David Cormack, Barrister

Can silence be misleading?

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited HCA 31 Allens Arthur Robinson The issue…
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WorkCover’s right to indemnity & proportionate liability

WorkCover Qld v AMACA P/L & Anor [2009] QCA 72

It is timely to review the above case having regard to the Special Leave application before the High Court to be heard on 12 March 2010.

The agreed facts

[2] Rex Noel Thomson contracted mesothelioma as the result of exposure to asbestos in the course of his employment in Queensland between 1947 and 1983. Mr Thomson was a “worker” for the purposes of the legislation applicable from time to time, which was the Workers’ Compensation Act 1916 (Qld), the Workers’ Compensation Act 1990 (Qld), the WorkCover Queensland Act 1996 (Qld), and the Workers’ Compensation and Rehabilitation Act 2003 (Qld). He applied to WorkCover Queensland for payment of compensation in respect of his injury.
[3] On 18 April 2006 WorkCover paid Mr Thomson the sum of $340,000, being the amount of compensation to which he was entitled under the statutory scheme. On 20 June 2006 Mr Thomson died in consequence of the mesothelioma. He had not commenced any proceeding in relation to any available cause of action concerning his injury and disability.

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In brief, WorkCover sought to be indemnified by the defendants for the compensation sum paid. The defendants contended because Mr Thomson predeceased the assessment of damages (judgment) and had not commenced proceedings, that such damages as for pain and suffering, bodily or mental harm or for the curtailment of expectation of life (“General Damages”) were lost and furthermore; the amount of their liability should be limited to the extent of their contribution and not for the whole amount.

The death of the worker after compensation was paid, but before recovery pursuant to the indemnity intersected the interpretation of s.207B(7) and s.66 of the Succession Act 1981 (Qld). The practical wrinkle for WorkCover being – if proceedings were commenced by the worker to preserve General Damages they could not be assigned to WorkCover for the purposes of s.207B(7).

The wording of the section prevented WorkCover commencing recovery proceedings, whilst the worker’s proceedings continued. Hence, given the nature of mesothelioma it was invariably the outcome that the worker commenced proceedings before compensation was paid and they predeceased the trial in recovery proceedings brought for indemnity pursuant to s207B(7) by WorkCover.

The Case Stated posed 4 questions apart from costs in respect of section 207B(7) (formerly 272(7)) of the Workers Compensation and Rehabilitation Act 2003 (Qld), namely:

Case Stated

“1. Whether, upon the proper construction of Section 272(7) of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) the damages referred to in the expression “liability for damages” in Section 272(7)(a) refer to damages in an amount to be assessed at the date of trial of or judgment in the proceedings between the Plaintiff (the insurer) and the Defendants or at some (and if so what) other dates?

2. Whether, in the event that each Defendant is liable to the worker, upon the proper construction of Section 272(7) of the Act the indemnity (if any) to which the Plaintiff is entitled against each of the Defendants is limited to that proportion which that Defendant (if liable to the worker) would be required to contribute to an assessment of damages in favour of the worker after taking into account the contributions which would have been required to be made by all tortfeasors (and in particular the other defendant and the workers’ employer)?

3. Alternatively to 2, what is the proper construction of the expression “to the extent of that person’s liability of the damages, so far as the amount of damages payable for the injury by that person extends” in Section 272(7)(a) of the Act in relation to the indemnity (if any) to which the Plaintiff is entitled against the Defendants?

4. Is the quantum of the indemnity the Plaintiff is entitled to recover pursuant to Section 207B(7) (previously Section 272(7)) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) reduced by the operation of Section 66 of the Succession Act if the worker dies after compensation is paid and before the trial of the Plaintiff’s action to recover the indemnity?”

 

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