BTL secures another landmark victory in The High Court which has huge significance not only for WorkCover Queensland but also for all self insurers facing asbestos related workers’ compensation claims.
Georgina Wong who worked on the case with Bruce Thomas briefly explains the decision and its significance:-
Yesterday, the High Court allowed an appeal by WorkCover Queensland (“WorkCover”) in the matter of WorkCover Queensland v Amaca Pty Ltd & Anor. The appeal concerned the quantification of WorkCover’s right of indemnity under Section 207B of the Workers’ Compensation and Rehabilitation Act 2003 to recover from third parties the compensation paid to an injured worker who has subsequently died.
In particular, the court considered the argument advanced by Amaca and Seltsam that, if a worker dies after receiving statutory compensation, WorkCover’s indemnity is limited by Section 66(2) of the Succession Act to exclude recovery of damages for pain and suffering and economic loss. That argument, if successful, would limit the damages recoverable under the indemnity to nothing more than past special damages.
The High Court held that Section 207B of the WCRA created an independent right in WorkCover to recover compensation from other tortfeasors to be assessed in damages that the injured worker would have recovered from those tortfeasors at trial. That right was independent from other Acts including the Succession Act. Therefore, any restrictions on the deceased’s estate to recover damages under Section 66(2) do not apply to restrict WorkCover’s right of indemnity under Section 207B of the WCRA. That right of indemnity is independent of the rights of the worker, or of a deceased workers’ estate.
The practical outcome is that WorkCover is entitled to recover from tortfeasors the entire quantum of damages that the court would award to an injured worker at trial, regardless of whether the worker has since deceased. This decision is consistent with other decisions that provide that matters that limit the workers’ rights to recover damages (eg limitations statutes) do not prevent the insurer recovering its indemnity.
The High Court’s decision is both a legal and moral triumph for statutory insurers, and ensures that tortfeasors are accountable for injury caused to workers, including injury that is so severe that it results in the death of the worker.
The High Court also ordered that the Respondents pay WorkCover’s costs of not only the appeal but also of the preceding case stated heard before the Court of Appeal.
- Georgina Wong
- Bruce Thomas
Tags: Georgina