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WorkCover Queensland v Pelesic[2004] QDC 214

WorkCover Queensland v Pelesic[2004] QDC 214

DISTRICT COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Pelesic & Ors [2004] QDC 214

PARTIES:

WORKCOVER QUEENSLAND

Plaintiff

v

MIRSAD PELESIC

First Defendant

and

QBE WORKERS COMPENSATION (NSW) LTD

Second Defendant

and

ABB SERVICE PTY LTD

Third Defendant

FILE NO/S:

D958 of 2001

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2004

JUDGE:

McGill DCJ

ORDER:

1.Judgment that the second and third defendants pay the plaintiff $63,605.85.

2.The second defendant’s counter-claim is dismissed.

3.The second defendant pay the plaintiff’s costs of and incidental to the action to be assessed.

CATCHWORDS:

WORKERS COMPENSATION – Employer’s Indemnity – whether employer entitled to indemnity under policy issued under NSW legislation – whether WorkCover entitled to recover overpayment of compensation payments from employer and NSW insurer.

INSURANCE – Workers compensation – whether employer entitled to indemnity under NSW policy – whether WorkCover entitled to recover amount paid from employer and NSW insurer – whether double insurance.

STATUTES – Interpretation – presumption against extraterritorial operation – whether rebutted.

Workers Compensation Act 1990 s. 190(2)(a).

Workers Compensation Act 1987 (NSW) s. 155(1).

Burrows v Workers Compensation Board  of Queensland [1997] QCA 182 – distinguished.

Glover v Politanski [1990] 2 Qd R 41 – followed.

Petricevic v SGIO (Q) (1976) 50 ALJR 731 – followed.

COUNSEL:

K F Holyoak for the plaintiff

G D O'Sullivan for the defendants.

SOLICITORS:

Phillips Fox Solicitors for the plaintiff

Shand Taylor Lawyers for the defendants.

  1. [1]
    The first defendant was formerly employed by the third defendant. In 1996 while working in Queensland the first defendant was injured in the course of his employment. He claimed workers compensation and was paid by the plaintiff in respect of his injuries. He subsequently brought proceedings against the third defendant in the District Court of New South Wales seeking damages for negligence for those injuries. The conduct of those proceedings for the third defendant was in the hands of the second defendant, the third defendant’s workers’ compensation insurer in New South Wales. The first and second defendants settled the proceedings for a particular amount which was incorporated in a consent judgment. The amount paid to the first defendant was said to be determined having regard to the workers compensation payments the first defendant had already received.[1] 
  1. [2]
    The plaintiff claims that it is entitled under s 190 of the Workers Compensation Act 1990 (“the 1990 Act”) as the successor of the Workers Compensation Board of Queensland to a charge on the settlement monies, and brought this proceeding against the defendants to recover the amount of its charge.  During the trial the plaintiff agreed to discontinue the action against the first defendant with no order for costs, and that whatever the outcome no order for costs would be sought against the third defendant.  The action was defended by the second defendant, which alleged that the plaintiff was also liable to indemnify the third defendant in respect of its common law liability to the first defendant, pursuant to the policy held by the third defendant under the 1990 Act, and that it is entitled to contribution from the plaintiff in respect of the settlement amount paid to the first defendant, on the basis of double insurance.
  1. [3]
    All of the facts said to be relevant were agreed between the parties, so that there was no oral evidence. There was tendered by consent an agreed statement of facts and contentions,[2]and there was an agreed bundle of documents,[3]and some other documents were put in evidence, essentially New South Wales legislation and materials relied on by the plaintiff in the interpretation of that legislation.  I had the benefit of detailed written outlines of argument, oral submissions, and supplementary written submissions.
  1. [4]
    The agreed statement of facts and contentions, incorporating the subsequent agreed fact in Exhibit 8, was as follows:
  1. At all times material to this proceeding, the Workers Compensation Board of Queensland (“the WCB”):-
  1. (a)
    was established as a body corporate by section 3A of the Workers Compensation Act 1916, as amended by the Workers Compensation Amendment Act 1978; and
  1. (b)
    was preserved and continued in existence by part 3 of the Workers Compensation Act 1990 (“the 1990 Act”) until the commencement of the WorkCover Queensland Act 1996 on the 1st February, 1997 (“the 1996 Act”).
  1. At all times material to this proceeding, the Plaintiff:-
  1. (a)
    was established as a body corporate by and under part 1 of chapter 6 of the 1996 Act, and can sue in its corporate name;
  1. (b)
    is the legal successor to the rights and liabilities of the WCB by and under part 2 of chapter 11 of the 1996 Act; and
  1. (c)
    by reason of subsection 545(2) of the 1996 Act may take proceedings that could have been taken by the WCB as if that board had continued to exist.
  1. At all times material to this proceedings, the Second Defendant:-
  1. (a)
    was and is a company duly incorporated according to law;
  1. (b)
    carried on the business of an insurer; and
  1. (c)
    was an insurer licensed under part 7 of the Workers Compensation Act 1987 (NSW) (“the 1987 NSW Act”), as it stood on the 3rd June, 1996 and 24th September, 1996.
  1. At all times material to this proceeding, the Third Defendant:-
  1. (a)
    was and is a company duly incorporated according to law;
  1. (b)
    employed the First Defendant pursuant to a contract of employment as a plant operator/labourer (“the contract of employment”);
  1. (c)
    until 28th June, 2000, was formerly named ABB Engineering Construction Pty Ltd; and
  1. (d)
    from 29th June, 2000 was re-named ABB Service Pty Ltd.
  1. The duties of the First Defendant under the contract of employment consisted of general duties involving lifting and carrying of equipment and assisting tradesmen.
  1. The usual resident address of the First Defendant was 14/3 River Park Drive, Liverpool in the State of New South Wales at all material times.
  1. The contract of employment between the Third Defendant and the First Defendant was entered into in New South Wales.
  1. At all material times on the 3rd June, 1996 and the 24th September, 1996 the Third Defendant held a policy of insurance under the 1987 NSW Act with the Second Defendant (“the NSW policy”).
  1. The NSW policy was issued pursuant to sections 155 and 159 of the 1987 NSW Act.
  1. The NSW policy was in, and contained the terms in, form 4 pursuant to the regulations to the 1987 NSW Act.
  1. The NSW policy did not:-
  1. (a)
    contain any additional or different provisions appropriate to the employment of the First Defendant by the Third Defendant pursuant to provisions of section 159 of the 1987 NSW Act;
  1. (b)
    include any express provisions excluding or limiting liability appropriate to the circumstances including, relevantly, liability for:-
  1. (i)
    injuries sustained outside of the State of New South Wales; or alternatively
  1. (ii)
    injuries sustained outside the State of New South Wales in circumstances, such as the First Defendant’s claim against the Third Defendant, where the claim for liability is covered by the law of another State or the insured has, and/or is obliged to have, by the law of that State insurance for that liability.
  1. The First Defendant commenced employment with the Third Defendant pursuant to the Contract of employment in or about 29 May, 1995 in New South Wales.
  1. The First Defendant initially worked under the contract of employment at a site an Enfield in the State of New South Wales and later at Unanderra/Primble in the State of New South Wales.
  1. At all material times on the 3rd June, 1996 and the 24th September, 1996 the Third Defendant was conducting works at a construction site via Mareeba in the State of Queensland (“the work site”).
  1. In late January, 1996 , the First Defendant was transferred to Queensland under the contract of employment, together with other employees of the Third Defendant, to work at the work site.
  1. The Third Defendant also hired additional labour in Queensland to work at the work site.
  1. The First Defendant lived in a camp at or near the work site from late January, 1996 until at least 24th September, 1996 but thereafter ceased employment duties with the Third Defendant.
  1. At all material times from late January, 1996 until at least 24th September, 1996 the First Defendant attended and worked at the work site pursuant to the contract of employment.
  1. On the 3rd June, 1996 during and in the course of his employment with the Third Defendant, the First Defendant was required to lift and/or manoeuvrer frame/supports associated with the installation of steel power poles at the worksite.
  1. In the course of lifting and manoeuvring the said frames/supports the First Defendant suffered personal injury.
  1. On the 24th September, 1996 during and in the course of his employment with the Third Defendant at the worksite, the First Defendant was lifting and pulling a heavy installation cable drum.
  1. In the course of lifting and pulling the said heavy installation cable drum the First Defendant suffered personal injury.
  1. At all material times while working at the worksite pursuant to the contract of employment, the First Defendant was:-
  1. (a)
    a worker as defined by the 1990 Act;
  1. (b)
    a worker as defined in the 1987 NSW Act (the Second Defendant does not admit that the policy extended to cover injuries sustained in Queensland).
  1. At all material times the Third Defendant was and remained insured with the WCB under a policy in respect of:-
  1. (a)
    the Third Defendant’s legal liability to pay compensation under the 1990 Act; and
  1. (b)
    the Third Defendant’s legal liability existing independently of the 1990 to pay damages in respect of the injury to a worker employed by the Third Defendant, being a liability within the cover of accident insurance as defined in section 5 of the 1990 Act.

