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Legal Alert SS Family Pty Ltd v WorkCover Queensland

14 November 2018
The Court of Appeal recently delivered its reasons in SS Family Pty Ltd v WorkCover Queensland, granting leave to the Defendant (Vero) to appeal but dismissing such appeal with costs.

The decision is significant insofar as it answers a question that has over decades been raised, advised upon but not judicially determined - whether having earlier accepted an application for compensation by a person claiming to have been a worker injured while working for an employer, is the insurer precluded from subsequently contending the person was not a worker as a basis for denying the alleged employer is entitled to indemnity under the policy of accident insurance?

The reasons reference:

  • the construction contended for by the applicant, that a mistaken decision by the insurer that the claiming person was a worker and hence accepting the application for compensation, bars the insurer from denying indemnity against the liability of an employer to pay damages, is irreconcilable with the definition of accident insurance in section 8;
  • there are differences between the obligations: of the insurer to pay compensation and that of the insurer to indemnify in relation to a legal liability for damages;
  • ·various provisions identified are consistent with a decision to allow an application for compensation only having effect in relation to compensation;
  • the definition of worker in section 11 ought be applied in determining the indemnity available to an employer under the policy of accident insurance in section 8 and the close connection between a decision by an insurer to allow an application for compensation and the regulation of damages claims, does not subjugate that;
  •  the construction of s237(1) is clear – abolishes any entitlement to damages other than for injury sustained by a worker and an earlier decision to accept an application for compensation under section 134 does not undermine such construction;
  • the odd, capricious and unintended consequences alleged to flow from the primary decision are not so.
The reasons in SS Family Pty Ltd v WorkCover Queensland [2018] QCA 296 can be found here

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