//
[2024] QCA 132
General information, not legal advice.
Court of Appeal (Qld)
2024-07-26
Morrison JA and Fraser AJA and Kelly J
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Greenall v Amaca Pty Ltd [2024] QCA 132
PARTIES: PHILIP NIGEL GREENALL as the Legal Personal Representative of the Estate of the Late WALTER GREENALL / (first appellant) / AUDREY GREENALL a person under a legal disability, by her Litigation Guardian PHILIP NIGEL GREENALL / (second appellant) / v / AMACA PTY LTD (formerly JAMES HARDIE & COY PTY LTD) / (first respondent) / WORKCOVER QUEENSLAND / (second respondent)
FILE NO/S: Appeal No 12581 of 2023 / SC No 14063 of 2021
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2023] QSC 137 (Crowley J)
DELIVERED ON: 26 July 2024
DELIVERED AT: Brisbane
HEARING DATE: 18 March 2024
JUDGES: Morrison JA and Fraser AJA and Kelly J
ORDERS: The appeal is dismissed.Each party has leave to make submissions about costs, any such submissions to be in writing and lodged within 14 days of publication of the Court’s reasons.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where the deceased was employed by the first respondent and during the course of employment inhaled asbestos fibres – where the deceased was granted an application for compensation from the second respondent – where the deceased commenced a claim for damages for personal injuries against the first respondent – where the primary judge struck out parts of the amended claim and pleading, stated three questions for summary determination before a trial and answered those questions – whether the trial judge erred in striking out the pleading for the wrongful death claim for the benefit of the widow, and finding that the claims made in those paragraphs and that part of the prayer for relief could not be maintained – whether s 237 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) abolished the right of the first appellant to bring a wrongful death claim for benefit of the second appellant in relation to domestic services lost by the widow as a result of the deceased’s death / Anti-Discrimination Act 1991 (Qld), s 11 / Civil Proceedings Act 2011 (Qld), s 64, s 67 / Human Rights Act 2019 (Qld), s 48 / Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 5, s 27, s 32, s 46, 132B, s 207B, s 237, s 239, s 239A / Bonser v Melnacis [2002] 1 Qd R 1; [2000] QCA 13, cited / De Sales v Ingrilli (2002) 212 CLR 338; [2002] HCA 52, cited / Glenco Manufacturing Pty Ltd v Ferrari [2005] 2 Qd R 129; [2005] QSC 5, cited / Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157; [2001] QCA 223, cited / Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273; [2000] QCA 348, considered / Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, cited / Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33, cited / Watkin v GRM International Pty Ltd [2007] 1 Qd R 389; [2006] QCA 382, cited
COUNSEL: S Robertson SC, with J M Hewson, for the appellants / B F Charrington KC, with A S Kitchin, for the first respondent / K F Holyoak for the second respondent
SOLICITORS: Segelov Taylor Lawyers for the appellants / Holman Webb lawyers for the first respondent / BT Lawyers for the second respondent
MORRISON JA: I agree with the reasons of Fraser AJA and the orders his Honour proposes.
FRASER AJA: This appeal turns upon the proper construction of provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA)1. The issue is whether s 237 of the WCRA abolished the right of the first appellant, the legal personal representative (LPR) of the estate of the late Mr Greenall (Deceased), to bring a wrongful death claim for the benefit of the second appellant, the deceased’s widow (Widow), in relation to domestic services lost by the Widow as a result of the deceased’s death.
The relevant facts are agreed. In 1972, the Deceased was employed by the first respondent (Amaca) as a roof fixer. In the course of that employment the Deceased inhaled asbestos fibres. He first sustained damage by injury during 1972, by reason of molecular changes which inevitably and inexorably culminated in the development of mesothelioma. In 2021, he was diagnosed with mesothelioma. In the same year, his application for compensation was granted, the second respondent (WorkCover), paid compensation of $384,090.00, and he commenced a claim for damages for personal injuries against Amaca. The Deceased died from malignant mesothelioma in 2022. The development of the disease and the death of the Deceased were caused by Amaca’s negligence. The LPR and the Widow filed an amended claim in 2022, and they delivered a further amended statement of claim in 2023. Amaca brought a third-party claim alleging that WorkCover is liable to indemnify Amaca against the LPR’s and Widow’s claims. Amaca and WorkCover admitted the allegations of negligence made against Amaca. That left for determination the quantum of damages, issues about the viability of some allegations against Amaca, and (depending at least to some extent upon the resolution of those issues) issues in the third-party proceedings between Amaca and WorkCover.
Amaca and WorkCover applied in the Trial Division to strike out parts of the LPR’s and Widow’s amended claim and further amended statement of claim. WorkCover applied for the summary determination before a trial of separate questions relating to the same matters. After hearing argument and reserving judgment, the primary judge struck out parts of the amended claim and pleading, stated three questions for summary determination before a trial, and answered those questions.
The issue in this appeal concerns only one aspect of the LPR’s claim. The appeal challenges –that part of order 2(a) which struck out the paragraphs pleading the LPR’s wrongful death claim for the benefit of the Widow and so much of the prayer for relief that relates to those paragraphs (paragraphs 19D-19F of the further amended statement of claim); andorder 3(b), which answered “No” to the first question, whether the LPR could maintain the claims against Amaca pleaded in those paragraphs and that part of the prayer for relief.
“(4)is intended that the scheme should –
(a)maintain a balance between–
(i)providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and
(ii)ensuring reasonable cost levels for employers
(b)ensure that injured worker or dependants are treated fairly by insurers; and
(c)provide for the protection of employers’ interests in relation to claims for damages for workers’ injuries.”