in accordance with subsection 44(2) of the 1990 Act.

  1. The cover of accident insurance afforded to the Third Defendant by the WCB under the 1990 Act was governed by the provisions of the 1990 Act, including the definition of “accident insurance” in section 5 of the 1990 Act.
  1. On the 3rd June, 1996 and the 24th September, 1996, the principal place of business of the Third Defendant, according to the records of the Australian Securities and Investment Commission, was in New South Wales.
  1. The First Defendant was entitled to compensation, as defined in the 1990 Act, in respect of the injuries suffered by the First Defendant on the 3rd June, 1996 and the 24th September, 1996 (“the injuries”) pursuant to the 1990 Act.
  1. At all material times on the 3rd June, 1996 and the 24th September, 1996 the Third Defendant was an “employer” as defined:-
  1. (a)
    in the 1990 Act; and
  1. (b)
    in the 1987 NSW Act (the Second Defendant does not admit that the policy extended to cover injuries sustained in Queensland).
  1. The injuries were injuries within the definition of “injury” in the 1990 Act.
  1. Between 30th September, 1996 and 29th October, 1997 the WCB, and the Plaintiff, paid compensation to the First Defendant totalling $50,090.85 pursuant to the 1990 Act (“the compensation”).
  1. Particulars of the compensation are as follows:-

Weekly compensation payments    $34,480.17

14D Hospital payments      3,595.90

14D Medical payments       9,555.30

Other expenses       1,729.48

Rehabilitation        730.00

TOTAL:      $50,090.85

  1. On or about the 28th May, 1999 the First Defendant instituted proceedings against the Third Defendant in the District Court of New South Wales at Sydney claiming damages at common law for the injuries by ordinary Statement of Claim No. 003963 of 1999 (“the NSW proceedings”).
  1. The New South Wales proceedings were compromised on or about the 7th November, 2000 by terms of settlement bearing the date 7th November, 2000 (“the terms of settlement”).
  1. The terms of settlement were filed in the District Court of New South Wales in Sydney in the New South Wales proceedings.
  1. The terms of settlement took effect as a judgment of the District Court of New South Wales at Sydney.
  1. The terms of settlement are contained in the copy thereof in the agreed bundle of documents
  1. The Second Defendant indemnified the Third Defendant for payment of the sums payable to the First Defendant pursuant to the terms of settlement (“the settlement sum”) pursuant to section 3 of the NSW policy.
  1. Neither the Plaintiff, nor the WCB, has been paid, repaid or refunded the amount of the compensation.
  1. The Third Defendant also had places of business outside of New South Wales and, in particular, in Queensland at corner of Foundation Street, & Boundary Road, Wacol, Queensland.
  1. The First Defendant was in Queensland at the time the injuries were suffered.
  1. The compensation was paid in respect of a period before the First Defendant became entitled to payment of the damages by the Third Defendant or, alternatively, a person other than the Third Defendant, the Second Defendant, in accordance with the terms of settlement.
  1. The amount of the settlement sum was paid by the Second Defendant on behalf of the Third Defendant, to the First Defendant.
  1. The settlement sum paid, and payable, pursuant to the terms of settlement constituted damages in respect of the injuries.
  1. The damages constituted by the settlement sum paid by the Second Defendant to the First Defendant discharged a legal liability in the Third Defendant, as the First Defendant’s employer, to the First Defendant, as a worker of the Third Defendant for the injuries or, alternatively, the Second Defendant which was also liable for the settlement sum pursuant to the judgment in discharge of the legal liability in the Third Defendant as the First Defendant’s employer for the injuries pursuant to section 159 of the 1987 NSW Act and clauses 5 and 6 of the NSW policy.
  1. The liability of the Third Defendant to the First Defendant for the injuries was a legal liability in circumstances creating that liability in the Third Defendant to pay damages in respect of the injuries independently of the 1990 Act.
  1. The First and Third Defendants rely on the pleadings of the Second Defendant except for paragraphs 5G-5I inclusive thereof and the counterclaim in lieu of their respective pleadings.
  1. The Second Defendant made [the] payment indemnifying the Third Defendant against the First Defendant in respect of the settlement sum bona fide, in settlement of a genuine dispute, and as a result of the Plaintiff’s denial of liability to do so.

Queensland legislation

  1. [5]
    Section 190 of the 1990 Act provided,[4]so far as is relevant, as follows:

“(1) This section applies to an injury suffered by a worker in circumstances creating –

  1. (a)
    an entitlement to compensation under this Act; and
  1. (b)
    a legal liability in the worker’s employer, or other person, to pay damages in respect of the injury, independently of this Act.
  1. (2)
    An amount paid as compensation under this Act to or on account of a person in respect of an injury to which this section applies, at a time or in respect of a period before the person becomes entitled to payment of damages by –
  1. (a)
    the worker’s employer who is not indemnified by the Board against liability for the injury; or
  1. (b)
    any person other than the worker’s employer;

constitutes a first charge on those damages.

