Porter QC DCJ
The plaintiff alleged he was employed by the defendant, Trendbuild. In March/ early April 2013, the plaintiff suffered injuries to his right shoulder while undertaking his duties as a floor and wall tiler.
In July 2013, the plaintiff applied to Workcover Queensland, for compensation under s 132 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act). On 22 July 2013, Workcover notified the plaintiff that it had allowed his application for compensation. The plaintiff later sought common law damages. It was inferred that the plaintiff had elected or more properly deferred the irrevocable election under the Act.
By letter dated 23 October 2015, Workcover wrote to the plaintiff’s solicitors noting that the plaintiff was not a ‘worker’ as defined in the Act. The plaintiff subsequently proceeded against Trentbuild, who joined WorkCover as a third party.
The question for his Honour was if Workcover determines that a person who has been accepted as a worker to whom compensation is payable under Chapters 3 and 4 of the Act, is Workcover bound by that determination in subsequent common law proceedings for the same injury regulated by Chapter 5 of the Act?
Determining the application, his Honour discussed the avenues under the Act for compensation:
 The Act deals with two distinct claims available to an employee injured in the course of employment: a claim for compensation under Chapters 3 and 4 of the Act and a claim for damages regulated by Chapter 5 of the Act. The claim for compensation is created by the Act. The claim for damages arises dehors the Act, by reference to the general law, but is regulated by the Act in a number of respects.
 Chapter 2 deals with employer’s obligations under the Act. Section 46 deals with employer’s legal liability. Again, this provision recognises that a worker’s claim for damages arises dehors the Act. It provides…
His Honour summarised the defendant’s proposition as follows:
 … Trendbuild’s proposition seems to be that once Workcover has determined that a person is a worker who has sustained an injury within the meaning of the Act such that they are entitled to seek damages for that injury under s. 237(1), Workcover is bound to indemnify the defendant as an employer under the Act in a proceeding by that person as plaintiff:
- Regardless of whether on the facts as alleged or proved at trial, the plaintiff “sustained an injury as a worker” under the Act; and
- Regardless of whether the plaintiff succeeds at trial on the basis that the defendant breached a duty of care owed to him as an employee or on some quite different basis for liability in the defendant such as that the defendant breached a duty of care owed to the plaintiff as a sub-contractor or even that the liability arose out of the defendant’s position as occupier or some other basis entirely unrelated at law to the employer/employee relationship; and
- Regardless of whether evidence comes to the attention of Workcover which demonstrates that the plaintiff was not a worker under the Act.
Rejecting the defendant’s proposition, his Honour stated:
 Before dealing with Trendbuild’s contentions, it is useful to identify a significant barrier which in my view stands in the way of accepting Trendbuild’s construction.
 It is a consequence of Trendbuild’s construction, forthrightly accepted by Mr Douglas QC, that Workcover may be required to indemnify an insured employer for damages awarded against that entity as defendant in a common law proceeding, even if it is established at trial that: (a) The injury was not sustained by the plaintiff as a “worker” as defined in the Act, but as, for example, a sub-contractor or an employee who is an excluded worker under Schedule 2 Part 2 (i.e. a person who has incorporated his or her business and employed himself or herself); (b) The injury did not arise out of, or in the course of, employment or in respect of which employment was not a significant contributing factor.
 Further, it is a consequence of that construction that Workcover must indemnify even if evidence comes to Workcover’s attention demonstrating that the Act otherwise does not apply to the plaintiff’s claim.
 This is to extend the indemnity conferred by accident insurance under the Act to amounts for which the insured employer may become legally liable as damages beyond amounts “for injury sustained by a worker employed by the employer”: see s. 8 of the Act. In my view, Trendbuild’s construction is therefore inconsistent with the scope of indemnity conferred by accident insurance under the Act.
 It would take compelling textual considerations derived from other provisions of the Act, or compelling authority, to sustain Trendbuild’s construction in the face of the terms of s. 8. In my view, Trendbuild identified no such compelling considerations or authority. I now turn to the specific matters of construction and authority relied upon by Trendbuild.