Section 5(5) provides that “[b]ecause it is in the State’s interests that industry remain locally, nationally, and internationally competitive, it is intended that compulsory insurance against injury in employment should not impose too heavy a burden on employers and the community”.
Section 46 of the WCRA provides that an employer is legally liable for compensation for injury sustained by an employed worker and that the WCRA “does not impose any legal liability on an employer for damages for injuries sustained by a worker employed by the employer, though chapter 5 regulates access to damages”. By s 48, every employer must have accident insurance against injury sustained by each employed worker for both the employer’s legal liability for compensation and for the employer’s legal liability for damages. The term “accident insurance” is defined in s 8 with reference to the employer’s legal liability for injury sustained by the employer’s “worker” for compensation and “damages”.
Section 237 of the WCRA, a key section in chapter 5, provides:2
**“(1)**The following are the only persons entitled to seek damages for an injury sustained by a worker—
(a)the worker, if the worker—
(i)has received a notice of assessment from the insurer for the injury; or
(ii)has not received a notice of assessment for the injury, but—
(A)has received a notice of assessment for any injury resulting from the same event (the assessed injury); and
(B)for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or
(iii)has a terminal condition;
**(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.
Note—
See, for example, section 232V(3) which provides that a worker required under section 232V to elect to seek treatment, care and support damages for an injury who does not make the election is not entitled to seek treatment, care and support damages for the injury.
(3)If a worker—
(a)is required under section 239 to make an election to seek damages for an injury; and
(b)has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;
the worker is not entitled to seek damages.
(4)However, subsection (3) does not prevent a worker from seeking damages under section 266.
(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.”
The term “injury” is defined in s 32(1) to mean “personal injury”. Subsection (3) provides that “injury” includes matters describes in six paragraphs, which include “(a) a disease contracted in the course of, employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease”, “(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury”, and “(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease”.3 It is not in issue that the death of the Deceased is an “injury” within the meaning of that term in s 237(1)(b).
It is also uncontroversial that 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 Widow is a member of “the deceased worker’s family” as defined in subparagraph (a)(i) of s 28 of the WCRA. The remaining element of the definition of “dependant” in s 27 of the WCRA requires that the family member “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 agreed facts make it clear that the Widow was not dependent upon Mr Greenall’s earnings at the time of his death and would not have been so dependant had he not died at that time. For that reason, she is not a dependant as defined in the WCRA.
Except where s 27 of the WCRA or a similar statutory provision applies, it is not a requirement for a wrongful death claim in Queensland that the plaintiff was dependent to any extent upon the earnings of a deceased person or, but for the worker’s death, would have been so dependent. Wrongful death claims are now regulated by provisions in Part 10 of the Civil Proceedings Act 2011 (Qld) (CPA). The right to make such a claim is created by s 64. That section applies if a death is caused by a wrongful act or omission which would, if death had not resulted, have entitled the deceased person to recover damages in a proceeding for personal injury: s 64(1). By s 64(2), “[t]he person who would have been liable if the death had not resulted is liable for damages despite the death and whether or not the death was caused by circumstances that were an offence”. Section 64(3) provides that in a proceeding under Part 10, a court may award to the members of the deceased person’s family the damages it considers to be proportional to the damage to them resulting from the death. Section 65 empowers the personal representative of the deceased person to bring a proceeding for the benefit of the members of the deceased family who suffered damage because of the death.
The damages recoverable under s 64 comprehend the loss of the benefit of earnings upon which a claimant depended, but wrongful death claims may be brought by claimants who seek to recover only the loss of other monetary benefits or of non-monetary benefits, including domestic services, which have a monetary value. This aspect of the law is reflected in s 67 of the CPA, which prescribes some circumstances in which “financial benefits” lost by a deceased person may be taken into account or must not be taken into account in assessing damages; the term “financial benefits” is defined in s 67(7) to mean “either or both of … monetary benefits [and] other material benefits having a monetary value, including, for example, domestic services”.
It is an agreed fact, however, that in addition to a wrongful death claim being known as a Lord Campbell’s Act action, it is known as a “dependency action”.4 Reference to many authorities demonstrates as much, and that the injury for which damages may be awarded in such cases is often called “loss of dependency”.
“(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.”
The primary judge held, that, in terms of the chapeau in s 237(1) of the WCRA, the Widow was not a person entitled to seek damages, and that s 237(5) made it abundantly clear that s 237(1) abolished the entitlement of a person not mentioned in that subsection to seek damages for an injury sustained by a worker. Those conclusions were informed by the primary judge’s uncontroversial finding that the Widow is not a “dependant” with the meaning of that term in s 237(1)(b). The LPR’s challenge to the primary judge’s conclusions depends upon the propositions that the word “damages” in the chapeau in s 237(1) bears the meaning defined in s 10(1), and that the word “dependant” in that definition bears the meaning defined in s 27. In that respect, the primary judge considered that s 10(1) made it plain that “damages” refers to damages payable by a worker’s employer because of a legal liability arising otherwise than under the WCRA. The primary judge held that the effect of s 10 and s 237 of the WCRA is that damages payable by an employer in respect of a wrongful death claim under s 64 of the CPA are regulated by the WCRA. The primary judge observed that those conclusions followed from the statutory text and the expressed objects of the WCRA and its purposes, and they were consistent with authority. In relation to this issue, the primary judge referred to Hawthorne v Thiess Contractors Pty Ltd,6 Glenco Manufacturing Pty Ltd v Ferrari,7 and Watkin v GRM International Pty Ltd.8
The LPR submits that the primary judge erred by not applying s 10(1) of the definition of “damages” in the construction of s 237(1) and s 237(5). It is submitted that, when that definition is applied, it becomes clear that s 237 has nothing to say about the LPR’s wrongful death claim. The effect of the construction advocated for the LPR may be illustrated by substituting the text of s 10(1) for the word “damages” in s 237(1) and s 237(5). Upon that footing, section 237 relevantly provides (with the text from s 10(1) in bold):
“(1)The following are the only persons entitled to seek 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 for an injury sustained by the worker—
(a)the worker, if the worker—
(i)has received a notice of assessment from the insurer for the injury; or
(ii)has not received a notice of assessment for the injury, but—
(A)has received a notice of assessment for any injury resulting from the same event (the assessed injury); and
(B)for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or
(iii)has a terminal condition;
….
