State of Queensland v Heraud [2011] QCA 297

WORKERS' COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF - PREVENTION OF DOUBLE RECOVERY FROM EMPLOYER - PREVENTION OF DOUBLE RECOVERY OF COMPENSATION UNDER SAME ACT OR ANY OTHER ACT - where the respondent claimed compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 (Qld) from WorkCover Queensland - where the respondent's solicitors served a notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) on the State of Queensland (Arts Queensland) - where the primary judge found the Department of Public Works was the respondent's employer - where the primary judge found the Department of Public Works was an entity separate and distinct from the State of Queensland - where this Court found the respondent was employed by the State of Queensland and not by the Department of Public Works - where payment of compensation was made to the respondent pursuant to provisions of Ch 5 of the Workers' Compensation & Rehabilitation Act 2003 (Qld) - where the respondent's cause of action was compromised by statutory consequences imposed upon acceptance of lump sum - where the respondent's claim under the Personal Injuries Proceedings Act 2002 (Qld) was a claim for damages for personal injuries against the same juristic person who satisfied his claim for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) - whether the Personal Injuries Proceedings Act 2002 (Qld) applies in respect of any injury suffered by the respondent on 5 June 2008

Constitution of Queensland 2001 (Qld), s 43, s 44, s 48, s 50

Crown Proceedings Act 1980 (Qld), s 6, s 8, s 9

Personal Injuries Proceedings Act 2002 (Qld), s 6, s 9

Public Service Act 1996 (Qld), s 21, s 47, s 67, s 112, s 115

Workers' Compensation and Rehabilitation Act 2003 (Qld), Ch 5, s 30, s 48, s 237, s 239, Sch 6

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, cited

Curtain Bros (Qld) Pty Ltd v FAI General Insurance Company Limited [1995] 1 Qd R 142; [1993] QCA 136, considered

Hervey Bay City Council v Workers' Compensation Board of Queensland [1999] 1 Qd R 274, considered

Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426; [1901] UKHL 1, cited

[1] MUIR JA: I agree with the reasons of Chesterman JA and with his proposed orders.

[2] CHESTERMAN JA: The respondent was employed as a security officer at the Cultural Centre in South Brisbane. He was injured at the Centre, just before he commenced his shift, on 5 June 2008. Repairs were being undertaken to the ceiling of the Centre near the respondent's office. To gain access to the ceiling, glass wall panels and a glass door had been removed. The pivot point for the bottom of the door was left exposed when the glass was removed. It protruded about an inch above the concrete floor. When the respondent arrived for work at about 5.45 pm on 5 June 2008 he did not see the protrusion because the area was dimly lit. He stepped on it, twisted his ankle, and fell.

[3] The respondent claimed compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("Workers' Compensation Act") from WorkCover Queensland ("WorkCover"), the statutory insurer of the respondent's employer under the Workers' Compensation Act.

[4] Section 239 of the Workers' Compensation Act applies if a worker's notice of assessment states that his work related impairment is less than 20 per cent. The section applied to the respondent. Subsection 2 of s 239 provides that if the worker is offered a payment of lump sum compensation in the notice of assessment he is not entitled to both payment of the lump sum and damages for the injury.

[5] On 23 July 2009 the respondent, having been assessed with a work related impairment of 7 per cent, was offered a lump sum of $12,743.85 by way of compensation. On 27 July 2009 the respondent accepted the offer.

[6] On 20 December 2008 the respondent's solicitors, on his behalf, issued and served a notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) ("PIP Act"). The notice was addressed to the "State of Queensland (Arts Queensland)". It identified the incident out of which the claim arose as occurring at 5.45 pm on 5 June 2008 "Outside the Safety Office (OSI) at the Queensland Cultural Centre". The injury in respect of which the notice was given was described as:

"Injury to two ligaments in the left ankle requiring

[7] The notice set out the basis for the respondent's claim that the State of Queensland (Arts Queensland) caused the incident. It was that:

1. Failed to ensure the workplace was free from the risk of injury;

3. Failed to remove the subject protrusion from the floor;

4. Failed to erect a barrier around the protrusion;

1. Failed to take any or any reasonable care for the safety of the (respondent);

6. Failed to comply with and/or ensure the workplace complied with the Workplace Health and Safety Act 1995 ... by failing to ensure (the respondent's) workplace health and safety whilst at work."

[8] Section 9 of the PIP Act provides that before starting a proceeding in a court based on a claim the claimant must give written notice of the claim in the approved form to the person against whom the proceeding is proposed to be started. "Claim" means a claim however described for damages based on a liability for personal injury whether the liability is based in tort, contract or on another form of action including breach of statutory duty.

