Francis v Emijay P/L & Ors [2006] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION: Francis v Emijay P/L & Ors [2006] QCA 62

PARTIES: RONALD JAMES FRANCIS (applicant) v EMIJAY PTY LTD ACN 010 749 970 (first respondent) WORKCOVER QUEENSLAND (second respondent/respondent) QBE WORKERS COMPENSATION (NSW) LTD ACN 003 195 604 (third respondent/applicant/appellant)

FILE NO/S: Appeal No 7120 of 2005 / SC No 458 of 2004

DIVISION: Court of Appeal

PROCEEDING: Application for Extension of Time/General Civil Appeal

ORIGINATING COURT: Supreme Court at Rockhampton

DELIVERED ON: 10 March 2006

DELIVERED AT: Brisbane

HEARING DATE: 22 February 2006

JUDGES: Williams and Keane JJA and McMurdo J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for extension of time until 25 August 2005 grantedAppeal dismissedAppellant to pay the respondent's costs of and incidental to the appeal and the application for an extension of time to be assessed on the standard basis

CATCHWORDS: INSURANCE - OTHER INDEMNITY INSURANCES - OTHER CASES - where the applicant suffered personal injuries in the course of his employment as an interstate truck driver for the first respondent - the applicant brought proceedings against the first respondent seeking damages for breach of the implied terms of the contract of employment - where both the Queensland (WorkCover) and New South Wales (QBE) insurers denied indemnifying the first respondent against liability for damages in regards to the injury of the applicant - where the only liability the applicant asserts against the first respondent is in contract and not in tort - whether the NSW or QLD insurer is liable to indemnify for an injury occurring in NSW sustained during the course of employment / Personal Injuries Proceedings Act 2002 (Qld) / Uniform Civil Procedure Rules 1999 (Qld) / WorkCover Queensland Act 1996 (Qld), s 11(2)(b), s 52 / Workers' Compensation Act 1987 (NSW), s 3(1), s 155, s 155(3A) / Workers Compensation Legislation Amendment Act 2002 (NSW), s 9AA(1), s 9AA(3) / Allianz Australia Workers Compensation (NSW) Ltd v PPG Industries Australia P/L [2004] ACTCA 28; (2005) 13 ANZ Ins Cas 61-649, applied / Burrows v The Workers' Compensation Board of Queensland [1997] QCA 182; Appeal No 6694 of 1996, 12 June 1997, considered / Busst v Lotsirb Nominees P/L [2002] QCA 296; Appeal No 3575 of 2002, 16 August 2002, distinguished / Foster v Skilled Communication Services P/L & Ors [2003] QCA 363; Appeal No 7756 of 2002, 29 August 2003, considered / Stanley v Gallagher [2002] NSWCA 174; (2002) 23 NSWCCR 566, considered

COUNSEL: M Grant-Taylor SC, with R D Green, for the appellant / R J Douglas SC, with J A McDougall, for the respondent

SOLICITORS: Gillis Delaney Lawyers for the appellant / McInnes Wilson (Maroochydore) for the respondent

WILLIAMS JA: The issues raised in this appeal, and the facts relevant thereto, are set out in the reasons for judgment of the other members of the court which I have had the advantage of reading. I will not repeat those matters except when necessary.

In my view it would be an absurd result, which ought to be avoided if at all possible, if the identity of the insurer liable to indemnify the employer was dependent upon whether or not the proceeding for the recovery of damages was founded on tort or contract. The decision as to the basis of the claim to recover damages will often be made by the injured worker's legal representatives quite some time after the injury was sustained. There should be certainty as to the identity of the insurer, and that certainty should attach as from the moment the injury was sustained. Certainty is important, if only because the injured worker will be obliged to follow a different set of pre-trial procedures depending upon the identity of the insurer. In the present case, if WorkCover is the relevant insurer, it will be necessary for the employee to comply with the pre-trial procedures set out in the WorkCover Queensland Act 1996 (Qld) (the "Queensland Act"), frequently referred to as the "gates" through which an applicant must pass before commencing proceedings. If, on the other hand, QBE Workers' Compensation (NSW) Ltd ("QBE") is the relevant insurer, and the proceedings are commenced in a Queensland court, it will be necessary for the employee to comply with the pre-trial provisions of the Personal Injuries Proceedings Act 2002 (Qld). Those pre-trial procedures are not the same as required by the Queensland Act.

