WorkCover Queensland v Turner Freeman & Anor [2020] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION: WorkCover Queensland v Turner Freeman & Anor [2020] QCA 194

PARTIES: (applicant) / v / ABN 27 395 824 213 / (first respondent) / (second respondent)

FILE NO/S: Appeal No 10657 of 2019 DC No 2515 of 2019

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane – [2019] QDC 166 (Everson DCJ)

DELIVERED ON: 8 September 2020

DELIVERED AT: Brisbane

HEARING DATE: Heard on the papers

JUDGES: Morrison and McMurdo JJA and Williams J

ORDERS: Leave to appeal is granted.The appeal is dismissed with costs.

CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant seeks leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) to appeal a decision of the District Court of Queensland – whether leave to appeal should be granted – whether it is in the interests of justice to do so / WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – SPECIAL PAYMENTS – REFUND OF PAYMENTS AND RECOVERY OF OVERPAYMENTS – where the second respondent’s husband (‘the deceased’) contracted an asbestos-related disease after working beside asbestos factories in Brisbane for many years – where the deceased commenced proceedings in the District Court of Queensland in early 2018 – where the deceased passed away in July 2018 – where the deceased’s asbestos-related disease significantly contributed to his death – where the second respondent, as executor of the deceased’s estate, negotiated a settlement of the deceased’s claim in November 2018 for $130,000 – where the second respondent applied to the applicant for compensation under s 201A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) – where the applicant paid a sum of $71,348.70 to the first respondent’s trust account as solicitors for the second respondent – where the applicant unsuccessfully sought repayment of the sum the District Court of Queensland on the basis of mistake or, alternatively, pursuant to s 207B of the WCRA – whether his Honour erred in the interpretation of s 119 of the WCRA – whether s 119 of the WCRA operates to extinguish the second respondent’s entitlement to compensation under s 201A of the WCRA – whether the applicant is entitled to be repaid pursuant to s 207B of the WCRA / Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 14C Civil Proceedings Act 2011 (Qld), s 64 District Court of Queensland Act 1967 (Qld), s 68, s 118 Succession Act 1981 (Qld), s 66 Trusts Act 1973 (Qld), s 98 Workers’ Compensation Act 1916 – 1974 (Qld), Cl 24A Workers’ Compensation Act 1990 (Qld), s 90 Workers’ Compensation Act 1926 - 1951 (NSW), s 6, s 8, s 63 Workers’ Compensation Act 1912 (WA), s 18 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 9, s 10, s 11, s 27, s 28, s 32, s 108, s 109, s 110, s 119, s 131, s 132, s 134, s 140, s 141, s 144A, s 194, s 196, s 200, s 201, s 201A, s 202, s 207B / WorkCover Queensland Act 1996 (Qld), s 144 / ACI Operations Pty Ltd v Bawden [2002] QCA 286, cited Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66, cited Foyster v The Minister for Education (1985) Aust Torts Reports 80-704; [1985] WASC 67, considered Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23, applied Hadfields Steel Works Ltd v Meyer (1962) 108 CLR 171; [1962] HCA 34, considered Johnson v S & S Gravel Pty Ltd [1964] Qd R 553, considered Lane v Thomas Borthwick & Sons (Australasia) Limited [1959] Qd R 151, cited Lotter v Salmon Street Ltd [2006] VSC 495, considered McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited Pickering v McArthur [2005] QCA 294, cited State Government Insurance Office (Queensland) v Public Curator of Queensland [1976] Qd R 281; [1976] QSCFC 9, considered Wichmann v Dormway Pty Ltd [2019] 3 Qd R 323; [2019] QCA 31, cited Woolworths Ltd v Crotty (1942) 66 CLR 603; [1942] HCA 35, cited WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420; [2010] HCA 34, considered

COUNSEL: R M Treston QC for the applicant P Ambrose QC, with A S Kitchin, for the respondents

SOLICITORS: BT Lawyers for the applicant Turner Freeman Lawyers for the respondents

MORRISON JA: I agree with the reasons of McMurdo JA, and the orders proposed by his Honour and Williams J.
McMURDO JA: The late Mr N W Bolt contracted an asbestos-related disease during the course of his employment, when for many years he worked in places which were beside asbestos factories in and near Brisbane. Mr Bolt commenced proceedings in the District Court in early 2018, claiming damages for personal injuries against the entity which manufactured products in those premises. Before his case could be determined, by a judgment or a settlement, Mr Bolt died on 23 July 2018. His asbestos-related disease significantly contributed to his death.
On 12 December 2018, his widow, who is the second respondent in this case, negotiated a settlement of his claim which provided for payment of the sum of $130,000 to her in her capacity as executor of his estate.
Before that payment was made, a judge of the District Court made an order, on 21 December 2018, substituting Mrs Bolt for her late husband as the plaintiff in the proceeding, pursuant to r 72(2) of the Uniform Civil Procedure Rules 1999 (Qld). By s 66 of the Succession Act 1981 (Qld) the cause or causes of action, upon which the proceeding was brought, had become vested in Mr Bolt’s estate. Section 66 does not create a fresh cause of action in favour of a deceased estate, the cause of action of Mr Bolt and that pursued under s 66 by the estate were one and the same.¹
On 4 January 2019, Mrs Bolt applied to WorkCover for compensation under s 201A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the WCRA”). That provision is within chapter 3, part 11, which provides for the payment of compensation (as that term is used in the WCRA), in certain circumstances for the death of a worker who dies because of an injury.²
The object of part 11 is to provide for payment by an insurer of “particular expenses arising from the worker’s injury and death” and compensation to certain persons.³ Section 196 identifies the person or person to whom payments of “compensation for the death of a worker” are to be made. Section 197, which provides for the apportionment of compensation between total dependants and partial dependants of the worker, describes compensation under part 11 as being “payable for the death of a worker”.
Section 201A applies where a worker leaves no dependants but is survived by a spouse, issue within the meaning of the , or next of kin within the meaning of that Act. In that case, s 201A provides that “the amount of compensation payable to the worker’s estate” is 10 per cent of the amount prescribed by s 200(2)(a) as the compensation to be paid to dependent members of a worker’s family.

“207B Insurer’s charge on damages for compensation paid

(1)This section applies to—

(a)an injury sustained by a worker in circumstances creating—

(i)an entitlement to compensation; and

(ii)a legal liability in the worker’s employer, or other person, to pay damages for the injury, independently of this Act; and

(b)damages that an employer is not indemnified against under this Act.

(2)An amount paid as compensation to a person for an injury, to which there is an entitlement to payment of damages at a time or for a period before the person becomes entitled to payment of damages by an employer or another person, is a first charge on any amount of damages recovered by the person to the extent of the amount paid as compensation to the person.

…

(4)An employer or other person from whom the damages are recoverable must pay the insurer the amount of the first charge or, if the damages are not more than the amount of the first charge, the whole of the damages.”

On 16 July 2019, WorkCover commenced this proceeding, by an originating application, which claimed that WorkCover was entitled to be repaid the sum of $71,348.70, either as money which it had paid under a mistake, or as money to which it was entitled by to s 207B(2). On 3 September 2019, an amended originating application was filed which, although in different terms, effectively claimed the sum upon the same two bases.
The application was heard by Everson DCJ, who, in an ex tempore judgment, dismissed the application.⁴ After summarising the facts and the submissions, his Honour gave the following reasons:

“[9] At the heart of this application, the applicant submits that the issue is whether the second respondent is entitled to “double dip” and recover both common law damages and statutory compensation in respect of the same injuries. The issue for determination is not that simple however. As the respondents asserted, the compensation paid pursuant to the WCRA was payable upon the death of Mr Bolt whereas the claim for damages was brought for personal injuries sustained by him. It was merely continued by Mrs Bolt pursuant to s 66 of the Succession Act. I have not been taken to any authorities concerning the interpretation of s 119 of the WCRA, however the decision of the Full Court in State Government Insurance Office (Queensland) v Public Curator of Queensland [1976] Qd R 281 is authority for the proposition that such a provision envisages a claim for damages independently of the Act in question, in respect of which the compensation is payable. That is not what has occurred on the facts before me as the subject matter of the compensation paid by the applicant, namely funeral expenses and a payment of compensation to the estate of a deceased worker, were not the subject of the claim for damages and were not canvassed in the deed whereby it was settled. In these circumstances the question of a “double dip” does not arise. Moreover, it needs to be emphasised that the capacity in which Mrs Bolt received the compensation pursuant to the WCRA was different to the capacity in which she continued the action for damages on behalf of her late husband. This concept is explained in Foyster v The Minister for Education (unreported, Supreme Court of Western Australia, 8 March 1985).

[10] It is clear that s 119 contemplates an entitlement to compensation which is the subject of a settlement for damages or a judgment for damages. That is not the case with the compensation paid pursuant [to] the WCRA and the claim for damages on the facts before me.”

As there appears, and as the judgment had earlier recorded, WorkCover’s argument was based upon s 119 of the WCRA. Section 119 relevantly provides:

“119 Entitlement to compensation ends if damages claim is finalised

(1)This section applies if, for an injury, there is—

(a)an entitlement to compensation; and

(b)an entitlement to recover damages against an employer or another person.

(2)An entitlement to compensation ends when settlement for damages is agreed or judgment for damages is given.

…

(5)In this section—

accept, for treatment, care and support damages, see section 232U.

acceptance period, for treatment, care and support damages, see section 232U.

damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.”

The written submissions for WorkCover, in the hearing before his Honour, referred to s 207B(2), but only upon the premise that the compensation had been mistakenly paid, because by s 119, the entitlement to compensation had ended when Mrs Bolt had settled her late husband’s claim.⁵ There is no complaint that his Honour confined his reasoning to s 119, and did not discuss the relevance, or otherwise, of s 207B. The grounds of the proposed appeal, and the submissions in this Court for WorkCover, make no reference to s 207B.
WorkCover’s argument commences with the proposition that the purpose of s 119, like that of its predecessors, is to prevent “double recovery” of compensation under the WCRA and damages. The argument refers, in particular, to the statement of Stanley J in Lane v Thomas Borthwick & Sons (Australasia) Limited & Mercantile Wharf & Stevedoring Co Pty Ltd:⁶

“The whole purpose of cl 24A was to enlarge the worker’s rights, so that his acceptance of compensation did not debar him from the recovery of common law damages. At the same time, he is not to have the benefit of both in toto; and to replenish the fund, the Commissioner was to be reimbursed by the amount of payments deemed to be compensation abstracted from the fund for the benefit of a successful plaintiff.”

