Dear Colleagues;
The High Court of Australia in
WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34 (20 October 2010)
http://www.austlii.edu.au/au/cases/cth/HCA/2010/34.html has handed down an interesting judgment involving "clawback" of workers compensation payments and the application of the local equivalent of Lord Campbell's Act.
WCQ are the workers compensation insurers in Qld. A worker, Mr Thomson, had died from exposure to asbestos. WCQ had paid out statutory compensation. Before his death Mr T had not sued Amaca, his previous employers, who it was accepted were liable at common law. WCQ had a statutory right to recover the amount they had paid out to Mr Thomson from Amaca, given by the relevant legislation, the Workers'
Compensation and Rehabilitation Act 2003
"207B(7) 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;
and
(b) to that
end, the insurer is subrogated to the rights of the person for the injury. "
The employer relied on the words "to the extent of that person's liability..." to say: once Mr Thomson died, then if his estate had brought an action under the relevant fatal accidents provisions we would only have been obliged to pay damages assessed on the lost income to his dependents, and hence we are not obliged to pay damages for pain and suffering or future economic loss. (These limits are to be found in s 66 of the Succession Act, the relevant LCA legislation).
The High Court unanimously ruled that the employer was wrong, and that the action to recover compensation could be brought by WCQ without these artificial limits. Effectively they held that the limits imposed by the LCA provision should be read as only applying in actions brought by the estate, and did not apply to the separate statutory right of recovery given by the 2003 Act.
As well as being an interesting exercise in statutory interpretation, there are some fascinating comments on the common law situation as to actions by deceased persons.
They suggest, for example, that there was very little direct authority for the proposition that a right of action ceased on the death of the injured party. They note at [36] that virtually the only justification for the rule is that offered by Ames in 1913, that a "private action always
presupposed a personal relationship between two individuals." And they go on at [38]:
1 "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 actio personalis
moritur cum persona 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. "
In other words, they seem to say that there is no great change made by death in relation to the cause of action- as a "chose in action" held by the deceased it continues to exist, and would have been able to be pursued had not the courts from early days erected this barrier to action. As they say at [42], the legislatures' decision to exclude matters such as pain and suffering, and expectation of future life, "insufficiently appreciate the characterisation of provisions like
s 66(1) as a mere continuation of the deceased's chose in action."
So the action for indemnity by WCQ would not be limited by the provisions of s 66. But the court commented at [61]
"An assessment of
prospective damage involves a measure of speculation; it is otherwise when that
damage (or its diminution) has become actual.
In this case an assessment would take account of Mr Thomson's
death. This may have the effect of
limiting some heads of damage, although perhaps not to the extent which would
result were the Succession Act to apply."
Hence it seems to me that WCQ may be entitled to an amount (to which Mr T would have been entitled) for pain and suffering and "lost expectation of life", but will not be able to get an amount based on his potential future earnings (which we now know won't happen). Of course, as the HC says elsewhere, the maximum that WCQ can recover is limited by the amount of compensation they actually paid out.
Regards
Neil
Neil Foster
Senior Lecturer, LLB Program Convenor,
Newcastle Law School Faculty of Business & Law
MC158, McMullin Building
University of Newcastle Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430 fax 02 4921 6931