The provisions of s 11 of the Queensland Act and s 155 of the Workers Compensation Act 1987 (NSW) (the “New South Wales Act”) are set out in the reasons for judgment of Keane JA and I will not repeat them. Whatever might be the outer limits of the range of operation of s 155 it is, to my mind, clear beyond doubt that the phrase "any injury to any such worker" is at least referring to anyone who is a "worker" and who receives an "injury" in New South Wales. Here the injury sustained by Mr Francis was sustained in New South Wales at a time when he was there in his capacity as a worker. His employer at the time he sustained the injury was Emijay Pty Ltd ("Emijay"). In those circumstances Emijay was clearly an "employer" for the purposes of s 155. In those circumstances it is not surprising that in the present case senior counsel for QBE admitted that, if the proceedings were brought in tort, that insurer would be obliged to indemnify the employer. In similar circumstances this court in Burrows v The Workers' Compensation Board of Queensland [1997] QCA 182 held that the New South Wales insurer was the insurer obliged to indemnify the employer to the exclusion of the Workers' Compensation Board of Queensland. Similarly in Busst v Lotsirb Nominees Pty Ltd [2002] QCA 296 there was no challenge to the proposition that with respect to the claim in tort, the relevant insurance was that issued pursuant to the New South legislation; see [3] and [19] of the judgments.

Why then should the position be different if the proceeding seeking to enforce the claim for damages is brought in contract rather than tort? Reading the New South Wales Act as a whole it seems clear that it does not matter whether or not the "employer" had its principal place of business in New South Wales or that the contract of employment was originally entered into outside New South Wales. Therefore the proper law of contract of employment seems irrelevant to the operation of s 155.

The first case in which there was a suggestion that suing in contract might make a difference to the identity of the insurer was Busst; the factual background in that case was relatively similar to that which exists here. The proceeding commenced in the District Court sought to recover damages relying on two causes of action, namely tort and contract. Rather surprisingly an order was made that the following two questions be tried as preliminary points:

(i)whether the substantive law to be applied in the plaintiff's case is the law of New South Wales; and

(ii)if the substantive law to be applied in the plaintiff's case is the law of New South Wales, is the plaintiff prevented from bringing this action by the operation of the Workers Compensation Act 1987 (NSW).

As already noted the learned primary judge held, and it was not disputed on appeal, that as to the plaintiff's cause of action in tort the applicable substantive law was that of New South Wales. The learned primary judge also held that in respect of the cause of action in contract the applicable substantive law was the law of Queensland. The appeal was brought only with respect to that latter finding. This court held that the proper law of the contract of employment was the law of Queensland, but the decision did not go beyond that. As was pointed out in the later decision Foster v Skilled Communication Services Pty Ltd [2003] QCA 363 at [19], this court in Busst "did not consider, as it was not necessary to do so given the way in which the question arose for determination, whether that meant that if the employee succeeded in the action based on the contract of employment WorkCover was obliged to indemnify the employer". It follows that Busst is not an authority supporting the appellant's submission here.

Nor does the decision in Foster avail the appellant. Against a similar factual background to that which exists here, a District Court judge essentially declared that in the circumstances which existed, WorkCover was estopped from asserting that the employer was required to provide against its liability to its employee according to the law of New South Wales. That declaration was primarily based on a finding that, having assumed conduct of the proceedings for some time, it was unconscionable for WorkCover to deny liability. Critically, that declaration was made in summary proceedings and ultimately this court concluded that it was not an appropriate case in which such a declaration should have been made summarily and effectively it was directed that the matter proceed to trial. The employee was claiming damages both in contract and tort.

On the hearing of the appeal in Foster counsel appeared for the New South Wales insurer and submitted that the New South Wales policy did not respond to the worker's claim, and in any event WorkCover was estopped from asserting that such was the case. He made reference to Burrows and the New South Wales legislation, and the fact that the New South Wales Act had been significantly amended since Burrows. In delivering judgment in Burrows the learned President observed "there might be other provisions in the New South Wales Act to which the attention of this Court has not been drawn which effects some limitations in some circumstances" and that was stressed by counsel for the New South Wales insurer in Foster when referring to the subsequent amendments. It was against that background that it was said in Foster at [18] that "it may be necessary at some stage to reconsider the decision in Burrows". However, a review of the amendments to the New South Wales Act since Burrows does not call for a reconsideration of the conclusion reached in that case; if anything, the subsequent amendments support the conclusion therein reached.