(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.
…
(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 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 for an injury sustained by a worker.”
(Not much significance should be attached to the repetition in s 237(1) and s 237(5) of the expression “for an injury sustained by a worker” if that is the only odd consequence of reading the definition of “damages” into those subsections; it would be difficult to resist the argument that the context requires rejection of that repetition as mere surplusage.)
The LPR contends that the application of the definition in s 10(1) of “damages” in s 237(1) and s 237(5) makes it clear that neither provision applies to disentitle the Widow from pursuing her wrongful death claim. That contention is plainly correct if the definition in s 27 of the word “dependent” in s 10(1) is also read into the chapeau in s 237(1) and into s 237(5). If the word “dependant” does not bear its defined meaning in the chapeau in s 237(1) and in s 237(5), it would bear its common meaning discussed above, connoting the family member or members for whose benefit a wrongful death claim may be brought under the CPA. Upon that approach, reading the definition of “damages” into the chapeau in s 237(1) or into s 237(5) would comprehend the damages the LPR seeks for the benefit of the Widow (“damages for injury sustained by a worker in circumstances creating … a legal liability in the worker’s employer to pay damages to … a dependant of the deceased worker”); and because, as is common ground, “dependant” in s 237(1)(b) bears the narrower meaning defined in s 27, s 237(1) and s 237(5) would operate according to their tenor to exclude what otherwise would be the entitlement of the LPR to bring this part of the claim for the benefit of the Widow. The appeal could succeed only if both definitions are to be read into the chapeau in s 237(1) and into s 237(5).
At issue in the appeal is the question whether the incorporation of those definitions, in whole or in part, should be regarded as being incompatible with the context. In that respect, s 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions “apply except so far as the context or subject matter otherwise indicates or requires”.
The LPR submits that the context supports the application of both definitions; that it is not a purpose of s 237 to abolish a series of categories of potential claims; and that the section is not intended to abrogate the entitlement of a claimant who was not dependent upon the earnings of the deceased worker to make a wrongful death claim. What is submitted to be the procedural character of s 237 is said to support the construction propounded by the LPR. The procedural character of s 237 is in turn derived from the nature of the conditions in ss 237(1)(a) and 237(1)(b). The LPR submits that the conditions in subparagraphs (ii) and (iii) of paragraph (a) are exceptions to and take their character from subparagraph (i), which is not directed to the abolition of rights generally; those conditions merely require (or provide an exception to the general requirement for) a claimant to make an election between a right of statutory compensation or a right to claim damages.
The general significance for a worker’s entitlement to compensation of the notice of assessment mentioned in s 237(1)(a)(i) is made apparent by the broad summary in s 178 of the effect of provisions in Part 10 of Chapter 3 of the WCRA: an insurer of a worker is entitled to ask for an assessment to decide if a worker has sustained a DPI (degree of the worker’s permanent impairment) from injury; if the assessment is that the worker has sustained a DPI, the worker is entitled to a payment, or an offer of payment, of lump sum compensation for the permanent impairment, and in particular circumstances, the worker may be entitled to payment of an additional lump sum compensation. Other aspects of the scheme are illustrated by s 237(3), which is repeated here for ease of reference:
“(3)If a worker—
(a)is required under section 239* to make an election to seek damages for an injury; and
(b)has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;
the worker is not entitled to seek damages.”
(* Most relevantly, s 239(2) provides that, if the worker’s DPI is less than 20%, “the worker is not entitled to both …payment of lump sum compensation for the injury… and damages for the injury”.)
The LPR’s argument about the character of the conditions in the subparagraphs of paragraph (b) of s 237(1) is to similar effect. The import of the first condition appears clearly from its terms. The second condition refers to a certificate resulting from an application by a claimant to the insurer under s 132B “for the issue of a certificate stating the person is a dependant of the deceased worker for the purposes of s 237(1)(b)(ii)”. The insurer is not empowered to reject the application unless it is satisfied of one of the following: the applicant is not a dependant; the deceased was not a worker when the injury was sustained; the deceased did not sustain an injury; or the injury did not result in the death of the deceased: s 132B(5).
The result of the LPR’s argument upon the operation of s 237(1) and s 237(5) is as follows:Section s 237(1) only applies to claims made by a “worker” or a “dependant” as those terms are defined in the WCRA, and its only effect upon those claims is to impose the conditions upon their pursuit that are described in the subparagraphs of paragraphs (a) and (b).Section 237(5) has no potential to operate with respect to any claim brought by any person other than a “worker” or a “dependant” as those terms are defined in the WCRA.Consequentially, neither subsection affects the Widow’s entitlement to bring a proceeding against the deceased’s worker’s employer for damages for the death of the Deceased worker which resulted from the injury he sustained.
