WCRA: WorkCover not bound by the determination of “worker” for a damages claim

SS Family Pty Ltd v WorkCover Queensland [2018] QCA 296

Further to my earlier post the Court of Appeal considered the decision of judge Porter and affirmed the trial decision. Fraser JA delivered the leading judgment with the President and Davis J concurring.

The decision by WorkCover Queensland to accept the applicant as a worker for compensation was not binding for a decision about the acceptance of the claim for common law damages. Fraser JA considered the compensation and damages aspect of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) and determined that section 8 of the Act confined indemnity for compensation or damages in respect of an injury by a “worker” employed by the employer. His Honour applied section 32A of the Acts Interpretation Act 1954 to apply the definition of “worker” to that word in section 8.

His Honour concluded after considering the numerous sections in the Act which also refer to a “worker” at paragraph [34]:

The effect of the applicant’s construction is that an insurer is not permitted to deny indemnity against the liability of an employer to pay damages which is outside the scope of the statutory accident insurance on the ground that the claimant is not a “worker” as defined in the Act merely because the insurer earlier allowed a claim for compensation upon the basis of a mistaken determination that the applicant was a “worker” as defined in the Act. That construction of the Act is not reconcilable with the definition of “accident insurance” in s 8 read with the definitions of key terms, it does not find support in other provisions, none of which is directed to the scope of the accident insurance, and it is incompatible with the statutory purposes expressed in the Act.

David Cormack – Brisbane Barrister and Mediator

 

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