  1. (3)
    Such an employer, or other person, from whom such damages are recoverable is to pay to the Board the amount of such first charge or, if such damages do not exceed the amount of such first charge, the whole of such damages.
  1. (4)
    Payment to the Board under subsection (3), to the extent of the payment, satisfies the liability of such employer or other person for payment of such damages.”
  1. [6]
    It was agreed that subsection (1) was satisfied in the present case, and that all of the relevant elements of subsection (2) were satisfied except for whether the worker’s employer, that is the third defendant, was “not indemnified by the Board against liability for the injury.” The third defendant had a policy with the Board under the 1990 Act at the relevant time,[5]and the question is whether that policy indemnified the third defendant against this liability, that is a liability independently of the Act to pay damages in respect of the first defendant’s injury.[6] That depends on the scope of the statutory policy under the 1990 Act, which was determined by s 44(2), which relevantly provided as follows:

“Every employer is to insure and remain insured with the Board under a policy in respect of … the employer’s legal liability existing independently of this Act to pay damages in respect of injury to a worker employed by the employer, being a liability within the cover of accident insurance as defined in section 5.”

  1. [7]
    The only contentious issue in relation to the application of this provision is the question of whether the liability to the first defendant was within the cover of accident insurance as defined in s 5. Section 5 defined accident insurance in these terms:

“‘Accident insurance’ means insurance by which an employer is indemnified against all sums for which the employer may become legally liable, in respect of injury to a worker employed by the employer, in respect of –

 (a) compensation under this Act; and

  1. (b)
    damages arising out of circumstances creating also, independently of this Act, a legal liability in the employer to pay such damages, other than a liability against which the employer is required to provide under some other Act of Queensland or a law of another State or a Territory, or of the Commonwealth or of another country.”
  1. [8]
    Again on the face of it the circumstances fall within the scope of the second limb of accident insurance as defined, subject to the question of whether the liability to the first defendant was a liability against which the third defendant was required to provide by some law of another state. In order to show that the third defendant is not indemnified by the plaintiff against liability for the injury suffered by the first defendant, it is necessary for the plaintiff to show that the liability of the third defendant to the first defendant is one against which the third defendant was required to provide under some other law. The plaintiff’s case is that the third defendant was required to provide against such liability by the Workers Compensation Act 1987 of New South Wales (“the 1987 Act”), and the regulation made thereunder.  That was the only basis relied on by the plaintiff to take the matter outside the second limb of the definition of accident insurance.

New South Wales legislation

  1. [9]
    The crucial provision of the 1987 Act[7]is s 155 which relevantly provided as follows:

“(1) An employer (other than a self-insurer) shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this division for the full amount of the employer’s liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer’s liability independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury to any such worker.

Maximum penalty: 200 penalty units.

(1A) In sub-section (1), “injury” includes a dust disease as defined in the Workers Compensation (Dust Diseases) Act 1942 and the aggravation, acceleration, exacerbation or deterioration of a dust disease as so defined.”

  1. [10]
    It is also necessary to have regard to s 159, which provided relevantly as follows:

“(1) A policy of insurance shall, in so far as it relates to any liability under this Act, contain only such provisions as are prescribed by the regulations, but (subject to the regulations) may contain such other provisions relating to any liability at common law or under any Act or Commonwealth Act as are appropriate to any particular case.

(1A) The regulations may prescribe different provisions for different classes of policies. The regulations may also authorise the Authority to approve different provisions for policies of insurance issued by a specialised insurer in respect of domestic or similar workers.

  1. (2) 
    A policy of insurance shall provide that:
  1. (a)
    the insurer as well as the employer is directly liable to any worker insured under the policy and, in the event of the worker’s death, to the dependents or other persons to pay the compensation under this Act or other amount independently of this Act for which the employer is liable; and
  1. (b)
    the insurer is bound by and subject to any judgment, order, decision or award given or made against the employer of any such worker in respect of the injury for which the compensation or amount is payable.

…

  1. (5)
    A liability, under a policy of insurance, of an insurer to a worker under a provision inserted in the policy under sub-section (2) or (3) is enforceable as if there the worker were a party to the policy.”

The contentions

  1. [11]
    The plaintiff submitted that under s 155(1) the third defendant was required to obtain and maintain in force a policy of insurance, relevantly, in respect of its liability independently of the Act for the injury to the first defendant, because the first defendant was a worker employed by the third defendant, and had suffered an injury, and the third defendant was liable to the first defendant for that injury independently of the 1987 Act, and the liability did not fall within the bracketed exclusion. Accordingly the liability to the first defendant was one which fell within the exclusion from the second limb of accident insurance as defined in the 1990 Act, so that the third defendant was not indemnified by the plaintiff against that liability, and accordingly the charge was imposed on the damages pursuant to s 190 of the 1990 Act. If one reads s 155(1) literally, that is the outcome.
  1. [12]
    The second defendant on the other hand submitted that there were four reasons why that case was not made out, any one of which was sufficient to defeat it. These four reasons were identified in four paragraphs in the second defendant’s answer to the plaintiff’s reply to the second defendant’s amended defence and counterclaim. The relevant paragraphs in the relevant pleading are as follows:

“4. As to paragraph 7 the second defendant:

…

  1. (d)
    says that section 155 of the NSW Act is, and was, not a provision requiring the third defendant to provide against liability, but a provision requiring the third defendant to obtain insurance.
  1. (e)
    further, and alternatively if, which is denied, section 155 of the NSW Act is a provision requiring the third defendant to provide against liability, then section 155 of the NSW Act is relatively limited to circumstances where the liability of the employer to the worker arises out of injury sustained by the worker in New South Wales, such limitation implied arising by virtue of the fact that the NSW Act, being a statute of the State of New South Wales, operates only in circumstances where there is a sufficient territorial connection with New South Wales.
  1. (f)
    further and alternatively if, which is denied, section 155 of the NSW Act is a provision requiring the third defendant to provide against liability, then the third defendant’s liability to the first defendant to pay damages was a liability:
  1. (i)
    arising under the law of another State, namely Queensland, by virtue of the fact that the injuries were sustained in Queensland;
  1. (ii)
    a liability for compensation in the nature of workers compensation for the purposes of section 155 of the NSW Act;
  1. (iii)
    thereby a liability which the third defendant was not required to obtain and maintain insurance in respect of, for the purposes of the provisions of section 155 of the NSW Act.
  1. (g)
    Further, and alternatively by virtue of the provisions of section 159 of the NSW Act:
  1. (i)
    a policy of insurance for common law liability may contain such provisions as are appropriate to any particular case;
  1. (ii)
    appropriate provisions for purposes of section 159 of the NSW Act may include provisions excluding or limiting liability in appropriate circumstances including, relatively, liability for:
  1. (A)
    injury sustained outside of the State of New South Wales; or alternatively
  1. (B)
    injury sustained outside of the State of New South Wales in circumstances, such as the first defendant’s claim against the third defendant, where the claim for liability is covered by the law of another state and the insured has, and/or is obliged to have, by the law of that state, insurance for that liability;
  1. (iii)
    in the premises section 155 of the NSW Act, read in conjunction with and subject to section 159 of the NSW Act, is not a provision which required the third defendant to obtain and maintain insurance in respect of its liability to the first defendant for the injuries sustained by the first defendant in Queensland.”