Amaca and WorkCover submit that the LPR’s construction is inconsistent with the decision of this Court in Karanfilov v Inghams Enterprises Pty Ltd.9 The question in that case was a different one. It was whether s 253 of the WorkCover Queensland Act 1996 (Qld) (the 1996 Act) abolished the right of action of a spouse of an injured worker against the worker’s employer for damages for loss of consortium. At that time, sections 253(1) and (3) of the 1996 Act provided:
“(1)The following are the only persons entitled to seek damages for an injury sustained by a worker—
(a)the worker, if the worker … [conditions of a kind that are analogous to the conditions in s 237(1)(a) of the WCRA are then set out in this paragraph and in paragraphs (b) and (c), each of which commences “the worker, if …]
…
(d)a dependent of the deceased worker, if the injury sustained by the worker results in the worker’s death.
(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.”
The definition of damages in s 11(1) of the 1996 Act is retained in the WCRA, save that the chapeau in s 11(1) concluded with the expression “pay the damages to –”; the word “the” does not appear in the corresponding place in s 10(1) of the WCRA. If the definition of “damages” in the 1996 Act is read into the chapeau in s 253(1) of that Act, that subsection identifies “the worker” and “a dependant of the deceased worker” as “the only persons entitled to seek 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 or, (b) if the injury results in the worker’s death—a dependant of the deceased worker”. The plaintiff argued that his claim for consortium was not caught by that provision because he did not seek damages for injury sustained by his spouse in circumstances creating, independently of the 1996 Act, a legal liability in his spouse’s employer to pay those damages to his spouse; instead, he sought damages for injury (the loss of consortium) he sustained in circumstances creating, independently of the 1996 Act, a legal liability in his spouse’s employer to pay those damages to him.
In Karanfilov, MacPherson JA (with whose reasons de Jersey CJ agreed in this respect) rejected that argument. McPherson JA observed:
“[8]… To determine whether s. 253(3) operates to abolish the plaintiff’s right of action for loss of consortium resulting from the injury to his wife, it is necessary to begin by asking whether the plaintiff is a person ‘not mentioned in’ subs. (1) of s. 253. Section 253(1) is introduced by saying that ‘the following are the only persons entitled to seek damages for an injury sustained by a worker’. This is followed by four paragraphs (a), (b), (c) and (d) which identify different categories of persons. Each of the first three refer to a worker with respect to whom some procedural step has been taken. In s. 253(1)(a) it is that the worker has received a notice of assessment from WorkCover; in (b), it is that the worker’s application for compensation has been allowed, but not assessed for permanent impairment; in (c), it is that the worker has not lodged an application for compensation. Paragraph (d) of s. 253(1) refers not to the worker as such, but to dependants of a deceased worker whose injury resulted in death.
[9]The plaintiff is not within any of those categories of persons. He was not the worker; and his wife, who was the worker, has not died as a result of her injury. It follows that the plaintiff is not one of the only persons entitled to seek damages for the injury sustained by her in 1997. If there is any doubt about that conclusion, it is removed by s. 253(3), declaring that s. 253(1) abolishes the entitlement of a person like the plaintiff to seek damages for injury to the worker who is his wife. On the face of it, therefore, the plaintiff’s claim ought to have been struck out.”
That passage is irreconcilable with the LPR’s argument that s 237(1) is designed only to regulate the bringing of claims made by a “worker” or a “dependant” as defined in the WCRA.
McPherson JA continued:
“[10]This is, however, to reckon without the definition of ‘damages’ in s. 11(1) of the Act. That word is used in both s. 253(1) and s. 253(3), and the meaning ascribed to it in s. 11(1) 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; or
(b)if the injury results in the worker’s death – a dependant of the deceased worker.’
The expression ‘creating, independently of this Act, a legal liability …’ is no novelty in Queensland legislation of this kind. It was used in the Workers’ Compensation Acts Amendment Act of 1962, No. 29, s. 5, which introduced s. 9A into what then became the Workers’ Compensation Acts, 1916 to 1962. Before the amendment of those Acts in 1962 an employer was by s. 8 ‘legally liable’ under the Acts to pay workers’ compensation in the traditional sense of a prescribed amount calculated according to a fixed scale. An injured worker was entitled to be paid that amount out of the State Accident Insurance Fund, which was funded by insurance premiums paid by all employers, who were required by the Acts to insure themselves against that liability. After the 1962 amendment an injured worker was still entitled to compensation out of the Fund; but s. 9A(1)(b) conferred on an injured worker the right to receive out of the Fund the amount of damages which an employer was liable to pay in respect of that injury, and against which the employer was also required to insure. The effect was to extend the system of compulsory insurance to cover the employer’s liability at common law for damages to an insured worker. The way in which s. 9A(1) of the Acts, as amended in 1962, designated this common law liability was to describe the damages as being awarded against an employer ‘under circumstances creating also, independently of this Act, a legal liability in the employer to pay damages’ in respect of the injury to the worker.
[11]The current Act of 1996, under which this question now arises, maintained the dichotomy between workers’ ‘compensation’ in the traditional sense and ‘damages’ at common law, as well as preserving much of the previous structure of the old Workers’ Compensation Acts. By s 135(1) compensation is still payable “under this Act” for an injury sustained by a worker, and by s 50(1) an employer is legally liable for it.”
