

be joined in her action.

There is a provision, Your Honours, which entitles

the Workers Compensation Board to be joined as a
defendant in its own right and not simply to exercise

its rights of subrogation as a defendant in the name

of the insured employer. The Board itself may elect

by filing a notice of election to be a defendant

itself, a provision obviously designed to give the

Board control of the defence in the case of an

unco-operative absent or recalcitrant employer.

Being unable to so elect, the Board would,

according to Mr Griffin be deprived of the
benefit of being entitled to the conduct of

the proceedings conferred bys 9A(3).

While these submissions appear quite correct

it does not follow that because there is a lacuna

ins 9A(2), s 8(1) should in consequence be

construed to exclude Mrs Hart's claim in damages.

All of that, with great respect, seems to assume

some policy imperative or some statutory imperative

which requires that in the teeth of all of the other

clear provisions of the Act one must construe

section 8(l)(b) in the way in which His Honour

ultimately did. As to various other sections,

Mr Griffin submitted that all of these,compendiously,
~re highly supportive of his proposition that the

claim is not within the ambit of the Act and

BlT8/l/ND	23
Workers(2)

His Honour really goes on to accept that proposition

on the balance of that page and it concludes at the

top of page 27:

It seems to me that Mr Griffin's submissions

in so far as they are based on the various

provisions of s 9A do show that certain sub-
sections thereof are not apt in Mrs Hart's claim

against the defendant to apply to the third

party, the Workers' Compensation Board. I am

unable to see how these deficiencies can be

used to construes 8(1) in the way for which

Mr Griffin contends.

All of that assumes, with respect, that you must always, on every occasion, give the words "in respect of" the widest possible construction regardless of

their context and ~egardless of the clear legislative

policy reflected elsewhere in the legislation. It

is not a question of seeing how deficiencies can

be used to construe section 8(1), as His Honour put

it, it is a question of applying all of the provisions

of the Act to the construction of what is accepted as being a slightly ambiguous section - appearing elsewhere in the Act.

His Hbn0'l!lr says:

Viewed overall, s 9A contains a number of

provisions which have been added to over the

years and which appear to have been intended

to ensure that the Board has notice of common

law damages claims "in respect of an injury"

to which s 9A(l) applies -

With great respect that does not add anything.	And
then -

Overalls 9A is designed to protect the

Board after claims for common law damages are

commenced;	however as I have pointed out there
are gaps ins 9A and in my view those gaps should
not be used to affect the construction which
I consider should be placed on s 8(ll.

We would submit, with respect, that the characterization of these as gaps is inaccurate, they should be

characterized as clear indications that the plaintiff's

claim is not one which,ultimately, is to be satisfied

by recourse to the fund.

And then His Honour, as I said before, seems to have

regarded himself as, in effect, being bound by

McDOWELL V BAKER. After referring to that case,

at the· fuot of pa6 -..; '.2.-7, U-is ~},)nour, on page 28, said:

BlT8/2/ND	24
Workers(2)

In summary then, I rely not only on the

natural meaning of the words ins 8(1) ~

we make the point that the natural meaning may be

either a wide one or a narrow one -

above quoted extract from the judgment of as I have set them out earlier but also on the of insurance .•... does indemnify the defendant.

For the-reasons which we have mentioned we would submit

the approach ·of His Honour Mr Justice Aickin supports

our construction rather than the contrary one.	And
His Honour, correctly, we would submit, although

referring to some authorities from other jurisdictions,

does not regard them as being determinative here.

For the pHrposes.of completeness, can I

go then to the dissenting judgment,which we

respectfully submit is correct,of His Honour

Mr Justice Vasta. His Honour refers to the sections

on pages 29 and 30 and then at page 31, line 10,

says:

One must therefore look at the whole of

the Act to ascertain what is ~the liability
in the employer to pay damages in respect of

that injury".

And we respectfully adopt that one must look at the

proposition that one must look at the whole of the

Act.

Once the "liability ... in respect of that injury

is ascertained" the extent of the indemm.ity

will accordingly be defined.