[9] Section 6 of the PIP Act applies, subject to subsection 2, "to all personal injury arising out of an incident". "Incident" means the act which caused the injury. By s 6(2)(c) the PIP Act does not apply to "injury within the meaning of the Workers' Compensation Act... and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by chapter 5 of that Act; ..."

[10] Sections 237 and 239 of the Workers' Compensation Act are in Ch 5.

[11] Section 237 limits the persons by whom and the circumstances in which a claim for damages for injuries sustained by a worker may be brought. Relevantly the respondent was entitled to seek damages for his injuries because he received a notice of assessment from his employer's insurer. That brought into play s 239 the terms of which have already been noticed.

[12] On 10 February 2011 the appellant applied to a judge of the Trial Division for a declaration that the PIP Act did not apply "in respect of any injury suffered by the respondent on 5 June 2008", relying on s 6(2)(c) of the PIP Act. The reasoning which underlay the application was apparently that if the PIP Act did not apply because the respondent's claim was regulated by Ch 5 of the Workers' Compensation Act then the provisions of that chapter applied and precluded the respondent's claim for damages because of his acceptance of the offer of a lump sum.

[13] At first sight the relief sought by the appellant might not have afforded the protection intended by it. A declaration that the PIP Act did not apply might have had the consequence that none of its provisions applied, including s 9, so that an action for personal injuries could be commenced without giving notice or complying with any of the other requirements of the Act. The notion underlying the formulation of the declaration is that (in the present circumstances) a claim for damages for personal injuries can only be brought pursuant to the Workers' Compensation Act (if it applies) or the PIP Act (if it applies). If the latter Act does not apply because the respondent's claim for damages was regulated by Ch 5 of the former Act then the respondent cannot proceed to claim damages except under the Workers' Compensation Act. By accepting the lump sum compensation in accordance with s 239 the respondent lost any right he had to claim damages for his injury.

[14] Although the PIP Act did not legislate for that result in clear terms that is its evident intent.

[15] The application and the appeal appear to have been conducted on the common understanding that, if made, the declaration sought would, in effect, be a declaration that the respondent may not bring an action for damages for the injuries he suffered on 5 June 2008. The Court should proceed on that basis.

[16] The application was dismissed by an applications judge who noted that:

"The injury claimed in the PIPA proceeding is the same injury as that claimed against WorkCover. Crown Law took carriage of the PIPA proceedings on behalf of the State. WorkCover Queensland was handling the claim made to it. ... (The respondent) swore that he was bringing the claim against the State of Queensland (Arts Qld) as the occupier and controller of the area where he was injured. The PIPA claim is not against the State as employer, but as occupier."

[17] The primary judge noticed authorities "to the effect that if one accident gives rise to liability both in a plaintiff's employer and in a separate person who occupies the premises on which the plaintiff is hurt, an action may be brought against the employer under the [Workers' Compensation Act] and against the occupier under [the PIP Act]".

[18] The respondent was employed in the Department of Public Works. The Cultural Centre where he worked and was injured was said to be under the control "by the State of Queensland acting through Arts Qld". According to the primary judge's findings s 6(2)(c) of the PIP Act did not prevent bringing the proposed action "against the occupier" because it was not based on a liability for injuries to the respondent in the course of his employment, and so did not create a liability in an employer to pay damages. Therefore the claim was not regulated by Ch 5 of the Workers' Compensation Act. The reasons went on:

"[8] Does it make any difference that the State of Queensland was the legal entity which operated both the Department of Public Works and Arts Queensland? It does not. Section 30 of the [Workers' Compensation Act] has an extended definition of employer which includes a "government entity" as a person who may employ another. [Her Honour then noted that the Department of Public Works was such an entity]. ... It may therefore be an employer within the meaning of the [Workers' Compensation Act] notwithstanding it is not a legal entity.

[9] ...I find the Department of Public Works was [the respondent's] employer.

[10] ... The PIPA claim does not allege liability in [the respondent's] employer. [The respondent] asserts an entitlement to damages against the State of Queensland for what Arts Qld did or did not do as occupier of the Cultural Centre. That is not an entitlement to damages within the meaning of the [Workers' Compensation Act] and is not an entitlement which is regulated by chapter 5 of the [Workers' Compensation Act].

