Greenall & Anor v Amaca Pty Ltd

In this significant case, Crowley J considered claims for three different kinds of damages arising from the death of a person from workplace-caused mesothelioma.  The deceased’s widow brought a claim for damages for loss of gratuitous care pursuant to s 59A Civil Liability Act 2003, a wrongful death claim and a claim for loss of consortium or servitium. His Honour found that the Workers’ Compensation and Rehabilitation Act 2003 applied to each of the claims, and that ultimately none of the disputed damages claims could be maintained.

Crowley J

8 September 2023

During his employment with Amaca Pty Ltd (“Amaca”) between January and April 1972, the late Walter Greenall was exposed to asbestos. [1]. In August 2021, he was diagnosed with mesothelioma, which ultimately killed him. [2]–[4]. Prior to his death, Mr Greenall commenced personal injury proceedings against Amaca. [3]. Mr Greenall’s legal personal representative (“LPR”) has continued the proceedings. [6]. The second plaintiff, Mrs Audrey Greenall, is Mr Greenall’s widow, and suffers from Alzheimer’s dementia. [7]. She claims damages for loss of consortium consequent on the injuries suffered by Mr Greenall. [7]. Amaca’s insurer, WorkCover, has been joined as a third party to the proceedings. [8].

It is accepted by Amaca and WorkCover that Amaca was liable for Mr Greenall’s injuries. [9]. However, they have brought strike out and separate question applications in respect of the following damages claims:

a)claims for loss of Mr Greenall’s capacity to provide gratuitous domestic services to Mrs Greenall pursuant to s 59A Civil Liability Act 2003 (“CLA”) (“the s 59A Damages Claim”); [12]

b)claims for loss of Mr Greenall’s capacity to provide gratuitous domestic services to Mrs Greenall arising from Mr Greenall’s wrongful death pursuant to the Civil Proceedings Act 2011 (“CPA”) (“the Wrongful Death Claim”); [14]–[16] and

c)claims by Mrs Greenall for loss of consortium with Mr Greenall and for loss of his servitium (“the Loss of Consortium Claim”). [17].

The s 59A Damages Claim

In considering the s 59A Damages Claim, Crowley J commenced by considering the background and application of the CLA. [36]. His Honour observed that the CLA reformed the law of negligence in Queensland. [37]–[39]. Importantly, by s 5(1)(c), the CLA currently excludes from its scope injuries that are “a dust-related condition”. [40]. Similarly, s 5(1)(b) CLA excludes injuries for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”). However, s 5(3) CLA provides that damages under s 59A CLA are still available in respect of a “dust-related condition”, notwithstanding s 5(1)(c). [43].

This has not always been the case; when it was first enacted, s 5 CLA totally excluded from its scope dust-related conditions. [45]. The CLA was amended in 2004 to exclude from its scope injuries under the WCRA, and it was amended again in 2007. [47]–[50].

In 2010, the CLA was further amended to add s 59A. [61]. This amendment was designed to reinstate damages for loss of an injured person’s capacity to provide gratuitous domestic services, which had been held by the High Court in CSR Limited v Eddy [2005] HCA 64 not to form part of the common law of Australia. [62]. The 2010 amendments also provided that s 59A CLA would have retrospective effect for dust-related claims that were not otherwise excluded from the CLA. [65]–[67].

Against this background, the critical question for Crowley J’s consideration was whether, on a proper interpretation of the CLA, damages were available under s 59A. As to this, his Honour observed that s 59A damages did not exist at law until the 2010 amendments to the CLA. [143]. Further, under s 85 CLA, s 5 “as amended or inserted under the amending Act” has retrospective effect. [144]. Thus, his Honour concluded that the applicable version of s 5 was the one that was amended or inserted by the 2010 amendments to the CLA. [145].

It was agreed between the parties that Mr Greenall was entitled to, and was paid, compensation under the WCRA. [146]. Accordingly, s 5(1)(b) CLA excluded the application of the CLA to his claims. [146].