Again, we would submit, that is correct. Then, at

the foot of page 31, line 52:

payments by way of compensation to the "worker" rf the whole scheme of the Act envisages

only and act ions by the "worker" only --

and we would add "actions by the 'worker' only" and

dependants in an appropriate case, prosecuting a

LORD CAMPBELL'S ACT claim -

and therefore payments of monies to the "worker"

only, it cannot be said that the obligation

to insure referred to -

1n -

BlT8/3/ND	25
Workers(2)

s 8(1) of the Act is a requirement to cover

a risk other than a liability to pay such sums

to a "worker" only. Hence, the extent of the

indemnity by the Board cannot exceed such limit

and will not reach out to cover a liability

to pay some other person. If this then truly

reflects the nature of an employer's liability

under the Act, the concluding words of s 8(1)(b)

will notionally read:  "a legal liability in

the employer to pay damages in respect of that

injury (in an action which the 'worker' only

may bring".

And then, at the top of page 33, referring to

section 9A, His Honour says:

This section acknowledges the fact that

a worker may bring an action for negligence

in respect of his injury quite independently

of the existence of the Act. In that regard,

therefore, it refers to s 8(1)(b) of the.Act.

The Act does however provide that in the event of any successful action -

I think there are words left out, the plaintiff -

may not recover both compensation and damages.

This section, in my view, clearly suggests that
the type of action contemplated by the Act is
one for damages by the "worker" himself, since

it is only a "worker" who may claim compensation.

And in the end, for those reasons, His Honour would

have allowed the dP.murrer but we respectfully submit

that that is the correct approach. Really, the

starting point, we would submit, of the other members

of the Full Court determined the conclusion which

they reached. They seemed to start with the

proposition that they were bound, no matter what

any other sections of the Act said, no matter what

the context was or indeed what the legislative policy

as reflected in the Act was; there was some other

imperative which required them to hold that the widest

possible construction should be given to

section 8(1)(b) and, in doing so, Their Honours,in the

majority,really overlooked,as we say,all of those

other provisions and they did not give, we would

submit, the appropriate effect and operation that

should have been given to the words "injury as

aforesaid" where they appear in section 8(1)(b).

For those reasons, we would submit, the appeal should be upheld.

WILSOP 1.\ J T • Thank you ' Mr \.:i U J. "··, 1 .l. ·= 11·· -1 CL ~ v ... '"' .LC. U ) "·· D····1· ""S J., l. a V . i::'w •

B1T8/4/ND	26
Workers(2)

MR DAVIES:  Thank you, Your Honour. I hand up some outlines

of our submissions. Your Honours, may I take you

straight away to section 8 of the Act with a view,

at the outset, to make some preliminary submissions upon

that provision. first,.Ybur Hbnours, the first

sentence in section 8(1) is not relevant for the
purposes of this appeal but we should say that we

agree with our learned friend's submission that a

compensation and other benefit such as benefits under

section 14D are not payable to other than workers

as defined, that is, workers or dependants.

Then when one goes to the part which is relevant,

which is the next paragraph, the requirement for

the insurance, it is important, in our respectful
submission, that that has two quite separate

components: that is a requirement to insure in respect

of compensation and a requirement to insure in respect

of damages. I should perhaps also make the point,

Your Honours, because our learned friend placed great
store on the phrase at the commencement of

paragraph (b):

1n the case of injury as aforesaid -

but, as he said, with respect to so many other

things, that phrase must be read in its context and,

indeed, for~the purpose of the phrase which is not

that but:  ,

in the case of injury as aforesaid suffered
on or after the first day of uuly, one thousand

nine hundred and sixty-three -

1s seen when one realizes that section 8(1) in its

present form was introduced in 1962 to take effect

as from 11 July 1963 and that that was the first occasion

upon which there was a requirement that there be

compulsory insurance in respect of damages. Prior

to 1962 there had been no such requirement. There

had been a requirement to insure in respect of

compensation but not the requirement to insure in

respect of damages. And so that phrase is simply

just to place a starting point for the commencement

of that section, that is, in respect of inj~ries

which occurred after that date.

