Section 207B of the Workers’ Compensation and Rehabilitation Act 2003 (Act) provides a statutory right of indemnity to a workers’ compensation insurer, such as WorkCover Queensland (WCQ), who has paid compensation to a worker who sustained an ‘injury’ within the meaning of the Act. To be entitled to compensation under the Act, a worker’s employment must be connected with QLD pursuant to s113 of the Act. However, is that the case for a right of recovery pursuant to s207B of the Act? The Court of Appeal recently determined that question in WorkCover Queensland v Wallaby Grip Limited & Anor  QCA 11.
The worker, Mr Coveos, was employed by Ajax Fasteners in NSW as a Fitter and Turner between 1962 and 1969 (NSW employment) and Branford Kendall in QLD as a boilermaker from 1987 to 1989 (QLD employment). He developed malignant mesothelioma. He lodged an application for compensation with WCQ pursuant to the Act, seeking compensation for his injury. WCQ accepted the worker’s application for compensation and paid him compensation. Thereafter, WCQ commenced proceedings in the District Court seeking indemnity from Wallaby Grip Ltd (WGL) and Wallaby Grip Pty Ltd (in liquidation) (BAE) pursuant to s207B of the Act (WGL manufactured insulation products in NSW prior to 20 September 1966 and BAE manufactured identical products in NSW from 1 October 1966 until 31 December 1979. The insulation products, which WGL and BAE supplied and distributed within QLD and NSW, contained asbestos).
In its Amended Statement of Claim, WCQ pleaded that it was entitled, pursuant to s207B of the Act, to be indemnified by WGL and BAE ‘for the sum of [the amount] being the compensation paid by the Plaintiff to the Worker in respect of the Injury‘. In its respective Defences, WGL and BAE pleaded WCQ was not entitled to commence proceedings against it pursuant to s207B of the Act in relation to the worker’s NSW employment because the compensation WCQ paid to him was not in relation to that employment. In response, WCQ filed an application seeking to strike out that paragraph of WGL’s and BAE’s respective Defences, arguing that WGL and BAE were incorrect in its assertion of law that s207B of the Act was not satisfied in respect of the worker’s NSW employment.
The District Court did not determine that question of law, concluding it was a matter for the trial judge. As such, WCQ sought leave to appeal that decision pursuant to s118 of the District Court of Queensland Act 1967.
The Court of Appeal granted WCQ leave to appeal. It noted the appeal raised ‘an important question of law‘. That question of law was did s207B of the Act afford a right of recovery only for the compensation paid by WCQ for the worker’s QLD employment and not for his NSW employment or any contribution made to the injury by the worker’s asbestos exposure in his NSW employment?
The Court of Appeal noted WGL’s and BAE’s argument focused on the wording of s207B(1) of the Act in that the ‘creating circumstances‘ in s207B(1)(a) of the Act ‘must be the same circumstances that create the entitlement to compensation under s207B(1)(a)(i) and the legal liability [to pay damages] referred to in s207B(1)(a)(ii)‘. To that end, the Court of Appeal noted that, if the circumstances needed to be the same, WGL and BAE, by virtue of s113 of the Act, was correct in its contention that s207B was not satisfied in respect of the worker’s NSW employment because he was not entitled to compensation under the Act with respect to that employment. However, the ‘difficulty‘ the Court of Appeal had with that argument was that it required an interpretation of the Act ‘in which the reader of s207B inserts the word “same” prior to the word “circumstances” in s207B(1)(a)‘.
At paragraph 10 of its decision allowing WCQ’s appeal, the Court of Appeal said that, where the Act expressly recognises latent onset injuries, aggravations and injuries caused by multiple events with vastly different factual scenarios or circumstances, occurring in different places and at different times, there is no warrant to read the word ‘circumstances‘ in s207B(1)(a) of the Act as the ‘same circumstances‘. Had Parliament intended that to be so, it would have deployed the word ‘same‘ as it had elsewhere in the Act.
Further, s207B of the Act was ‘a remedial section in a remedial statute‘. It was not necessary, nor a sound principle, to limit the statutory cause of action created by s207B of the Act by confining it to require the circumstances to be the same in respect of sub-sections 207B(1)(a)(i) and (ii).
It follows the Court of Appeal ordered the respective paragraphs of WGL’s and BAE’s Defences that pleaded WCQ was not entitled to commence proceedings against it pursuant to s207B of the Act in relation to the worker’s NSW employment were struck out. The Court of Appeal determined that s207B of the Act afforded a right of recovery not just with respect to the worker’s QLD employment, for which it paid compensation, but also any contribution made to his injury by his asbestos exposure in his NSW employment.
Hence, whilst a worker’s employment must be connected with the State of QLD to be entitled to the payment of compensation, an insurer’s right of recovery is not just limited to the compensation it pays a worker in relation to that employment.
This article was written by Kyle Norton, Partner.