 … s. 237(1) has been characterised as a gateway provision. Unless a person is one of the persons identified in s. 237(1)(a) to (e), the person is not entitled to seek damages for an injury sustained by a worker. Each of s. 237(1)(a) to (e) requires, ultimately, a determination to be made by Workcover that a worker has sustained an injury under the Act. … [E]ach such determination is subject to extensive review and appeal rights. However, I do not agree that this demonstrates Parliament’s intention that the determination bind Workcover in proceedings for damages permitted by that section, such that Workcover must indemnify the insured employer regardless of the basis of liability established in proceedings authorised by s. 237(1).
 The adoption of the gateway provision must be seen as part of the broader object evident in Chapter 5 as a whole, inter alia, to modify and regulate common law proceedings by workers against employers so as to limit the frequency and scope of such proceedings. That in my view is the evident purpose of that section.
 The scheme identified by and relied upon by Trendbuild has clear statutory purposes. There is no necessity to impose upon it the additional purpose of providing for a once and for all determination of whether a person is a worker for indemnity purposes in proceedings for damages. I do not consider that that scheme justifies the implication that Workcover’s obligation to indemnify goes beyond the scope of s. 8, especially when there are no words in s. 237 which appear to admit of that construction.
In relation to the requirement to elect under the Act, his Honour stated:
 … It was contended that Parliament would not intend such an election to contemplate the possibility that the person might receive nothing because he or she was found not to be a worker who sustained an injury for the purposes of the Act in the damages proceeding. I disagree.
 Section 189 requires a worker to either accept the offer of lump sum compensation offered by the insurer or to seek damages for the injury. … [I]f the person offered the compensation decides to reject it and seek damages, he or she is taking a risk. The Court might decide that there was no personal injury suffered, or that the injury was not caused by the employer’s conduct, or if it was, that that conduct did not involve any breach of duty by the employer, or that the damages assessed were less than offered by the insurer as lump sum compensation. I do not see why the risk that a person will be found not to be a worker who has suffered injury as defined in the Act should be quarantined from the range of risks associated with electing to pursue a claim for damages.
Propositions of construction
 For the above reasons, I reject Trendbuild’s construction. However, a further matter tells against it. Propositions of construction must arise from the construction of some words used in the statute; they must be linked back to the text enacted by the Parliament. Construction must be text based.
Discussing the defendant’s construction and how it was derived from the text of the Act, his Honour referred to Witheyman v Simpson  1 Qd R 170, where Muir JA outlined the relevant principles :
 None of the provisions in the IPA under consideration are ambiguous or obscure. Nor will giving the provisions their ordinary meaning produce a result that is “manifestly absurd or … unreasonable.” The giving of a purposive construction to statutory provisions does not mean that the language of the provisions can be ignored. As Mason and Wilson JJ observed in Cooper Brookes (Wollongong) Pty Ltd v FCT:
The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
 In the joint judgment in WACB v Minister for Immigration and Multicultural and Indigenous Affairs, their Honours observed that “In Cooper Brookes (Wollongong) Pty Ltd v FCT, Gibbs CJ said that the canons of construction should not be treated so rigidly as to prevent the implementation of a realistic solution in the case of a drafting mistake”. However, it was also remarked that Gibbs CJ went on to say that “where the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, it must be given its ordinary and grammatical meaning”.
 Neither s 14A nor the purposive approach to construction, authorises a departure from the grammatical or literal meaning of a statute, where that meaning gives effect to the purpose or object of the statute. The court’s role is one of construction not legislation.
In conclusion, his Honour dismissed the application, finding that the Act, on its proper construction, does not constrain Workcover’s right to dispute liability to indemnify the defendant on the basis that the plaintiff was not a worker for the purposes of the Act in a claim for damages permitted under s. 237(1).
David Cormack – Brisbane Barrister & Mediator
NB: affirmed on appeal – SS Family Pty Ltd v WorkCover Queensland  QCA 296