Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2010

I refer you to yesterday’s Hansard and the excerpt below in respect of the amendments. I draw your attention to the retrospective amendment to the Workplace Health and Safety Act 1995 in the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2010:

37A No civil cause of action based on contravention of Act

‘No provision of this Act creates a civil cause of action based on a contravention of the provision.’

197 Retrospective extinguishing of statutory cause of action

‘Section 37A has effect to extinguish without compensation any right to take action based on a civil cause of action arising from—

(a) a contravention of a provision of this Act that happens after the commencement of section 37A; and

(b) a contravention of a provision of this Act, whether as originally enacted or as amended since its original enactment, that happened before the commencement of section 37A, if—

(i) proceedings for the action have not started before the commencement of section 37A; or

(ii) proceedings for the action started after 8 August 2008 but the trial in the proceedings has not started before the commencement of section 37A.’

There is well enshrined principle that legislation when introduced should address future, not past, conduct.   The basis of this principle against retrospectivityis no more than simple fairness, which ought to be the basis of every legal rule” (L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 at 525, cited in Bennion on Statutory Interpretation, 5th ed. at 316).

The Bill is to commence from 1 July 2010.

Hansard (excerpt only):

The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2010 will see the workers compensation common law damages arrangements, including liability, quantum and some contributory negligence provisions, harmonised with the Civil Liability Act 2003. The liability and contributory negligence provisions in the Civil Liability Act 2003 have been incorporated into the bill, with modifications to take account of the workplace context. For example, voluntary assumption of risk will not apply because the courts have recognised that it is inappropriate in an employment context. The mandatory reduction in damages of at least 25 per cent for a person whose intoxication contributed to their injury, reflecting section 47 of the Civil Liability Act 2003, is included in the bill. However, a provision equivalent to section 48 of the Civil Liability Act 2003, which has mandatory reductions in damages for anyone injured by someone they knew or should have known was intoxicated, is not included in the bill because injured workers could unfairly lose damages, even if an employer did not manage alcohol or drug related issues at the workplace.

Under the bill, general damages, being damages for pain and suffering, will be capped at approximately $300,000. Damages for economic loss, being loss of future earnings, will be capped at three times Queensland ordinary time earnings for the purposes of calculating annual earnings.

Queensland ordinary time earnings are currently $1,132.10 per week, being $58,869 per annum. Three times Queensland ordinary time earnings is $176,607. This amount will be the maximum annual earnings a court will be able to take into account when calculating loss of future earnings.

Another area of difference between the Civil Liability Act 2003 and the Workers’ Compensation and Rehabilitation Act 2003, apart from the contributory negligence provisions, is the requirement for damages to be assessed in accordance with a set scale. To determine general damages, an injury scale value, or ISV, will be used to assess a worker’s dominant injury. The ISV scale is the same as the scale set up in the Civil Liability Regulation 2003. The effect of the ISV is that it compresses claims at the lower end of the scale and benefits more seriously injured workers. I now turn to the exclusion of damages for voluntary services provided to the injured worker such as care by a family member and damages for voluntarily services provided by the person which are provided for under the Civil Liability Act 2003 but not under the workers compensation legislation. It is proposed to consider these damages for inclusion as part of a further review of the scheme to be held in two years, by which time the effects of the global financial crisis should have diminished significantly and the impacts of implementation of the preferred option on common law claims lodgements will be known.

Of course, injured workers will continue to receive fair benefits through the statutory scheme, which remains unchanged. However, as outlined previously, if an injured worker elects to pursue a common law claim, the worker will be subject to quantum and liability restrictions. In addition, a court will be able to award costs against a worker where a claim is not successful. The Workers’ Compensation and Rehabilitation Act 2003 currently allows cost orders only where the court awards more or less than a party’s final written offer of damages. This has been interpreted by the courts to mean that, if the claim is dismissed, no costs are payable. This has led to the situation where a plaintiff who receives less than a defendant’s final offer suffers costs consequences, yet a plaintiff who receives no damages because the claim is dismissed is not required to pay the other party’s costs. The bill also provides that a plaintiff who loses a case outright can be ordered to pay WorkCover’s costs.

The decision of the Queensland Court of Appeal in Bourk v Power Serve Pty Ltd & Anor [2008] QCA 225 affirmed that, if a worker is injured at work and there is a causal connection between the injury and work, the employer has breached its duty under the Workplace Health and Safety Act 1995. This has led to increasing numbers of common law claims based on the perception that strict liability attaches to an employer in common law proceedings if a work injury has occurred, regardless of fault.

The bill amends the Workplace Health and Safety Act 1995 to remove any private civil right of action arising under the act-that is, a worker will not be able to rely on a breach of the Workplace Health and Safety Act 1995 to support their claim of common law negligence. This amendment will preclude retrospectively and prospectively only those claims where negligence under common law cannot be proved. The approach is justified on the basis that common law claims under the Workers’ Compensation and Rehabilitation Act 2003 are generally lodged between one and three years after the injury. If the amendment only applied to injuries that occurred after the introduction of the bill into parliament, it will not address the growth in claims.

  

Brisbane Barrister – David Cormack

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