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Workcover Queensland v Turner Freeman[2019] QDC 166

Workcover Queensland v Turner Freeman[2019] QDC 166

DISTRICT COURT OF QUEENSLAND

CITATION:

Workcover Queensland v Turner Freeman & Anor [2019] QDC 166

PARTIES:

WORKCOVER QUEENSLAND

(applicant)

v

TURNER FREEMAN

(first respondent)

and

DOROTHY IRENE BOLT (EXECUTOR OF THE ESTATE OF NOEL WILLIAM BOLT)

(second respondent)

FILE NO/S:

2515/19

DIVISION:

Civil

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

3 September 2019, ex tempore

JUDGE:

Everson DCJ

ORDER:

Application dismissed.

CATCHWORDS:

WORKERS COMPENSATION – DAMAGES – COMPENSATION – APPLICATION – where spouse makes claim for funeral expenses and compensation independently of damages – where entitlement for compensation is not subject to settlement for damages or judgment for damages – whether compensation recoverable

Succession Act 1981

Workers Compensation and Rehabilitation Act 2003

Foyster v The Minister for Education (1985) WASC (8 March 195)

State Government Inusrance Office (Queensland) v Public Curator of Queensland [1976] Qd R 281

COUNSEL:

A S Mellick for the applicant

A Kitchin for the respondents

SOLICITORS:

BT Lawyers for the applicant

Turner Freeman Lawyers for the respondents

  1. [1]
    In this proceeding the applicant seeks to recover the sum of $71,348.70 from the trust account of the first respondent which it asserts was wrongly paid to the second respondent.
  1. [2]
    The second respondent (“Mrs Bolt”) is the executor of the estate of her late husband, Noel William Bolt (“Mr Bolt”). He sustained pleural lung disease from exposure to asbestos in the course of his employment. He commenced a claim for damages for personal injuries caused by negligence in the Brisbane District Court on 8 January 2018 (“the action for damages”). Mr Bolt died on 23 July 2018 from heart failure which was significantly contributed to by the pleural lung disease caused by his exposure to asbestos in the course of his employment. Mrs Bolt brought an application pursuant to s 66 of the Succession Act 1981 to be substituted in the action for damages in place of her husband and an order to this effect was made on 21 December 2018.  The action for damages therefore survived for the benefit of Mr Bolt’s estate.  It was settled for the “all up” sum of $130,000.00 on 10 January 2019.  Mrs Bolt and the defendant signed a deed of release which was in general terms.  The only reference to the applicant was in clause 2.2 which stated that Mrs Bolt authorised the defendant to pay from the settlement sum to the applicant payment, if any “as stated in a Payment/Recovery History Summary Report”.  The applicant indicated to the defendant that no compensation had been paid to Mr Bolt and no deduction was made in this regard. 
  1. [3]
    The Workers Compensation and Rehabilitation Act 2003 (“WCRA”) provides for compensation on a worker’s death in Chapter 3, Part 11.  Relevantly, s 196 is in the following terms: 

196   To whom payments made for death of worker

  1. Compensation for the death of a worker is payable—
  1. to the worker’s legal personal representative; or
  2. if there is no legal personal representative—
  1. so far as the payment is by way of expenses to which a person is entitled—to the person who has incurred the expenses; or
  2. so far as the payment is by way of compensation to the worker’s dependants—to the dependants entitled to compensation.
  1. The worker’s legal personal representative must pay or apply the compensation to or for the benefit of the worker’s dependants or other persons entitled to compensation.” 
  1. [4]
    Section 199 states that an insurer must pay the reasonable expenses of the worker’s funeral. Section 201A makes provision for the payment of compensation to the worker’s estate in circumstances where he leaves no dependents but is survived by a spouse, issue, or next of kin within the meaning of the Succession Act
  1. [5]
    On 4 January 2019 Mrs Bolt made a claim of $9,488.70 for funeral expenses pursuant to s 199 and $61,860.00 pursuant to s 201A of the WCRA in the total sum of $71,348.70.  This sum was paid into the trust account of the first respondent on 18 February 2019 and it is the subject of the proceeding before me. 
  1. [6]
    The applicant asserts that it is entitled to be repaid the sum of $71,348.70 as a consequence of s 119 of the WCRA which, relevantly, is in the following terms: 

119  Entitlement to compensation ends if damages claim is finalised

  1. This section applies if, for an injury, there is—
  1. an entitlement to compensation; and
  2. an entitlement to recover damages against an employer or another person.
  1. An entitlement to compensation ends when settlement for damages is agreed or judgment for damages is given.” 
  1. [7]
    In this regard it is submitted that any entitlement to compensation ended upon settlement of the action for damages. This occurred on 10 January 2019 before the payment the subject of this proceeding was made. In support of this submission my attention is drawn to the wide definition of “injury” in s 32 of the WCRA and the fact that in s 119(1) the curtailing of the entitlement to compensation applies in circumstances where “for an injury” there is both such an entitlement and an entitlement to recover damages.  Accordingly, it is submitted, it is the same injury which gives rise to both the entitlement to compensation and the entitlement to recover damages.  It is therefore the injury which dictates the ambit of the provision according to the applicant.
  1. [8]
    Conversely, the respondents argue that there needs to be a link between an entitlement to compensation and an entitlement to recover damages for the entitlement to compensation to end. It is further submitted that the application made by Mrs Bolt on 4 January 2019 was completely separate to an entitlement to compensation within the contemplation of s 119 in circumstances where it is uncontroversial that the action for damages did not include a claim for funeral expenses or a claim for loss of dependency (which is an entitlement to recover damages in similar terms to what is contemplated by the compensation payable pursuant to s 201A of the WCRA). 
  1. [9]
    At the heart of this application, the applicant submits that the issue is whether the second respondent is entitled to “double dip” and recover both common law damages and statutory compensation in respect of the same injuries. The issue for determination is not that simple however. As the respondents asserted, the compensation paid pursuant to the WCRA was payable upon the death of Mr Bolt whereas the claim for damages was brought for personal injuries sustained by him. It was merely continued by Mrs Bolt pursuant to s 66 of the Succession Act.  I have not been taken to any authorities concerning the interpretation of s 119 of the WCRA, however the decision of the Full Court in State Government Insurance Office (Queensland) v Public Curator of Queensland [1976] Qd R 281 is authority for the proposition that such a provision envisages a claim for damages independently of the Act in question, in respect of which the compensation is payable.  That is not what has occurred on the facts before me as the subject matter of the compensation paid by the applicant, namely funeral expenses and a payment of compensation to the estate of a deceased worker, were not the subject of the claim for damages and were not canvassed in the deed whereby it was settled.  In these circumstances the question of a “double dip” does not arise.  Moreover, it needs to be emphasised that the capacity in which Mrs Bolt received the compensation pursuant to the WCRA was different to the capacity in which she continued the action for damages on behalf of her late husband.  This concept is explained in Foyster v The Minister for Education (unreported, Supreme Court of Western Australia, 8 March 1985).
  1. [10]
    It is clear that s 119 contemplates an entitlement to compensation which is the subject of a settlement for damages or a judgment for damages.  That is not the case with the compensation paid pursuant the WCRA and the claim for damages on the facts before me. 
  1. [11]
    I therefore dismiss the application and will hear the parties on costs.
Close

Editorial Notes

  • Published Case Name:

    Workcover Queensland v Turner Freeman & Anor

  • Shortened Case Name:

    Workcover Queensland v Turner Freeman

  • MNC:

    [2019] QDC 166

  • Court:

    QDC

  • Judge(s):

    Everson DCJ

  • Date:

    03 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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