WorkCover Queensland v Amaca Pty Limited  HCA
Mr Thomson was exposed to asbestos manufactured and supplied by
Amaca Pty Limited. As a consequence, he contracted mesothelioma and
applied to WorkCover Queensland for payment of compensation. In
April 2006, WorkCover paid Mr Thomson $340,000 by way of
compensation. In June 2006, Mr Thomson died as a consequence of
In June 2007, WorkCover commenced recovery proceedings against
Amaca to recover the $340,000 compensation payment made to Mr
Thomson relying on s272(7) (now s207B(7)), of the Workers'
Compensation & Rehabilitation Act 2003 (Qd)
Relevant legislative provisions
Section 207B(7) of the WCRA provides:
'If a person who has received
compensation has not recovered or taken proceedings to recover,
damages for the injury from another person, other than the
(a) The insurer is entitled to be indemnified for the amount of the
compensation by the other person to the extent of that person's
liability for the damages, so far as the amount of damages payable
for the injury by that person extends
To that end, the insurer is subrogated to the rights of the person
for the injury. ...'
The appeal from the Queensland Court of Appeal to the High Court
turned upon the interaction, if any, between s207B(7) of the WCRA
and s66 of the Succession Act 1981 (Qd)
('SA'). Section 66 of the SA provides:
'(1) ...All causes of action
subsisting against or vested in the person shall survive against,
or, as the case may be, for the benefit of, the person's
(2) Where a cause of action survives pursuant to subsection (1) for
the benefit of the estate of a deceased person, the damages
recoverable in any action brought:
(a) Shall not include damages for pain and suffering, for any
bodily or mental harm or for curtailment of expectation of life;
(b) Where the death has been caused by the act or omission which
gives rise to the cause of action – shall be calculated
without reference to:
(i) Loss or gain to the estate consequent upon the death save that
a sum in respect of funeral expenses may be included; or
(ii) Future probable earnings of the deceased had the deceased
Queensland Court of Appeal ('QCA')
The majority of the QCA held that s207B(7)(a) contains two
distinct subject matters.
The first is the existence of the indemnity. The second is the
calculation of damages to determine how far that indemnity
The majority held that the extent of the indemnity is to be
determined by the damages that would be recoverable by the worker
or his estate in the event of death, in an action brought against
the wrongdoer as at the date of judgment in the indemnity
proceedings. The majority also found that the calculation of
damages in the subsequent indemnity proceedings brought by
WorkCover was subject to the limitations found in s66(2) of the
The issue to be decided by the High Court was whether
WorkCover's recovery rights pursuant to s207B(7) of the WCRA
were reduced by the operation of s66(2) of the SA if the worker
dies after compensation is paid and before WorkCover's recovery
proceedings are commenced.
Amaca argued that damages assessed in WorkCover's recovery
action are subject to s66(2) of the SA. That is to say, damages
recoverable will not include components for pain and suffering and
future probable earnings.
WorkCover argued that s66(2) of the SA has no effect on the
damages it may recover because the action is WorkCover's cause
of action, not the deceased's cause of action.
In a joint judgment, the High Court reversed the QCA decision
and allowed the appeal by WorkCover.
The High Court found that the limitations contained in s66(2) of
the SA apply to limit damages which would be recoverable by the
worker's estate upon an action brought 'for the benefit
of' his estate. Further, these limitations do not apply to an
action brought by WorkCover seeking indemnity from the employer
under s207B(7)(a) of the WCRA. This follows as a matter of
construction of s66(2) and was consistent with the underlying
policies to which that provision gives effect. Those policies had
no application to WorkCover's right of indemnity given by
s207B(7)(a) of the WCRA. Indeed, the High Court found that those
policies would be in conflict with it.
The interplay between s207B(7) of the WCRA and s66(2) of the SA
ultimately turned on a matter of statutory construction.
The High Court was not prepared to extend the limitations
contained in s66(2) of the SA to a WorkCover statutory right of
recovery action. This was because clear words needed to be
contained in the SA to limit WorkCover's recovery rights. No
such clear words were evident in s66(2) of the SA.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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