[11] ... The acceptance of the lump sum payment meant that [the respondent] could no longer seek "damages for the injury" - s 239(2)(b) of the [Workers' Compensation Act]. In that phrase, "damages" must mean damages as defined by s 10 of the [Workers' Compensation Act], that is, damages for an injury sustained by a worker in circumstances creating a legal liability in the worker's employer to pay damages. The State was not [the respondent's] employer and the [PIP Act] claim he makes against it is not made against it qua employer. ..."

[19] The reasoning has two inter-related strands. One is that the Department of Public Works is an entity separate and distinct from the State of Queensland. The separation and distinction is of a nature that it allows each to be sued by legal process. In the case of a suit against both, the identity of the defendants would be different. The second strand is that the respondent had two, different, causes of action or bases for claiming damages for his injuries. One basis was a breach of the duties owed by his employer and the other a breach of the duty owed by an occupier to lawful entrants. The strands are inter-related because one of the factors which separates the two bases is that the duties alleged were owed by different persons. If there were no distinction in the identity of the tortfeasors the distinction between the causes of action, or bases for claiming damages would diminish, if not disappear.

[20] The appellant submits that there was no distinction between defendants or claims. As to the first it submits that the respondent's employer was the Crown in right of the State of Queensland, and that it was the Crown in the same right which also controlled and occupied the Cultural Centre. The submission was that the terms "Department of Public Works" and "Arts Qld" describe organisational units within the State Government but are not separate juristic persons with a separate legal existence and the capacity to be sued.

[21] The primary judge relied upon s 30(1) of the Workers' Compensation Act, which defines an employer to be "a person ... for whom an individual works...". Subsection 4 defined "person" to include "a government entity". According to the Dictionary in Schedule 6 to the Act "government entity has the meaning given by the Public Service Act 1996, section 21...". The primary judge's reasons referred to the Public Service Act 2008 but that mistake has no consequence.

[22] Section 21 of the Public Service Act 1996 provided:

"(1) An entity is a government entity if it is -

(b) a public service office or part of a public service office; or

(c) an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State purpose; or

(d) a part of an entity mentioned in paragraph (c); or

(e) another entity, or part of another entity, declared under a regulation to be a government entity.

(f) a registry or other administrative office of a court of the State of any jurisdiction.

(2) However, each of the following entities is not a government entity -

(a) a local government or a corporatised corporation;

(i) a primary producer cooperative association or commodity board ... ;

(j) another entity, or part of another entity, declared under a regulation not to be a government entity."

[23] The primary judge found, and it may be accepted, that the Department of Public Works was a government department and was therefore a government entity. Her Honour relied, as has been remarked, upon s 30 of the Workers' Compensation Act to conclude that the Department of Public Works was the employer liable to pay compensation and/or damages for the respondent's injuries.

[24] For that to be right the Department of Public Works had to be a juristic person, or have sufficient attributes of a juristic person to allow it to be sued. Ordinarily only natural persons and corporations have that capacity. A statute may of course create some thing and confer on it the right to sue and a liability to be sued. The statute may do so either expressly or by implication: see e.g. The Taff Vale Railway Company v The Amalgamated Society of Railway Servants [1901] UKHL 1; [1901] AC 426 at 440 per Lord Shand, 442 per Lord Brampton. There is, however, nothing in either the Workers' Compensation Act or the Public Service Act 1996 which confers any particular capacity on government entities, or ascribes any attribute to them which might give rise to an implication as to capacity. The definitions of "government entity" are circular and quite unhelpful to the present point. Neither Act deals with the consequences of making a government department an entity. Nothing is said as to whether such an entity has the capacity to own property, or to make contracts, or to employ persons or engage in any particular activity. Nothing is said directly about the capacity to sue or be sued. In short there was nothing in the designation of some things as government entities to displace the ordinary rule.

[25] It is only s 30 of the Workers' Compensation Act which provides any support for the implication a "government entity" has at least some of the attributes of a juristic person, and may therefore be sued. That support comes from the recognition of its power to employ others. The indication is, I think, insufficient to support the implication. The history of s 30 and the definition of "government entity" in Schedule 6 to the Workers' Compensation Act tends to dispel the support. As originally enacted s 30 described an employer as "a person who employs a worker and includes ... a government entity that employs a worker ... ". "Government entity" was then defined to be "the State, a State agency or instrumentality or a GOC". Two of the three subject matters in the definition were things with legal personality. The third, which was ambiguous, should, perhaps, be read ejusdem generis with "State" and "Government Owned Corporation", both of which are legal persons. In all likelihood when the definition of "government entity" was changed to encompass entities that were not juristic persons, the incongruity of leaving the definition of employer in s 30 unchanged, was overlooked.