The essential components of the structure of the 1996 Act described by McPherson JA are retained in the WCRA.
“[13]…On the other hand, if it is possible to make sense of s. 253(3), then it is the duty of the Court to do so. A provision in an Act of Parliament is not to be regarded as so uncertain as to have no meaning, and the Court is bound to find some meaning capable of being ascribed to it. See Scott v. Moses (1957) 75 W.N. (N.S.W.) 101.
[14]For my part, I do not consider that there is much difficulty in understanding s. 253(3) if the legislative history of the expressions it uses are borne in mind. The principal question to be asked is whether an injury has been sustained by a worker in circumstances creating, independently of the Act of 1996, a legal liability in the worker’s employer to pay damages to a worker for injury sustained by the worker. Given the facts admitted or assumed for this purpose in the present case, the answer to that question must, I consider, be Yes…
[15]The only difficulty in the way of this interpretation is that the definition of damages in s. 11(1) does not refer to ‘a legal liability … to pay damages’ to a worker. As Mr Douglas S.C. for the plaintiff emphasises, in defining ‘damages’, s. 11(1) speaks of 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 …’. His submission is that ‘the damages’ necessarily refers to the same damages as those being defined in s. 11(1); and, for that reason, it is not possible to adopt the interpretation of s. 253(3) which I have suggested. That would, I agree, certainly be the natural meaning of the definition when read in the ordinary way. So to read it would, however, make nonsense of s. 253(3); for, as I have said, the damages recoverable by the plaintiff for loss of consortium are payable to him and not to his wife.
[16]… Section 32AA of the Acts Interpretation Act says 1954 that a definition in or applying to an Act applies to the entire Act. But s. 32A of the Acts Interpretation Act provides that definitions in an Act apply ‘except so far as the context or subject matter otherwise indicates or requires’. Section 32AA is therefore subject to the limitation or qualification imposed in s. 32A. In my opinion, it is not possible to apply the definition of damages in s. 11(1) to s. 253(1) in a completely literal way. Either the definite article the must be omitted in interpreting it, or it must be treated simply as inapplicable to s. 253(3). That course is justified by the fact that otherwise s. 253(3) would be rendered meaningless. Something has to give way. It would not make sense to ascribe to it the meaning that s. 253(3) abolishes (or confirms the abolition of) any entitlement of a person not mentioned in s. 253(1) to seek damages for an injury sustained by a worker in circumstances creating a common law liability in the worker’s employer to pay those damages to the worker for an injury sustained by him or her. Since there is no such liability at common law, it is not possible to see what function s. 253(3) could perform if it is interpreted in that way. Because, therefore, the context otherwise indicates or requires, I would, in applying it to s. 253, read the definition of damages in s. 11(1) by omitting the definite article ‘the’ before the word ‘damages’ in that provision.”
After rejecting an argument for the plaintiff that this view of the provisions should be rejected because it would abolish the right of action of a worker who was injured in a way that did not render the employer legally liable but did create legal liability in a different person, such as an occupier, McPherson JA concluded that s 253 was intended “to prevent more than one person (and that the worker) from seeking damages against an employer in respect of an injury to a worker”, the only exception being that a dependant is entitled to seek damages if the injury results in the worker’s death.10 That conclusion is also inconsistent with the LPR’s argument.
McPherson JA’s reasons do not address the arguments made by the LPR in this appeal, but those arguments cannot be reconciled with his Honour’s analysis. The LPR argues that McPherson JA’s analysis is premised upon an incorrect view11 that if a worker has an entitlement to damages of a kind that can be pursued under the 1996 Act, the only person the worker can sue is the employer. In the cited part of the judgment, McPherson JA was addressing an argument for the plaintiff which has no counterpart in any of the arguments in this appeal. Accepting that s 237 of the WCRA, like s 253 of the 1996 Act, relevantly addresses only the persons who are entitled to commence a proceeding and the conditions upon which a proceeding may be commenced, the error for which the LPR contends does not detract from McPherson JA’s analysis and conclusion quoted above.
The LPR relies upon the judgment of Mullins J (as her Honour then was). Her Honour’s reasons supply support for the LPR’s argument. Mullins J described “damages” as a “basic concept to the operation of the Act, because it is used to define the extent of the indemnity under the accident insurance provided for by the Act, the extent of the employers’ obligation to insure, and the subject matter of chapter 5 of the Act which regulates access to damages”.12 After referring to statutory provisions, and to explanatory notes for the Bill which do not contain statements directed to the issue in this appeal,13 Mullins J concluded that “an employer’s legal liability for damages in respect of the consortium claim of a spouse of an injured worker is not the subject of indemnity under the accident insurance required under the Act”.14 The LPR submitted, and I would accept, that those features of the 1996 Act, which are reflected in the WCRA, must be taken into account.
“The scheme of the Act and the fundamental importance of the concept of damages to the operation of the Act support an interpretation of s 253…which relies on the meaning of damages as defined in s 11 of the Act.
…
As damages for loss of consortium by the spouse of an injured worker is not caught within the meaning of damages in s 11(1) of the Act which dictates the meaning of damages in s 253(3) of the Act, I do not consider that s 253(3) has the effect of abolishing the action for loss of consortium by the spouse of an injured worker.”16
For reasons which follow, I would respectfully conclude that the LPR’s construction of s 237(1) and s 237(5) of the WCRA should be rejected. Before explaining that conclusion, I will address a different aspect of Mullins J’s reasons in Karanfilov and refer to changes to the provisions of the 1996 Act that were enacted after that case was decided.