Your Honours, the position, as I said, prior

to 1962 was that there was no compulsory insurance

against damages and what the provisions in the Act really are - section 16, for example, to which our

learned friends referred, provided up to 1962 that

the worker should have an option either to claim

damages or to claim compensation but not both.	So
certainly prior to 1962,when this provision was
iutr-uciuceo. iiuJ seccion 9A was introduced, there was
really nothing in the Act with respect to damages

BlT8/5/ND	27	28/6/88
Workers(2)

except 1n clauses .24 and 24A, for example, and the

provision I mentioned in section 16 that you could

not do both, you had to exercise your option.

But the Act was not an Act which had any

requirement with respect to insurance against damages

or any consequential provision in respect of that

and it was truly an Act to provide for workers

compensation payrn;nts and nothing m:>re. And, indeed,

since 1962 the Act is in substance an Act to provide

for workers compensation payments with the addition

of	sections 8 and the policy which is obliged to
be taken out under sections8 and 9A.	And the last

point I should make, really it is a preliminary point

and I will come back to it a little later, is that

sections8(1) and 9A,though introduced at the same
time,have quite different purposes and they must
be construed with those quite different purposes

in mind.

Can I then return, Your Honours, agajn looking

at section 8, to the phrase damages "in respect of

injury to any worker" or to put it more accurately:

sums f0r wAich; in respect of inju,:-y to any

worker employee by·him, he-may become legally

liable by way of'-

damages. That is taking the middle two lines of

the second paragraph and the word "damages" in the fifth line of paragraph (b) which is to read it in

its context. And, in our respectful submission,

the plaintiff's claim here for nervous shock was

a claim for damages in respect of injury to the worker.

DAWSON J:  I find that difficult to follow just as a matter

of construction. Damages in respect of one injury

are not damages in respect of another injury are

they?

MR DAVIES:  They can be, in respect of both, Your Honour.

I mean, for example, damages can be in respect of

a motor vehicle as the MOTOR VEHICLESINSURANCE ACT

provides and it has been held by this Court, for

example, that damages for loss of consortium - though

it is an independent claim - are damages in respect

of - or, indeed, I think it was for an injury to a worker. I am sorry, not to the worker in that case because it was the MOTOR VEHICLES INSURANCE

ACT but to the driver.

DAWSON J:	One does not want to confuse liability for damages which may be in respect of more than one occurrence
with damages in respect of the injury itself. Damages
are c~lculated with res;cct to on€ -i~jury o~ oRe
set of injuries, if you like, are they not?

BlT8/6/ND	28	28/6/88
Workers(2)

MR DAVIES:  Yes.

DAWSON J:  And they would be distinct from damages which are

calculated with respect to another set of injuries

or another injury?

MR DAVIES:  Yes.

DAWSON J:  And in that sense you can only have damages in

respect of one injury or one set of injuries?

MR DAVIES:  It depends on how wii.de the· phrase "in respect of"

is, Your Honour.

DAWSON J:  But there is no connection between damages for nervous

shock and damages for a broken neck.

MR DAVIES:	There is a connection between the damages for nervous shock and the injury to the worker and that
is the connection which the statute requires.
DAWSON J:	But that is the connection which confuses liability

in the calculation of damages.

MR DAVIES:  The phrase, Your Honour, is:

sums for which, in respect of inJury to

any worker" -

DAWSON J:  Yes, it does not say: a legal liability in the

employer in respect of that injury to pay it damages?

MR DAVIES:  No.

DAWSON J: If it did there would be something in what you say

but what it says is: a legal liability in the employer

to pay damages in respect of that injury.

MR DAVIES: It does say that.

DAWSON J: And there is a distinction.

MR DAVIES: In our respectful submission not a relevant

distinction because, in our respectful submission,

damages suffered by one person may be in respect

of an injury suffered by another if, in fact, there

is a sufficient connection.

DAWSON J:  The liability to pay them may be but the damages

themselves are not in respect of that injury. You

calculate the damages by reference to, in this case,

~h~ nervous shock, not by reference to the other

1nJury.