This court in Foster, after referring to the fact that the decision in Busst was in no way decisive on the issue who was the relevant insurer if the action was brought in contract, left open that question because the matter was being sent to trial where factual findings would be made: see [27]. It follows that there is nothing in Foster which supports the conclusion that, if the only cause of action relied on was contract in the factual situation with which the court is now concerned, the relevant insurer, given the provisions of s 11 of the Queensland Act and s 155 of the New South Wales Act, would be other than the insurer pursuant to the New South Wales legislation.

I agree with all that has been said by both Keane JA and McMurdo J. It follows that I agree with the orders proposed by Keane JA.

KEANE JA: Mr Ronald Francis suffered personal injuries on 26 November 2001 in the course of his employment as an interstate truck driver with Emijay Pty Ltd ("Emijay"). The incident in which Mr Francis was injured occurred at the premises of the BHP Fine Wire Mill at Newcastle in New South Wales. Mr Francis had completed part of a journey which began at Maryborough in Queensland. He was preparing his trailer for a further journey by placing steel "grocery gates" on the sides of the trailer. While he was lifting the grocery gates on his own and with no mechanical aids, he suffered a rotator cuff injury to his left shoulder. Mr Francis instituted proceedings against Emijay for damages for breach of the implied terms of the contract of employment.

Both QBE Workers Compensation (NSW) Limited ("QBE") and WorkCover Queensland ("WorkCover") had issued policies of insurance to Emijay indemnifying Emijay against liability for damages for injuries sustained by Emijay's employees. Both QBE and WorkCover denied indemnity in this case.

On 4 March 2005, the learned primary judge resolved the dispute as to which of the insurers were liable to indemnify Emijay in respect of its liability to Mr Francis. His Honour held that QBE was obliged to provide that indemnity and WorkCover Queensland was not.

QBE desire to appeal against that decision. Unfortunately, QBE's notice of appeal was not filed within the period prescribed by the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"). The appeal was not filed until 25 August 2005, but copies of the notice of appeal were circulated to the other parties on 4 April 2005, ie one day out of time.

Extension of time

QBE seeks an extension of time for the filing of its notice of appeal. WorkCover is the only other party to the proposed appeal.

WorkCover opposes QBE's application for an extension of time, but accepts that it has suffered no prejudice as a result of the delay. The arguments sought to be agitated on appeal are in short compass and are not plainly without merit. There is no suggestion that the position of Mr Francis or Emijay would be prejudiced by the grant of an extension of time. In this latter regard, WorkCover urges the possibility of some prejudice to other parties such as Mr Francis, but its opposition in this regard does not rise beyond speculation. WorkCover also makes the point that QBE's explanation for its delay is not satisfactory.

If there were evidence of prejudice to WorkCover or Mr Francis or Emijay by reason of the delay in QBE's commencement of the appeal, then that consideration, coupled with the absence of a satisfactory explanation for QBE's delay, would have made a compelling case to reject QBE's application for an extension of time. However, having regard to the absence of prejudice to WorkCover, the absence of any evidence of real prejudice to Mr Francis or Emijay, the circumstance that all parties were given notice of QBE's intention to appeal which was only one day late, and the circumstance that the appeal is fairly arguable, I would grant QBE the necessary extension of time for filing its notice of appeal until 25 August 2005.

The substantive issue

The issue which fell to be resolved by the learned primary judge concerns the interpretation of s 11(2)(b) of the WorkCover Queensland Act 1996 (Qld) ("the Queensland Act") and s 155 of the Workers' Compensation Act 1987 (NSW) ("the NSW Act").

The relevant provisions of s 11 of the Queensland Act were 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 the damages to—

(a) the 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."

Section 11(2)(b) of the Queensland Act gives rise to the question whether the NSW Act is "a law of another State" under which the employer is required to provide against the legal liability in damages to the worker. In this regard, s 155 of the NSW Act provided relevantly:

"(1)An employer … 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."