Para 4(d) argument

  1. [13]
    I shall deal with each of these arguments in turn. The first was based on the proposition that the exclusion in the definition of “accident insurance” in s 5(1) of the 1990 Act was in terms of a liability against which the employer was required to provide, rather than a liability against which the law required the employer to provide insurance, let alone one where the law obliged the employer to obtain and maintain insurance for the liability. It was submitted that the wording in the exclusion was more appropriately directed to a situation where a law required the employer itself to make provision against such a liability, for example by providing a reserve fund to meet such a liability. Accordingly it was submitted that s 155 was not shown to be within the scope of the exclusion in the definition. It was conceded that there was no authority in support of this proposition, but submitted that this was because this issue had not been addressed in earlier authority.
  1. [14]
    It is true that s 155 required the employer to obtain and maintain insurance in respect of the employer’s liability, rather than, in terms, to provide against the liability. It may well be that a law of say New South Wales which required an employer to “provide against” such a liability by maintaining a reserve fund could be said to fall literally within the terms of the exclusion, even though no insurance was involved. It is not necessary to decide whether that is the case, since no such law was relied on. The question is rather whether the wording of the Queensland section is wide enough to encompass a situation where, relevantly, a New South Wales law required the employer to provide against this liability by means of insurance. That I think can fairly be said to be a method by which an employer can provide against such a liability, without departing from the ordinary and natural meaning of the words used.
  1. [15]
    There is also the consideration that the concept of an employer providing against a liability is a familiar one. The exclusion in the definition of accident insurance is similar to an exclusion which formerly appeared in s 8(1) and 9A(1) of the Workers Compensation Act 1916.  In that context it was recognised as being applicable to a situation where other legislation required an employer to provide against the liability by way of insurance, by the High Court in Petricevic v SGIO (Q) (1976) 50 ALJR 731; see particular at p 733 per Gibbs J.  A similar approach was adopted by the Full Court of Queensland in Glover v Politanski [1990] 2 Qd R 41, at 48 per Macrossan CJ, at p 51 per Ryan J.  Accordingly in my opinion if a New South Wales Act requires an employer to obtain and maintain in force a policy of insurance in respect the employer’s liability, that liability is one against which the employer is required to provide by a law of another state.  I reject this argument.