The argument also refers to the explanatory notes for the “immediate antecedents” of s 119, namely s 90(1) of the Workers’ Compensation Act 1990 (Qld) and s 144 of the WorkCover Queensland Act 1996 (Qld). It is sufficient here to set out the terms of the explanatory note for s 119:

“Clause 119 replaces section 144 of the WorkCover Queensland Act 1996 and has not been changed. It applies if a worker is entitled to compensation under this legislation and has a right of action against their employer, or other person, to recover damages independently of this legislation (eg compulsory third party, public liability). It states that entitlement to compensation ceases when a damages action is settled (either by agreement or [judgment]).”

It is submitted that s 119 fastens upon “an injury” for which there is both an entitlement to damages and compensation. Reference is made to the definition of “injury” in s 32 of the WCRA. Section 32 relevantly provided at the time the right to compensation arose:

“32 Meaning of injury

(1)An injury is personal injury arising out of, or in the course of, employment if—

(a)for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or

(b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…

(3)Injury includes the following—

(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;

(b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—

(i)a personal injury other than a psychiatric or psychological disorder;

(ii)a disease;

(iii)a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation;

…

(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;

(e)death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;

(f)death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.”

Importantly, the submission for WCRA then proceeds as follows:

“‘Injury’ therefore, includes the asbestos related pleural disease which Mr Bolt suffered during [his] lifetime, and ‘his death which arose as a consequence’”.⁷

In that way, the argument for WorkCover is made upon the basis that there was but one “injury”, comprised of the injury which Mr Bolt endured, and his consequential death. The correctness of that interpretation is at the heart of this appeal and I will return to it.
The argument for WorkCover then refers to the definition of “compensation”, in s 9 of the WCRA, which is as follows:

“Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3, 4 and 4A by an insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act.”

The argument correctly describes the categories of compensation payable under chapter 3 as including lump sum compensation, weekly compensation and, as in this case, compensation payable on a worker’s death under chapter 3, part 11.

Consequently, it is submitted, in this case there was “an injury”, for which there was both an entitlement to compensation (under s 201A) and an entitlement to recover damages, under a legal liability existing independently of the WCRA⁸ (the entitlement of Mr Bolt, which passed to his estate).⁹ In the terms of s 119(2) “settlement for damages [was] agreed” when Mr Bolt’s claim was settled in December 2018. At that point, it is argued, the entitlement to compensation (under s 201A) ended. The compensation was mistakenly paid by WorkCover, and it should be repaid.
In answer to a submission for the respondents, that s 119 did not apply here because the respective entitlements were vested in different persons, WorkCover submits that they did become vested in the same person, namely Mrs Bolt as the executor of her husband’s estate. In that respect, WorkCover refers to s 196 of the WCRA which provides as follows:

“196 To whom payments made for death of worker

(1)Compensation for the death of a worker is payable—

(a)to the worker’s legal personal representative; or

(b)if there is no legal personal representative—

(i)so far as the payment is by way of expenses to which a person is entitled—to the person who has incurred the expenses; or

(ii)so far as the payment is by way of compensation to the worker’s dependants—to the dependants entitled to compensation.

(2)The worker’s legal personal representative must pay or apply the compensation to or for the benefit of the worker’s dependants or other persons entitled to compensation.”

As will appear, it is unnecessary to resolve that argument.

As WorkCover submits, s 119 applies where, for the one injury, there is both an entitlement to compensation and an entitlement to recover damages. It cannot be thought that, on the proper interpretation of s 119, an entitlement to compensation for an injury was to be defeated by a settlement or judgment for damages for another injury. The question then is whether, as WorkCover submits, there was only the one injury in this case.
WorkCover’s argument fastens upon the word “includes” at the commencement of s 32(3). However, that misstates the effect of the word “includes” in the context of s 32.
Section 32 is a definition provision. The effect of s 32(3) is to enlarge the meaning of the term “injury” which would otherwise result from s 32(1). The apparent purpose of s 32(3) is not to deem an injury or a disease, and a death to which the injury or disease has significantly contributed, to constitute one and the same “injury” where that word is used in the Act.
As discussed earlier, in a case for which chapter 3, part 11 provides, compensation is paid for the death of a worker. It is paid for an “injury”, but more precisely, for an injury of the kind described in paragraphs (d), (e) or (f) of s 32(3). Section 194(1) provides that part 11 applies “if a worker dies because of an injury”, rather than providing that it applies if a worker suffers an injury which, in the sense advanced by WorkCover, is comprised in part by the worker’s death.
The late Mr Bolt had an entitlement to damages, for which he sued. His entitlement, it is obvious to say, was to be compensated for the loss and damage which he suffered during his lifetime, in consequence of an injury caused by the defendant’s negligence. That included, as he pleaded,¹⁰ damage from a “reduced life expectancy”. Clearly, he could not have claimed, and did not claim, damages for his own death. After Mrs Bolt settled with the defendant, she amended the statement of claim, curiously, to claim as a further particular of her late husband’s loss and damage, “death”. This was part of a series of amendments then made to record the fact that she had been substituted as the plaintiff, in her capacity as executor of the estate of the original plaintiff. It did not affect the nature of the entitlement to damages which was the basis for that proceeding, namely an entitlement to be compensated for loss and damage suffered by Mr Bolt during his lifetime.
In contrast, in no respect does chapter 3, part 11 provide for a person to be paid compensation to which the worker had been entitled during their lifetime.
Consequently, the argument that the entitlement to compensation and the entitlement to recover damages were for the same injury cannot be accepted. WorkCover accepts correctly, that this was necessary for the engagement of s 119. It follows that s 119 did not affect the entitlement to compensation under s 201A.

Factual background

From 1959 to 1983, Mr Noel William Bolt (Mr Bolt) worked in close proximity to the James Hardie factories at Newstead. Mr Bolt claimed to have been exposed to and inhaled asbestos dust and fibre and contracted asbestos related disease including pleural disease, diffuse pleural thickening, rounded atelectasis and pleural plaques.
On 8 January 2018 Mr Bolt commenced proceedings in the District Court of Queensland against Amaca Pty Limited (formally James Hardie and Co) (Amaca). Mr Bolt claimed $359,000.00 for damages for personal injuries caused by the negligence and/or breach of contract of Amaca.
On 23 July 2018, Mr Bolt died. His asbestos related disease was found to have significantly contributed to his death.¹² Dorothy Irene Bolt (Mrs Bolt) was appointed as the executor of the estate of Mr Bolt.¹³
On 12 December 2018, Mr Bolt’s estate (with Mrs Bolt acting as personal representative) settled the claim against Amaca for $130,000.00. A deed of release was entered into in respect of the settlement.
On 21 December 2018, Koppenol DCJ ordered that Mrs Bolt, as executor, be substituted for Mr Bolt as plaintiff. An amended statement of claim was filed in the District Court proceedings dated 13 December 2018 which substituted Mrs Bolt as legal representative of Mr Bolt as the plaintiff, and made some further amendments.¹⁴
The amendments to the statement of claim include paragraph 1(a) which states:

“The Plaintiff is the executor of the estate of the late Noel William Bolt (hereinafter referred to as the Deceased). The Plaintiff brings this action for the benefit of the Deceased’s estate pursuant to section 66 of the Succession Act 1981 (Qld).”

The other substantive changes to the statement of claim were the inclusion in paragraph 6 under the heading “particulars of injuries and disabilities” at (q): “death”. Further, in paragraphs 7, 8, 10, 13 and 14, claims for future losses or expenses have been deleted. This is consistent with the limitations on recoverable damages under s 66 of the Succession Act 1981 (Qld).¹⁵ There is no amendment to include any additional claims as a result of Mr Bolt’s death, or claims other than those which Mr Bolt could have himself brought during his lifetime.¹⁶
On 4 January 2019, Mrs Bolt made an application to WorkCover for “compensation ‒ fatal injury”.¹⁷ This was an application pursuant to s 201A of the WCRA which provides for compensation on a worker’s death where the worker is survived by a spouse, issue or next of kin who are non-dependent.
On 9 January 2019, Holman Webb, lawyers on behalf of Amaca, wrote to WorkCover informing them that the District Court proceedings had settled out of court for $130,000.00 and inquired as to whether WorkCover had any interest in the “plaintiff’s compensation”.¹⁸
On 10 January 2019, Ms Angela Lissett, recovery administrator for WorkCover, responded to Holman Webb stating that they had a claim number in respect to an injury occurring on 23 July 2018¹⁹ (claim number S18YY569647)²⁰, but no payments had been made by WorkCover.
On 18 February 2019, Ms Amara Grenier, customer advisor of WorkCover, responded to Turner Freeman in relation to claim number S18YY569647 and advised that WorkCover had:

“accepted this claim for non-dependant fatal today and will pay the following, to be processed in this Fridays [sic] lump sum pay run:

Funeral $9,488.70

Non-dependant lump sum $61,860.00.”²¹

On Saturday 23 February 2019, BT Lawyers on behalf of WorkCover emailed Holman Webb, acting for Amaca, and Turner Freeman Lawyers, acting on behalf of the estate of Mr Bolt, requesting that the settlement funds of $130,000.00 not be paid pending resolution of whether WorkCover claimed a charge over the settlement as a result of the statutory compensation of $71,348.70 paid to the estate of Mr Bolt.²²
Correspondence between the various parties followed this initial notification. On Monday 25 February 2019, WorkCover claimed the charge of $71,348.70 pursuant to s 207B of the WCRA over the settlement moneys received from Amaca.²³ The settlement funds had already been paid into the Turner Freeman Trust Account and had not yet been paid out. The payment from WorkCover under s 201A of $71,348.70 was also still held in the Turner Freeman Trust Account. It was agreed between Turner Freeman Lawyers and WorkCover that the amount of $71,348.70 be held in the trust account pending resolution of the issue.²⁴
On 24 June 2019, WorkCover commenced proceedings in the District Court of Queensland against Turner Freeman (a firm) as the first respondent and Mrs Bolt (as executor of the estate of the late Noel William Bolt) as the second respondent seeking a declaration pursuant to s 98 of the Trusts Act 1973 (Qld) that WorkCover was beneficially entitled to the sum of $71,348.70 held in the Turner Freeman Trust Account by way of restitution for compensation mistakenly paid, or alternatively a refund of compensation pursuant to s 207B(2) of the WCRA.²⁵
The originating application was originally set down for hearing on 15 August 2019 but was adjourned to allow amendments to be made to the originating application and supporting material to be filed and served.
An amended originating application was filed on 13 August 2019²⁶ which sought:(a)A declaration pursuant to s 68(1)(b)(viii) of the District Court of Queensland Act 1967 (Qld) that the second respondent hold the sum of $71,348.70 on constructive trust in favour of WorkCover and that the second respondent is liable to account to WorkCover for the sum of $71,348.70 together with interest.(b)Further and alternatively, payment of a sum of $71,348.70 as money had and received by the second respondent to the use of WorkCover, together with interest pursuant to s 58 of the 2011 (Qld) and a declaration that WorkCover is so entitled to the payment in the sum of $71,348.70.(c)Further and alternatively, an order that the sum of $71,348.70 be paid to WorkCover pursuant to s 207B(2)-(4) of the WCRA.(d)Further and alternatively, a declaration pursuant to s 68(1)(b)(viii) of the 1967 (Qld) that:The sum of $71,348.70 is subject to a first charge in favour of WorkCover pursuant to s 207B(2) of the WCRA;The sum is held on constructive trust by the second respondent for the benefit of WorkCover;The second respondent is liable to account to WorkCover for the sum of $71,348.70, together with interest.

First issue for consideration - Leave to appeal

The threshold issue for consideration is whether WorkCover should be given leave to appeal. This requires some consideration of the issues raised in the proposed notice of appeal, which can be summarised as follows:(a)whether s 119 of the WCRA operates to extinguish Mrs Bolt’s entitlement to statutory compensation following settlement of Mr Bolt’s claim in the District Court proceedings; and/or(b)whether WorkCover is entitled to be paid the amount of Mrs Bolt’s statutory compensation under s 207B of the WCRA by way of a charge on the damages paid pursuant to the settlement.
Section 118 of the District Court of Queensland Act 1967 (Qld) states as follows:

“118 Appeal to the Court of Appeal in certain cases

…

(2)A party who is dissatisfied with a final or interlocutory judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment—

(a)is given for an amount equal to or more than the Magistrates Courts jurisdictional limit; or

(b)relates to a claim for, or relating to, property that has a value equal to or more than the Magistrates Courts jurisdictional limit.

(3)Subject to sections 118A and 118B, a party who is dissatisfied with any other judgment of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court.

(4)In deciding whether there is a right of appeal under this section, the Court of Appeal may—

(a)inform itself in any way it considers appropriate, including by reference to the appeal record; and

(b)decide the question summarily without hearing evidence.

(5)If it is reasonably arguable that a right of appeal under this section exists, the Court of Appeal may treat that circumstance as a ground for granting leave to appeal.

(6)If the Court of Appeal grants leave under subsection (3), it may grant it on the conditions it considers appropriate.

…

(8)An appeal from the District Court in its original jurisdiction is by way of rehearing.”

It is also agreed between the parties that should leave be granted it is appropriate to include the condition that WorkCover pay the respondents’ costs in any event. This has been expressly agreed by WorkCover in its submissions.³⁰
The amount in issue is $71,348.70, which is below the Magistrates Court jurisdictional limit³¹ and leave to appeal is required.
The relevant principle in respect to leave to appeal is the statement of Keane JA (as his Honour then was) in Pickering v McArthur³² at [3] (with McMurdo P and Dutney J agreeing):

“Leave [under s 118(3)] will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.” (emphasis added)

Both elements are required. Some statements of the principle have mistakenly used the disjunctive “or”.³³
WorkCover relies on the following reasons as justifying the grant of leave:(a)There is a need to correct a substantial injustice; and/or(b)An error has been made in the construction and application of s 119 of the WCRA and it should be corrected; and(c)The construction of that section will be definitive in future cases of this kind.
The applicant submits that:³⁴(a)A similar issue affects a number of claims in relation to asbestos claims but also more broadly, death claims, and that the proper resolution of this issue affects the Workers Compensation Scheme throughout Queensland.(b)There is a genuine issue in relation to the potential double recovery of compensation and damages.(c)A decision of the Workers’ Compensation Regulator in the matter of Todkill (which is similar to the current issue) exists. In that case, WorkCover had no right to appeal or to seek review of the decision. It is submitted that the resolution of the question at appellant level will clarify the operation of the legislative scheme.
Ms Yates’s affidavit sworn on 1 October 2019 deposes to Mr Thomas of BT Lawyers having knowledge of the following:³⁵(a)At least three similar claims that were made to the applicant after settlement of a common law claim for damages by a deceased worker.(b)The applicant had received at least 10 applications under s 201A of the WCRA per annum in asbestos related claims, although as the applicant has a panel of law firms that represent it, Mr Thomas’s knowledge of the applicant’s history of receiving such claims was incomplete.(c)A case involving a Mr Roland Todkill, in which the applicant rejected an application for compensation under s 201A by Mr Todkill’s next of kin after his death, which application was made after settlement of Mr Todkill’s claim for damages inter vivos, and that rejection decision relied upon s 119 of the WCRA.(d)The next of kin of Mr Todkill sought review of the applicant’s decision to reject the claim for compensation and the Workers’ Compensation Regulator overturned the decision of the applicant. (e)The applicant has no right to appeal or seek review of any decision of the Workers’ Compensation Regulator and thus could not challenge that decision.
The applicant submits that the reasons for judgment given on 3 September 2019 were ex tempore, “are extremely short, and do not appear to grapple with the matters argued”. The affidavit of Ms Yates identifies the alleged errors in the judgment of Everson DCJ as being:

“(a) His construction and application of s. 119 of the WCRA by:

(i)Giving improper weight to the ‘type’ of compensation received by the Second Respondent pursuant to the WCRA and the Settlement;

(ii)Miscategorising the capacity in which the Second Respondent received the Compensation and the Settlement;

(iii)Not finding that the Settlement included damages for the death of the Worker (the Deceased);

(iv)Not giving any weight to the nature of the injury for which the Compensation and the Settlement were paid as contemplated by s. 119 of the WCRA.

(b)Finding the Second Respondent received the Compensation and the Settlement in different capacities;

(c)Finding the settlement did not, pursuant to s. 119 of the WCRA, end the Second Respondent’s entitlement to receive compensation for the asbestos related injury of [sic] Worker (the Deceased) and his consequent death and, in particular, did not prevent the Second Respondent from receiving the Compensation;

(d)Dismissing the Applicant’s application.”³⁶

Submissions on behalf of the respondents contend that leave ought not to be granted as the judge below correctly identified the issues in his conclusion.
Further, reliance is placed on the decision of McPherson JA in ACI Operations Pty Ltd v Bawden [2002] QCA 286 that leave may not be granted even where the Court of Appeal is satisfied that there is an error in the judgment below. In that case, McPherson JA stated:³⁷

“Until some time ago, the discretion under s.118 was exercisable only if the applicant established that the appeal involved an important point of law or some question of general or public importance. The need to satisfy that requirement was deliberately omitted by an amendment to s.118(3) that was effected to the Act in mid-1997. It had the consequence of conferring a general discretion on this Court to grant or refuse leave to appeal, which is exercisable according to the nature of the case. I would, however, tend to agree… that the mere fact that there has been an error, or that an error can be detected in the judgment below, is not ordinarily by itself sufficient to justify the granting of leave to appeal.

It also, to my mind, does not mean that the former criterion in s.118 of an important point of law or question of general or public importance is entirely irrelevant to applications of this kind. It may be expressed by saying that the existence of such a consideration remains a sufficient, but not a necessary, prerequisite to a grant of leave to appeal.” (emphasis added)

Leave was granted in that case as important issues involving appellant court attitudes to credibility findings were in issue. However, as the claim was relatively small (approximately $20,000.00), leave was granted on the condition that the applicant bear its own costs of the application and the appeal in any event.
As outlined above, the applicant agrees to a condition that the applicant pay the respondent’s costs in any event. Accordingly, the issue to be determined is whether it is appropriate to otherwise grant leave to appeal.

Decision at first instance

The reasons of his Honour Judge Everson set out the background facts in paragraph 1 to 5. In paragraphs 6, 7 and 8, his Honour outlines s 119 of the WCRA and briefly summarises the positions of the applicant and the respondent.
In respect of the applicant’s submissions, his Honour stated at [7]:

“In this regard it is submitted that any entitlement to compensation ended upon settlement of the action for damages. This occurred on 10 January 2019 before the payment the subject of this proceeding was made. In support of this submission my attention is drawn to the wide definition of ‘injury’ in s 32 of the WCRA and the fact that in s 119(1) the curtailing of the entitlement to compensation applies in circumstances where ‘for an injury’ there is both such an entitlement and an entitlement to recover damages. Accordingly, it is submitted, it is the same injury which gives rise to both the entitlement to compensation and the entitlement to recover damages. It is therefore the injury which dictates the ambit of the provision according to the applicant.”

In respect of the respondents’ position, his Honour stated at [8]:

“Conversely, the respondents argue that there needs to be a link between an entitlement to compensation and an entitlement to recover damages for the entitlement to compensation to end. It is further submitted that the application made by Mrs Bolt on 4 January 2019 was completely separate to an entitlement to compensation within the contemplation of s 119 in circumstances where it is uncontroversial that the action for damages did not include a claim for funeral expenses or a claim for loss of dependency (which is an entitlement to recover damages in similar terms to what is contemplated by the compensation payable pursuant to s 201A of the WCRA).”