MR DAVIES:  µ,,_., ':·8)/S .. t \\:•P.~ nr1t- _mc::J.t.ter. whether one talks in

terms of 1 ability or the claim for damages because

BlT8/7/ND	29	28/6/88
Workers(2)

the claim is perhaps the obverse of the liability

and if one puts it in terms of the claim for damages	being 11 in respect of" in our respectful submission
it is "in respect of": if the claim for damages, '
in this case for nervous shock, has a sufficient
relationship to the injury to the worker. And, indeed,
perhaps it might be convenient if I take Your Honours
directly to what really has been held in similar
provisions. For example, the phrase in CRITTENDEN
was "sums for which the owner of a motor vehicle" -
I have added the "owner of the motor vehicle" but
that is what it is - "shall become legally liable
by way of damages in respect of such motor vehicle
for accidental bodily injury to any person".

DAWSON J: You see, that is the difference. That makes my

point.

MR DAVIES:  In our respectful submission there is not a

difference between those two and nor is there ia

the phrase which was considered in RHEEM. In our

respectful submission, in CRITTENDEN, what they said

was that "for accidental bodily injury" is the same

as "in respect of" but I take Your Honour's point,

that is, the phrase "legally· 1 iable" comes into it

and, indeed, it does in the RHEEM case. The phrase
in the RHEEM case was "amount in respect of the
employer's liability for any injury to a worker and

it was held in both those cases that a claim for

loss of consortium was within, in the first case,

within the meaning of the WORKERS' COMPENSATION ACT,

the insurance required under the MOTOR VEHICLES

New South Wales.

Your Honours, you have the references to both

those casef,I think. CRITTENDEN, 117 CLR, 412,

and the words in the section, section 3 (1) of the

MOTOR VEHICLE INSURANCE ACT are set out in the headnote

of that case. And I will come back to one or two

passages in that case a little later if I may. In
RHEEM, Your Honours, the reference is	.

(1984) 2 NSWLR 370 and the relevant provision is

set out ~t page 371, that is, liable:

in respect of his liability -

that is just at letter Fon 371 -

for ;:inv ini11rv rn iinv s11rh nprsnn

ThP "nprsnn" being the worker. In both those cases,

Your Honours, it was held that a claim for loss of

consortium came within those words ~nrl 1 ah0vlrl nerh~na

mencion, because our learned friends, at least i~	·
their writen outline, say and say correctly that

' '

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Workers(2)

a claim for nervous shock is a claim not for injury

to the worker in the narrow sense but for damages suffered by the plaintiff because of the wrongful act of the employer, albeit because the worker was

injured.

The same is true of a claim for a loss of

consortium. A claim for loss of consortium, like

a claim for nervous shock, is a claim by a person

other than the worker not for injury to the worker in the narrow sense but for damage suffered by the plaintiff by the wrongful act of the employer, albeit

because the worker was injured. Your Honours,I do

not know whether you need authority for that but

CURRAN V YOUNG, a decision of this Court, 112 CLR 99,

is authority for that proposition.

And, indeed, in a case which is on Your Honours'

list,which is a decision of a single judge in New

South Wales still as yet unreported, MANUFACTURERS

MUTUAL INSURANCE V HOOPER, it is a decision given

on 7 April 1987 by Mr Justice Clarke in the Supreme

Court of New South Wales, His Honour held that a

claim for nervous shock - the claim came with in the policy issued under the WORKERS' COMPENSATION ACT,

New South Wales- and he said in reaching his judgment that

that question was put beyond argument by the judgment

of the Court of Appeal in New South Wales in RHEEM.

Your Honours, in our respectful submission,

the phrase "in respect of" in a provision such as
this is capable of referring to cases where the damages
arise out of personal injury to someone other than
the plaintiff. That was held to be the case in

CRITTENDEN on the wording which I have indicated.

Can I go back before CRITTENDEN to a decision of

this Court in UNSWORTH V COMMISSIONER FOR

RAILWAYS, 101 CLR 73, and to a passage in the judgment

of Mr Justice Fullaghar at page 87. His Honour said,

in the last sentence on that page:

of" is wider - But the prepositional phrase "in respect

it should be "than" -

the preposition "for", and the words are capable
of referring to cases where the cause of action

arises out of personal injury but the plaintiff

is someone other than the person injured.