[26] Reference should also be made to s 48 of the Workers' Compensation Act. It provides that every employer must be covered by a policy of accident insurance against injuries sustained by its workers for the employer's legal liability for (i) compensation and (ii) damages. Subsections 4 and 5 are relevant. They provide:

"(4) WorkCover must not issue more than 1 policy for each employer.

(5) However, if the employer is the State, WorkCover may issue 1 policy for each department of government."

[27] Subsection (5) suggests that a department of government is not the employer of the persons who work within its administrative responsibility. The subsection suggests that the State is the employer. The suggestion is, I think, confirmed by some provisions of the Public Service Act 1996.

[28] The Chief Executive of a department is, by s 47 appointed by the Governor-in-Council. By s 67 a Chief Executive may appoint officers in his or her department and, by s 112, may employ a person in the categories set out in the section. Section 115(2) provides:

"A person who employs another person under this Act employs the person as the authorised agent of the Crown."

The consequence is that a person employed, as the respondent would have been, by the Chief Executive of the Department of Public Works would have been employed by an agent of the Crown acting on behalf of the Crown. The respondent therefore became an employee of the Crown in right of the State of Queensland. The Crown is the executive government of the State of Queensland. The identity of the two may be seen by reference to s 43 and s 44, s 48 and s 50 of the Constitution of Queensland 2001.

[29] Dr Hogg points out in his work "Liability of the Crown" 1st edition (9-10) (the subsequent editions deal with the Crown in Canada and are less relevant here):

"Each of [the Australian] States recognizes the same Queen as its Head of State; in each the powers of government are exercisable in the name of that Queen; and in each "the Crown" is regarded ... as the personification of the State. No such personification is needed, for the State is itself a legal person. ... But it is far more common, in the language of parliaments, courts and commentators, to find that "the Crown" is used as, ... "a convenient symbol for the State". According to this usage, in order to distinguish a particular State from others which recognize the same Queen, it is necessary to speak of "the Crown in right of" the particular State. ... In asking whether the Crown in right of Victoria, for example, is liable under a contract, we are asking a question about the legal duties of a legal person, the State of Victoria. We might have asked simply whether "the State" of Victoria was liable." (footnotes omitted)

[30] Suits against the State have been simplified by the Crown Proceedings Act 1980 which applies "to all proceedings instituted ... in respect of any claim made in respect of or based upon a cause of action ...". The Act, by s 6, binds the Crown and provides, by s 8, that:

"... a claim by or against the Crown may be made and enforced by a proceeding by or against the Crown under the title the 'State of Queensland'."

By s 9(2), in a proceeding by or against the Crown, the rights of the parties shall as nearly as possible be the same as in a proceeding between subject and subject. The liability of the Crown, in tort and contract, is equated to the liability of a subject.

[31] The respondent was employed by the State of Queensland, or the Crown in right of the State of Queensland, and not by the Department of Public Works. The respondent's claim notified under the provisions of the PIP Act was therefore a claim for damages for personal injuries against the same juristic person as satisfied his claim for compensation brought under the Workers' Compensation Act.

[32] To the extent that the primary judge relied upon a distinction between the identity of the recipients of the notice of claim for damages and the claim for compensation, the reasons cannot be sustained. Contrary to the primary judge's conclusion, the State of Queensland was the respondent's employer, and the PIP Act claim made against it was made against the person who was his employer.

[33] There remains the second point that the claim notice of which was given pursuant to the PIP Act was one for damages against the State of Queensland not as employer but on the different basis that it was the occupier of the Cultural Centre.

[34] The difference does not seem substantial. For a start "occupier's liability" is no longer a discrete basis of liability. It is part of the ordinary law of negligence. See Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. Secondly, the duty of an employer to take reasonable care for the safety of its employees has always extended to taking reasonable care to provide a safe workplace, i.e. safe premises. The principle is so well established as not to require citation of authority. It does not matter in this context that the respondent was on his way to work when he fell and had not commenced his shift. The protruding pivot pin which made the place unsafe, or at least arguably so, existed on the premises which the respondent was employed to guard. He was injured at his workplace on his way to work. His employer's duty extended to taking reasonable care that the place was safe. An additional duty to take reasonable care to make the premises safe arising out of the State's occupation of the premises, or its relationship as neighbour; did not alter or remove the duty as employer.