The judgment

The only liability which Mr Francis asserts against Emijay is one which arises in contract. The learned primary judge held that the contract between Mr Francis and Emijay was one of which the proper law was the law of Queensland. That conclusion was accepted as correct by both QBE and WorkCover.

The crucial issue is whether s 155(1) of the NSW Act obliged Emijay to insure against its liability in damages to Mr Francis. The learned primary judge followed the decision of this Court in Burrows v The Workers' Compensation Board of Queensland,¹ where Fitzgerald P, with whom Mackenzie and Helman JJ agreed, said that:

"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."²

In fact, the injury had occurred in New South Wales. Fitzgerald P went on to hold that the then s 155 of the NSW Act was:

"not inapplicable merely because neither employer nor employee is resident or domiciled, based or located, whichever be thought most apposite, in New South Wales when an employee is injured, and … the subsection was applicable to the respondent's then employer in respect of the work-related injury which the respondent suffered in New South Wales in the course of his employment which was the subject of the present action."³

As a qualification to this general proposition, however, Fitzgerald P raised the possibility that s 155(1) of the NSW Act might conceivably be inapplicable "if an employee's presence in New South Wales when he or she is injured in the course of his or her employment is fortuitous, fleeting or sufficiently unusual". In the present case, the learned primary judge did not consider Mr Francis' presence in New South Wales "fortuitous, fleeting or sufficiently unusual".⁴

His Honour concluded that Emijay was obliged by s 155(1) of the NSW Act to provide for its liability in damages to Mr Francis.

It may be noted that, since the decision in Burrows, s 155 of the NSW Act was amended to bring it into its present form. At the time of the decision in Burrows, the words which currently appear in brackets in s 155 were not present. The words which were then in brackets in s 155 were "(being a liability under a law of New South Wales)". There can be little doubt that the amendment was intended to extend the cover that is required by the NSW Act to be provided by workers compensation policies.⁵

Significantly for present purposes, the words in brackets in s 155(1) in its current form confirm that the words "worker" and "employer", which are defined by s 3(1) of the NSW Act in general terms, extend to relationships of employment which are connected with States other than New South Wales and, indeed, countries other than Australia. This tends to confirm that the general language of s 155(1) cannot be read down as if it applied only to relationships of employment entered into in New South Wales or governed by the law of New South Wales.

Before I address the appellant's submission, I should observe that, read in context, the words "other law of another State" in the brackets in s 155 of the NSW Act plainly refer, as a matter of ordinary language, to the "liability for compensation in the nature of workers' compensation" which arises under the laws of a State other than New South Wales. This view is supported by Allianz Australia Workers Compensation (NSW) Ltd v PPG Industries Australia Pty Ltd,⁶ in which the Court of Appeal of the Australian Capital Territory interpreted the wording of an employers' insurance policy, issued under the NSW Act, which mirrors the bracketed language in s 155(1). The Court of Appeal held that:⁷

"The phrase 'workers compensation' has long been understood as referring to an entitlement to periodic payments to compensate an injured worker for medical expenses and/or loss of wages due to injury sustained during the course of the worker's employment, irrespective of whether there has been any breach of duty by the employer. The concept is quite different from that of liability for common law damages obtained by a worker as a consequence of establishing that his injuries were attributable to negligence or breach of statutory duty on the part of the employer. The latter is not 'in the nature of' the former."

The liability of Emijay to Mr Francis is not a liability in the nature of workers' compensation. Liability in the nature of workers' compensation arises under Queensland workers' compensation legislation quite separately from the common law rights of injured workers to damages which arise independently of that legislation.

The appellant's argument

QBE argues that the exclusion in s 11(2)(b) of the Queensland Act does not operate because s 155 of the NSW Act did not oblige Emijay to make provision by insurance against its liability to Mr Francis. QBE's principal argument is that the obligation imposed on employers by s 155 of the NSW Act does not apply in relation to Emijay's liability to Mr Francis. That is said to be because that liability is a liability which arises only by reason of a breach of a contract the proper law of which is Queensland, and that kind of liability is not within the contemplation of s 155(1) of the NSW Act.