His Honour’s reasons and conclusion are set out at [9] to [11] which state as follows:

“[9] At the heart of this application, the applicant submits that the issue is whether the second respondent is entitled to ‘double dip’ and recover both common law damages and statutory compensation in respect of the same injuries. The issue for determination is not that simple however. As the respondents asserted, the compensation paid pursuant to the WCRA was payable upon the death of Mr Bolt whereas the claim for damages was brought for personal injuries sustained by him. It was merely continued by Mrs Bolt pursuant to s 66 of the Succession Act. I have not been taken to any authorities concerning the interpretation of s 119 of the WCRA, however the decision of the Full Court in State Government Insurance Office (Queensland) v Public Curator of Queensland [1976] Qd R 281 is authority for the proposition that such a provision envisages a claim for damages independently of the Act in question, in respect of which the compensation is payable. That is not what has occurred on the facts before me as the subject matter of the compensation paid by the applicant, namely funeral expenses and a payment of compensation to the estate of a deceased worker, were not the subject of the claim for damages and were not canvassed in the deed whereby it was settled. In these circumstances the question of a ‘double dip’ does not arise. Moreover, it needs to be emphasised that the capacity in which Mrs Bolt received the compensation pursuant to the WCRA was different to the capacity in which she continued the action for damages on behalf of her late husband. This concept is explained in Foyster v The Minister for Education (unreported, Supreme Court of Western Australia, 8 March 1985).

[10] It is clear that s 119 contemplates an entitlement to compensation which is the subject of a settlement for damages or a judgment for damages. That is not the case with the compensation paid pursuant the WCRA and the claim for damages on the facts before me.

[11] I therefore dismiss the application and will hear the parties on costs.”

Proposed notice of appeal

The proposed notice of appeal contains the following grounds:³⁸

“(a) The learned trial judge erred in his construction and application of s 119 of the [WCRA].

(b)Properly construed s 119 applied herein as:There was an ‘injury’ as defined in s 31(2), in which the definition includes death, to Noel Bolt (“the Worker”): s 119(1);For the injury to the Worker, pursuant to s 201A, there was an entitlement on part of the worker’s estate to ‘compensation’, as defined in s 9: s 119(1)(a);For the same injury to the Worker, he was entitled to recover damages ‘against … another person’: s 119(1)(b);The entitlement to compensation for that injury ended when ‘settlement for damages’ was agreed: s 119(2);The claim for damages was settled on 10 January 2019: paragraph [2] of reasons;There was therefore no entitlement to the compensation paid on 18 February 2019 pursuant to s 201A: paragraph [5] of reasons;The Appellant is further entitled to a charge on the damages pursuant to s 207B(2).

(c)The learned trial judge erred, in paragraph [10] of [the] reasons, in taking into account the capacity in which the Second Respondent received the compensation vis-à-vis the capacity in which she continued the action for damages rather than considering whether the payments were made in respect to the same injury given s 119 fastens upon “injury”, not the character of the compensation paid for the injury.”

The proposed notice of appeal seeks the following orders:³⁹

“(a) The order appealed from be set aside and in lieu there be a declaration and order as follows:

THE COURT DECLARES THAT:

(a)The sum of $71,348.70, held by the Second Respondent in a trust account of the First Respondent, is subject to a first charge in favour of the Applicant, pursuant s 207B(2) of the WCRA;

(b)Such sum is held on constructive trust by the Second Respondent for the benefit of the Applicant;

(c)The Second Respondent is liable to account to the Applicant for the sum of $71,348.70.

THE COURT ALSO ORDERS THAT there be no order as to costs.

(b)There be no order as to the costs of the appeal.”

In order to consider whether there is any merit to the proposed grounds, it is necessary to consider the statutory scheme, relevant authorities and the substantive submissions made on behalf of the parties.

Real issues on the facts of this case

There are two real issues on the facts of this case relating to the operation of s 119 of the WCRA:(a)Firstly, whether settlement of a damages claim brought by a deceased “worker” prior to their death and maintained under s 66 of the Succession Act extinguishes all entitlements to compensation under the WCRA,⁴⁰ including any claim for compensation that the deceased was entitled to bring while alive as well as any claims for compensation that anyone else would be entitled to bring and which only arise consequent upon the death of the “worker” under the WCRA.(b)Alternatively, if the entitlement to compensation arises consequent upon the death of the “worker” under the WCRA continued, on the facts of this case did the Deed of Release operate so that the entitlement to compensation was extinguished.

Approach to statutory interpretation

Section 14A(1) of the Acts Interpretation Act 1954 (Qld) (AIA) sets out the starting position in relation to the interpretation of Queensland Acts that the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
Schedule 1 of the AIA defines ‘purpose’ to include “for an Act… policy objective”.
Section 14B of the AIA sets out how extrinsic material may be used to assist in interpretation.
Finally, s 14C of the AIA sets out that changes in drafting practices should not affect the meaning of the idea expressed:

“14C Changes of drafting practice not to affect meaning

If—

(a)a provision of an Act expresses an idea in particular words; and

(b)a provision enacted later appears to express the same idea in different words for the purpose of implementing a different legislative drafting practice, including, for example—

(i)the use of a clearer or simpler style; or

(ii)the use of gender-neutral language;

the ideas must not be taken to be different merely because different words are used.”

As the legislative scheme has gone through several iterations, s 14C is relevant in the interpretation of the WCRA, particularly as the previous provisions have been considered in a number of cases.

Statutory scheme

Part 2 of the WCRA sets out the objects of the Act. The objects are stated to be “an aid to the interpretation of this Act.”⁴¹
Section 5 WCRA includes the following:

“(1) This Act establishes a workers’ compensation scheme for Queensland –

(a)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;…

…

(4)It 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; and

(b)ensure that injured workers 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;…

…”

The key provision in this matter is s 119 of the WCRA which provides as follows:

“119 Entitlement to compensation ends if damages claim is finalised

(1)This section applies if, for an injury, there is—

(a)an entitlement to compensation; and

(b)an entitlement to recover damages against an employer or another person.

(2)An entitlement to compensation ends when settlement for damages is agreed or judgment for damages is given.

…” (emphasis added)

Subsections (3), (4) and (5) deal with an entitlement to compensation under Chapter 4A which is not relevant to current considerations.
Section 119 draws together several concepts – in particular “injury”, “compensation”, “damages” and “entitlement” – and also contains the distinction between compensation payable under the WCRA and damages recoverable outside the statutory regime.
The section also specifically refers to “an” entitlement in both subsections (a) and (b), which suggests there may be more than one possible entitlement. Consideration then needs to be given to the work that the word “an” is to do in both subsections (a) and (b).
Section 9 of the WCRA defines compensation as follows:

“9 Meaning of compensation

Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3, 4 and 4A by an insurer to a worker, a dependant of a deceased worker or anyone else, and includes compensation paid or payable under a former Act.” (emphasis added)

This section identifies three separate categories of persons to whom compensation may be payable:(a)a worker;(b)a dependant of a deceased worker; or(c)“anyone else”.
The class of persons is limited to those to whom the compensation is payable under the WCRA in chapters 3, 4 and 4A. The language of the section suggests that these are disjunctive rights applicable to each category of persons. This reading is supported by the structure of the types of compensation payable discussed below.
Section 10 of the WCRA defines damages as follows:

“10 Meaning of damages

(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.

…” (emphasis added)

This section also identifies two specific categories of persons as recipients of the damages: firstly, a worker; and secondly, a dependant of the deceased worker. It also specifically deals with the liability of the “worker’s employer”. At this juncture I note that s 119(1)(b) WCRA refers to damages recoverable against “another person” in addition to an employer. The s 10 definition is narrower than the s 119(1)(b) provision in respect of damages.
Section 11 of the WCRA defines worker as follows:

“11 Who is a worker

(1)A worker is a person who—

(a)works under a contract; and

(b)in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.

….

(4)Only an individual can be a worker for this Act.”

Section 27 of the WCRA defines dependant as follows:

“27 Meaning of dependant

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.”

Section 28 of the WCRA defines member of the family as follows:

“28 Meaning of member of the family

A person is a member of the family of a deceased worker, if the person is—

(a)the worker’s—

(i)spouse; or

(ii)parent, grandparent or step-parent; or

(iii)child, grandchild or stepchild; or

(iv)brother, sister, half-brother or half-sister; or

(b)if the worker stands in the place of a parent to another person—the other person; or

(c)if another person stands in the place of a parent to the deceased worker—the other person.”

Section 32 of the WCRA defines injury as follows:

“32 Meaning of injury

(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

…

(3)Injury includes the following—

(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;

…

(e)death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;

…”

The definition of injury includes both the personal injury to or disease suffered by the worker, as well as the death of the worker where the injury or disease is a significant contributing factor. Given the structure of the definition, it is possible that the initial personal injury to or disease suffered by the worker may be temporally distinct from the death of the worker. Although in some cases, such as a fatal accident, they may coincide in the same event. As in the case of Mr Bolt, the disease was contracted at a point in time (following exposure in the period between 1959 to 1983) and his death on 23 July 2018 occurred subsequent to him suffering from the disease, which significantly contributed to his death.

General entitlement to compensation

Section 108 of the WCRA outlines the general entitlement to compensation and provides as follows:

“108 Compensation entitlement

(1)Compensation is payable under this Act for an injury sustained by a worker.

…”

Section 109 of the WCRA provides as follows:

“109 Who must pay compensation

(1)If an employer is a self-insurer, the employer must pay the compensation.

(2)Otherwise, WorkCover must pay the compensation.

…”

Section 110 of the WCRA provides that:

“(1) A worker or another person cannot relinquish an entitlement to compensation for an injury sustained by the worker or the person.

(2)An agreement made by the worker or the person purporting to relinquish the entitlement is of no force or effect.

(3)Compensation cannot be assigned, charged, taken in execution, or attached, and a worker’s entitlement to compensation can not pass to another person by operation of law or otherwise, and no claim can be set off against the amount.