[35] In Curtain Brothers (Qld) Pty Ltd v FAI General Insurance Company Ltd [1995] 1 Qd R 142 a plaintiff drove a motor vehicle supplied by her employer along a private road, owned by the employer, in the course of her employment. The employer had excavated the road and did not erect barriers or warn the plaintiff of the excavation. She drove off the end of the road and was injured. In a dispute between the employer and its motor vehicle insurer over whether the latter's policy covered the loss the employer succeeded, the trial judge had concluded that the employer's liability was not "in respect of" the motor vehicle. On appeal the Court (Fitzgerald P, McPherson JA, Shepherdson J) disagreed. Their Honours said:

"It is fallacious to seek to subsume this specific basis of legal liability to some wider or different basis merely because the presence of additional factors makes the other basis of liability also available. Thus, for example, it does not exclude the particular basis of the appellant's liability to the plaintiff in respect of the vehicle if it is also liable to her as an occupier in respect of the dangerous excavation or an employer in respect of the unsafe place of work. The trial judge drew a false dichotomy when he said that "the negligence of the appellant was in respect of the roadway and not in respect of the [Vehicle]". One basis of liability is not exclusive of the other and the correct view is that the appellant was negligent, and liable, in respect of both."

[36] It is similarly fallacious to contend that the State of Queensland was not liable as employer because it was liable as occupier or neighbour.

[37] The appellant argued that the right to damages which the respondent gave up, pursuant to s 239 of the Workers' Compensation Act, was the right to damages against his employer for its negligence, whatever might be the basis for that negligence, whether it be as employer, occupier or neighbour. If the argument is right the damages which the respondent claims in the proposed proceedings of which notice has been given are damages regulated by Ch 5 of the Workers' Compensation Act.

[38] The term "damages" when used in s 239 must mean damages as defined by s 10:

"(1) ... damages for injuries sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker's employer to pay damages to -

[39] The argument is that by reason of the respondent's fall his employer, the State of Queensland, came under a legal liability to pay him (i) compensation pursuant to the Workers' Compensation Act and (ii) damages for which liability arose independently of the Workers' Compensation Act. The liability to pay damages was not limited to or conditional upon the respondent establishing a particular cause of action which might be described as "employer's liability". It extended to liability for all the employer's actions negligently causing injury to an employee.

[40] The argument should be accepted. The point was decided by this Court in Hervey Bay City Council v Workers' Compensation Board of Queensland [1999] 1 Qd R 274 which dealt with relevantly identical sections in the (repealed) Workers' Compensation Act 1990. The case concerned an employer who negligently caused the death of an employee. The negligence did not occur in the course of employment. The employer was a local authority which negligently spread excessive quantities of gravel on a road. The employee, driving home, was fatally injured when his vehicle skidded on the gravel. The point litigated was whether the employer's policy of insurance issued under the (repealed) Workers' Compensation Act indemnified the employer. The insurer argued that its policy extended only to the employer's liability to pay damages for breach of a duty arising out of the relationship of employer and employee.

"... the Act ... has been assumed to be, one involving exclusively the relationship between employers as employers and workers as employees. But that general impression or assumption is not borne out by any provision of the Act. And whilst it is true that a literal interpretation will be departed from in "any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions" ... there are no provisions in this Act requiring such limitation or disclosing a policy which would require it. Accordingly we would not impose any such limitation on the plain meaning of the Act."

[42] The damages the respondent agreed not to claim were damages for his injury for which his employer was liable. There is nothing in the Workers' Compensation Act to limit the liability to the relationship of employer and employee. If the employer was negligent, as neighbour, occupier or employer, it was liable to pay damages, and those are damages to which s 239 referred and applied.

[43] The consequence is that the payment of compensation to the respondent was made pursuant to the provisions of Ch 5 of the Workers' Compensation Act and was regulated by that chapter. By accepting the lump sum the respondent gave up his right to damages. His cause of action was compromised by the statutory consequences imposed upon acceptance of the lump sum. The statutory consequence precludes the respondent's action foreshadowed in the notice of claim. The PIP Act does not apply. The result is not that the respondent may bring an action without complying with the PIP Act. The result is that the cause of action he wishes to pursue has been compromised by accord and satisfaction, statutorily imposed.

[44] The appeal should be allowed and the judgment below set aside. There should be a declaration that the PIP Act does not apply in respect of any injury suffered by the respondent on 5 June 2008, by which is meant the respondent's proposed action arising from the injury he suffered on 5 June 2008 may not proceed. The respondent must pay the costs of the application and of the appeal.

[45] WHITE JA: I agree with Chesterman JA's reasons and the orders which he proposes.