The appellant's submission is that s 155 of the NSW Act should be confined to employers' liabilities for damages arising out of contracts of employment the proper law of which is New South Wales. That submission is not supported by the language of s 155(1) of the Act. In order to accept the appellant's submission it would be necessary to read the reference in s 155(1) to "the employer's liability independently of this Act" as if it read "the employer's liability in tort only save where that liability arises from breach of a contract, the proper law of which is New South Wales, independently of this Act". There is no warrant for adding these words to the text of the statute.

Moreover, the section refers to "the employer's liability". There is no reason to think that the New South Wales Parliament was in any way concerned to distinguish between the legal sources of an employer's liability for damages beyond the express requirements that the liability arise independently of the NSW Act and that the liability not be one arising under the laws referred to in the brackets.

Further, the appellant's submission is somewhat inconsistent with the decision of the New South Wales Court of Appeal in Stanley v Gallagher.⁸ In that case, the court surveyed the authorities at length and concluded that, while there must be "some relevant connection with New South Wales" in relation to a claim for compensation under the NSW Act, that connection need not be that the proper law of the contract of employment is the law of New South Wales.⁹

It is significant that, before this Court, QBE was unable to cite any authority which is contrary to the proposition that it is sufficient to engage the operation of s 155(1) of the NSW Act that the injury should have occurred in New South Wales, or which supports the proposition that s 155(1) is relevantly concerned only with liabilities in tort or liabilities arising from a breach of contract of which the law of New South Wales is proper law.

In my opinion the appellant's submission should not be accepted.

Section 155(1) of the NSW Act creates an offence. It may be that there is an undesirable degree of uncertainty in its language as to the precise moment when the obligation in s 155(1) operates to require an out-of-State employer to insure in respect of its workers. It is not necessary, in my view, to consider whether that uncertainty has any implications for the disposition of this case. That is because of the unchallenged, and plainly correct, finding that Mr Francis was not "fortuitously" in New South Wales when he was injured. Mr Francis was clearly in New South Wales in accordance with the terms of his employment and his employer's expectations. It would be quite unrealistic to suggest that in this case there was a possibility that Emijay might not have been under an obligation to comply with s 155(1) or did not appreciate that an obligation to insure under s 155 of the NSW Act had arisen in respect of its potential liability to Mr Francis. It is sufficient for the purpose of the disposition of this case to conclude that Emijay's liability to Mr Francis was clearly a liability against which it was required to provide by s 155(1) of the NSW Act. Further, I consider that, in practical terms, there is generally unlikely to be any real difficulty for employers in meeting their obligations under s 155(1) of the NSW Act. Where the exigencies of a worker's employment mean that the worker will be in New South Wales in accordance with that employment, then the employer can be taken to know all that it needs to know to meet its obligations under s 155(1) of the NSW Act.

Conclusion and orders

The application for an extension of time until 25 August 2005 should be granted.

The appeal should be dismissed and the appellant should pay the respondent's costs of and incidental to the appeal and the application for an extension of time to be assessed on the standard basis.

McMURDO J: I agree that an extension of time to appeal should be granted, for the reasons given by Keane JA. I also agree that the appeal should be dismissed with costs.

By s 52 of the WorkCover Queensland Act 1996, this employer was obliged to insure against its liability for damages to a worker. Section 11(2) relevantly excluded a liability against which the employer was required to provide under a law of another State. The question is whether the employer was required to insure against its liability in this case under a law of New South Wales, being s 155 of the Workers Compensation Act 1987 (NSW).

This accident occurred, and any cause of action accrued, on 26 November 2001. It is common ground that s 155 must be interpreted in the terms of the Workers Compensation Act 1987 (NSW) then in force. That is significant because the Act was amended in 2002 in respects which are likely to have led to a different result had they applied in this case.

Section 155(1) was then (and remains) in these terms:

“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.”

Undoubtedly that provision had some territorial limitation. An employer was required to insure, and committed an offence by failing to insure, only where there was a sufficient connection with New South Wales.

In the present case, the worker was injured whilst working in New South Wales. The respondent, WorkCover Queensland, argues that this is the very connection which engaged the operation of s 155. It argues that factors such as the location of the employer’s business, location of the employee’s usual workplace, where the employee resides, where the employment contract was formed or the place whose law is the proper law of that contract, were all irrelevant. Instead, the section was engaged whenever an employee was working in New South Wales, however temporarily, in the course of that employment.