Mullins J, with whose conclusion de Jersey CJ agreed in this respect, agreed with the order allowing the appeal for a different reason. Her Honour held that, upon the proper construction of s 316 of the 1996, that section abolished the right of a spouse of an injured worker to bring a claim against the worker’s employer for loss of consortium. McPherson JA discussed that section but did not express a conclusion about its construction.
The WorkCover Queensland Amendment Act 2001 subsequently amended the 1996 Act in three related ways, which have been retained in subsequent re-enactments, including in the WCRA. First, s 6 of the amendment Act inserted a new subsection (3) into the definition of “damages” in s 11:
“(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.”
The explanatory note states that it “clarifies that a reference in [the 1996 Act] to the liability of an employer for damages does not include a liability to pay damages for loss of consortium … resulting from injury sustained by a worker” and that:
“On the question of claims for consortium and the provisions of the [1996 Act] as they applied before the Bill is taken to have commenced see Karanfilov …”
That amendment is consistent with the conclusion reached by de Jersey CJ and Mullins J that the mandatory accident insurance did not indemnify the employer against any liability for loss of consortium.
Secondly, s 38 amended the 1996 Act by omitting s 316. The explanatory note states that it was “intended that the Bill overturn the decision of Karanfilov …, which decided that s 253 of the [1996 Act] interpreted to abolish the ability to claim loss of consortium. However, consortium is not a matter for which an employer is provided with any indemnity cover under the [1996 Act]”. Thirdly, a transitional provision for that amendment Act, s 590, provided that, “[t]o the extent that the amended Act [as in force immediately before 30 June 2001] excluded an entitlement to seek damages for loss of consortium, on the commencement of this section that entitlement is revived in relation to an injury arising after 30 June 2001.”
Contrary to the effect of submissions for the LPR, this suite of amendments did not amount to a rejection of the construction of s 253(1) and s 251(3) endorsed by de Jersey CJ and McPherson JA. The legislature did not amend those subsections in successive iterations of the 1996 Act. The only relevant change occurred when the definition of “damages” in s 11(1) of the 1996 Act was replaced upon the commencement of the WCRA by s 10(1), in which the chapeau did not include the word “the” before “damages”. That amendment accords with de Jersey CJ and McPherson JA’s construction of s 253 of the 1996 Act.
It seems to be implicit in the legislative history that their Honour’s construction was accepted, but at the very least the legislative history does not support the construction of s 237(1) and s 237(5) propounded by the LPR.
The text and structure of those provisions are of more importance for their construction. The opening words in the chapeau of s 237(1) (“The following are the only persons entitled to seek…”) are not reflected in the construction propounded by the LPR. Whatever might be said about the content of the entitlement, or the character of the conditions imposed upon it, the quoted words are plainly designed to make the entitlement exclusive to the persons mentioned in the following text. As McPherson JA explained in Karanfilov, the only words of the following text that mention persons are “the worker” in paragraph (a) and “a dependant of the deceased worker” in paragraph (b). In that way, the function of the introductory words is confirmed and fulfilled.
That part of the text is then separated by a comma from the following text, which commences with the word “if”. In each subparagraph, that following text performs the different function, appropriately signalled by the word “if”, of imposing a condition upon the entitlement of the mentioned person.17
The ungrammatical way in which those two different functions are shoehorned into one subsection does not justify disregard of the clearly expressed statutory purpose of excluding any entitlement of any person other than “the worker” or “a dependant of the deceased worker” to seek the described damages. Any residual doubt about that purpose is allayed by the straightforward declaration in s 237(5) that s 237(1) abolishes any entitlement of a person not mentioned in s 237(1) to seek damages for an injury sustained by a worker
“It is quite clear that the workers’ compensation scheme and associated common law damages scheme covered by compulsory insurance were intended to be the sole avenue of claim against employers in respect of injuries sustained by workers in their employment.”
As the LPR points out, the effect of s 306B of the WCRA is that a claim for exemplary damages may be brought against an employer but WorkCover cannot insure an employer against such a claim, but the presence of an explicit statutory exception to the general rule does not suggest that the general rule is qualified by an exception constructed by applying one statutory definition into another definition. The denial of an indemnity for consortium claims which is now found in s 10(3) of the WCRA is in the same category. The explicit exceptions are not inconsistent with the general rule. It is not to be expected that employers will be exposed to uninsured risks of claims for damages in the absence of any plain statement of that consequence in the text of the legislation.
The LPR submits that a particular definition of “damages” for the purposes of s 207B suggests that “damages” in the chapeau of s 237(1) and in s 237(5) bears the meaning defined in s 10. Subsection (11) of s 207B defines “damages” in that section as including “damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.” Understandably, the LPR did not emphasise this point. Section 207B secures the repayment of compensation paid to a person for injury by imposing a first charge upon the amount of any damages recovered by the person from an employer “or another person” (s 207B(2)), and the section also obliges an employer “or other person from whom the damages are recoverable” to pay the insurer the amount of damages up to the amount of the first charge (s 207B(4)). The element of the definition of “damages” in s 10(1) that there be “a legal liability in the worker’s employer to pay damages” is obviously irreconcilable with the text of s 207B.
