WCRA/PIPA NOC’s: government departments are not necessarily separate entities

 State of Queensland v Heraud [2011] QCA 297

I refer to my earlier posting and note the Court of Appeal has upheld the appeal of the State of Queensland. The decision helpfully examines whether government departments are separate entities capable of being sued.

The finding by the court that the Department of Public Works who employed the claimant/respondent was not separate to the Cultural Centre (where he worked and was injured) because the legal entity for each was necessarily the State of Queensland, triggered the operation of s.237 of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”). Relevantly, the provision extinguished the ability to bring a common law claim for damages upon acceptance of a lump sum statutory compensation amount (for less than a 20% WRI assessment).

The claimant/respondent had previously accepted a lump sum statutory compensation amount (for less than a 20% WRI assessment) and hence was in jeopardy of being precluded from bringing a common law claim for damages pursuant to WCRA. The claimant/respondent argued in the alternative, the claim against the Cultural Centre was in nature one of an occupier and hence brought a Personal Injuries Proceedings Act 2002 (“PIPA”) claim and consequently, argued it was not a master/servant claim. However, this was rejected on the basis that occupiers liability is no longer a separate category of negligence since Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, and that the scope of liability for employers extends to providing safe premises, which encompasses this duty.

On the basis the PIPA claim could not be sustained because the legal entity was the same and the basis for liability included that of the employer’s liability (safe premises) the declaration was given that the PIPA claim could not be brought.  

Leaving the entity issue to one side, the decision has the potential to widen the scope of matters for which a WCRA common law claim can be made, in circumstances where an occupiers claim was usually brought.

 

Chesterman JA (with whom Muir JA and White JA concurred):

 

[33] There remains the second point that the claim notice of which was given pursuant to the PIP Act was one for damages against the State of Queensland not as employer but on the different basis that it was the occupier of the Cultural Centre.

 

[34] The difference does not seem substantial. For a start “occupier’s liability” is no longer a discrete basis of liability. It is part of the ordinary law of negligence. See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. Secondly, the duty of an employer to take reasonable care for the safety of its employees has always extended to taking reasonable care to provide a safe workplace, i.e. safe premises. The principle is so well established as not to require citation of authority. It does not matter in this context that the respondent was on his way to work when he fell and had not commenced his shift. The protruding pivot pin which made the place unsafe, or at least arguably so, existed on the premises which the respondent was employed to guard. He was injured at his workplace on his way to work. His employer’s duty extended to taking reasonable care that the place was safe. An additional duty to take reasonable care to make the premises safe arising out of the State’s occupation of the premises, or its relationship as neighbour; did not alter or remove the duty as employer.

 

[35] In Curtain Brothers (Qld) Pty Ltd v FAI General Insurance Company Ltd [1995] 1 Qd R 142 a plaintiff drove a motor vehicle supplied by her employer along a private road, owned by the employer, in the course of her employment. The employer had excavated the road and did not erect barriers or warn the plaintiff of the excavation. She drove off the end of the road and was injured. In a dispute between the employer and its motor vehicle insurer over whether the latter’s policy covered the loss the employer succeeded, the trial judge had concluded that the employer’s liability was not “in respect of” the motor vehicle. On appeal the Court (Fitzgerald P, McPherson JA, Shepherdson J) disagreed. Their Honours said:

 

“It is fallacious to seek to subsume this specific basis of legal liability to some wider or different basis merely because the presence of additional factors makes the other basis of liability also available. Thus, for example, it does not exclude the particular basis of the appellant’s liability to the plaintiff in respect of the vehicle if it is also liable to her as an occupier in respect of the dangerous excavation or an employer in respect of the unsafe place of work. The trial judge drew a false dichotomy when he said that “the negligence of the appellant was in respect of the roadway and not in respect of the [Vehicle]”. One basis of liability is not exclusive of the other and the correct view is that the appellant was negligent, and liable, in respect of both.”

 

[36] It is similarly fallacious to contend that the State of Queensland was not liable as employer because it was liable as occupier or neighbour.

 

[37] The appellant argued that the right to damages which the respondent gave up, pursuant to s 239 of the Workers’ Compensation Act, was the right to damages against his employer for its negligence, whatever might be the basis for that negligence, whether it be as employer, occupier or neighbour. If the argument is right the damages which the respondent claims in the proposed proceedings of which notice has been given are damages regulated by Ch 5 of the Workers’ Compensation Act.

 

[38] The term “damages” when used in s 239 must mean damages as defined by s 10:

 

“(1) … damages for injuries sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to –

 

(a) the worker…”

 

[39] The argument is that by reason of the respondent’s fall his employer, the State of Queensland, came under a legal liability to pay him (i) compensation pursuant to the Workers’ Compensation Act and (ii) damages for which liability arose independently of the Workers’ Compensation Act. The liability to pay damages was not limited to or conditional upon the respondent establishing a particular cause of action which might be described as “employer’s liability”. It extended to liability for all the employer’s actions negligently causing injury to an employee.

 

[40] The argument should be accepted. The point was decided by this Court in Hervey Bay City Council v Workers’ Compensation Board of Queensland [1999] 1 Qd R 274 which dealt with relevantly identical sections in the (repealed) Workers’ Compensation Act 1990. The case concerned an employer who negligently caused the death of an employee. The negligence did not occur in the course of employment. The employer was a local authority which negligently spread excessive quantities of gravel on a road. The employee, driving home, was fatally injured when his vehicle skidded on the gravel. The point litigated was whether the employer’s policy of insurance issued under the (repealed) Workers’ Compensation Act indemnified the employer. The insurer argued that its policy extended only to the employer’s liability to pay damages for breach of a duty arising out of the relationship of employer and employee.

 

[41] Davies JA and Lee J said (276-7):

 

“… the Act … has been assumed to be, one involving exclusively the relationship between employers as employers and workers as employees. But that general impression or assumption is not borne out by any provision of the Act. And whilst it is true that a literal interpretation will be departed from in “any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions” … there are no provisions in this Act requiring such limitation or disclosing a policy which would require it. Accordingly we would not impose any such limitation on the plain meaning of the Act.”

 

[42] The damages the respondent agreed not to claim were damages for his injury for which his employer was liable. There is nothing in the Workers’ Compensation Act to limit the liability to the relationship of employer and employee. If the employer was negligent, as neighbour, occupier or employer, it was liable to pay damages, and those are damages to which s 239 referred and applied.

 

[43] The consequence is that the payment of compensation to the respondent was made pursuant to the provisions of Ch 5 of the Workers’ Compensation Act and was regulated by that chapter. By accepting the lump sum the respondent gave up his right to damages. His cause of action was compromised by the statutory consequences imposed upon acceptance of the lump sum. The statutory consequence precludes the respondent’s action foreshadowed in the notice of claim. The PIP Act does not apply. The result is not that the respondent may bring an action without complying with the PIP Act. The result is that the cause of action he wishes to pursue has been compromised by accord and satisfaction, statutorily imposed.

 

[44] The appeal should be allowed and the judgment below set aside. There should be a declaration that the PIP Act does not apply in respect of any injury suffered by the respondent on 5 June 2008, by which is meant the respondent’s proposed action arising from the injury he suffered on 5 June 2008 may not proceed. The respondent must pay the costs of the application and of the appeal.

 

Brisbane Barrister – David Cormack

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