On the applicant’s argument, the critical consideration is that the relevant liability, as pleaded by Mr Francis against his employer, is for breach of contract, and a contract whose proper law was that of Queensland. The argument appears to accept that this employer was obliged to insure in New South Wales in respect of its liability in tort for this accident, but it stresses that the plaintiff has pleaded his case in contract only. The focus upon the proper law of the employment contract seems an attempt to distinguish this case from Burrows v The Workers’ Compensation Board of Queensland [1997] QCA 182. In that case, the court said nothing of what was the proper law of the employment contract. Indeed, it does not appear whether the claim there was brought in contract, in tort, or in both. The present argument might have been more promising under the terms of s 155(1) as they were for that case. Instead of the words now present within the brackets, there appeared “(being a liability under a law of New South Wales)”. It might have been argued that the employee’s contractual liability was not under a law of New South Wales (although the better view might be that it was, the common law of contract being a law of that State). But the amendment of s 155 has undoubtedly widened its reach. Under the terms of s 155 for this case, the distinction for which the applicant argues has no significance.

According to this provision, the fact that the liability has a source in the law of another State could be significant only if the liability was “for compensation in the nature of workers compensation”, which the applicant concedes is not the liability claimed in this case. Save in that respect (or where the liability arose under the law of another country), the section plainly required insurance for the employer’s liability regardless of its legal basis. Upon no reading of this provision is there a suggestion of the distinction argued for the applicant. And clear words would be needed for such a distinction, because of its impracticability of its application and the absence of any apparent reason for it in policy.

What then was the required connection with New South Wales? In Burrows, Fitzgerald P, with whom Mackenzie and Helman JJ agreed, said that it was unnecessary that either the employer or the employee be resident or domiciled, based or located in New South Wales as long as the employee was injured there. But he qualified that by saying that possibly s 155(1) would be inapplicable “if an employee’s presence in New South Wales, when injured in the course of his or her employment, was fortuitous, fleeting or sufficiently unusual”. In Burrows, s 155 was held to apply in circumstances apparently indistinguishable from the present case; the employer was a transport operator conducting its business from premises in Queensland but regularly sending drivers into New South Wales. Because the version of s 155(1) relevant to the present case has a yet wider application than that considered in Burrows, the applicant must challenge the correctness of that judgment. But Burrows does not entirely support the respondent’s argument, because it left open the possibility that in some circumstances, the presence of an employee in New South Wales in the course of his employment might not be sufficient.

Section 155 required insurance against two types of liability. One was a liability for workers compensation under that Act. It was the employer’s liability “in respect of all workers employed by the employer”. The second was the employer’s liability independently of the Act “for any injury to any such worker”. The evident intent was that the same worker or workers would be the subject of insurance against each kind of liability. Accordingly, it is relevant to consider the circumstances in which an employer was liable under the Act for workers compensation. A connection with New South Wales which was sufficient to expose the employer to a liability for workers compensation is likely to represent the necessary connection for the obligation to insure against that liability and otherwise pursuant to s 155.

That link between the workers compensation scheme and the duty to insure under s 155 is yet more clearly indicated by the present terms of this statute. After the accident relevant to this case, the Workers Compensation Act 1987 was amended by the Workers Compensation Legislation Amendment Act 2002 (NSW). The Act now provides that workers compensation under the Act is only payable in respect of employment that “is connected with this State”: s 9AA(1). By s 9AA(3), a worker’s employment is connected with the State in which the worker usually works in that employment, (or if there is none) the State in which the worker is usually based for the purposes of that employment, (or if there is none) the State in which the employer’s principal place of business is located. The particular factors which provide the required connection with New South Wales are now clearly expressed. At the same time, s 155 was amended to provide a defence to a prosecution for an offence under that section in these terms:

“(3A)It is a defence to a prosecution for an offence under this section concerning an employer's liability in respect of a worker if the court is satisfied that at the time of the alleged offence:

(a)the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 9AA the worker's employment was not connected with this State, and

(b)the employer had workers compensation cover in respect of the worker's employment under the law of the State or Territory with which the employer believed on reasonable grounds the worker’s employment was connected under section 9AA.”

