WorkCover Queensland v Wallaby Grip Limited (2021) 7 QR 63

WorkCover appealed the decision not to strike out paragraphs 15 and 16 of the First and Second Defendants. The Defendants pleaded that section 207B(8) of the Workers Compensation and Rehabilitation Act 2003 (WCRA) did not apply to a contribution to an injury from interstate employment. Her Honour Richards DCJ at first instance declined to strike out the paragraphs, leaving it for determination at trial.

WorkCover paid compensation benefits to an injured worker who developed malignant mesothelioma from work using the Defendants products in New South Wales and Queensland. WorkCover sought to recover the benefits paid pursuant to section 207B of the WCRA.

Crow J (Morrison and Philippides  JA agreeing) on appeal rejected the Defendants argument that the “circumstances” in s.207B(1)(a) giving rise to the statutory right to recovery imported the word “same” before the creating circumstances [22]. The Court stated the Defendants interpretation of circumstances conflated the statutory right with the negligence in New South Wales [19].

The Court relied on the remedial nature of the statute and the remedial section as expressed in State of Queensland v Seltsame Pty Ltd (2019) 2 QR 495, 502-503 [16]. The Court found the WCRA applied to latent onset injuries, aggravations and injuries caused by multiple events and circumstances, times and places. To import the word “same circumstances” would be to undermine the policy and curtail the remedy available to WorkCover [32]. Parliaments expression of such intention was not found in the WCRA.

Hence, the paragraphs were stuck out.

David Cormack 

Brisbane Barrister and Mediator

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