In our respectful submission, that is so here, that

is, the words "in respect of" are capable of

applica~i~n to a claim by a person_o~her than the

person 1nJc .... :.__: r:;__;t ·..::,::.· ;.,:.:r::::::-:: !:.: c·1s1m ·and,

consequently, that person's damages can be "in respect

of" the injury to another.

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Workers(2)	31

Similarly, in CRITTENDEN, a number of the

Justices in that case made that point...,- the

reference I have given Your Honours, 117 CLR 412

at page 416 in the middle of the page

Mr Justice Taylor quotes the passage I have just

read from UNSWORTH and then goes on to quote the

passage from Chief Justice Mann in TRUSTEES EXECUTORS

AND AGENCY CO LTD which Justice Gibbs, as he then
was, quoted in the passage which our learned friend

cited and which appears in the judgement of

Mr Justice Shepherdson.

DEANE J: That sentence is a rather meaningless thing, is it

not, to say its:

the widest possible meaning of any expression -

It is not wider, for example, than even "remotely

connected with" or "associated with". You know you

can think of hundreds of expressions that are wider.

But do not let me pull you up, Mr Davies.

MR DAVIES: All we need to say, Your Honour, is that it is

very wide and that it covers a sufficient connection

where the damages or claim by one person is in

respect of an injury to another.

(Continued on page 33)

BlT8/1O/ND	32	28/6/88
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MR DAVIES (continuing):  Then His Honour Mr Justice Taylor

deals with the point again on page 418,

about eight lines from the bottom

he says:

This decision is not precisely in point
in the present case but it seems to be of

considerable assistance for it does

acknowledge that the cover envisaged by

the words "for" or "with respect" to

"accidental bodily injury" is not confined
to a liability to pay damages to the

injured person himself.

And then on the following page at page 419 in the

second paragraph, the second sentence in that

second paragraph,His Honour said:

It is therefore beyond question that the cover provided by the policy is not limited to a liability to pay damages to the injured person himself.

Similarly, Mr Justice Menzies, at page 421, in a

passage commencing just below the middle of the first

paragraph, commencing:

It is true that -

down to the end of that paragraph. Finally, the first paragaph:

It is not expressed to relate only to a legal liability to a person who himself

suffers bodily injury.

Then, leaving out the next paragraph, commencing the second one:

On the other hand -

if Your Honours go from there almost to the bottom

· of the page, Your Honours will see His Honour was also

saying much the same thing. All that is necessary,

in our respectful submission, is a connection between

the injury to the worker and the damage claimed by
the plaintiff, and that connection is supplied, in our

respectful submission, by the facts that the plaintiff,

the worker's wife, claims that in breach of the duty of care owed to her, it - the employer - negligently

injured her husband in consequence of which she

suffered the nervous shock. That, in our respectful

submission, is a sufficient connection between the

two. That. is, the connection must still be with

re ;p t t th . . . ; . . ·' ... - . . . ~ , . . .r: . . ·- ~ ' . i .

8 ec O e lnJU.1..y ··auU. W'.:. ,,'\ .. ·'-"•\... .:;,,...) , "-'-··· i....h.o.r.lp.J..e,

that, in the cases where, for example, nervous shock

may be sustained by one person by reason of another

person being put in peril but not injured, then it

BlT9/l/VH	33	28/6/88
Workers(2)

would not come within the statutory policy because

it must be in respect of an injury to the other

person. Your Honours, there are other examples

given in the judgment of Mr Justice Glass, Justice

of Appeal in RHEEM, of cases where the damages or

claim by one person are in respect of injury to

another. They are set out at page 3 73. Another, if I can

give you as an example an authority which is not on our

list, Your Honours, it is STATE GOVERNMENT INSURANCE

OFFICE (QUEENSLAND) V BRISBANE STEVEDORING PTY LIMITED 123 CLR 228,at 239 to 240, 250 to 251, and 254 to 255, is an example of a case where a liability under a

contractual indemnity in respect of a person who is

a worker of the person liable was held to be a

liability for damages in respect of an injury to

that worker.