These amendments do not affect the Act as it should be applied in the present case. They are presently relevant in illustrating the relationship, which already existed, between the operation of the workers compensation scheme and the employer’s obligation to insure under s 155.

Under the Act as it was in 2001, s 9 simply provided that a worker who had received an injury should receive compensation from the worker’s employer, whether the injury was received by the worker at or away from the worker’s place of employment. The “injury” referred to in s 9 was defined to mean a personal injury arising out of or in the course of employment¹⁰ and by s 9A, no compensation was payable unless “the employment concerned was a substantial contributing factor to the injury”. Section 13¹¹ made provision for injuries received outside New South Wales. By sub section (1) it provided:

“(1)If:

(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

(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.”

The Act thereby defined the necessary connection with New South Wales for an injury received outside the State. But where the injury was received inside New South Wales, was that alone sufficient? Decisions in New South Wales, in cases involving some cross border aspect of workers compensation under this Act or its predecessor, have rejected the need for the employment contract to have been made in New South Wales or the employer to have had a place of business there. The compensation scheme has been held to apply where there is any relevant connection with New South Wales which is relevant in the context of the objects and nature of the statute: Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407; Workcover Authority of New South Wales v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565; Stanley v Gallagher [2002] NSWCA 174.

The obligation under s 155 is to insure, which is defined by circumstances which necessarily predate the injury. Much of the argument was in terms of whether the policy, which this employer had put in place with the applicant, responded to this claim. But the present question is whether the employer was obliged to insure against such a claim, and cannot be answered simply by where the accident occurred. In what circumstances then was insurance required for an employer whose workers sometimes worked in New South Wales, or for workers who simply might do so? It is unlikely to have been intended that an employer, when engaging a worker to work in another State but in circumstances where there was some prospect that the worker would be sent to New South Wales from time to time, should have to insure against that prospect. And was an employer outside the State obliged to insure at the point when its employee enters New South Wales in the course of his employment, for however short a time?

Section 155 imposes an obligation upon a person as “an employer” and in respect of all workers “employed by the employer”. These are references to employment in New South Wales. So is the reference to “employment” in the definition of “injury” relevantly for the operation of the workers compensation scheme. At the point when someone was employed in New South Wales, the employer was obliged to insure. The employment of a worker in New South Wales, in this sense, does not refer to the making of the employment contract. It refers to the use of the employee’s services, and it requires some presence and performance of services within New South Wales, to an extent that it could be said, in ordinary speech, that New South Wales was a place where the employee sometimes worked. So for example, an employee who was sent to New South Wales for a day or so of training would not be regarded as someone then employed in New South Wales. That is an example of that to which Fitzgerald P in Burrows was referring, in his qualification that the employee’s “fortuitous, fleeting or sufficiently unusual” presence in New South Wales would be insufficient. The evident and beneficial purpose of a statute such as this would not be furthered in such cases by burdening employers outside the State with the obligation to insure, or the relevant authority in New South Wales with the obligation to pay compensation absent insurance.

The question is then a factual one, requiring a consideration of the circumstances of a particular case but without regard to rigid criteria and, more particularly, choice of law rules. In the present case, Mr Francis was in New South Wales because it was his usual and recurring task to go there as a truck driver. He was in the relevant sense employed in New South Wales and his employer was thereby bound to insure against any liability to him for damages from his employment in New South Wales. The primary judge was right to hold then s 155 did operate to exclude the operation of the Queensland statute.

The appeal should be dismissed with the orders for costs proposed by Keane JA.

Footnotes

1. [1997] QCA 182. ↩

2. [1997] QCA 182 at 3. ↩

3. [1997] QCA 182 at 4. ↩

4. [2005] QSC 39 at [24]. ↩

5. The Explanatory Note to s 155(1) of Workers' Compensation Legislation Amendment Act 1995 (NSW) said that it would extend "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 liability wherever in Australia that liability arises (for example, common law liability arising under a law of another State or Territory)." ↩

6. [2004] ACTCA 28. ↩

7. [2004] ACTCA 28 at [27]. ↩

8. [2002] NSWCA 174 at [12]-[24]. ↩

9. See also Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407; WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565. ↩

10. Section 4. ↩