Burrows v Workers' Compensation Board of Queensland [1997] QCA 182

[1997] QCA 182 COURT OF APPEAL FITZGERALD P MACKENZIE J HELMAN J Appeal No 6694 of 1996 ARTHUR ALEXANDER BURROWS Respondent/Plaintiff and THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Appellant/Defendant BRISBANE ..DATE 12/6/97 JUDGMENT -- 1 of 5 -- 120697 T16/VT26 M/T COA124/97 2 JUDGMENT THE PRESIDENT: This is an appeal by the Workers' Compensation Board of Queensland against a judgment of the District Court in favour of the respondent on 18 July 1996. There was only one point in issue. It was common ground that, by virtue of what was sub-section 10.1(2) of the Workers' Compensation Act 1990 at the time when the respondent was injured, he was not entitled to indemnity from the appellant if his employer was at the time when he was injured "required by - a law enacted by any other State ... to provide against the employer's legal liability in respect thereof". It was also common ground that the only law enacted by any other State which might have imposed such a requirement was subsection 155(1) of the Workers' Compensation Act 1987 New South Wales. So far as presently material, that provision which is to be found in Part 7 Insurance, Division 1 - Insurance policies, provided at the material time compulsory insurance for employers and employers "shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this Division for the full amount of the employer's liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer's liability independently of this Act (being a liability under a law of New South Wales) for any injury to any such worker". The District Court Judge who found in favour of the respondent held that subsection 155(1) of the New South -- 2 of 5 -- 120697 T16/VT26 M/T COA124/97 3 JUDGMENT Wales Act did not impose upon the respondent's employer at the time when he was injured any obligation to obtain a policy of insurance. Hence, Her Honour found that there was "no law enacted by any other State" requiring the respondent's employer "to provide against the employer's legal liability" for the respondent's injury. It is not proposed to discuss Her Honour's reasons in detail. It is sufficient to state briefly why I have arrived at the opposite conclusion. The terms "employer" and "worker" are defined in subsection 3(1) of the New South Wales Act in general terms and are literally wide enough to extend to the respondent and his employer at the time when he was injured. However, some limitation must be imported into subsection 155(1) of that Act. Each of the respondent and his employer at the time when he was injured was a Queenslander, and subsection 155(1) plainly was not intended to apply if the respondent had been injured while working in Queensland or, for that matter, Victoria. That is not the case. Although the respondent's employer at the time when he was injured was a company incorporated in Queensland and not registered elsewhere which had its only premises in Queensland, its business as a transport operator regularly involved it in business activities in New South Wales. The respondent, the driver of one of his then employer's vehicles, went to New South Wales on numerous occasions in -- 3 of 5 -- 120697 T16/VT26 M/T COA124/97 4 JUDGMENT the course of his employment and his injury occurred in New South Wales while he was working there in the course of his employment. The long title describes the New South Wales Act as an Act "to provide for the compensation and rehabilitation of workers in respect of work related injuries", and as a matter of policy seems plainly intended to have a wide and beneficial operation. I cannot identify any reason for reading subsection 155(1) down so as to exclude from its ambit any work-related injury which occurs in New South Wales. However, there might be other provisions in the New South Wales Act to which the attention of this Court has not been drawn which effect some limitations in some circumstances, and it is possible that, for example, subsection 155(1) of the New South Wales Act is inapplicable if an employee's presence in New South Wales when he or she is injured in the course of his or her employment is fortuitous, fleeting or sufficiently unusual. It is sufficient for present purposes to say that, in my opinion, subsection 155(1) of the New South Wales Act is not inapplicable merely because neither employer nor employee is resident or domiciled, based or located, whichever be thought most apposite, in New South Wales when an employee is injured, and that the subsection was applicable to the respondent's then employer in respect of the work-related injury which the respondent suffered in New South Wales in the course of his employment which was the subject of the present action. -- 4 of 5 -- 120697 T16/VT26 M/T COA124/97 5 JUDGMENT That conclusion seems to me consistent with the material part of the decision of Kirby A.C.J., with whom Priestley and Clark JJ agreed in WorkCover Authority of New South Wales v. BillPat Holdings Pty Ltd (N.S.W.C.A. 40263 of 1994, unreported 14 July 1995), and see also what was said by Kirby P. in Commissioner for Railways for the State of Queensland v. Peters (1991) 24 N.S.W.L.R. 407 at pp. 437 to 438. Accordingly, I would allow the appeal and set aside the judgment for the respondent against the appellant together with the order that the appellant pay the respondent's costs in the action to be taxed. Instead, the respondent's action against the appellant should be dismissed with costs to be taxed and this appeal should be allowed with costs to be taxed. As requested, the respondent should have a certificate under the Appeal Costs Fund Act 1973. MACKENZIE J: I agree. HELMAN J: I agree. THE PRESIDENT: The orders will be as I have indicated. ----- -- 5 of 5 --