Dodds v North Queensland Electricity Board [1997] QSC 50

<--:~:;)<yC2g~ . ... ...... ~ct/r osv ,JI • . State Reporting Bllreau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) .• SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No W106 of 1995 JACK RYAN DODDS (BY HIS NEXT FRIEND GARY DODDS) and THE NORTH QUEENSLAND ELECTRICITY BOARD TOWNSVILLE .. DATE 14/02/97 JUDGMENT 1 REVISED COPIES ISSUED Court Reporting Bureau Date \ I ;;2l I 1 Plaintiff Defendant 4th Floor. The Law Courts. George Street, Brisbane, Q. 4000 Telephone: (07) 2274360. Facsimile: (07) 2275532 -- 1 of 5 -- ·140297 T12-13/HG M/T TSVSC3909 (Cullinane J) HIS HONOUR: In this matter a question has been raised as to whether there has to be deducted from the damages agreed upon, and the subject of the application for a sanction, the total compensation payments of $101,383.30. These are made up of a lump sum payment of $94,730 (which I am told is payable in accordance with the terms of the Workers' Compensation Act to the dependents) periodic payments made on behalf of the applicant/plaintiff of $4,311.30 and funeral expenses of $2,342. The deceased died on 15 January 1994. The action is brought by the plaintiff by his next friend. The plaintiff was born on 2 November 1993 and was a little over two months when the deceased, his father, died. The plaintiff's mother who was not married to the deceased is within the definition of those entitled to claim compensation where such persons are dependent wholly or partly upon a deceased person. In this case the Workers' Compensation Board has treated the applicant/plaintiff's mother as somebody partially dependent upon the deceased. As will be apparent she was not a party to these proceedings. It was common ground before me that she had no cause of action. The Act by section 136 provides for the compensation payable upon the death of a worker. 2 JUDGMENT -- 2 of 5 -- ,140297 T12~13/HG MIT TSVSC3909 (Cullinane J) section 183 of the Workers' Compensation Act provides as follows: Injury has an extended definition contained in section 6 of the Act and this includes death from personal injury arising out of or in the course of employment if the employment" was a signific~nt contributing factor to the personal injury. The Act repealed the Workers' Compensation Act 1916 as amended. In McDowell v. Baker (1979) 144 C.L.R. at 413 the High Court had to consider the effect of the provisions of the previous legislation in a case in which a deceased person had, prior to his death, received Workers' Compensation payments and upon his death his dependents brought an action for loss of dependency. It was held that the Board was entitled to a refund of all compensation payments including those made to the deceased prior to his death from the damages assessed in respect of loss of dependency. The section which fell for consideration in that case (of the previous Act) was section 9A. In the course of his judgment, Mr Justice Gibbs, as he then was, traced the history of the Act and the provisions which it contained prior to the inclusion of section 9A in 1962 in so far as the Act provided for refunds of Workers' Compensation payments from damages. Section 9A is expressed in somewhat different terms as will be apparent from section 183 of the present Act. However, it provided that: Where an injury in respect of which a worker is entitled to receive compensation also gave rise to a legal liability in the employer to pay damages in respect of that 3 JUDGMENT -- 3 of 5 -- 140297 T12-13/HG M/T TSVSC3909 (Cullinane J) injury, the amount of such damages which the employer was legally to pay shall be reduced by the total amount of the compensation prescribed by the Act to be made from the fund in respect of the injury in question. It was held that the compensation paid to the deceased prior to his death and the damages awarded to his dependents in consequence of his death were all made in respect of the injury to the deceased which resulted in his death. There was a body of_authority prior to this judgment to the effect that damages in respect of personal injury embraced, in an appropriate context, damages for loss of dependency. Ultimately His Honour concluded that: "Section 9A revealed an intention to protect the fund which is the source of the payment of both damages and compensation and to ensure that all compensation payable in respect of an injury is fully deducted from any damages payable in respect of that injury even where there are several claimants proceeding in differen~ rights." I think that section 183 is to be read in a similar way. The conclusion in McDowell v. Baker in respect of section 9A is, it seems to me, more readily reached in respect of section 183 in the light of the extended definition of injury in section 6. This result is from the plaintiff's point of view an unfortunate one since the damages agreed upon will, as a result, be reduced by more than 50 per cent. However, the conclusion I think is one which is unavoidable in the light of the provision of section 183 and in the light of the reasoning of the judgment already referred to in relation to its predecessor. 4 JUDGMENT -- 4 of 5 -- 140297 T'li-13/HG MIT TSVSC39'09 (Cullinane J) I sanction th~_compromise of the plaintiff's cause of action in the sum of $145,000. Do you want.judgment and orders? MR PACK: Your Honour, I will be able to provide Your Honour with a draft order at some convenient time next week. We didn't expect to get as far as we have today. HIS HONOUR: Yes, I understand. All right well the sanction will. stand then. I sanction the settlement of the action in the sum of $145,000 together with costs to be taxed. I will adjourn for the consideration of the formal orders to be made in the action which may include a judgment but'will involve orders requiring the payment of moneys to the Public Trustee. MR DURWARD: Your Honour, I had omitted prior to your judgment on the issue that was argued to simply place on record that the defendant does not dispute any of the factual material contained in my learned friend's opinion that was handed up where that material is not stated in the affidavits. So in other words we accept. HIS HONOUR: I understand, yes. HIS HONOUR: The matter is adjourned to 8.45 a.m. 19 February 1997. 5 JUDGMENT -- 5 of 5 --