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.19
The LPR also submits that the primary judge’s construction should be rejected because it produces other consequences which are submitted to be unacceptable. One example of this proposition involves a comparison between –a worker whose injury either promptly results in death or, whilst resulting in death many years afterwards, does not render the worker unemployable in the meantime (in either of which cases there may be a wrongful death claimant who is a dependant), and, on the other hand,a worker whose injury is so serious as to render the worker unemployable, but the injury does not result in death for many years (in which case the worker’s earnings from the former employment are likely to have been disbursed, so that any wrongful death claimant is unlikely to be a dependant).
“(3)Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
(4)Every person has the right to equal and effective protection against discrimination.”
“(1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a)with which a person with an attribute does not or is not able to comply; and
(b)with which a higher proportion of people without the attribute comply or are able to comply; and
(c)that is not reasonable.
(2)Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a)the consequences of failure to comply with the term; and
(b)the cost of alternative terms; and
(c)the financial circumstances of the person who imposes, or proposes to impose, the term.”
The attributes mentioned in that provision are listed in s 7 of the same Act. The LPR relies upon the attributes of age and impairment.
In relation to the attribute of age, the LPR argues that upon the primary judge’s construction s 237 would discriminate against older people because:The spouses of older workers are likely to be older than the spouses of younger workers.Older people are less likely than younger people to be working up to the time of their death. Thus, the older surviving spouse is less likely than the younger surviving spouse to be a dependant than is the younger surviving spouse.
In relation to the attribute of impairment, the LPR argues that s 237 would discriminate against disabled people upon the primary judge’s construction because:The spouses of disabled people are more likely than people who are not disabled to quit employment to care for their disabled spouse.Disabled people are therefore less likely to be dependants than are people who are not disabled.
Unfortunately, the arguments relying upon the Human Rights Act were not mentioned at the hearing before the primary judge or in the LPR’s outlines of argument in this appeal. They were advanced for the first time at the hearing of the appeal. If the LPR were permitted to advance the arguments, Amaca and WorkCover would wish to challenge the factual assumptions upon which the arguments are based. They would also wish to adduce evidence to support an argument that the requirement for a claimant to be a dependant is reasonable for the purposes of s 11(1)(c) of the Anti-Discrimination Act. Amaca and WorkCover submit that in these circumstances, the LPR should not be permitted to rely upon the new arguments in this appeal. The LPR disputes that submission and argues that the Court is obliged to hear the arguments; it is submitted that, if the LPR’s arguments are found to have substance, the Court must take them into account in the construction of the relevant provisions. The LPR submits that if this necessitates an adjournment of the hearing or some other procedural step, that should occur. This is said to be required because the factual elements of the arguments are “statutory facts” which the Court is obliged to notice when construing a statutory provision.20
It is not necessary to adjudicate upon those issues. Section 48 does not authorise a court to rewrite a statutory provision in a way that is inconsistent with its purpose.21 Assuming all else in favour of the LPR, an application of the interpretative principle in s 48(1) of the Human Rights Act which resulted in success for the LPR in this appeal would be inconsistent with the clearly expressed purpose of s 237(1) and s 237(5) of the WCRA to abolish any entitlement of a person who is not a dependant as defined in s 27 of that Act to bring a claim against the employer of a deceased worker for damages for the death of the worker resulting from an injury sustained by the worker. The same answer must be given in relation to the LPR’s arguments about the other consequences of the primary judge’s construction upon which the LPR relies, including the destruction of pre-existing entitlements. The accumulation of those matters cannot justify the marked departure from the clearly evident statutory purpose of s 237(1) and s 237(5) that would be required for the survival of the LPR’s claim.
References in these reasons to the WCRA are to the reprint current as at 1 February 2024. ↩
I have emphasised the directly relevant text. ↩
Other provisions qualify and elaborate upon the meaning of “injury”, but none are relevant for present purposes. ↩
List of Facts and Contentions Not in Dispute, Exhibit 1 (which is reproduced in [18] of the primary judge’s reasons), at paragraph 8(a). ↩
See, for example, Gleeson CJ’s discussion of the topic in De Sales v Ingrilli (2002) 212 CLR 338 at 347, which was cited in Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 49 at [14] (French CJ, Crennan and Bell JJ), and Atkinson J’s remarks in Queensland Law Reform Commission, “Damages In An Action For Wrongful Death”, Report No 57 (November 2003) at p 7. ↩
Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157; [2001] QCA 223. ↩
Glenco Manufacturing Pty Ltd v Ferrari [2005] 2 Qd R 129; [2005] QSC 5. ↩
Watkin v GRM International Pty Ltd [2007] 1 Qd R 389; [2006] QCA 382. ↩
[2001] 2 Qd R 273. ↩
[2001] 2 Qd R 273 at [18]. ↩
[2001] 2 Qd R 273 at [17]. ↩
Greenall
Amaca Pty Ltd [2024] QCA 132
(2002) 212 CLR 338
(2014) 253 CLR 531
(2007) 233 CLR 307
(2011) 245 CLR 1
Amaca and WorkCover contended in the Trial Division, and they contend in this appeal, that the right of the LPR to bring a wrongful death claim for the benefit of the Widow in relation to domestic services lost by the Widow in consequence of the Deceased’s death is abolished by s 237(1) and s 237(5) of the WCRA.
