Austrak Pty Ltd v WorkCover Queensland [2000] ICQ 56 (2000) 165 QGIG 525

1 December, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 525 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Austrak Pty Ltd AND WorkCover Queensland (No. C58 of 2000) PRESIDENT HALL 20 November 2000 DECISION By s. 58(1) WorkCover must set the premium payable under a policy. The premium payable for the policy for a period of insurance must be assessed according to the method and at the rates specified by WorkCover by notice published in the Queensland Government Industrial Gazette, see s. 58(2). For the purpose of this appeal the relevant notice is WorkCover Queensland Notice No 1 of 1998 which was published in the Queensland Government Industrial Gazette of 26 June 1998, see 158 QGIG 231. Amongst other things the method of calculation pays regard to the employer’s past claims performance. Both common law claims and statutory claims under the WorkCover Queensland Act 1996 are taken into account. However, the years to which regard is had in evaluating claim performance differ according to whether one is evaluating common law claim performance or statutory claim performance. Materially, where (as here) the exercise is to determine a premium for the 1998-1999 year, the years to which regard is had in evaluating common law claims performance are the years 1995-1996 and 1994-1995. In evaluating statutory claims, regard is had to the years 1997-1998 and 1996-1997. At the core of this case is the appellant’s conviction that it is inappropriate to have regard to the 1994-1995 year in evaluating the appellant’s common law claims performance. The inappropriateness of having regard to the 1994-1995 year is said to arise out of its safety record. Prior to 1995-1996 the appellant had a poor safety record and a history of substantial total annual claims. The appellant says that as and from 1995-1996 it entirely revised its approach to workplace health and safety, and established and implemented a framework for preventing or minimising exposure to risk which entirely turned around its safety record and the volume and magnitude of claims made against it. On the evidence led before the Industrial Magistrate the only conclusion which is open is that such a change did occur. The appellant says that in those circumstances in looking at common law claims performance for the purpose of assessing a premium for the 1998-1999 year, it is inappropriate to look at a year from the earlier era, ie 1994-1995, from which no inference about the likely claim performance in the year 1998-1999 could legitimately be drawn. The appellant’s difficulty is that by s. 58(2) the premium must be assessed according to the method at WorkCover Queensland Notice No 1 of 1998. The Notice requires that the common law claim performance must be based on the years 1994-1995 and 1995-1996. The appellant seeks to overcome the difficulty by going to the method of assessing common law claim performance contained within Notice No 1. -- 1 of 2 -- 526 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 December, 2000 In the case of the year 1994-1995 it is the effect of Schedule 6 clause 2 of Notice No 1 of 1998 that the common law claim performance is the costs of claims for damages (including where applicable a reasonable estimate of those costs and damages) (to a maximum of $250,000 per claim) for which WorkCover has indemnified or is liable to indemnify the employer in respect of injuries to a worker incurred on a date within that year, ie one is not simply to total sums paid according to court orders for injuries which occur in the year and sums paid to settle claims in respect of injuries occurring during the year, but is to estimate also what will be paid, either pursuant to a court order or by way of a settlement, in respect of claims for injuries in the 1994-1995 year which have not reached finality. The risk that there may be claims as yet unknown is catered for by the use of a multiplier which, understandably, becomes larger as the period between the claim experience year and the 1998-1999 premium year becomes shorter. Like the year, the multiplier is inviolate.] The appellant goes to the method of assessment for this reason. Clause 8 of Schedule 6 provides: “For the purposes of Part A of the Schedule, where an employee can satisfy WorkCover that in the employer’s particular circumstances S, W, C Factors should be assessed in an alternative manner, then WorkCover shall assess any or all of those factors in that alternative manner.”. C Factors means either C3 or C4, see Schedule 6, clause 2. C4 is the common law claims history for 1995-1996. It was in reliance upon that provision that the appellant sought to persuade WorkCover to adjust the claims history of the 1994-1995 year which, before multiplication to allow for unknown claims, totalled $384,059. WorkCover declined to revise the calculation. The matter was sent to a statutory review, but to no avail. There was then an appeal de novo in the Industrial Magistrates Court. That appeal having failed, an appeal was filed in this Court on 2 October 2000. It is conceded by WorkCover that although Schedule 6 clause 8 is suggestive of a discretionary power allowing the decision maker some latitude so as attract the rule in House v The King (1936) 55 CLR 499, it is the effect of the statutory scheme allowing an appeal by way of hearing de novo to the Industrial Magistrates Court and a further appeal by way of re-hearing to this Court (s. 509) that the appeal to this Court is to be dealt with in accordance with the principles annunciated in Warren v Coombes (1979) 142 CLR 531. The appellant is correct to say that it is a main object of the Act to – “(a) maintain a balance between – (i) providing fair and appropriate benefits for injured workers or dependents and persons other than workers; and (ii) ensuring reasonable premium levels for employers.”, s. 5(4)(a). [Though by s. 4(2) ,the relevance of the objects is said to be that they are an aid to the interpretation of the Act.] If in truth Schedule 6 clause 8 were available the object might well go to the exercise of the discretion. However, in my view Schedule 6 clause 8 is not available. I can well understand the use of clause 8 to revisit the figure placed on outstanding claims by estimate. I can understand an employer with a claim for $110,000 in the claim year 1994-1995 but no other claim in excess of $30,000 over the period 1984-1985 to 1997-1998, pointing to the circumstance that individual claims in excess of $250,000 are put aside by Schedule 6 clause 2 and asserting that a claim for $110,000 should be put aside in the case of that particular employer. However, the submission in this case goes well beyond that. I accept that one may without straining language say that all that is proposed is a re- evaluation of the 1994-1995 common law claim experience. I cannot accept that the revaluing of the common law claim experience for that year is being done by way of assessing the common law claims attributable to that year. The proposals, that the common law experience for the year be treated as nil or, alternatively that the common law experience of the 1995-1996 claim year be treated as true of the 1994-1995 claim year as well, place artificial or notional values on the 1994-1995 claim year. Anything that occurred in the 1994-1995 claim year is studiously ignored. With respect to the careful argument for the appellant, I entertain a firm view that what is proposed is beyond power. I dismiss the appeal. The respondent is to have the costs of and incidental to the appeal, assessed by the Industrial Registrar as costs would be assessed if this were a Supreme Court matter. Dated this twentieth day of November, 2000. D.R. HALL, President. Released: 20 November 2000 Appearances:– Mr G.C. Martin SC instructed by Gilshenan and Luton for the appellant. Mr S.P. Sapsford instructed by WorkCover Queensland, the respondent. -- 2 of 2 --