April 15, 2011

The court of appeal has given workers – and parliament – the benefit of the doubt in construing statutory provisions designed to restrict payouts for loss of services to injured workers.
WorkCover had appealed the interpretation of 308C of the WCRA where the trial judge had ruled the section did not prevent the award of damages for gratuitous services – lawn mowing -which was provided post-accident on a partly gratuitous; partly commercial basis.

The trial judge and ultimately the Court of Appeal ruled that because the section did not specifically refer to such “hybrid” service provision methods, the section could not be considered as applying. In the words of the President, parliament could not be presumed to have intended s 308C of the WCRA to have such a “peculiar and unjust result”.

To illustrate his point that the section “may give rise to injustice”, Chesterman J gave two examples comparing workers who suffer injuries at the same time.

In the first example, one of the injured workers – an “affluent worker” – could afford to pay for services and the other relied on the charity of friends and family. In this example, only the affluent worker could recover the value of the services provided to him and s 308C prevented recovery by the other.

In the second example, one worker was injured more seriously than the other. The one who struggles along putting up with the discomfort without the services he needs can recover the estimated cost of future paid services but the more seriously injured worker whose needs are met by friends or family will be unable to recover any damages for future services.

In the end, a small win for workers – one that is sure to be short-lived.

His Honour noted part 10 of the WCRA was meant to remedy the “mischief” of “awards of damages thought to be excessive”.  However, the part did not completely abolish the right to gratuitous services damages but rather constructed a scheme that prevented the award of damages in such circumstances.

When the executive via WorkCover, prevails upon parliament to remedy the perceived lacuna by extending the application of the section in the manner it contended for in the subject case, as no doubt it will, the perceived injustice will prevail.

These machinations reveal ever so crudely, how a non-Jeffersonian democracy such as ours, lacking as it does any reservation of rights to the people, can fail to meet the ambitions of the people.

*Foster & Anor v Cameron [2011] QCA 048 Margaret McMurdo P and Chesterman JA and Ann Lyons J 22/03/2011

Categories: Personal Injury , Opinonian , Litigation & Law Practice

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