Queensland Judgments
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WorkCover Queensland v Wallaby Grip Limited & Anor

Unreported Citation:

[2021] QCA 11

EDITOR'S NOTE

This appeal raised a discrete question of law in the context of a claim by WorkCover for indemnification in respect of compensation paid to a worker who suffered injury by asbestos exposure in the course of employment in Queensland and in New South Wales. The question was whether by virtue of s 113(1) of the Workers’ Compensation and Rehabilitation Act 2003 the statutory cause of action created by s 207B of the Act only affords a right of recovery for compensation paid for Queensland employment and not for NSW employment or any contribution made to the injury by asbestos exposure in NSW employment. The Court held that it did not.

Morrison and Philippides JJA and Crow J

5 February 2021

Background

The injured employee had undertaken work in both Queensland and New South Wales and in the course of that employment he had been exposed to asbestos. [3]–[4]. Subsequently he developed malignant mesothelioma and he commenced proceedings against two employers pursuant to s 207B of the Workers’ Compensation and Rehabilitation Act 2003 (the Act). [6]. Causation was in issue. [5]. The respondents, in a further amended defence, raised an issue of law, whether by “virtue of s 113(1) of the Act, s 207B only affords a right of recovery for compensation paid for employment in Queensland and not for any contribution made to the injury during any employment in NSW”. [10]. The court identified that as an important question of law warranting the grant leave to appeal under s 118(3) of the District Court of Queensland Act 1967. [16], [17].

The contentious section of the Act, s 207B(1), provides:

“207B Insurer’s charge on damages for compensation paid

(1) This section applies to—

(a) an injury sustained by a worker in circumstances creating—

(i) an entitlement to compensation; and

(ii) a legal liability in the worker’s employer, or other person, to pay damages for the injury, independently of this Act; and

(b) damages that an employer is not indemnified against under this Act.”

The respondent contended that the “creating circumstances” referred to in s 207B(1)(a) must also be the same circumstances that produce both the entitlement to compensation under s 207B(1)(a)(i) and the legal liability referred to in s 207B(1)(a)(ii). [22]. The court noted that if the circumstances needed to be matching then it would follow that the respondent’s argument as to the effect of s 113 of the Act on the injured worker’s entitlement to compensation was correct. However, “[t]he difficulty with the respondent’s argument is that it requires an interpretation of the Act in which the reader of s 207B inserts the word ‘same’ prior to the word ‘circumstances’ in s 207B(1)(a)” which was plainly not the case. [22]. In the Court’s view the respondents’ position that s 113 of the Act disentitled the applicant from recovery in respect of the injuries arising from the claimant’s NSW employment “conflate[d] the “circumstances” of the statutory cause of action created by s 207B and the tort of negligence in respect of the NSW employment”. [19].

The Court articulated that s 207B is a remedial section in a remedial statute (see State of Queensland v Seltsam Pty Ltd (2019) 2 QR 495, 502–503 [16]), and it is neither necessary nor logical to restrict the statutory cause of action created by s 207B by mandating that the circumstances correlate in respect of ss 207B(1)(a)(i) and 207B(1)(ii). [34]. It held that the section covers both rights of recovery within Queensland and New South Wales – that was apparent from its plain words. [33]. The Court further clarified that “[i]n circumstances where the WCRA expressly recognises latent onset injuries, aggravations and injuries caused by multiple events with vastly different factual scenarios or circumstances, perhaps occurring in different places and at different times, there is no warrant to read the word ‘circumstances’ referred to in s 207B(1)(a) as in effect the ‘same circumstances’ to take that approach would compromise the “policy” (see State of Queensland v Seltsam Pty Ltd (2019) 2 QR 495, 502–503 [16]) by truncating the remedy expressly made available to WorkCover Queensland. Had that been Parliament’s intended outcome, the word “same” could have been inserted into the provision, as it has elsewhere in the Act. [32].

Noting that in the current matter the requirements of s 207B(1)(a)(i) had been met (in respect of the Queensland employment), and that the remaining matters would be left for trial, the Court granted leave to appeal and upheld the appeal. [34], [35].

A de Jersey

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