Paragraph 5(e) argument

  1. [16]
    The submission here was that there was a presumption that the New South Wales Parliament would only pass legislation which had a territorial connection with New South Wales,[8]and the 1987 Act should be construed as being so limited, consistently with the established authorities.  Reference was made to the decision of the Court of Appeal in Burrows v Workers Compensation Board  of Queensland [1997] QCA 182.  In that case Fitzgerald P, with whom the other members of the court agreed, in an ex tempore decision noted that although the terms “employer” and “worker” when used in s 155(1) were defined in general terms, “some limitation must be imported into subsection 155(1) of that Act.  Each of the respondent and his employer at the time when he was injured was a Queenslander, and subsection 155(1) plainly was not intended to apply if the respondent had been injured while working in Queensland or, for that matter, Victoria.”  His Honour went on however to point out that that was not the situation in that case, and that the respondent had in fact been injured in New South Wales.  He was employed by a transport operator based in Queensland but whose business regularly involved it in activities in New South Wales, and he went to New South Wales on numerous occasions in the course of his employment, including that on which he was injured.  His Honour held that s 155(1) could not be read down to exclude a work-related injury which occurred in New South Wales merely because neither employer nor employee was resident or domiciled, based or located in New South Wales when the injury occurred.  It was unnecessary to consider whether there might be some exclusion if the employee’s presence in New South Wales was fortuitous, fleeting or sufficiently unusual.
  1. [17]
    The comment about s 155(1) not applying if the worker was injured in Queensland was clearly obiter, but in the circumstances highly persuasive obiter.  However, it was an ex tempore decision, and did not involve a detailed consideration of the 1987 Act.  In the present case the first and third defendants were not Queenslanders, at least in the sense that his Honour used the term in that decision.  The first defendant was ordinarily resident in New South Wales,[9]the contract of employment was entered into there,[10]and he had worked there for a time before coming to Queensland temporarily to work on a specific project.[11] During that time he lived at a camp at or near the worksite, but evidently returned to New South Wales after he was injured and ceased work.[12]
  1. [18]
    The third defendant had a principal place of business at the relevant time in New South Wales, although it also had places of business outside that state, including one in Queensland, and it was engaged in some form of construction work in North Queensland which involved the establishment of a worksite there in 1996.[13]  The third defendant could be said to be more closely associated with New South Wales than with Queensland, but was not in the circumstances without some association with Queensland.  The first defendant, although ordinarily resident in New South Wales, was temporarily resident in North Queensland, where he had been living for a few months by the time of the injury.
  1. [19]
    In these circumstances it would certainly be natural enough to expect that the first defendant’s employment would be within the scope of operation of the 1990 Act, and that the third defendant would provide workers’ compensation cover in respect of the first defendant under the 1990 Act rather than under the 1987 Act. Indeed, the third defendant did have a policy under the 1990 Act, and there was no dispute that the first defendant was entitled to claim compensation under the 1990 Act, and was properly paid it by the plaintiff. It would be natural enough to expect under these circumstances that the responsibility for indemnifying the third defendant against its liability to the first defendant at common law would fall on the plaintiff rather than the second defendant. Hence the statement by Fitzgerald P.
  1. [20]
    However, in view of the terms of the definition of accident insurance, the crucial question is whether the New South Wales Act was wide enough to require insurance cover in respect of the liability of the third defendant to the first defendant. There is reason to think that the legislative intention was that the scope of s 155(1) should be quite wide, and indeed wide enough to be applicable in circumstances such as the present.  After the decision in Burrows, s 155(1) of the 1987 Act was amended, by the Workers’ Compensation Legislation Amendment Act 1995 (NSW).[14]  The relevant amendment was included in schedule 1.  The effect of the amendment was to substitute the words in brackets quoted in the section earlier for the words “(being a liability under a law of New South Wales)”.  The explanatory note in the Act[15]says of this amendment that it “extends the insurance cover required to be provided by a workers’ compensation policy for liability arising independently of the Act by removing the existing restriction which limits cover to a liability arising under a law of New South Wales.  Cover will not extend to liability arising under any workers’ compensation law of another state, a territory or the Commonwealth or to liability arising under the law of another country.  The effect of this will be that cover will extend to any liability that is not a workers’ compensation type of liability wherever in Australia the liability arises (for example, common law liability arising under a law of another state or territory).”  On the face of it therefore the intended effect of the amendment was to extend cover to common law liability arising under the law of Queensland, for example because the employee was in Queensland when injured.
  1. [21]
    A similar point was made in the explanatory note to the Bill which became the Act.[16]One of the ways in which it was said that the Act would be amended was “to broaden the cover provided by workers’ compensation insurance policies for liabilities arising independently of the Act by removing the existing restriction that limits cover to liability arising under a law of New South Wales (so that cover will extend to common law liability arising under the law of another state for example), with the broadened cover applying to any injury received at or after 4.00pm on 30 June 1993.”  Effect was given to the retrospective intention by amending Schedule 6 Part 15 of the 1987 Act.  Schedule 6 dealt with savings transitional and other provisions, and Part 15 dealt with provisions relating to insurance.  Clause 21 which was inserted[17]provided in subclause (2) that “a policy of insurance issued or renewed or deemed to have been held under this Act before the commencement of [the amendment to s 155(1)] is taken to cover (and always to have covered) the employer for an unlimited amount in respect of the employer’s liability independently of this Act (but not including a liability for compensation in the nature of workers’ compensation arising under any Act or other law of another state, a territory or the Commonwealth or a liability arising under the law of another country) for any injury received at or after 4.00pm on 30 June 1993 by a worker or trainee employed by the employer.”
  1. [22]
    Finally reference was made to the second reading speech of the then Attorney-General when introducing the Bill for the 1995 Amendment Act to the New South Wales Legislative Council on 31 May 1995.[18]He said among other things:  “The purposes of the Bill are, first, to rationalise workers’ compensation arrangements in cross-border situations;  second, to provide that workers’ compensation insurance policies cover all the relevant liability of employers at common law;  …   A major issue in the Bill is the proposed elimination of duplicated insurance requirements where a worker works in two or more states or territories for the same employer.  …  The draft amendments seek to identify a base state for such workers, with insurance obtained by the employer in that state providing Australia-wide cover.”  He went on to say that there had been consultations with ministers in other states, and this was to be part of a scheme where matching provisions were placed in all state and territory workers’ compensation acts.  Plainly therefore the New South Wales legislature had in mind at the time some extraterritorial operation of s 155.
  1. [23]
    This latter proposal was to be implemented by amendments which were included in Schedule 6 of the 1995 Amendment Act.  By the amendments in this schedule, s 9 was to be replaced by a section[19]which provided among other things that “a worker who is a worker of this state receives an injury anywhere in Australia (and in the case of the death of the worker, his or her dependants) are to receive compensation from the worker’s employer in accordance with this Act.  Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”  Subsection (2) identified whether a worker was a worker “of this state” by providing among other things that a worker is a worker of whichever state is the state in which the worker usually carries on the work of the employment concerned.  Subsection (3) provided:  “If a worker usually carries out the work of his or her employment in one state (“the home state”) but pursuant to a temporary arrangement that is part of that employment carries out work in another state … the worker is nevertheless to be regarded as a worker of the home state by carrying out that work in the other state …  An arrangement is temporary if (and only if) it may reasonably be thought likely to be of less than six months duration.”
  1. [24]
    Schedule 6 also contained an amendment to s 155,[20]by inserting a provision making it a defence to a prosecution for an offence under the section to show that the employer believed on reasonable grounds that it did not have a liability under the Act in respect of the worker because the worker was a worker of some other state or territory.  In addition clause 22[21]was inserted into Part 15 of Schedule 6 providing that “to remove doubt it is declared that a policy of insurance obtained by an employer and in force at the commencement of the amendments made by Schedule 6 to the … Amendment Act 1995 is taken to cover the employer for the full amount of the employer’s liability under this Act as so amended.” 
  1. [25]
    The matter is complicated in the present case however by the fact that the amendments made by Schedule 6 of the 1995 Amendment Act had not commenced as at 8 February 1996, the date of the reprint which became Exhibit 1.[22]It was agreed between the parties that I should proceed on the basis that that exhibit contained the terms of the 1987 Act which were relevant for present purposes, and therefore those amendments are not included, although they are set out in Exhibit 4.  The significance of them however is that they clearly indicate that at the time when s 155(1) was amended by Schedule 1 of that Amendment Act the legislature had in mind extraterritorial operation of the Act in relation to individuals which would be identified as workers of New South Wales while they were temporarily working in another state. 
  1. [26]
    The proposed arrangement would, because of the six month time limit, presumably exclude the first defendant in this case; he had been in Queensland for just over four months at the time of the first injury, and continued to work in Queensland for a total of about eight months before he ceased employment duties with the third defendant.[23]However, that limitation was not part of the law of New South Wales at the relevant time, those amendments not having been made since that part of the Amendment Act had not commenced.  The significance of them is simply that they are consistent with a legislative intent that, following the 1995 Act, s 155(1) not be confined to injuries suffered within the state of New South Wales.
  1. [27]
    There is however an even clearer indication that the New South Wales Act was not intended to be confined to injuries suffered within New South Wales, in the terms of s 13 of the Act which relevantly provided in subsection (1): 

“If:

  1. (a)
    an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker; and
  1. (b)
    any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,

 the injury is an injury to which this Act applies, and compensation is payable accordingly.”