Your Honours, our learned friends took you through

the Act, and I will not do that, with a view to showing
that, in the context of the Act, the damages which

section 8(1) envisages, are only damages which are

claimed by workers. There is nothing in section 8(1)

which so limits them. Neither section 8(1) nor the

policy pursuant to that section on its face appears

to be limited, and Your Honours have seen section 8(1)

and the statutory form of policy and I will not

endeavour to read to them or take Your Honours to them.

We would concede, for the purposes of the argument,

that section 9A(l) is limited in its operation to

the worker or his dependents. In other words, it is

the worker as defined. But this, for two reasons, two

related reasons, one is the limitation is stated in
that section, in section 9A(l) and the second is

that that limitation is necessary to give effect

to the evident purpose of section 9A, which is to

prevent double indemnity and, of course, that cannot

arise where the claim is made by someone other than

a person to whom compensation is payable.

If I can ask Your Honour to look

at section 9A(l) Your Honours will see that subsection l(b)

provides that:

the worker or his dependents shall receive -

such reduced amount from the Compensation Fund.	Now,
the addition of the phrase, "or his dependents,"
was unnecessary in order to include dependants
because they are included by section 3(4), the
definition of workers.	We would submit that the

purpose of including the phrase, "or his dependents,"

was to make it clear that the operation of that

section was limited to the worker or his dependants, as, indeed, the purpose of the section would require

it to be. In our respectful 3ubmission, section:: 8(l)

and 9A(l) have two quite different purposes. the

purpose of section 8(1) is the protection of any

person who has a claim for damages against the employer

BlT9/2/VH	34	28/6/88
Workers(2)

in respect of injury to a worker by insuring that

there is a fund in Queensland out of which those

damages can be paid." One can see, if one looks at

the exception in section 8(1) that this gives effect

to it. The exception is the passage in parenthesis

in section 8(l)(b) which says:

(Except such an injury in respect whereof
the employer is required by some other

Act to provide against such liability as

prescribed by such other Act).

Now that means a Queensland Act under section 5 of

our ACTS INTERPRETATION ACT and, more specifically,

it would mean the MOTOR VEHICLES INSURANCE ACT. So

what it is thereby doing, of course, is insuring that

there is a fund in Queensland out of which the

plaintiff may be paid. By contrast, section 9A, in

the exceptions - and I will come to that in more

detail in a moment - provides more widely; it says:

(Except an injury in respect whereof the

employer is required by some Act of

Queensland or any other -

Act of the Commonwealth. The purpose of section 9A is

to prevent a worker or his dependants from recovering

both compensation and damages. It is irrelevant, as

I have said, to a claim for damages by any person

other than a worker as defined. Consequently the
exception in parenthesis in that provivision, as
introduced in 1962, excepted not only compulsory
insurance under a Queensland Act, but compulsory
insurance under other Acts, thereby insuring that
other compulsory insurers, whether in or outside

Queensland, did not obtain a windfall.

There is one other important difference which

indicates the difference in purpose of the sections

between section 8 and section 9A.	Section 8 requires
the employer to insure:

Against all sums for which, in respect of

injury to any worker employed by him, he may

become legally liable by way of -

damages. Then it goes on -.

arising under circumstances -

now, one can leave out the phrase which appears after

"circumstances," because it is the same in each of

section 8(1) and 9A(l). But the emphasis in

section 8(1) is an emphasis on the legal liability

by way of damages. It is ar.·cmph.:1.sis by w2..y of

legal liability by way of damages, whereas by contrast

section 9A speaks of an injury received by the

worker under circumstances, not the legal liability

for damages, but where the injury is received by the

BlT9/3/VH	35	28/6/88
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worker under circumstances, and then it goes on

in exactly the same form thereby focussing on

the injury received by the worker. Now, we say

that difference accords with the different purposes

of the two sections and with the closer relationship

which the second of them requires to the injury to the
worker. We accept, of course, that other subsections

of section 9A make it clear that they are limited,

as does 9A(l ), to claims by a worker. The fact that

it is thought necessary in 9A, both in 9A(l) and

the other subsections, to specifically refer to

claims by a worker, rather than simply claims in

respect of injury done to a worker, makes it clear

that section 9A is intended to be so limited. 9A(2),

for example, refers, where a worker claims, to

subsection (2A). Our learned friend referred to

subsection (2A).

