Greenall v Amaca Pty Ltd

This decision deals with an important matter of interpretation; namely how the entitlement of a surviving spouse of a deceased worker to seek damages is affected by the operation of sections 237(1) and 237(5) Workers’ Compensation and Rehabilitation Act 2003 in a case in which a worker sustains an injury that results in the worker’s death. The surviving spouse, the second appellant, who was under a legal disability, was not dependent upon the deceased’s earnings at the time of his death and furthermore would not have been so dependent had he not died at that time. However, she claimed that she was generally dependent upon the deceased for her support and maintenance. The Court held that ss 237(1) and s 237(5) exclude a person who is not a dependant (as defined in s 27 of the Act) from bringing a claim against the employer of a deceased worker for damages for their death.

Morrison JA, Fraser AJA, and Kelly J

26 July 2024

At first instance, the primary judge concluded that, in terms of the chapeau in s 237(1) Workers’ Compensation and Rehabilitation Act 2003, the second appellant was not a person entitled to seek damages, and further that s 237(5) made it plain that s 237(1) abolished the entitlement of a person not specified in that subsection to seek damages for an injury sustained by a worker. [19]. The primary judge struck out parts of the amended wrongful death claim and pleading for the past and future loss of services, and determined that the claims made therein and that part of the prayer for relief were unable to be maintained. The first appellant, the widow’s legal personal representative, argued that the application of s 10(1) of “damages” in s 237(1) and 237(5) “makes it clear that neither provision applies to disentitle a Widow from pursing her wrongful death claim”. [21].

The legislation

The relevant part of s 237 of the Act provides:

(1)The following are the only persons entitled to seek damages for an injury sustained by a worker—

…

(b)a dependant of the deceased worker, if the injury results in the worker’s death and—

(i)compensation for the worker’s death has been paid to, or for the benefit of, the dependant under chapter 3, part 11; or

(ii)a certificate has been issued by the insurer to the dependant under section 132B.

(2)The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter and the provisions of chapter 4A, part 5.

(3)…

(5)To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.

In s 237(1)(b) the word “dependant” bears the meaning defined in s 27:

“A dependant, of a deceased worker, is a member of the deceased worker’s family who was completely or partly dependent on the worker’s earnings at the time of the worker’s death or, but for the worker’s death, would have been so dependent.”

The arguments raised by the first appellant on appeal relied upon subsection 1 of the definition of “damages” in s 10. Section 10 defines “damages” as follows:

(1)Damages is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to—

(a)the worker; or

(b)if the injury results in the worker’s death—a dependant of the deceased worker.

(2)A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under—

(a)another Act; or

(b)a law of another State, the Commonwealth or of another country.

(3)Also, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages for loss of consortium resulting from injury sustained by a worker.

Consideration

The Court rejected the construction of s 237(1) and s 237(5) which the first appellant proposed. It noted as follows:

1.it was not supported by the legislative history; [42]

2.the opening words in the chapeau of s 237 (1) conflicted with the construction preferred by the first appellant; [43]

3.when s 237 is read as a whole and in context, applying the definitions of “damages” and “dependant” in the way the first appellant advocated would “conflict in a substantial way with the text and structure of that section”; [46]

4.the construction preferred by the first appellant would result in a situation where wrongful death claims could be brought by claimants who were not dependants against an employer, despite the fact that the obligatory insurance under the Act does not include an indemnity against such claims. [48].

In the lead judgment, Fraser AJA remarked:

“In the exercise of construing s 237, it is necessary to keep in mind that the effect of the primary judge’s construction is that, in circumstances in which s 237 applies, s 237(1) and s 237(5) abrogate the legal entitlement of a member of the family of a deceased person to claim damages for the wrongful death of the deceased. The significance of that impact must be assessed, however, in the context that the WCRA, is undoubtedly designed to abrogate legal rights in many respects”. [51].

In dismissing the appeal, the Court held:

1.Upon the proper construction of the Workers’ Compensation and Rehabilitation Act 2003, in a case in which a worker sustains an injury that causes their death, the definition of “dependant” in s 27 does not apply to that word in s 10(1) of the definition of “damages” in its application to that word in the chapeau in s 237(1) and in s 237(5). [59].

2.Here, s 237(1) disentitled the first appellant from making the wrongful death claim for the benefit of the second appellant and s 237(5) confirmed that s 237(1) abolished any entitlement of it to take that course. [60].

Disposition

The appeal was dismissed with the parties given leave to make submissions about costs.

A Jarro