The main objects of the WCRA are set out in s 5. Section 5(1) relevantly provides that the WCRA “establishes a workers’ compensation scheme for Queensland … providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits”. Section 5(2) relevantly provides that “[t]he main provisions of the scheme provide the following for injuries sustained by workers in their employment– (a) compensation; … (b) regulation of access to damages; (c) employers’ liability for compensation; (d) employers’ obligation to be covered against liability for compensation and damages…”. Section 5(4) provides:
Paragraphs 19D-19F of the further amended statement of claim in this matter allege that: the Widow was dependent upon the deceased for her support; the LPR’s claim on behalf of the Widow “is with respect to that support and maintenance which, had the deceased lived, the [Widow] would have continued to receive”; in consequence of the death of the Deceased, the Widow has lost services which the Deceased would have provided to her; and the monetary value of those lost services is the sum of $39,515.00 (for past services) and $950,8100 (for future services). Those allegations are not to be understood as comprehending a case that the Widow was dependent to any extent upon the Deceased’s earnings. As mentioned above, the Widow is not a dependant because she was not dependent upon the Deceased’s earnings at the time of his death and nor, but for his death, would she have been so dependent.
The LPR’s case on appeal relies upon subsection 1 of the definition of “damages” in s 10. Section 10 defines “damages” as follows:
After referring to arguments upon the question whether the definition of “damages” should be read into the chapeau in s 253(1), Mullins J observed that the explanatory notes for the Bill did not suggest that s 253 “was intended to have an operation in respect of actions for damages which was more extensive than the meaning given to damages in s 11”.15 Her Honour held:
Reading s 237 as a whole in its context in chapter 5 of the Act, it clearly appears that application of the definitions of “damages” and “dependant” in the chapeau in s 237(1), and in s 237(5), in the way propounded by the LPR would conflict in a substantial way with the text and structure of that section:The opening words of the chapeau in s 237(1) would have no work to do: there would be nothing exclusive about the entitlement of a dependant to seek damages for the worker’s death; subsection (1) would not make a dependant’s entitlement exclusive; and subsection (5) would not abolish any claimant’s entitlement under the CPA to seek damages for the wrongful death of a worker.The structure of s 237(1) is manifestly inapt for a statutory purpose of merely imposing the conditions described in s 237(1)(b) (i) and (ii). If that were the statutory purpose, the legislature did not have far to look for appropriate precedents; much simpler provisions giving effect to a statutory purpose of that character are found in 237 itself, in each of subsections (2) and (3), and also in s 239 and s 239A.
In order to seek wrongful death damages, the dependant must either have been the beneficiary of the past payment of compensation (s 237(1)(b)(i)) or must have received an insurer’s certificate under s 132B(2) “stating the person is a dependant of the deceased worker for the purpose of section 237(1)(b)(ii)”. The content of the conditions may be characterised as procedural, but it is nonetheless a surprising consequence of the LPR’s construction that, whilst s 237 would regulate the entitlement of a worker’s dependant to bring a wrongful death claim, it would neither abrogate nor regulate the entitlement of any wrongful death claimant who was not even partly dependent upon the deceased worker’s earnings. The LPR relies in this respect upon the fact that the conditions in s 237(1)(b) are incapable of being complied with by a claimant who is not a dependant, but that fact is consistent with an unsurprising statutory policy that dependence upon the worker’s earnings both justifies the payment of compensation and is a condition of an entitlement to seek damages from an insured employer.
The LPR’s construction would also produce the consequence that a wrongful death claim may be brought by a claimant who is not a dependant against an employer, notwithstanding that the obligatory insurance under the WCRA does not include an indemnity against such a claim. This would be a departure from that part of the scheme of the WCRA described in the objects set out in ss 5(2)(d) and 5(4). As Thomas J observed of the relevantly indistinguishable scheme of the 1996 Act in Hawthorne:18
Other examples of what are submitted to be unacceptable consequences are submitted also to require consideration of the interpretive principle enacted in s 48 of the Human Rights Act 2019 (Qld). Section 48 requires that “[a]ll statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights”. The human rights which are submitted to be relevant are expressed in s 15(3) and s 15(4):
For these reasons I would hold that upon the proper construction of the WCRA, in a case in which a worker sustains an injury that results in the worker’s 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).
It follows that s 237(1) disentitles the LPR from making the wrongful death claim for the benefit of the Widow and s 237(5) confirms that s 237(1) abolishes any entitlement of the LPR to make such a claim for the benefit of the Widow.
I would dismiss the appeal. The parties sought an opportunity to be heard about the appropriate costs orders. For that reason, I would also order that each party has leave to make submissions about costs, any such submissions to be in writing and lodged within 14 days of publication of the Court’s reasons.
KELLY J: I agree with the reasons of Fraser AJA.
[2001] 2 Qd R 273 at [40]. ↩
[2001] 2 Qd R 273 at [37], [41]. ↩
Chief Justice de Jersey agreed with that conclusion. ↩
[2001] 2 Qd R 273 at [55]. ↩
[2001] 2 Qd R 273 at [56] and [60]. ↩
Effect to that ordinary meaning of the text was given in Bonser v Melnacis [2002] 1 Qd R 1 at [39], [41] (referring to s 253 which, so far as it concerns claims by workers, is very similar to s 237). Claims by dependants were not in issue in that case. ↩
[2002] Qd R 157 at [16]. ↩
See, for example, Byrne J’s reasons in Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157 at [32]. ↩
The LPR cited Thomas v Mowbray (2007) 233 CLR 307. ↩
See Momcilovic v The Queen (2011) 245 CLR 1 at [37]-[51] per French CJ, at [146]-[171] per Gummow J, at [280] per Hayne J, at [565]-[566] per Crennan and Kiefel JJ, and at [684] per Bell J; and Athwal v State of Queensland [2023] QCA 156 at [91] (per Mitchell AJA, Mullins P and Dalton JA agreeing). ↩