Australia: Queensland Succession Act does not affect WorkCover Queensland’s rights of recovery

Legal Directions
Last Updated: 25 November 2010
Article by Richard Clayton

WorkCover Queensland v Amaca Pty Limited [2010] HCA 34


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 contracting mesothelioma.

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) ('WCRA').

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 worker's employer:
(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 estate
(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; and
(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 survived.'

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 extends.

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 SA.

High Court

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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