As to the application of the WCRA, there was an argument that s 603 WCRA (which provides that where a worker sustained an injury prior to the commencement of the WCRA, the legislation in force at the date of the injury applies), meant that the Workers Compensation Act 1916 (Qld) applied to Mr Greenall’s injuries. [152]. However, Crowley J preferred the position that s 36A WCRA applied to deem the date of an injury such as that suffered by Mr Greenall. [150]. This was because s 36A deems the date of injury for a person who has a “latent onset injury”. [150]. Accordingly, his Honour concluded that the date of injury was deemed to be the date Mr Greenall was diagnosed with mesothelioma. [154]. It follows that the WCRA applied, such that the CLA was excluded. [157].

Justice Crowley next considered whether s 5(1)(c) CLA applied to all injuries that are dust-related conditions, or only those which do not otherwise fall within the ambit of s 5(1)(b) CLA. [158]–[159].

On a plain reading of s 5 CLA, Crowley J observed that the matters listed in s 5(1) CLA are listed disjunctively, and they are not on their face qualified by one another. [160]. However, his Honour observed that the injuries listed in ss 5(1)(a) and (b) deal with injuries for which workers’ compensation is payable, whereas those listed in ss 5(1)(c) and (d) deal with different types of injuries. [161]–[162]. There may be an overlap between these classes of exception. [163]. In context, his Honour concluded that where the injury falls within ss 5(1)(a) or (b), it should be assessed with reference to the common law or workers’ compensation legislation, even if it also falls within ss 5(1)(c) and (d). [165]–[168]. This position was not changed by s 5(3) CLA because “it is implicit that if the type of injury in question also comes within the ambit of ss 5(1(a) or (b) then s 5(3) will not apply”. [171].

Accordingly, Crowley J concluded that the s 59A Damages Claim could not be maintained.

The Wrongful Death Claim

In the Wrongful Death Claim, the LPA argued that Mrs Greenall was Mr Greenall’s dependent spouse at the time of his death for the purposes of s 64 CPA. [178]–[180]. It further argued that the entitlement to claim as a dependent spouse under s 64 CPA could be maintained independently and irrespective of the limitations imposed by s 237 WCRA. [187]. Section 237 WCRA limits the classes of people who are entitled to seek damages for an injury sustained by a worker. [81]. It is a “gateway” through which a claimant must pass to recover damages for an injury sustained by a worker. [82].

Justice Crowley considered that the WCRA continued to apply to the LPA’s claim because it “does not create a cause of action in respect of which damages may be claimed. Rather, it regulates damages which may be sought and awarded in respect of an injury sustained by a worker”. [192]. Accordingly, his Honour concluded that claims for damages pursuant to s 64 CPA are regulated by the WCRA. [193]. It follows that, in order to make the claim under s 64 CPA, Mrs Greenall was required to be a “dependent” for the purposes of the WCRA. [189]–[191]. Justice Crowley was not satisfied that Mrs Greenall was a “dependent” under the WCRA or that she fit into another, separate, category which would allow her to make a claim under s 64 CPA. [191]. His Honour considered that this conclusion was supported by an analysis of relevant cases. [192]–[203]. Accordingly, this claim also could not be maintained.

Loss of Consortium Claim

Finally, Crowley J considered a claim by Mrs Greenall for damages for loss of her husband’s consortium and servitium. [211].

As to the claim for loss of consortium, Crowley J observed that it is a compensable head of damage under the common law, although it has been abolished in many jurisdictions around Australia. [213]–[215]. Significantly, a wife cannot recover damages for the loss of her husband’s consortium at common law. [217]–[220].

This position was in part rectified in Queensland by s 13 Law Reform Act 1995 (“LRA”), which creates a statutory entitlement to damages for loss or impairment of consortium for an injured person’s spouse, regardless of their gender. [221]. However, s 13 LRA is conditioned by s 14 LRA, which disapplies s 13 LRA in respect of injuries where the negligence occurred before 1 January 1985. [222]. Accordingly, Crowley J considered that any claim for loss of consortium had to be made under the common law, rather than under the LRA. [223].

Although s 306M WCRA provides for damages for loss of consortium or servitium, s 306A WCRA provides that s 306M does not apply to a claim in respect of a dust-related condition. [235]–[236]. In the circumstances, Crowley J considered that s 10(1) applied and damages would only be allowed if they were created independently of the WCRA. [244].

As neither the common law claim nor the claim under s 13 LRA could be maintained, Crowley J concluded that the Loss of Consortium Claim failed.

M Paterson