Clark v Q-COMP [2012] ICQ 16

CITATION: Isla Clark AND Q-COMP (C/2012/15) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission Isla Clark AND Q-COMP (C/2012/15) PRESIDENT HALL 19 September 2012 DECISION [1] Christopher James Catley died from injuries received in the course of his employment. At the time of his death, viz., 20 July 2010, Ms Isla Clark was partially dependant upon him. Within weeks of his death, Ms Clark gave birth to Mr Catley's son. On 23 July 2010, Ms Clark lodged an Application for Compensation with WorkCover Queensland (WorkCover). The Application was accepted on 9 March 2011. Ms Clark was assessed as dependant upon Mr Catley, to the extent of 37%. Ms Clark sought a Statutory Review. By a decision of 6 July 2011, the extent of Ms Clark's partial-dependency on Mr Catley was reassessed at 90%. [The history of Mr Catley's son's Application for Compensation is not rehearsed.] [2] By its Review Decision of 6 July 2011, Q-COMP based the calculation of the lump sum payable to Ms Clark upon the amount fixed for payments pursuant to s. 200(2)(a) of the Workers' Compensation and Rehabilitation Act 2003 (the Act), at the date of Mr Catley's death. On 1 July 2011, that amount had been increased. The issue between the parties is whether the calculation should be based on the amount fixed under the Act at the date of death, or on the amount fixed under the Act at the date of payment. On an appeal against the decision of Q-COMP, the Queensland Industrial Relations Commission (the Commission) affirmed Q-COMP's decision. Ms Clark now Appeals to this Court. [3] There is no decisive authority, though I notice that in Riley and Ors v Q-COMP1 (unreported), an Industrial Magistrate (Mr Dwyer) adopted the view contended for by Q-COMP, albeit in the absence of argument. However, this Court has (twice) accepted that dependency is to be determined at the time of the worker's death, see Bate v Workers' Compensation Board of Queensland2 and Gers v Workers' Compensation Board of Queensland3. That view has also been taken of legislation in Victoria, see the advice of the Privy Council in Ogden Industries Pty Ltd v Lucas4 (note the differing head notes between Commonwealth Law Report and Appeal Cases), the decision of the Privy Council in Egan v City of Northcote5 and the Northern Territory, see Cunningham-Beattie v Groote Eylandt Mining Co Pty Ltd6. It seems a short step to say that dependency is also to be quantified in money at the time of death. I notice that when Ogden Industries Pty Ltd v Lucas7 was before the High Court, Owen J (at 597) said: "… it is the law in force at the time of the death that is to be applied in measuring the extent of that liability and of the corresponding rights.". In Egan v City of Northcote, op. cit., at page 301, the Privy Council expressly adopted Owen J's remarks. However, I must also note that in Ogden Industries Pty Ltd v Lucas, op. cit., the Privy Council cautioned about applying the construction of one Act to another Act. [4] Were this a discussion about law reform, a wider discussion might be appropriate. The beneficiary of a lump sum payment guards against inflation by prudent investment. A dependant, who is paid a lump sum which was appropriate 12 months earlier, must lose 12 months' interest. However, if the rule was changed and the quantum fixed under the Act at the time of payment was adopted, a dependant paid a day before variation of the statutory amount would have the same complaint. If the construction pressed by the Appellant is adopted, one can envisage difficulty if the sum paid by an insurer requires adjustment because the dependency percentage is altered on a Statutory Review or an appeal after an increase in the sum fixed under the statute has occurred. Howsoever all of that may be, the discussion is not about law reform. The discussion is about statutory construction. The Respondent's submissions are consistent with authority and are intellectually coherent. I accept the Respondent's submissions. 1 Riley and Ors v Q-COMP (unreported) 12 November 2009 2 Bate v Workers' Compensation Board of Queensland (1984) 117 QGIG 6 3 Gers v Workers' Compensation Board of Queensland (1985) 119 QGIG 104 4 Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 and [1970] AC 113 (Privy Council) 5 Egan v City of Northcote (1973) 47 ALJR 299 6 Cunningham-Beattie v Groote Eylandt Mining Co Pty Ltd (1989) 60 NTRI 7 Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 -- 1 of 2 -- 2 [5] I dismiss the Appeal. I reserve all questions as to costs. Dated 19 September 2012. D.R. HALL, President. Released: 19 September 2012 Appearances: Mr P.J. Goodwin, instructed by Hall Payne Lawyers for the Appellant. Mr P.B. O'Neill, directly instructed for Q-COMP. -- 2 of 2 --