  1. [28]
    The subsequent subsections go on to provide in effect that an injured worker cannot obtain workers’ compensation both under that Act, and some other law. The main function of the section would appear to be to ensure that compensation was payable to what might be described as New South Wales employees if they were injured out of the state, but the subsection does expressly provide that the injury in such circumstances is “an injury to which this Act applies” and therefore an “injury” for the purposes of s 155(1).  I find that the present case falls within subsection 13(1), and that the injury suffered by the first defendant was therefore under that subsection an injury to which the 1987 Act applied.
  1. [29]
    In these circumstances, it is not necessary to pay a great deal of attention to the New South Wales decisions to which I was referred during argument.[24]It is true that there is some language in them which suggests that the New South Wales legislation will only apply if the injury is suffered in New South Wales.  However, in those cases the injury was suffered in New South Wales, but otherwise the circumstances of the injured worker and the employer and the employment had overall closer ties with some state other than New South Wales.  The emphasis in those cases was on showing that the Act applied to any injury suffered in New South Wales;  there was no reason for those courts to be concerned about the extent to which (if at all) the Act applied if the injury was suffered in Queensland.  Neither counsel was able to cite to me during argument a case where the opposite situation had been considered, where there were significant ties to New South Wales, “connectors” as they are described in those cases, but the actual injury occurred out of New South Wales.  In the light of these statutory provisions however it would I suspect be unlikely that that situation would be particularly contentious.
  1. [30]
    I was subsequently helpfully referred by Mr Holyoak for the plaintiff to two cases where the injury was suffered outside New South Wales. In Newell v Muttaburra Investments Pty Ltd (writ 56/91, Jones J, 13.3.99, unreported) the plaintiff was injured in the course of his employment as a tourist coach operator in Queensland as a result of the negligence of his employer.  The plaintiff’s claim was compromised, but it was necessary for his Honour to resolve a claim by the defendant against the insurer pursuant to the 1987 Act;  the defendant’s claim was being effectively pursued in its name by the insurer of the motor vehicle.  His Honour was concerned with s 155 as it was prior to the 1995 amendments, so that the crucial question was whether the liability was “a liability under the law of New South Wales.”  In these circumstances, the matter which was in issue in that case does not arise, although it is interesting to note that his Honour referred to earlier authority that once a cause of action had merged in a judgment the liability was one which arose under the judgment, and therefore under the law of the state in which the judgment was given.  Applying that reasoning in the present case, because the first defendant’s claim was resolved by means of a consent judgment, the third defendant’s liability to satisfy the judgment became a liability under the law of New South Wales, whatever the liability of the third defendant had been previously.  Whatever the scope of the bracketed exclusion in s 155(1) at the relevant time, it plainly did not exclude the employer’s liability independently of the 1987 Act under the law of New South Wales.  Accordingly whatever the position might have been before there was a judgment, it would seem clear that s 155 applied thereafter.  However the plaintiff did not ask me to decide the matter on this basis, and indeed this point was not argued, so I do not decide the case upon the basis of it.
  1. [31]
    In Newell, his Honour went on to conclude that the claim in tort arose under the law of Queensland, and was thus not one arising under the law of New South Wales, but that the contractual liability of the defendant was one which involved the substantive law of New South Wales, because the employment contract had been made in New South Wales, and it was the proper law of the contract.  Accordingly a claim based on contract did give rise to a liability under the law of New South Wales:  [38].  In that judgment however there was no particular consideration of the question of any extraterritorial operation of the relevant provisions of the 1987 Act.
  1. [32]
    It is also referred to Goodwin v La Macchia [1999] NSWSC 963.  In that case the plaintiff suffered injury in the course of her employment as a deckhand following an accident which occurred off the Queensland coast.  It was necessary to consider the question of whether the 1987 Act applied, but for the purpose of determining whether certain provisions of that Act governed the assessment of damages.  That involved a consideration of the then relevant authorities on choice of law rules, and at [68] Studdert J expressed the view that the applicability of the statute to injury outside New South Wales was confined to the circumstances within s 13(1).  Those requirements in that case were not satisfied.  Reference was also made to s 155, of which it was said at [78]:  “It would be an extraordinary result if the legislature intended to render an employer which is not conducting business in this state and which is not employing a worker to carry out duties here, liable to an offence for not maintaining a policy complying with Part 7.  …  In order to attract the provisions of the Act, the legislature would be required to introduce some element so as to sufficiently connect the compensable injury to the state.”  The conclusion was that the 1987 Act did not govern the assessment of damages.  Again, that decision is not of much assistance for present purposes, although it does emphasise that some extraterritorial effect is given by s 13, and does appear to treat that as having some potential operation other than in relation to the coverage of workers’ compensation under the 1987 Act.
  1. [33]
    In my opinion, the significance of s 13 provides a clear indication that at least in some circumstances the Act has some extraterritorial operation.[25]Even if s 13 is confined to the scope of the workers’ compensation provisions in the Act, that will still have some impact on s 155, because the policy required to be obtained and maintained in force under s 155 applies to liability for workers’ compensation payments under the 1987 Act, as well as whatever liability is covered by the latter part of the subsection.
  1. [34]
    In the present case, the facts do fall within s 13, and if the approach adopted in Goodwin is correct, that shows that the extraterritorial operation of s 155 is wide enough to cover the present case.  It may be however that s 155 is wider;  it may apply to anyone who is an employer in New South Wales.  That in my opinion is the preferred construction.  Again, that was the case here, and therefore s 155 applied to the third defendant.  That I think would also be a sufficient territorial connection.  It is not necessary or correct for it to be interpreted as requiring also that the injury be suffered in New South Wales.  I therefore reject this argument on behalf of the second defendant.
  1. [35]
    In all the circumstances in my opinion the true construction of s 155(1) of the 1987 Act is that the reference to the employer’s liability independent of that Act for an injury, extends to a liability arising at common law for an injury suffered in Queensland, at least in the circumstances where s 13(1) applies.  Even if that section were disregarded, on the basis that it was concerned only with workers’ compensation, I would arrive at the same conclusion, because of the other considerations.  Whatever the limits ultimately are of s 155(1), this case falls within them. 
  1. [36]
    I did not understand the second defendant to submit that, assuming that the statute on its true construction was intended to extend that far, it was unable to do so because such reach would be beyond the territorial limits of the legislature of New South Wales. The argument was advanced on the basis of the construction of the 1987 Act, rather than on the basis of any constitutional invalidity of it.[26]Nevertheless, I would not regard the section as unconstitutional because it extended so far, since there would still be a significant connection with New South Wales,[27]arising from the fact that the employee was employed in New South Wales by an employer having a place of employment in New South Wales.  That could be characterised as a New South Wales employment, and it is competent for the New South Wales Parliament to legislate in relation to the insurance obligations of employers in respect of a New South Wales employment.  Although in this case the defendant brought its common law action in negligence, a common law action in contract was also available, and in those circumstances the connection with New South Wales arises because of the association with that state of the employment contract, and hence any liability under the contract, and hence any concurrent liability in the same circumstances of the employer to the employee arising other than under the contract.[28]  Accordingly s 155(1) as I would construe it was not outside the legislative competence of the Parliament of New South Wales.

Paragraph 5(f) argument

  1. [37]
    The submission here was that s 155(1) did not apply because the liability enforced by the New South Wales action was within the bracketed exclusion.  That depends on the proposition that “liability for compensation in the nature of workers’ compensation … arising under … a law … of another state” should on its true construction not be confined to “workers’ compensation” in the technical sense, but extended to liability for common law damages payable by an employer to a worker.  It is true that damages at common law provide a form of compensation to the plaintiff for his loss, and indeed this is recognised in the definition of “damages” in s 149(1), which is defined to include “any form of monetary compensation”.  The subsection goes on to exclude “compensation under this Act”, and that corresponds to the reference in s 155(1) to the employer’s “liability under this Act” which would be a reference to liability to pay compensation to workers in respect of work related injuries in accordance with the Act. 
  1. [38]
    However, I think it clear enough that the phrase used in s 155(1) – “compensation in the nature of workers’ compensation” – was intended to be a reference to compensation arising under the law of somewhere other than New South Wales, which was of the same nature as the liability for compensation provided under the Act.  By 1987, the concept of “workers’ compensation” was a very familiar one, and it would have been well known that all states in Australia have statutory provisions for workers’ compensation.  There was however always the risk that somewhere in some other state there might be a statute which had something which really was of the same nature as workers’ compensation in its conventional sense but which was not called that by that statute.  No doubt for that reason, out of an abundance of caution, the reference in this statute was to “compensation in the nature of workers’ compensation” rather than simply “workers’ compensation”.
  1. [39]
    There is also the consideration that, if the expression “workers’ compensation” was intended to be wide enough to encompass compensation in the form of common law damages to a worker, it is not clear what useful function the words “in the nature of workers’ compensation” perform in this section. The word “compensation” is more readily interpreted as extending to common law damages, and if the intention was to exclude liability for both workers’ compensation and common law damages it would have been more natural to omit this limitation, and perhaps even the words “for compensation”, so that the exclusion extended to any liability arising under any law of another state. That was what was done in relation to the second limb of the exclusion, “a liability arising under the law of another country”. Since that formula was not used in relation to the first limb, the inference is that not all liability was to be excluded by the first limb, and indeed not all liability for compensation, but only liability for compensation in the nature of workers’ compensation. That must be a more limited category of compensation than compensation in general, and the obvious limitation is that it is compensation in the nature of workers’ compensation in the well understood technical sense. In my opinion therefore the exclusion in brackets in s 155(1) did not operate so as to exclude a liability to pay damages arising in Queensland at common law.

