Mr Stankovich allegedly suffered injuries performing tiling works for the Defendant and he applied to WorkCover for compensation. His application was accepted. WorkCover issued Mr Stankovich a Notice of Assessment offering him a lump sum. Mr Stankovich elected to seek damages. WorkCover responded to the claim by denying Mr Stankovich was a “worker” within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’).
The Defendant’s contention was that, having determined the Plaintiff was a worker for the purposes of offering a lump sum, WorkCover was bound by that decision, and therefore bound to indemnify the Defendant in respect of the proceedings as an employer under the Act.
The Defendant contended that the scheme of the Act supported this construction in that s 237 makes the entitlement to bring proceedings for damages conditional on a determination by WorkCover and that if WorkCover could then contend that a person was not a worker, it could avoid the extensive provisions for review and appeal.
The defendant also contended that s 48 required an employer to have insurance against liability for damages and compensation and therefore the Act must intend that a person cannot be a worker for the purposes for one and not the other. Porter QC DCJ did not agree.
The Defendant contended that a person who has been found a to be a worker has to elect between a lump sum and seeking damages and that Parliament cannot have intended that such an election might mean the person would get nothing because they were then found not to have sustained the injury as a worker as required by the Act. Porter QC DCJ observed that on any construction, by electing to seek damages a person is taking a risk.
List members Richard Douglas QC and Kevin Holyoak appeared for the Defendant and List member Geoffrey Diehm QC appeared for the Third Party in Stankovich v SS Family Pty Ltd & Anor [2018] QDC 54.
The application was dismissed.
Find the case: https://www.sclqld.org.au/caselaw/QDC/2018/054
