Which case won?

The case for the worker
  • Queensland was the state in which I usually worked, as I made the overwhelming majority of my deliveries in Queensland.
  • Although the Tweed Heads office is just inside the border of NSW, administratively it is part of my employer’s Queensland operation. My boss reported to the Queensland state manager, who approved my appointment, and my wages were costed to the Queensland branch of the business.
  • My primary connection to Queensland is demonstrated by the fact that I worked to Queensland time, rather than Australian Eastern Daylight Saving time, adhered to in NSW.
  • I took all Queensland public holidays and was not given NSW public holidays.
  • The court should find that my employment was connected with Queensland and that WorkCover Queensland is obliged to pay my claim for damages.
The case for WorkCover Queensland
  • The truck which the employee drove was based in Tweed Heads, in NSW.
  • He attended the Tweed Heads office each day. He planned his deliveries from there, returned there to collect products, received directions about the work he was to undertake there and returned there at the end of each day.
  • As well as performing his daily duties at the warehouse in Tweed Heads, the worker commonly made deliveries to destinations in NSW.
  • The worker worked full-time in the warehouse in Tweed Heads during an earlier period of employment.
  • The court should find that even though the driver made deliveries in Queensland, he usually worked and was based in NSW. We should be found to be not liable for his claim for damages.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a56%
case b44%

Expert commentary on the court's decision

“The worker was usually based in New South Wales because he started and finished work each day at the facility of his employer. Therefore, NSW law applied for the common law damages claim.”
Queensland Supreme Court makes finding in favour of insurer

In the case Ferguson v WorkCover Queensland [2013] QSC 78, the court decided in favour of the insurer, WorkCover Queensland.

The court determined that while the delivery driver, Mr Trent Ferguson, usually worked in both Queensland and NSW, he was based in NSW, so WorkCover Queensland was not obliged to pay his damages claim.

Difference between “statutory compensation” and “damages”

In workers compensation cases, the law makes a distinction between “statutory compensation” and “damages”. “Statutory compensation” includes weekly income expenses, as well as past medical and travel expenses.

“Damages” are treated differently in the two states. In NSW they cover past and future economic loss, whereas in Queensland they cover past and future economic loss, pain and suffering, and future medical expenses. In certain restricted circumstances paid domestic care is also available.

In this case Mr Ferguson had already received statutory compensation under the NSW WorkCover Scheme. His claim for common law damages from WorkCover Queensland rather than from the NSW body was presumably due to the more generous provisions existing in Queensland for workers compensation cases.

How are damages arising from negligence treated in work injury cases?

In a normal case for personal injury damages arising from negligence, it is the law of the state where the tort occurred which is important. (A “tort” is a wrongful act which gives rise to legal liability.) This determines which tort law applies. This was decided in John Pfeiffer v Rogerson.

Work related injuries are treated differently in Queensland and NSW.

Section 150A of the Workers Compensation Act 1987 (NSW) and section 324 of the Workers Compensation and Rehabilitation Act 2003 (QLD) say essentially the same thing. That is, if workers compensation is payable under the statutory scheme of a particular state, then it is law of that state which governs whether or not a claim for damages can be made and the size of that claim.

“State of connection” test in workers compensation cases

The “state of connection” test is found in section 9AA of the NSW legislation and section 113 of the Queensland legislation. Again, those sections say essentially the same thing.

A worker’s employment is connected with:

(a) the State in which the worker usually works in that employment; or

(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

Where did the worker usually work?

For practical purposes, if a worker works in both states, the state where the worker spends more time – say 80% in Queensland, as in this case, but only 20% in NSW – is not determinative of the state in which the employee “usually” works.

The court pointed out that the evidence indisputably established that the driver usually worked in Queensland. The question was whether or not he also usually worked in NSW. The fact that Mr Ferguson “usually” worked in Queensland did not preclude him from also “usually” working in NSW.

The court concluded that Mr Ferguson usually worked in both Queensland and NSW.

Where was the worker usually based?

If no one state can be identified as the state in which the employee usually works, it is necessary to look at the second limb of the test – part (b) above – to identify where the worker is usually based.

One of the key considerations when determining where the worker will be compensated for common law damages is where the worker starts and finishes work each day. In the Ferguson decision, the court found the following:

Tweed Heads was the place where the applicant turned up for work each morning, received his instructions, loaded his truck, reported to and returned to at the end of each work day. Tweed Heads was the place at which the truck he used was based. It was the centre out of which he operated, and the fact that he spent, on average, a large part of his working day driving on roads in Queensland does not alter this fact. The Tweed Heads warehouse was his base. It was his usual base.

The decision in this case is authority for the proposition that if a worker starts and finishes work each day at a facility of the employer in a particular state, then that is the state where the worker is usually based.

“Usually works”, “usually based” and “general place of business”

In the Ferguson decision, the judge made reference to a presidential decision in the Workers Compensation Commission of NSW, in Martin v RJ Hibbens. This decision contained a useful summary of the authorities relating to the “state of connection” test, including the concepts “usually works”, usually based” and “general place of business”.

The principles discussed in the Martin case were adopted in the Ferguson decision.

Insurers can accept a statutory claim but deny liability for damages

Section 9AB(1) of the NSW legislation and section 114(1) of the Queensland legislation provide the following:

If a designated Court makes a determination of the State with which a worker’s employment is connected for the purposes of a corresponding law, that State is to be recognised… as the State with which the worker’s employment is connected.

Even if WorkCover Queensland were to accept a claim in a statutory sense and pay benefits, that does not prevent WorkCover Queensland subsequently denying liability and arguing that the worker’s state of connection is NSW, rather than Queensland.

Liability for damages disputed even though statutory compensation paid

A court can subsequently make a separate determination on liability for damages, even though that compensation has already been paid under the statutory system. This was held in SS Family v WorkCover Queensland.

This case did not focus on the jurisdictional issue under section 9AA of the NSW legislation, nor section 113 of the Queensland legislation: it was a case that determined whether liability for damages could subsequently be disputed by WorkCover Queensland.

In the SS Family case, the court determined that WorkCover Queensland could make a liability determination on the damages claim against the worker, even though statutory compensation had been paid under the Queensland system.

Claims for common law damages by employees whose work straddles borders

If workers are considering a claim for common law damages because of a workplace injury, they will need to consider carefully the state of connection tests for statutory workers compensation benefits under NSW and Queensland law, because those are the principles that will apply to the entitlement and quantification of any claim for common law damages from a work injury.

Even if a workers compensation insurer in NSW or Queensland makes a payment of statutory benefits, then that is not necessarily the workers compensation insurer which will need to answer any claim for common law damages by the worker.

Employers may need to take out policies of workers compensation insurance in multiple states

Businesses which employ workers on the border between Queensland and NSW may need to take out policies of workers compensation insurance in both states, to ensure they do not run the risk of a finding that an employee’s state of connection is a state in which the employer is uninsured.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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