Paragraph 5(g) argument

  1. [40]
    This argument depended on the proposition that what mattered for the purposes of the exclusion from the definition of “accident insurance” in the 1990 Act was not the actual state of the policy issued in purported compliance with the 1987 Act, but what the 1987 Act really required. The second defendant then submitted that the requirement in s 155(1) was modified by the terms of s 159, which drew a distinction between the terms of an insurance policy so far as it related to any liability under this Act (that is a liability for “workers’ compensation” in the technical sense) which was dealt with in s 159(1) by saying that it could contain only such provisions as are prescribed by the regulations, and liability at common law in respect of which (subject to the regulations) the policy may contain “such other provisions as are appropriate to any particular case.”  It was submitted that there was nothing in the Act or the regulation which identified or limited what type of other provisions might be contained in such a policy and that there was therefore no prohibition on additional provisions which might limit the extent of the cover, provided that the limit was “appropriate” for the “particular case”.  Accordingly it would have been possible for the second defendant, consistently with its obligations under s 159 and the regulation thereunder, to issue a policy which excluded cover in respect of liability at common law arising in circumstances such as the present, without being in breach of the requirements of the 1987 Act read as a whole.
  1. [41]
    There are two answers to this submission. The first is that I do not accept that s 159 amounts to a limitation on the scope of s 155.  If the argument were correct, it would mean that, although insofar as a policy under the Act provided for cover in respect of liability under the Act, the policy had to be in the terms prescribed by the regulations, in the absence of any relevant regulations it would be open to include any provisions in relation to liability at common law, including presumably excluding any such liability.  I cannot see how that can stand with the requirements of s 155(1).  In my opinion there is no reason why s 155(1) should be read down because of the terms of s 159(1).  Rather, s 159 should be interpreted as giving a power to make regulations as to what provisions might be inserted in a policy in respect of liability at common law, other than provisions which would prevent the policy from complying with s 155(1).
  1. [42]
    I recognise that there is potentially a problem here. What if the regulation prescribed provisions relating to liability under the 1987 Act which did not on their true construction satisfy the requirements, on its true construction, of s 155(1)?  In those circumstances there would be one section of the Act requiring an employer to obtain a policy of insurance which satisfied s 155(1), and another section which required the policy of insurance to say something different.  But I do not think that that would be a real possibility in practice.  Section 155 requires that the policy of insurance be one which “complies with this division”, and hence s 159, and the power to prescribe provisions by regulation under s 159(1) would I think fairly readily be limited to a power to prescribe provisions which did satisfy the requirements of s 155(1).  I do not think that the obligation in s 155(1) to obtain and maintain a policy of insurance for an unlimited amount in respect of the employer’s liability independently of this Act for any injury to any such worker, other than the excluded liability, could be read down or qualified or limited in some way either by the terms of regulations made in respect of that aspect of liability under s 159(1), or by the absence of such regulations.
  1. [43]
    Consider the requirement that the insurance be “for an unlimited amount” in respect of this liability. That is a requirement under s 155(1).  I think therefore that it could hardly be valid under s 159(1) for a regulation to be made providing that such policy would or might contain a limitation in terms of amount on the liability of the insurer.  Nor could it follow that, in the absence of a regulation dealing with the subject, the terms of s 159(1) would permit such a policy to contain such a limitation, on the basis that it was “appropriate to any particular case.”  Whatever the regulations may require, or the parties may do by way of provisions in the policy in the absence of regulation where that is permitted, it cannot in my opinion modify or limit the requirements for such a policy laid down in s 155(1).
  1. [44]
    The other answer is that the regulation made under s 159 specifies comprehensively the terms of the policy not only in relation to liability under the Act but also in relation to liability at common law, which is permitted by the section.  Section 52 of the regulation[29] provides relevantly:  “For the purposes of s 159 of the Act, a policy of insurance …
  1. (a)
    must contain the provisions specified in form 4; and
  1. (b)
    may contain any other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.”
  1. [45]
    Form 4[30]provides in clause 3:  “The insurer will indemnify the employer against all of the following sums for which the employer becomes liable during or in respect of the period of insurance:
  1. (a)
    compensation that the employer becomes liable to pay under the Act to or in respect of any person who is a worker of the employer (including any person to whom the employer is liable under s 20 of the Act);
  1. (b)
    any other amount that the employer becomes liable to pay independently of the Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another state, a territory or the Commonwealth or a liability arising under the law of another country) for any injury to any such person (not including liability in respect of an injury, suffered by a person other than such a worker, arising out of any rescue or attempted rescue) …”
  1. [46]
    The effect of this in my opinion is that under the regulation the third defendant was required to have a policy which in terms provided cover in a way which mirrored s 155(1).  Even if s 159(1) had permitted the policy, subject to the regulations, to contain a provision relating to liability at common law by which that liability could have been limited or excluded, the regulation required the policy to provide cover in respect of liability at common law which was not so limited or excluded.  The only qualification to this was that some other provision might have been included under s 52(1)(b) of the regulation, but only if it was approved by the Authority, that is, the WorkCover Authority constituted under the WorkCover Administration Act 1989.[31]In the absence of evidence that such approval had been given by the Authority, it follows that the second defendant was at relevant times required under the regulation to have a policy in compliance with the terms of s 155(1) anyway, so even if the possibility might otherwise have existed simply on the terms of the Act in s 159 for a policy of narrower scope, the gap in the obligation was filled by the regulation.  In my opinion a requirement imposed by a regulation is just as much a requirement as a requirement imposed directly by the Act, and accordingly on this ground also this argument fails.