…”

The language in s 110(1) is consistent with the entitlement subsisting in both the worker and “another person” (where relevant) and that the entitlement cannot be given up by agreement.

Application for compensation and procedure

Part 5 of Chapter 3 of the WCRA deals with the procedures for an application for compensation. Section 131 of the WCRA provides as follows:

“131 Time for applying

(1)An application for compensation for an injury is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation for the injury arises.

(2)If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer’s liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.

(3)Subsection (2) does not apply if death is, or results from, the injury.

….” (emphasis added)

The language of s 131(3) is consistent with the reading of the definition of injury discussed at paragraph [97] above. That is that the initial injury and any resulting death can exist separately, depending on the circumstances.
Section 132 of the WCRA provides that an application for compensation must be made in the approved form by the claimant and must be lodged with the insurer. It also prescribes certain documents that must accompany the application.
Section 132(6) of the WCRA provides:

“An application for compensation is valid and enforceable if it complies with this section.”

Section 134 of the WCRA deals with decisions about applications for compensation and provides as follows:

“134 Decision about application for compensation

(1)A claimant’s application for compensation must be allowed or rejected in the first instance by the insurer.

(2)The insurer must make a decision on the application within 20 business days after the application is made.

(3)The insurer must notify the claimant of its decision on the application.

(4)If the insurer rejects the application, the insurer must also, when giving the claimant notice of its decision, give the claimant written reasons for the decision and the information prescribed under a regulation.

(5)Subsection (6) applies if the insurer does not make a decision on the application within the time stated in subsection (2).

(6)The insurer must, within 5 business days after the end of the time stated in subsection (2), notify the claimant of its reasons for not making the decision and that the claimant may have the claimant’s application reviewed under chapter 13.” (emphasis added)

The use of the neutral term “claimant” in s 134 is wide enough to include the three classes of persons identified in the definition of compensation in s 9 and those identified in the compensation provisions discussed below.
Section 140 of the WCRA sets out the maximum entitlement of compensation payable for one injury or multiple injuries sustained in one event. The maximum amount is $200,000.00. This is also supportive of the disjunctive reading of the definition of injury discussed above.
Part 7 of Chapter 3 of the WCRA deals with payment of compensation. Section 141 provides as follows:

“141 Time from which compensation payable

(1)The entitlement to compensation for an injury arises on the day the worker’s injury is assessed by—

(a)a doctor; or

(b)if the injury is a minor injury—a nurse practitioner acting in accordance with the workers’ compensation certificate protocol; or

(c)if the injury is an oral injury and the worker attends a dentist—the dentist.

…”

In the current case:(a)The entitlement to compensation for the injury to Mr Bolt, being the disease, would have arisen when the disease was diagnosed. Based on the information in the Statement of Loss and Damage pursuant to Rule 547(3) UCPR, Mr Bolt was diagnosed in approximately June 2017 with an asbestos related disease.⁴²(b)The entitlement to compensation for the injury being death would have arisen when the doctor confirmed that the disease significantly contributed to his death. The date of death was 23 July 2018. The date of the death certificate is 7 August 2018 and “pleura plaques – asbestos exposure” is noted on the death certificate as what appears to be the second of two secondary causes.⁴³ On 11 February 2019 Dr Kenneth Hossack provided an opinion that the asbestos disease significantly contributed to the death of Mr Bolt.⁴⁴

Worker’s entitlement to compensation

Part 8A of Chapter 3 of the WCRA deals with a worker’s entitlement to compensation. Section 144A provides that the entitlement of a worker to weekly payments of compensation under Part 9 stops when the first of the following happens: the incapacity because of the work related injury stops; or the worker has received payment for a certain period of time; or the maximum amount of compensation has been reached.

Compensation in respect of worker’s death

Part 11 of Chapter 3 of the WCRA deals with compensation for a worker’s death. Section 194 provides as follows:

“194 Application and object of pt 11

(1)This part applies if a worker dies because of an injury.

…

(3)The object of this part is to provide for payment by an insurer of—

(a)particular expenses arising from the worker’s injury and death; and

(b)compensation to persons having an entitlement to compensation under this part.”

The wording in s 194(3)(a) refers to payments “arising from the worker’s injury and death”. The use of this wording is understandable when read with s 199, which states:

“An insurer must pay the reasonable expenses–

(a)of the medical treatment of, or attendance on, the worker; and

(b)the worker’s funeral.”

The reference in s 194(3)(b) to “persons having an entitlement to compensation under this part” picks up the categories of person identified in the definition of “compensation” other than the worker, being “dependant of a deceased worker” or “anyone else”. The Part does not provide for an entitlement in the “worker” themselves.⁴⁵
Section 196 of the WCRA provides as follows:

“196 To whom payments made for death of worker

(1)Compensation for the death of a worker is payable—

(a)to the worker’s legal personal representative; or

(b)if there is no legal personal representative—

(i)so far as the payment is by way of expenses to which a person is entitled—to the person who has incurred the expenses; or

(ii)so far as the payment is by way of compensation to the worker’s dependants—to the dependants entitled to compensation.

(2)The worker’s legal personal representative must pay or apply the compensation to or for the benefit of the worker’s dependants or other persons entitled to compensation.”

Section 196(1) provides for a mechanism of payment. Payment is to be facilitated through the worker’s legal personal representative. This applies for all types of compensation payable under Part 11.
Section 196(1)(b) makes provision for payments where there is no legal personal representative. The provision only deals with two scenarios – payment of expenses to a person entitled and payment of compensation to a worker’s dependants. The provision does not deal with “anyone else” as referred to in the definition of “compensation” (such as the current scenario of non-dependent “spouse, issue or next-of-kin”).
Section 196(2) provides that although the money (as expenses or compensation) is paid to the worker’s legal personal representative the money must be paid or applied for the “benefit of the worker’s dependants or other persons entitled to compensation”. In submissions, various arguments were raised about whether the payment to the “estate” or the personal representative made a difference to the operation of s 119. The entitlement to compensation is found elsewhere in the WCRA and not in s 196. The facilitation of the payments through the legal personal representative is not indicative of who is “entitled” to the expenses or compensation. Any payment is ultimately for the benefit of the entitled party as is expressly stated in s 196(2) – the payment is not to the general benefit of the estate of the deceased worker.
This interpretation is also consistent with the categories of persons who may be entitled to compensation as identified in the definition sections above.

Compensation to dependants

Section 200 of the WCRA sets out compensation payable in respect of total dependency.
Section 201 of the WCRA deals with the amount of compensation payable in respect of partial dependency.
Schedule 6 contains a dictionary which sets out various definitions. A “dependency claim” is defined as follows:

“dependency claim means a claim in relation to a fatal injury brought on behalf of a deceased’s dependants or estate.”

Compensation to specific non-dependent persons

Section 201A of the WCRA specifically deals with compensation payable where certain persons are “non-dependent” and provides as follows:

“201A Worker with non-dependent spouse, issue or next of kin

(1)This section applies if a worker left no dependants but is survived by any of the following—

(a)a spouse;

(b)issue within the meaning of the Succession Act 1981;

(c)next of kin within the meaning of the Succession Act 1981.

(2)The amount of compensation payable to the worker’s estate is 10% of the amount payable under section 200(2)(a).”

WorkCover argues that under s 201A – and s 196(1)(a) – the estate has the only entitlement to compensation. That is, that s 201A is a qualification section only and does not define the entitlement to the compensation.
This submission is difficult to reconcile with the three categories of person identified in the definition of “compensation” and the wording in both ss 196(1)(a) and 196(2), and s 201A. If this submission is to be accepted, then s 196(2) would not have been necessary as the entitlement would only be in the estate. However, under the WCRA, compensation is only payable if there was a non-dependent spouse, issue or next of kin to make a claim. That is, if there is no non-dependent spouse, issue or next of kin, no amount becomes payable in respect of the worker’s death to “anyone else”. If there is one or more of a non-dependent spouse, issue or next of kin then the amount of compensation set out in s 201A(2) is paid to “anyone else” by payment to the legal personal representative, who then has an obligation under s 196(2) to pay the benefit to them as “other persons entitled to compensation” (emphasis added). The submission should therefore be rejected.
Section 202 of the WCRA deals with compensation payable to workers under the age of 21 years who have survived by a parent ordinarily resident in Australia but left no dependants.

Recovery of certain costs and charge on damages

Chapter 3A of the WCRA deals with compensation claim costs. Section 207B of the WCRA deals with the creation of a charge on damages for compensation paid as follows:

“207B Insurer’s charge on damages for compensation paid

(1)This section applies to—

(a)an injury sustained by a worker in circumstances creating—

(i)an entitlement to compensation; and

(ii)a legal liability in the worker’s employer, or other person, to pay damages for the injury, independently of this Act; and

(b)damages that an employer is not indemnified against under this Act.

…

(11)In this section—

damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.” (emphasis added)

The definition of damages under this section is expressly wider than the definition of damages in s 10, and therefore could be wider than “damages” used in s 119.⁴⁶ As a result, s 207B could apply in respect of a compensation amount paid and damages that would not be covered by the damages as used in s 119(1)(b).
Section 207B(2) contains a temporal limitation by the words “at a time or for a period before”. The focus for the operation of the charge is the amount paid as compensation “before” the person becoming entitled to payment for damages.

History of legislative scheme

The Court was not referred to any authority considering s 119 of the WCRA. However, similar provisions in the previous versions of the legislative scheme have been the subject of judicial consideration.
Previous versions of the legislative scheme are the Workers’ Compensation Act 1916 – 1974 (Qld), Workers’ Compensation Act 1990 (Qld) and WorkCover Queensland Act 1996 (Qld).
Clause 24A of the Schedule to the Workers’ Compensation Act 1916 – 1974 states as follows:

“24A Compensation receivable until damages become recoverable

(1)Subject to this clause, in respect of an injury received under circumstances creating both -

(a)Independently of this Act, a legal liability in some person, whether the employer or a person other than the employer, to pay damages in respect of that injury; and

(b)A claim for compensation under this Act,

a worker may both take proceedings to recover those damages and apply for compensation under this Act according to his entitlement thereto, but such a worker is not entitled to receive compensation under this Act at any time (or in the case of compensation under provision (B) of subsection one of section fourteen of this Act, in respect to any period of time) after those damages become recoverable by him.

