Cross border workers compensation claims in NSW and Queensland – which state’s insurer has to pay? Which case won?
Delivery driver works on both sides of NSW-Queensland border
The employee was a delivery driver working from his employer’s warehouse in Tweed Heads, located just inside the NSW border. Organisationally, the Tweed Heads branch formed part of the employer’s Queensland operations, with the warehouse manager reporting to the employer’s state manager in Queensland.
The worker made deliveries north of the border in Queensland, extending to Beenleigh in the north and Jimboomba, Beaudesert and Springfield Lakes in the west, as well as south of the border in NSW, to Casino and Lismore. Around 70% to 80% of the deliveries were made in Queensland.
Employee suffers significant personal injury at work
In May 2010, the worker was required to deliver a hot water system to a building site at Goonellabah, near Lismore in northern NSW. He was unable to obtain assistance at the site. In attempting to deliver the hot water system, he suffered a significant personal injury.
The delivery driver sued his employer for damages. When negligence was alleged against the employer, the question which arose was whether the claim for damages would be governed by Queensland law or NSW law.
Which state’s law should apply, Queensland or NSW?
The worker submitted that Queensland law applied in determining liability, damages and the quantification of those damages.
If the worker could make a common law claim in Queensland, he would avoid the 15% threshold which exists under NSW law. Additionally, he could make a claim for multiple heads of damages, rather than merely past and future wage loss and past and future superannuation loss, which are the only damages payable under the NSW work injury damages scheme.
The insurer, WorkCover Queensland, argued that it was a NSW case, based on the “state of connection” of the employee and that accordingly, it had no liability to cover his claim for damages.
It was up to the Supreme Court of Queensland to determine whether WorkCover Queensland was obliged to pay the man’s claim.