Dear Colleagues;
One of the prices we pay for swift comments on issues and cases is of course occasional mistakes. It has become clear to me that my previous note on the High Court decision in in WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34 (20 October 2010), was in more than one respect a bit mlsleading, and I thought that for the sake of those who are interested in such matters, it was better to set the record straight. The two main errors were
1) I said that Amaca were the deceased worker's employer- a moment's thought will show this is not likely, as if so WorkCover Qld would have been their insurer and not likely to be suing them! In fact the High Court tells us that Amaca were responsible for manufacturing the asbestos which caused his harm. They were a third party who were separately liable.
2) The more serious mistake is that I confused the Lord Campbell's Act legislation ("fatal accidents" legislation allowing recovery by relatives after death) with the "survival of actions" legislation. The Qld Succession Act s 66 is "survival of actions" legislation, not fatal accidents legislation. It permits the estate of a deceased person to sue on an action the deceased had before death (contrary to what has usually been regarded as a common law prohibition on such actions), although putting a number of limitations on what can be sued for. It is this legislation that the High Court held was not directly applicable when resolving the question under the "clawback" provisions of the workers comp legislation as to "the extent of [Amaca's] liability for the damage". That question (the "extent of liability" question) was to be resolved without the artificial limitations on recovery which would have been applicable in an action brought by the estate. The fact that at common law the estate of the deceased would have prevented from suing (or that under the regime governed by the legislation the estate's suit would have excluded recovery for, say, pain and suffering) did not determine the question as to "liability".
Anyway, that's how I read it at the moment.
Regards
Neil


Neil Foster
Senior Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/