…”

This clause also contained provision for the creation of a first charge upon the damages⁴⁷ and an entitlement to be indemnified by the employer or other person to the extent of the liability.⁴⁸
A similar provision was included in the Workers’ Compensation Act 1990 as clause 5.3, which was changed to s 90 in the 1992 amendments. Clause 5.3 states:

“Where right to damages exists. If in respect of an injury suffered by a worker there is –

An entitlement to compensation under this Act; and

A right of action against the worker’s employer, or other person, to recover damages independently of this Act;

a claim for compensation under this Act may be made and proceedings to recover such damages may be taken but an entitlement to such compensation does not exist at any time, or in respect of any period, after judgment for damages is given, or settlement is agreed, in such proceedings.”

The explanatory memorandum stated:

“Clause 5.3 declares that an injured worker is entitled both to claim compensation under this Act and to sue for damages. However, once such damages are recovered, there is no further entitlement to compensation under this Act.”

A similar provision was again included in the WorkCover Queensland Act 1996. Section 144 provided as follows:

“144 Entitlement to compensation ends if damages claim is finalised

(1) This section applies if, for an injury, there is –

(a)an entitlement to compensation; and

(b)an entitlement to recover damages against an employer or another person.

(2) An entitlement to compensation ends when settlement for damages is agreed or judgment for damages is given.

(3) In this section –

“damages” includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 11.”

The explanatory memorandum stated:

“Clause 144 replaces section 90(1) of the Workers’ Compensation Act 1990 and has not changed except for being updated according to current drafting practice. It applies if a worker is entitled to compensation under this legislation and has a right of action against their employer, or other person, to recover damages independently of this legislation (e.g. compulsory third party, public liability). It states that entitlement to compensation ceases when a damages action is settled (either by agreement or judgement).”

The current s 119 replaced the previous section with the introduction of the WCRA. The explanatory memorandum states:

“Clause 119 replaces section 144 of the WorkCover Queensland Act 1996 and has not been changed. It applies if a worker is entitled to compensation under this legislation and has a right of action against their employer, or other person, to recover damages independently of this legislation (e.g. compulsory third party, public liability). It states that entitlement to compensation ceases when a damages action is settled (either by agreement or judgement).”

Section 201A was introduced by a later Amendment Bill, namely the Workers’ Compensation and Rehabilitation and Other Acts Amendment Bill 2005. The explanatory memorandum in respect to the introduction of s 201A states as follows:

“Insertion of new s 201A (Worker with non-dependent spouse, issue or next of kin)

Clause 26 introduces a new benefit for non-dependents including spouse, children or next of kin equivalent to 10% of the maximum death benefit lump sum compensation. This clause only applies where a worker does not have dependents and is payable to the deceased worker’s estate.”

WorkCover in its submissions relies on the statement “... is payable to the deceased worker’s estate” in support of its contention that it is the estate that has the entitlement to the compensation, not the non-dependants. This at best is ambiguous. The extract above also refers to a “benefit for non-dependents” which is consistent with the requirement for payment to the benefit of the persons entitled in s 196(2).
WorkCover also refers to ss 128A to 128E by way of comparison as support for its position. It is difficult to see how these provisions support the argument. If anything, ss 128E (2) and (3) tend to counter WorkCover’s argument. Again, payments for the death of a worker are to be paid to the legal personal representative, which are to be paid or applied to the benefit of the worker’s dependants. This is similar wording to s 196(2), with that provision also including “other persons entitled to compensation”; that is, non-dependants with an entitlement under the WCRA.

Consideration of authorities

In State Government Insurance Office (Queensland) v Public Curator of Queensland,⁴⁹ clause 24A was considered by the Full Court. In that case, a young woman’s parents were deemed dependants under s 14 of the Workers’ Compensation Act 1916 – 1966 and received compensation in respect of the woman’s death as a “worker” paid by the State Insurance Fund. The administrator of the woman’s estate then brought an action against another party who caused her death and recovered a further amount in damages. The State Government Insurance Office claimed to be entitled to a first charge over a portion of the damages based on clause 24A.
Hanger CJ, in rejecting the State Government Insurance Office’s claim, stated:

“… it is my opinion that [clause 24A] has no application to the facts with which we are concerned. The clause envisages a situation in which a worker has two rights which he can assert - a right to damages independently of the Act and a right to compensation. If we can substitute dependants in paragraph (1) of the clause, then on the facts here, the parents did not have these two rights. Ex hypothesi, their rights to a claim for compensation excludes dependency in fact; they are no more than persons deemed to be dependants; and as such they have no right to claim damages. By paragraph (2) of the clause, compensation paid to a worker to whom the clause applies is charged on damages recoverable by a worker. If the paragraph can be read as referring to damages recoverable for dependants, (which I do not decide) the answer is that no damages were recoverable by them.⁵⁰

We cannot substitute legal personal representative in paragraph (1) because the legal personal representative had no entitlement to compensation under the Act. The only entitlement was in the parents as ‘deemed’ dependants. In my opinion, clause 24A is no basis for the plaintiff’s claim and the demurrer should be allowed with costs.”⁵¹

DM Campbell J gave separate reasons but interpreted clause 24A in a similar way as follows:

“The worker referred to in cl. 24A(1) is a worker with an ‘entitlement’ to workers’ compensation, and this is also the worker referred to in cl. 24A(2). To make sense of the last subclause the words ‘to a worker’ must refer back to the word ‘paid’. The Public Curator had no entitlement to compensation as administrator of the deceased’s estate. The entitlement under the Act in case of death is possessed by the dependants — such members of the worker’s family as were (in fact) wholly or in part dependant upon the earnings of the worker at the time of his death (s. 3(1)), or, if there are no such members, and the worker dies under the age of 21, as here, his surviving parents who are deemed to be dependants (s. 14(1)(iv)). The case is not to be confused with the case of dependants who are paid compensation and for whose benefit a Lord Campbell’s action is brought ‘by and in the name of the executor or administrator of the person deceased’.

I am of the opinion that the Workers’ Compensation Act does not give the plaintiff a charge over the estate damages…”⁵²

This case supports the proposition that there has to be a correlation between the entitlement to compensation and the entitlement to damages. The entitlement to the compensation for the death was in the “deemed dependants”: i.e. the parents. The parents as “deemed dependants” had no right to damages. Therefore the charge did not attach to the damages recovered by the estate as they were general damages payable for the benefit of the estate and payable by the person who had caused the death.
Clause 24A was subject to an earlier consideration by the Full Court of the Supreme Court of Queensland in Johnson v S & S Gravel Pty Ltd⁵³ where it was argued that, because the plaintiff had received compensation under the Workers’ Compensation Act, she was “disentitled to recover damages”. The plaintiff demurred to the defence, saying it was bad in law.
The Full Court of the Supreme Court of Queensland allowed the demurrer on the basis that the Workers’ Compensation Act could not operate to effectively bar a claim in damages because it contemplated a worker being paid out in full by the Commissioner without having pursued a common law remedy. If the plaintiff claimed against, for example, a negligent employer then the Commissioner would be granted an indemnity. Relevantly, Stanley J made the following comments regarding the purpose of clause 24A, which his Honour quoted from an earlier judgment in Lane v Thomas Borthwick & Sons (Australasia) Limited [1959] Qd R 151:⁵⁴

“The whole purpose of cl. 24A was to enlarge the worker's rights, so that his acceptance of compensation did not debar him from the recovery of common law damages. At the same time, he is not to have the benefit of both in toto; and to replenish the Fund the Commissioner was to be reimbursed by the amount of payments deemed to be compensation abstracted from the Fund for the benefit of a successful plaintiff.”

That quote has been widely referred to but it is important to also consider the general purpose of the section.⁵⁵
At an earlier point in the reasons for judgment, Stanley J states:

“Haigh v State Government Insurance Office (Queensland) (1962) Qd R 534 is, so counsel informs us, a case corresponding to the present in all relevant facts. In it, this Court decided that each dependant has a separate right of action for negligence and a separate right to compensation under The Workers’ Compensation Acts. But the point was not taken and no decision given that either a widow or a child retained its right of action against a negligent employer when the widow had received full workers’ compensation in her own right and had entered into a trust deed touching the full amount of such compensation for the child to be paid to the widow in instalments and the time for payment of some of the instalments under the deed had not arrived at the date of issue of the writ.”⁵⁶ (emphasis added)

In the case of Foyster v The Minister for Education,⁵⁷ the Full Court of the Supreme Court of Western Australia considered s 18(2) of the Workers’ Compensation Act 1912 (WA). In that case, a widow received $30,000.00 compensation as a dependant under the Workers’ Compensation Act 1912 (WA) following the death of her husband. Then, as executrix of her husband’s will, she commenced proceedings against the driver involved in the accident and received $164,085.00 in damages (increased on appeal). The defendant claimed that it was entitled to a charge over the damages in respect of the amount of compensation paid to the widow pursuant to s 18(2) of the Act.
Burt CJ, in dismissing the defendant’s claim, stated:⁵⁸

“… The proviso [in s 18(2)] at every point speaks of the worker and this, I think, indicates clearly enough that it is speaking of the same worker. The other reason is that the proviso requires that the compensation be refunded out of the damages recovered by the worker. If the worker – in the case supposed the widow – has not recovered compensation I am unable to understand how the amount of it can be refunded by her, that is to say, how it can be paid back by her. And the case is, I think, the same when the widow having recovered personal compensation under the Act the personal representative of the deceased is successful and recovering damages against tortfeasor upon a cause of action which has survived for the benefit of the estate under sec. 4(1) of the Law Reform Act. Even if it be the case, as it is here, that the widow is the personal representative and sole beneficiary under the deceased worker’s will she was not in those proceedings the worker to whom any amount had been paid by the employer as compensation under the act. The case in its reasoning is as if the deceased worker had in his lifetime recovered those damages and following upon his death resulting from the injury the widow had received compensation under the Act ‒ Hadfields Steel Works Limited v. Meyer (1962) 108 C.L.R 171. In the instant case the widow takes what she gets following upon the judgment in the Law Reform action not as damages recovered by her as the worker to whom the employer had paid compensation but as a testamentary gift from her deceased husband.”⁵⁹ (emphasis added)