Conclusion on claim

  1. [47]
    It follows therefore that the third defendant was required to obtain and maintain in force a policy of insurance in respect of its liability independently of the 1987 Act for the injury to the first defendant. The case fell within the scope of s 155(1).  Accordingly the liability fell within the exclusion of the second limb of accident insurance as defined in the 1990 Act, so that the third defendant was not indemnified by the plaintiff against that liability.  It follows that the charge was imposed on the damages pursuant to s 190 of the 1990 Act.
  1. [48]
    The policy of insurance issued by the second defendant provided, and was required to provide under the 1987 Act and regulation, that the insurer as well as the employer was directly liable to any worker injured, and was bound by and subject to any judgment given or made against the employer in respect of the injury.[32]It follows that for the purposes of s 190 of the 1990 Act both were persons from whom such damages were recoverable, and hence both are liable to pay to the plaintiff the amount of such charge under s 190(3).  The amount of the charge was $50,090.85.[33]There should therefore be judgment that the second and third defendants pay the plaintiff $50,090.85.  The plaintiff also claimed interest[34]from 5 March 2001 to the date of judgment at ten percent per annum.  I consider that that rate is too high, in view of current commercial rates, but will allow interest at eight percent from 5 March 2001 to 19 July 2004, which comes to $13,515.

Counter-claim

  1. [49]
    With regard to the counter-claim, on the view that I have taken the plaintiff was not liable to indemnify the third defendant in respect of its liability to the first defendant because the exclusion from the second limb of the definition of accident insurance applied. There is therefore no case of double insurance, and the counter-claim must fail. Given that an appellate court would be in as good a position as I am to determine the appropriate conclusion if I were wrong about the application of the exclusion, there is no need for me to make any precautionary findings in relation to the counter-claim, which I simply dismiss.
  1. [50]
    There will therefore be judgment that the second and third defendants pay the plaintiff $63,605.85. The counter-claim of the second defendant is dismissed. I order the second defendant to pay the plaintiff’s costs of and incidental to the action to be assessed.

Footnotes

[1]  Exhibit 7 document 7 clause 6A.

[2]  Exhibit 2, supplemented during the trial by a further agreed fact in Exhibit 8.

[3]  Exhibit 7.

[4]  According to Reprint 4, which the parties submitted was the appropriate version.

[5]  Exhibit 2 para 24.

[6]  There were actually two injuries, one on 3 June 1996, and one on 24 September 1996, but for most purposes it is sufficient just to refer to the injury.  It was not suggested that there was any significance in there being two injuries.

[7]  Based on the agreed text in Exhibit 1.

[8] Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at 423.  This would be reinforced by the fact that this is a penal provision, so that it would ordinarily be construed strictly.

[9]  Exhibit 2 para 6.

[10]  Exhibit 2 para 7.

[11]  Exhibit 2 paras 13, 14, 15.

[12]  Exhibit 2 para 17.

[13]  Exhibit 2 paras 26, 39, 14.

[14]  Exhibit 4.

[15]  Exhibit 4 p. 3.

[16]  Exhibit 5;  the quote is from p. 2, para (b).

[17]  Exhibit 4 p. 7.

[18]  Exhibit 6;  the quote is from p. 1.

[19]  Exhibit 4 p. 35.

[20]  Exhibit 4 p. 39.

[21]  Exhibit 4 p. 41.

[22]  Exhibit 1, inside front cover.

[23]  Exhibit 2 paras 17, 19, 20, 21, 22.

[24] Workcover Authority of NSW v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565;  Stanley v Gallagher [2002] NSWCA 174.

[25]  That was recognised with a similar provision in the Victorian Act in Dodd v Executive Air Services Pty Ltd [1975] VR 668.  Section 13(1) was to be repealed as part of the Schedule 6 amendments in the 1995 Act – see Exhibit 4 p. 36 – being superseded by the new s 9.

[26]  These are different questions:  Rothwells Ltd v Connell (1993) 93 ATC 5106 at 5112 per McPherson JA.

[27]  No more than a remote and general connection is necessary:  Union Steamships Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14.

[28]  Although indirectly the liability in tort also arises out of the contract, since it is for breach of a duty which arises from the relationship of employer and employee, which was created by the contract.

[29]  Workers’ Compensation (General) Regulation 1995, Document 2 in Exhibit 7, p. 34.

[30]  Exhibit 7 document 2, p. 47.

[31]  1987 Act s 3(1).

[32]  1987 Act, s 159(2);  regulation Form 4 clauses 5, 6 in Exhibit 7, document 2;  Exhibit 2 para 10.

[33]  Exhibit 2 para 31.

[34]  Under s 47 of the Supreme Court Act 1995.

Close

Editorial Notes

  • Published Case Name:

    WorkCover Queensland v Pelesic & Ors

  • Shortened Case Name:

    WorkCover Queensland v Pelesic

  • MNC:

    [2004] QDC 214

  • Court:

    QDC

  • Judge(s):

    McGill DCJ

  • Date:

    19 Jul 2004

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2004] QDC 21419 Jul 2004WorkCover Qld sought relief under s 190 of Workers Compensation Act 1990 for a charge on settlement monies paid by insurer on behalf of employer to injured employee on the basis that WorkCover already paid employee workers' compensation; judgment for WorkCover in the sum of $63,605.85 McGill SC DCJ
Appeal Determined (QCA)[2004] QCA 37608 Oct 2004Where appellants failed to file outline of submissions within time; appeal struck out with costs: M McMurdo P

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Barcelo v Electrolytic Zinc Company of Australasia Limited (1932) 48 CLR 391
1 citation
Jump To
Cite 1 - (1932) 48 CLR 391
Burrows v The Workers' Compensation Board of Queensland [1997] QCA 182
2 citations
Jump To
Cite 1 - [1997] QCA 182
Cite 2 - [1997] QCA 182
Dodd v Executive Air Services Pty Ltd [1975] VR 668
1 citation
Jump To
Cite 1 - [1975] VR 668
Glover v Politanski [1990] 2 Qd R 41
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 41
Cite 2 - [1990] 2 Qd R 41
Goodwin v La Macchia & Ors [1999] NSWSC 963
1 citation
Jump To
Cite 1 - [1999] NSWSC 963
Petricevic v State Government Insurance Office (Q.) (1976) 50 A.L.J.R 731
2 citations
Jump To
Cite 1 - (1976) 50 A.L.J.R 731
Cite 2 - (1976) 50 A.L.J.R 731
Rothwells Ltd (in liq) v Connell (1993) 93 ATC 5106
1 citation
Jump To
Cite 1 - (1993) 93 ATC 5106
Stanley v Gallagher [2002] NSWCA 174
1 citation
Jump To
Cite 1 - [2002] NSWCA 174
Union Steamship Co. of Australia Pty Ltd v King (1988) 166 CLR 1
1 citation
Jump To
Cite 1 - (1988) 166 CLR 1
Workcover Authority of New South Wales v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565
1 citation
Jump To
Cite 1 - (1995) 11 NSWCCR 565

Cases Citing

Case NameFull CitationFrequency
Francis v Emijay Pty Ltd [2005] QSC 39 2 citations
Francis v Emijay Pty Ltd[2006] 2 Qd R 5; [2006] QCA 621 citation
1

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