WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, CRENNAN, KIEFEL AND BELL JJ

WORKCOVER QUEENSLAND APPELLANT

AND

AMACA PTY LTD & ANOR RESPONDENTS

WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34

20 October 2010

B10/2010

ORDER

1. Appeal allowed with costs.

2. Set aside the answers to questions 4 and 5 in the order of the Court of Appeal of the Supreme Court of Queensland made on 27 March 2009, and in their place order that questions 4 and 5 of the amended case stated be answered as follows:

(a) Question 4: No.

(b) Question 5: The respondents should pay the costs of the plaintiff WorkCover Queensland in the amended case stated before the Court of Appeal.

On appeal from the Supreme Court of Queensland

Representation

W Sofronoff QC Solicitor-General of the State of Queensland with K F Holyoak for the appellant (instructed by Bruce Thomas Lawyers)

D F Jackson QC with R C Morton for the respondents (instructed by Holman Webb Lawyers and CLS Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

WorkCover Queensland v Amaca Pty Ltd

Practice and procedure – Action – Death of worker – Survival of cause of action – Section 66(1) of Succession Act 1981 (Q) ("Succession Act") provided causes of action vested in deceased person shall survive for benefit of person's estate – Section 66(2) limited damages recoverable "in any action brought" where cause of action survives under s 66(1) – Whether s 66(1) creates new cause of action – Discussion of history of survival of causes of action.

Workers' compensation – Insurance – Statutory scheme – Insurer's right of indemnity against third party for compensation paid – Insurer paid compensation to worker exposed to asbestos manufactured and supplied by respondents – Worker died and no proceedings instituted by worker or estate against any persons – Section 207B(7) of Workers' Compensation and Rehabilitation Act 2003 (Q) ("Compensation Act") gave insurer, in these circumstances, right of indemnity against third party up to amount of compensation paid to worker, but only "to the extent of that person's liability for the damages" – Whether s 66(2) of Succession Act limits amount recoverable under right of indemnity in s 207B(7) of Compensation Act – Nature of cause of action created by s 207B(7) – Difference between liability and damages recoverable – Relevance of history of s 66(2) of Succession Act.