Further, the reasons of Brinsden J, also dismissing the claim, provide some useful comments in relation to the operation of the legislative scheme as follows:⁶⁰

“Workers’ compensation was paid under the old Act by the defendant to Mrs Foyster as the widow dependant of the worker. She recovered damages but only in her capacity as executrix of the will of the deceased and the damages were recovered on behalf of the estate. Counsel for the plaintiff naturally contends Mrs Foyster received these monies in different capacities and that the intention of the proviso to sec. 18(2) is to require a refund only where the person who received the compensation is the same person who recovered the damages even though both might be covered by the extended definition of ‘worker’. In my view this contention is correct. What the proviso firstly requires is that there should have been an amount paid by the employer to the worker. In this case there was an amount paid to the worker, namely, his widow dependant to whom or for whose benefit the compensation was payable. The worker who was successful in proceedings to recover damages was not the widow dependant but the widow acting for and on behalf of the estate of the deceased. Consequently there have been no damages actually recovered by the dependant widow so there is no fund the subject of a charge or refund. The use of the word ‘refunded’ is also significant since the verb means ‘to give back, restore or repay’. That idea fits in with a legislative intention that the identity of the worker who receives the compensation should be the same as the worker who receives the damages. Even though Mrs Foyster is in fact the same person who has received the compensation as well as the damages, she received the latter by reason of being the sole beneficiary of the will. As counsel for the plaintiff pointed out that need not have necessarily been the case for it is not difficult to imagine a set of circumstances in which the destination of the proceeds of the estate went not to the person who received the compensation but to some other person or institution.” (emphasis added)

The High Court decision in Hadfields Steel Works Ltd v Meyer⁶¹ referred to by Burt CJ is also of some assistance. In that case, the respondent’s husband sustained injuries within the meaning of the Workers’ Compensation Act 1926 - 1951 (NSW) in the course of his employment. He made a claim in negligence and obtained judgment for £656.00. He died two years later and his widow and child, as dependants, made an application for compensation under s 8(1) of the Workers’ Compensation Act and were paid a further amount.
The hearing concerned an argument that the dependants of the deceased were not entitled to compensation pursuant to s 8 because, in his lifetime, the deceased worker had obtained judgment against his employer independently of the Act. The argument was based upon s 63(2) of the Act read in light of s 6(2) which provided “any reference to a worker who has been injured shall, where the worker is dead, include a reference to his dependants”.
In a joint judgment of the court,⁶² the appellant’s argument was considered as follows:

“According to the appellant's argument the deceased worker was at liberty, in his lifetime, to pursue his remedies both under the Act and independently of the Act but it is said that once he had obtained judgment against his employer independently of the Act he lost any right to compensation under the Act. This, of course, is clearly right. But the argument goes further and asserts that thereupon any rights to compensation to which his dependants might otherwise become entitled were also destroyed. This is said to be the result of taking the provisions of s. 6 (2) into account when considering the extent to which s. 63 (2) operates. The legislative provisions are difficult but we do not agree with the contention. Section 63 (2) is but one of several provisions contained in s. 63 which are directed against double recovery by a worker in respect of compensable injuries and when the section is read as a whole it is clear enough that the stipulation in sub-s. (2) that a worker ‘may proceed under this Act and independently of this Act’ speaks, primarily, of proceedings to enforce his rights in the circumstances contemplated by sub-s. (1). But the rights of his dependants under the Act where death results from his injuries are separate and distinct rights and it seems to us that when it becomes necessary to consider how far and to what extent dependants of a deceased worker are affected by the provisions of sub-s. (2) the result of the application of the provisions of s. 6 (2) is, in effect, to accord to s. 63 (2) a distributive operation. That is to say, it is intended to apply to a worker in his lifetime in relation to his rights and, in circumstances where after his death his dependants have both a right to compensation and a right to damages under the Compensation to Relatives Act, to his dependants in respect of those rights. Accordingly the judgment which the deceased worker obtained in his lifetime is not a bar to the recovery by the appellant of compensation under the Act. This conclusion is, we think, consistent with and, indeed, the result of the views expressed in the Full Court. We agree substantially with those views and in the result the appeal should be dismissed.”⁶³ (emphasis added)

The comments by the High Court are very close to the facts being considered in the current matter. While the language of the provisions is different it supports the approach of the legislative scheme: judgment or settlement for damages payable to a worker (or a deceased worker) in respect of rights in his lifetime are separate and distinct from claims brought after the worker’s death, and the right to compensation for death is not extinguished by the judgment or settlement. That case was concerned with dependants’ entitlement to compensation, but conceptually it would equally apply to non-dependants under s 201A.
The decisions of State Government Insurance Office (Queensland) v Public Curator of Queensland and Foyster v The Minister for Education were referred to by the judge at first instance and the applicable principles were briefly identified. The shorthand descriptions of “capacity” and “double dip” were used to refer to the more extensive reasoning in these decisions. While the use of this abbreviated terminology may not have been ideal, they do not of themselves establish an error in reasoning.
There are two authorities referred to in submissions in respect of the interaction of a common law claim and an action maintained under s 66 of the Succession Act (or equivalent).
In the case of WorkCover Queensland v Amaca Pty Ltd,⁶⁴ the High Court considered issues under the current WCRA and, in particular, s 207B. In that case, a worker was exposed to asbestos and, as a consequence of contracting mesothelioma, he received a payment in compensation of $340,000.00 from WorkCover. Before his death, he had not instituted any proceedings against any person who may have been liable for his injury. As a result, WorkCover was entitled to pursue its right of indemnity under s 207B(7)(a) of the WCRA. The issue being considered on the appeal was whether s 66(2) of the Succession Act, which limited the damages recoverable by the estate, also limited the indemnity available to WorkCover under s 207B(7) of the WCRA.
The High Court allowed the appeal and in joint reasons of the court⁶⁵ various authorities were considered together with the statutory scheme. While the decision specifically relates to the nature of the indemnity under s 207B(7) of the WCRA, and in particular, that it is not limited to the damages that would be payable to the estate following the death of the worker, there are still some aspects of the reasons which are of assistance in the current application.
In relation to s 66 of the Succession Act, the High Court reasons identified the following relevant principles: (a)“Prior to enactment of s 66 in Queensland, the common law maxim provided that a cause of action in tort died with the person in whom it was vested. This was the first of two common law rules preventing civil actions upon the death of a person which legislatures have, in the past few centuries, addressed through legislation. The second was that the death of a person could not be complained of as an injury, a rule overturned in part by the ”(b)“Section 66 does not create a fresh cause of action in favour of the deceased estate. Rather, it largely displaces the operation of the common law maxim which had applied to all but a few tort actions. The cause of action of the deceased and that pursued under s 66 by the estate are one and the same.” (c)Per Latham CJ in , that “a person who has died cannot bring an action for his own death, simply because he is dead and cannot bring an action for anything, and not by reason of the application of any rule of law.”(d)“The fact that WorkCover might recover from the respondents an amount which differs from what Mr Thomson’s estate might recover is simply a reflection of the operation of the different policies of the two Acts. So far as concerns the , the point is that WorkCover is recovering moneys from the respondents because it has paid compensation to Mr Thomson on account of his injuries. It cannot be gainsaid that what the respondents will pay will reflect their liability in respect of those injuries.”(e)“In any event the fact that the respondents might be required to pay a larger sum in proceedings brought by WorkCover does not displace the construction given to s 66(2) of the , in light of its history and purpose.”

“The new provisions provided that the old rule of law did not apply to, inter alia, a cause of action which had vested in the deceased before he died. However, the old rule continued in respect to some personal causes of action which were expressly accepted in the new legislation. But the important thing to note was that as a result of the amendment, in a claim such as the present, the old rule had no effect on the cause of action vested in the plaintiff during his lifetime, as a result of his death. It continued.”⁷⁹

Further:

“Prior to his death, the deceased had instituted a proceeding in this Court. His cause of action was a common law negligence claim against his former employer and he sought damages including general damages, and damages for economic loss. During his lifetime, he was entitled to recover the general damages and also economic loss. When he died, by reason of the provisions of the now s. 29(1) of the 1958 Act, his death had no effect on his cause of action and the proof of his case. In order to establish his case, both before and after death, it was necessary for him, and later his personal representative, to prove that the employer owed him a duty of care, that the employer breached the duty of care, that is, that his employer was negligent, and that the negligence was the cause of his injuries. As long as he established that he had suffered some injury, his cause of action was complete. It was a common law cause of action to be determined in accordance with the principles of the common law. In order to establish his damages, he during his lifetime, and the estate after his death, would also rely upon the common law principles. As a result of the 1942 amendment, general damages were limited, but nevertheless his estate would have been entitled to recover funeral expenses and also economic loss suffered prior to his death, for example, loss of income, and medical and life expenses. Hence, before and after death, he and his estate would have established the case in exactly the same way. By reason of the amending legislation, his death had no effect upon the cause of action, save that some of the heads of damage were not open to his estate.⁸⁰

…

In my opinion, the amending legislation did not create any new cause of action. The cause of action was the same both before and after death. That is not to say that the Act did not affect rights. It gave the right to bring or continue a proceeding after death when the law did not permit that in the past. However, it did not create a new cause of action.”⁸¹ (emphasis added)

These cases clarify the nature of proceedings continued under s 66 of the Succession Act, or equivalent. This is important in the current case. The District Court proceedings were commenced by Mr Bolt in his lifetime and continued by the estate in respect of rights that arose while the worker was alive. That is separate and distinct from any action for damages that may be brought by the estate or others in respect of particular rights arising from Mr Bolt’s death; for example, an action under s 64 of the Civil Proceedings Act 2011 (Qld). Moreover, the damages payable are calculated differently – there is no cross over of recoverability. To this extent, the judge of first instance’s analysis of the “capacity” of Mrs Bolt – as the legal personal representative as well as the non-dependent spouse – and the lack of “double dipping” was relevant.

