HIH WINTERTHUR WORKERS COMPENSATION (NSW) PTY LTD v THIESS CONTRACTORS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and SHELLER JJA and FITZGERALD AJA 6 August 1998, 6 August 1998 [1998] NSWCA 105 INSURANCE policy — liability of insurer for worker's compensation claim — whether common law liability covered by policy. Fitzgerald AJA Mr John Frederick Hendry was injured while driving an excavator in the course of his employment by Tuggeranong Operator Hire Pty Ltd. Tuggeranong had hired the excavator and the services of Mr Hendry to Thiess Contractors Pty Ltd which was carrying out work in connection with the Yass bypass. At the time when he was injured Mr Hendry was acting under the direction of an employee of Thiess. Mr Hendry sued Thiess for common law damages in respect of his injuries. It is immaterial for present purposes whether the amount of such damages was required to be assessed in accordance with Pt5S of the Workers Compensation Act 1987 "Common Law Remedies".! Liability was admitted by Thiess and the amount of Mr Hendry's damages was agreed. The trial judge found that the appellant, HIH Winterthur Workers Compensation (NSW) Pty Ltd, was obliged to indemnify Thiess against its liability to Mr Hendry under a policy of insurance and that Sun Alliance and London PLC and a number of associated insurers were not liable to provide Thiess with such an indemnity under another insurance policy. By its appeal HIH Winterthur seeks a determination that it is Sun Alliance and its associates, not HIH Winterthur, which is obliged to indemnify Thiess. It is common ground that Sun Alliance and its associates must indemnify Thiess if HIH Winterthur is not obliged to do so. The policy of insurance which Thiess held from HIH Winterthur was in Form 7 of Schedule 1 of the Workers Compensation (General) Regulations 1987 as amended. In that policy, Thiess was described as the "Employer" in accordance with the second preamble, and HIH Winterthur was described as the "Insurer". The policy provided that if, during the period to which it related, Thiess became "liable to pay compensation under the Act to or in respect of any person who is or who is deemed by the Act to be a worker of the Employer, (including any person to whom the Employer is liable by force of s20 of the Act to pay compensation) or... to pay any other amount in respect of the Employer's liability independently of the Act (being a liability under a law of New South Wales) for any injury to such person...", HIH Winterthur would indemnify Thiess, " against all such sums for which the Employer shall be so liable...". The facts are not in dispute. Mr Hendry was a worker within the meaning of subs3(1) of the Workers Compensation Act at the time that he was injured. Apart from its liability for common law damages Thiess was liable to Mr Ward for 1. See for example, Dokoza v Stadkite Pty Ltd (1997) 42 NSWLR 544. 2 UNREPORTED JUDGMENTS statutory compensation by virtue of subs20(1) of the Workers Compensation Act. HIH Winterthur would have been obliged to indemnify Thiess under its policy of insurance if Thiess had been required to pay statutory compensation. However, HIH Winterthur submits that the common law liability of Thiess to Mr Hendry, although a liability for injury to a worker under a law of New South Wales independently of the Act, is not a liability covered by its policy. The foundation of that submission is the proposition that Mr Hendry was not a worker of Thiess, which was not Mr Hendry's employer. Not only was Mr Hendry in fact an employee of Tuggeranong, not Thiess, but cll of Schedule 1 of the Workers Compensation Act which is given statutory force by s5 of that Act, deemed Tuggeranong to continue to be the employer of Mr Hendry while he worked for Thiess. No doubt definitions in the Workers Compensation Act were imported into the policy between Thiess and HIH Winterthur, which, as stated, was in the form prescribed by the regulations.2 However, those definitions are only material in the construction of the policy when the defined word is used to describe a person or class of persons or conduct or circumstances to which the definition is intended to apply. Thus, for example, the fact that Thiess is given the title the "Employer" in its policy of insurance with HIH Winterthur, and not, for example, the "Insured", does not import the definition of "employer" from the Act into the policy or mean that the title chosen for Thiess, "Employer", limits Thiess' indemnity to liabilities to which it is subject in its capacity as an employer as that term is used in the Act. The extent of Thiess' indemnity under the policy must be determined by the language of the policy,3 and the title chosen to described the insured in the policy does not affect that process of construction. Under its policy with HIH Winterthur, Thiess is entitled to indemnity in respect of its liability under a law of New South Wales independently of the Workers Compensation Act for any injury to specified persons "for any injury to such person". Notwithstanding that his claim against Thiess in respect of which it seeks indemnity for HIH Winterthur was not a claim under s20 of the Act but a claim for common law damages, Mr Hendry is such a person. Although he would not otherwise meet the description "any person who is or who is deemed by the Act to be a worker of" Thiess, that class is widened for the purpose of Thiess' indemnity to include "any person to whom the Employer [ie Thiess] is liable, is liable by force of s20 of the Act to pay compensation". Since the policy requirements were met the primary Judge was correct in his conclusion that Thiess is entitled to indemnity from HIH Winterthur. The appeal should be dismissed with costs. Handley JA I agree. Sheller JA I also agree. Handley JA The orders of the Court will be as announced by Justice Fitzgerald. Appeal dismissed with costs. Counsel for the appellant: D J T Nock SC 2. See s11 and the definition of instrument in subs3(1) of the Interpretation Act 1987. 3. See Employers Mutual Indemnity Association Ltd vy K & B Hutcherson Pty Ltd (1976) 2 NSWLR 302 at p304-p305. WA WINTERTHUR WORKERS COMPENSATION (NSW) PTY LTD v_ THIESS CONTRACTORS PTY LTD (Handley JA) Solicitors for the appellant: Hunt & Hunt Counsel for the first respondent: M L Williams Solicitors for the first respondent: Sparke Helmore Counsel for the second respondent: A D M Hewitt Solicitors for the second respondent: Moray & Agnew