WCRA: acceptance of lump sum offer and right to PIPA claim

State of Qld v Heraud & Anor [2011] QSC 96

Issue: whether the acceptance of a lump sum irrevocable offer pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) extinguished the right to claim damages pursuant s.6 of the Personal Injuries and Proceedings Act 2002 (PIPA), in circumstances where the State of Queensland was both the entity for the claimant’s employer (Department of Public Works) and occupier (Arts Qld). It was held in the circumstances not to. [However, I understand that it is being appealed.]

DALTON J

[7] The decisions of Devlin v South Molle Island Resort[1] and Pukeroa v Berkeley Challenge Pty Ltd & Ors[2] are to the effect that if one accident gives rise to liability both in a plaintiff’s employer and in a separate person who occupies the premises on which the plaintiff is hurt, an action may be brought against the employer under the WCRA and against the occupier under PIPA. Section 6(2)(c) of PIPA does not prevent the action against the occupier because that action is not based on liability for injury arising out of, or in the course of, employment and is not therefore a claim for damages for injury in circumstances creating a legal liability in the worker’s employer to pay damages – see [20] Pukeroa. That is, using the words of s 6(2)(c) of PIPA, the entitlement to seek damages against the occupier is not an entitlement to seek damages within the meaning of the WCRA, nor is the entitlement to seek damages against the occupier regulated by chapter 5 of the WCRA.

[8] Does it make any difference that the State of Queensland was the legal entity which operated both the Department of Public Works and Arts Queensland? It does not. Section 30 of the WCRA has an extended definition of employer which includes a “government entity” as a person who may employ another. The dictionary schedule to the WCRA defines government entity to have the same meaning as that given by the Public Service Act 2008 (Qld), s 24. That section provides that an entity is a government entity if it is a department or part of a department. A department, or part of a department, is something so declared by the Governor in Council by a gazette notice – s 14 Public Service Act 2008. The Department of Administrative Services was brought into being on 7 December, 1989 by a gazette notice.[3] It was renamed Department of Public Works and Housing[4] then, Department of Public Works on 29 June 1998.[5] It survived the reduction in the number of government departments of 26 March 2009 unchanged.[6] It is therefore a department and a government entity within the meaning of s 14 and s 24 of the Public Service Act 2008. It may therefore be an employer within the meaning of the WCRA notwithstanding it is not a legal entity.

[9] Here it was said for Mr Heraud that his employer was Department of Public Works – QBuild. Both the name Department of Public Works and the word QBuild appear on the pay advice delivered to Mr Heraud for the fortnight in which he was injured. QBuild however is not a department or part of a department declared by gazette notice. Having regard to that, and to s 30 of the WCRA, I find the Department of Public Works was Mr Heraud’s employer.

[10] It was said for Mr Heraud that s 6(2)(c) of PIPA does not prohibit him from proceeding against the State of Queensland because the proceedings against it are not for damages within the meaning of the WCRA. Section 10 of the WCRA defines damages as being, “damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to … the worker”. The PIPA claim does not allege liability in Mr Heraud’s employer. In the PIPA proceedings Mr Heraud asserts an entitlement to damages against the State of Queensland for what Arts Qld did or did not do as occupier of the Cultural Centre. That is not an entitlement to damages within the meaning of the WCRA and is not an entitlement which is regulated by chapter 5 of the WCRA.

[11] The Crown submitted that when Mr Heraud accepted the lump sum payment under the WCRA he extinguished his entitlement to seek damages against the State and cannot re-enliven that entitlement by pursuing the State under the PIPA regime. The submission is cast too widely. The acceptance of the lump sum payment meant that Mr Heraud could no longer seek “damages for the injury” – s 239(2)(b) of the WCRA. In that phrase, “damages” must mean damages as defined by s 10 of the WCRA, that is, damages for an injury sustained by a worker in circumstances creating a legal liability in the worker’s employer to pay damages. The State was not Mr Heraud’s employer and the PIPA claim he makes against it is not made against it qua employer. Cases such as Glenco Manufacturing Pty Ltd v Ferrari,[7] Hawthorne v Thiess Contractors Pty Ltd [8] and Watkins v GRM International Pty Ltd,[9] are factually distinct.

[12] For completeness I note that there was correspondence between Crown Law and solicitors acting for Mr Heraud before July 2009. Crown Law was aware that Mr Heraud had been receiving weekly compensation payments under the WCRA. Crown Law enquired as to the status of the workers’ compensation claim. It was told by Mr Heraud’s solicitors that Mr Heraud was not going to make a common law claim for damages against his employer as, in the view of those solicitors, the employer was not negligent in causing or contributing to the injury. On 16 January 2009 solicitors acting for Mr Heraud told Crown Law that Mr Heraud’s WorkCover claim was “closed”. In April 2009 they said this meant: “the Workers’ compensation claim has been finalised and [Mr Heraud] is no longer entitled to statutory benefits or payment or treatment by WorkCover Queensland. WorkCover would have now closed its file. Our client does not intend making a common law claim for damages against his employer.” This was not the full story. Those solicitors were involved in the assessment of Mr Heraud’s impairment for the purposes of his making a lump sum payment claim. Crown Law did not become aware of this before the election by Mr Heraud to accept a lump sum payment rather than common law damages. In any event, during the course of this application nothing was sought to be made of the misinformation provided by Mr Heraud’s solicitors.

[13] The application is dismissed. I will hear the parties as to costs.

Brisbane Barrister – David Cormack

NB: The decision was set aside on appeal:

State of Queensland v Heraud [2011] QCA 297

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