Extinguishment of entitlement to compensation?

Did the mere settlement of Mr Bolt’s personal injury action maintained under s 66 of the Succession Act by itself extinguish Mrs Bolt’s entitlement to compensation payable on the death of a worker to the benefit of a non-dependent spouse pursuant to s 201A of the WCRA? The answer has to be no.
Section 119 WCRA properly interpreted means that:(a)There has to be a correlation between the entitlement to compensation and the entitlement to damages: the entitlement to compensation and damages has to be in relation to the same “injury”. Depending on the facts, death may be a separate injury to, for example, suffering a disease.(b)The definition of compensation makes it clear that several different categories of people may be entitled to the payment of compensation. Accordingly, when the definition is read together with s 119 it has a distributive effect.(c)This is supported by the use of “an” before “entitlement”; otherwise, the effect of WorkCover’s interpretation would be that “any entitlement” would be sufficient to extinguish the right and this is not what could have been intended⁸².
On the current facts:(a)Mr Bolt had an entitlement to compensation in respect of his personal injury (being the injury to the worker) during his lifetime. He in fact did not make any claim in respect of compensation and no payment was made.(b)Mr Bolt brought a claim for damages in respect of his personal injury and this was continued by his estate under s 66 of the Succession Act. The damages were those Mr Bolt could have claimed in his lifetime, except for those damages excluded under the Succession Act⁸³. These damages were payable to Mr Bolt’s estate for the benefit of the estate generally. The proceedings were in the name of Mrs Bolt as the legal personal representative but that was merely facilitative: the claim was not in respect of her or any of her rights personally as a result of Mr Bolt’s death.(c)Therefore, s 119 had no operation. However, if Mr Bolt had received any compensation during his lifetime, this would have been subject to s 207B and “refundable” to WorkCover out of the damages.
Further, and in contrast, on the current facts:(a)Mrs Bolt had an entitlement to compensation as a non-dependent spouse as a result of the death of Mr Bolt (being the injury to the worker) pursuant to s 201A. Any amount of compensation was payable to the legal personal representative (which in this case just happened to be Mrs Bolt but could have been someone else) which was to be paid to the benefit of Mrs Bolt as the person entitled to the compensation – s 196(2) WCRA.(b)Mrs Bolt could potentially bring an action for damages under s 64 Civil Proceedings Act. This is a separate and distinct cause of action from Mr Bolt’s District Court proceedings. Mrs Bolt has not done so.

Operation of the Deed of Release

Whether any future claim for damages in respect of Mrs Bolt (such as a claim under s 64 Civil Proceedings Act) was settled by the Deed of Release dated 10 January 2019 requires consideration of the terms of the Deed of Release.⁸⁵ No substantive submissions were made on this issue in the written submissions in support of the application for leave and on the appeal. At first instance, the issue was addressed in oral exchanges at the hearing,⁸⁶ and briefly in WorkCover’s written submissions.⁸⁷ The alleged error in his Honour’s reasons⁸⁸ and the proposed grounds of appeal,⁸⁹ raise this issue – although not expressly.⁹⁰
Recital K and clause 3 and 4 of the Deed of Release are relevant and state as follows:

“K. The Releaser has agreed with the Releasee that neither Mr Bolt’s heirs, executors, successors, administrators or dependants shall [sic]⁹¹ not have any further claim against the Releasee in respect of any injury or disease including but not limited to, asbestos pleural disease including folded stelectasis, asbestos related pleural effusion, asbestos related pleural thickening, asbestosis, impaired lung function, mesothelloma and lung cancer and asbestos related pleural plaques from which he has suffered in any way connected with or related to the exposure to inhalation of asbestos dust particles and fibres as detailed in paragraph A to E above.

…

RELEASE

In consideration of the settlement, the Releasor:

(a)Releases and discharges each of the Releasee from all actions, suits, claims, demands and causes of action both at law and in equity and the costs thereof which the Releasor or Mr Bolt’s dependants may not have or which but for this Deed could, would or might at any time hereafter have or have had on or against the Releasee in respect of or arising out of the matters recited in this Deed or in the pleadings in the proceedings;

(b)Agrees to indemnify the Releasee from and against all actions, suits, claims, demands and causes of action both at law and in equity and the costs thereof which may now or hereafter be made against either the Releasee by the Releasor, Mr Bolt’s heirs, executors, successors, administrators or dependants in respect of or arising out of the matters recited in this Deed or in the pleadings in the proceedings.

BAR TO PROCEEDINGS

This Deed may be pleaded in bar to any action, suit or proceeding now or hereafter commenced by the Releasor, Mr Bolt’s heirs, executors, successions, administrators or dependants against the Releasee in respect of, or arising out of or in connection with any of the matters recited in this Deed or in the pleadings in the proceedings.”

The law in relation to the interpretation of the scope of release clauses is well-settled.⁹² In Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112, the High Court⁹³ stated:

“The principle relied upon is that adopted by the common law long ago for the restriction of wide general words in a release of obligations, viz. that the general words of a release should be restrained by the particular occasion: Knight v. Cole. Thus the general words of a release are to be restrained by the particular recital: Payler v. Homersham. As is concisely expressed by Best J in Lampon v. Corke: ‘If there be introductory matter, that will qualify the general words of the release.’

…

The principle which it is thus sought to apply was expressed by Lord Westbury in London & South Western Railway Co. v. Blackmore as follows: ‘The general words in a release are limited always to that thing or those things which were specifically in the contemplation of the parties at the time when the release was given.’ It was expressed by Taunton J. in Upton v Upton in this way: ‘… the general words of a release may be limited by the particular matter out of which the release springs and the particular intent of the parties by whom the release is executed.’”⁹⁴ (citations omitted)

Clauses 3(a), 3(b) and 4 of the Deed of Release refer to the scope of the release as actions “in respect of or arising out of the matters recited in this Deed or in the pleadings in the proceedings.”
Although the phrase “in respect of or arising out of” is drafted in broad terms, it cannot be given a meaning so broad as to include claims not in the contemplation of the parties at the time the Deed was executed.⁹⁵
The scope of the release is informed by the recitals to the Deed of Release, as well as the pleadings in the proceedings: (a)The Deed of Release was in respect of the proceedings commenced by Mr Bolt on 8 January 2018: see recital H.(b)The recitals to the Deed of Release do not make reference to the death of Mr Bolt, only to the specific injuries he suffered as a result of exposure to asbestos material: see recital G and K.(c)The proceedings were continued by Mr Bolt’s estate pursuant to s 66 of the Succession Act.(d)The claims in those proceedings were only in respect of damages suffered by Mr Bolt before he died. This is supported by the following:The claim for future medical expenses was removed in the Amended Statement of Claim; andThe relief claimed was “for damages for personal injuries and other loss and damage suffered by the deceased.”⁹⁶ (emphasis added). The claim was not in respect of the injury to deceased’s estate or anyone else.(e)Although the Statement of Claim was amended to include ‘death’ as a particular of the injuries and disabilities alleged,⁹⁷ this was included in order for the claim for general damages to survive under s 66(2A) of the Succession Act.⁹⁸(f)There was no additional ‘Lord Campbell’s Act’ claim in the proceedings following Mr Bolt’s death.(g)Further, Mrs Bolt had not (and has not) brought such a claim under s 64 of the Civil Proceedings Act.
Clause 2.1 of the Deed of Release does refer to the settlement sum being “inclusive” of certain sums including “liabilities” to WorkCover. Clause 2.2(a)(iii) authorises the payment to WorkCover being “payment, if any, as stated in a Payment / Recovery History Summary Report”. At the time of settlement, there was no report and there was no liability to WorkCover. Mr Bolt had made no claim for compensation.
In these circumstances of this case, it is difficult to accept that a release of a potential claim by Mrs Bolt in her personal capacity was in the contemplation of both of the parties at the time the Deed of Release was entered into. In particular, it is difficult to accept that it was in the contemplation of both of the parties that it would operate to attach to future entitlements to compensation of persons other than Mr Bolt.

Proposed grounds of appeal and leave to appeal and appeal

The interpretation contended for by WorkCover is not the proper construction of s 119 of the WCRA.
Mrs Bolt was entitled to the compensation under s 201A of the WCRA and that entitlement had not been extinguished by the settlement of Mr Bolt’s District Court proceedings or the operation of the Deed of Release (to incorporate future actions for damages by persons including Mrs Bolt).
A charge under s 207B WCRA may attach to any damages recovered in the event that a claim for damages is brought by Mrs Bolt. A charge does not attach to the damages paid by way of settlement of the District Court proceedings.
The matter does involve a point of law of general importance in respect of the operation of the WCRA which applies throughout Queensland. There is evidence before the Court that a number of matters having a similar issue have previously arisen or are likely to arise. Consideration of the question at appellate level will clarify the operation of the legislative scheme.
In these circumstances, leave to appeal is granted.
However, there is no merit in the proposed grounds of appeal and the appeal is dismissed with costs.

Orders

I order that:

Leave to appeal is granted.

The appeal is dismissed with costs.

Footnotes

WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34; (2010) 241 CLR 420 at 435 [38]. ↩
Section 194(1). ↩
Section 194(3). ↩
WorkCover Queensland v Turner Freeman & Anor [2019] QDC 166. ↩
Written submissions dated 2 September 2019, paragraph 22. ↩
[1959] Qd R 151 at 155, repeated in his judgment in Johnson v S & S Gravel Pty Ltd [1964] QdR 553 at 599. ↩
Appellant’s final written submissions, paragraph 15. ↩
Section 119(5). ↩
Applicant’s submissions, paragraphs 23-25. ↩
Statement of claim, paragraph 5(p). ↩
By s 27 of the WCRA, 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. ↩
See report of Dr Hossack dated 11 February 2019, exhibit BRT-9 of affidavit of Bruce Richard Thomas sworn 24 June 2019 [AB page 117]. ↩

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