I should mention, Your Honours, although it does

not matter for the purpose of our argument, that

subsections (2A) and (2B) were not in the Act at

the relevant time. They came into the Act in 1982.

But in any event, they also, like the others, refer

to claims by a worker. Subsection (3) only applies

to a notice of election to which subsection 2 refers.

Subsection (4) refers to a claim to which subsection (2)

refers.	They are all, specifically that is, claims
by a worker.	(4A) the same; (5) refers to:

recovery by a worker -

and so on. So, Your Honours, all of the subsections

limited to claims by the w:,rker whereas section 8, because of its different purpose, is not so limited.	of section 9A are, like subsection (l),specifically difference between section 8 and section 9A is that
9A has, as its purpose, the prevention of double
inderrmity and therefore is limited in its operation
to claims for damages by a worker. 8A has a quite
different purpose, a purpose of simply ensuring that
the employer insures against his legal liability
:in respect of any injuries to the worker, whether, in
fact, that legal liability is to the worker or to
some other person. And, for that reason, in our
respectful submission, the provisions of section 8
should be given that wider interpretation. The
phrase, "in respect of" should be given that wider
interpretation, and for those reasons, the decision
of the Court of Queensland, in our respectful
submission, was correct. They are our submissions,
may it please the Court.

WILSON J:	Thank you, Mr Davies. Yes, Mr Callinan.
MR CALLINAN:	Your Honours, my learned friend submitted that the

words, "in the case of injury as aforesaid", and the following words, where they appear in 8(l)(b) were inserted to provide a temporal connotation only.

BlT9/4/VH	36	28/6/88
Workers(2)

Your Honours, that purpose, if such it were could

have been achieved, by saying in the case of any

injury to any person or, in the case of injury"

rather than the words, "in the case of injury as

aforesaid," the use of the words, "as aforesaid"

shows that it was intended to confine the injury

in respect of which a claim for damages might

arise to an inuury to a worker. That is, an

injury as defined arising out of or in the course

of employment. In other words, although it is

true that the words, as part of the phrase overall,

have a temporal purpose, as it were, that purpose

would have been served by different words and there

is a further purpose to confine the injury and

the liability to an injury to the worker himself.

Your Honours, there are only two other things

we want to say by way of reply. So far as CRITTENDEN

is concerned and all of the motor vehicle cases

are concerned, one can immediately see a policy

reason for a very generous interpretation of the

phrase, "in respect of," because the underlying

policy which influences m:,tor vehicle insurance is

that all persons who suffer an injury by, through

or in connection with, or in my way related to;

depending upon the phrase used in the relevant

legislation, will have a valuable remedy. He will

have recourse to a fund. Whereas, on the other hand,

with respect to workers compensation, the policy is,

the statutory policy is that the worker will

ultimately have recourse to a fund. That is a

compelling policy consideration for a construction

which leans in favour of rights being conferred

upon workers and workers only.

Indeed, it really highlights the point, we would

submit, that one would adopt a different approach

to this statute from the approach that one would agopt

towards motor vehicles statutes. YourHonours, the

other matter that we want to point to - subsection 8(l)(b)

was amended by Act No~ 34 of 1986.	Your Honours
have that as a separate pamphlet. Section 5 of

that made provision for a reference to an obligation

to insure, not only under a Queensland Act, but also

under any Act, that is an Act of:

Any other State of the Commonwealth or the

Commonwealth or any other country.

Finally, Your Honours, with respect to RHEEM's case,

we simply point out, and it is unnecessary for us to

say any more than this, that the language is quite

different and it would be erroneous, we would submit,

to apply the conclusion there to this case. My learned

friend does not }!G.i.r.t anywhere to aL) poL..cy

consideration which would require the construction

which he would advance, rather than the construction

BlT9/5/VH	37	28 /6 /88
Workers(2)

which we advance. There was really no reply on

the other side to the compelling policy considerations,

we submit, that we pointed to, which required that

the statute be construed as we suggest.	Thank you,
Your Honours.

WILSON J:  Thank you, Mr Callinan. The Court will consider

its decision in this matter.

AT 3.25 PM THE MATTER WAS ADJOURNED SINE DIE

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