Ato v G and D Goorkiz t/as Dolphin Day Care Centre and WorkCover Authority of NSW and Liverpool Insurance Brokers Pty Ltd [2001] NSWCC 148

Ato v G and D Goorkiz t/as Dolphin Day Care Centre and WorkCover Authority of NSW and Liverpool Insurance Brokers Pty Ltd [2001] NSWCC 148

The broker’s failure to effect workers compensation insurance as requested was a negligent omission but did not amount to a 'representation' as required under s 156A(2); no positive statement was made that insurance was comprehensive for business needs without workers compensation. The Court’s limited jurisdiction under s 156A did not extend to the facts as found, and thus no order could be made against the broker under this provision.

Parties
Applicant: Janet Ato; First Respondent: George and Diana Goorkiz t/as Dolphin Day Care Centre; Second Respondent: WorkCover Authority of New South Wales; Third Party: Liverpool Insurance Brokers Pty Ltd
Jurisdiction
Australia
Judgment Date
11 July 2001
Procedural Posture
Workers Compensation Application and Third Party Notice / Judgment After Hearing on Third Party Notice
Outcome
Third party claim dismissed; each party to pay their own costs of third party proceedings; consent orders on commutation and costs between first and second respondent ordered.
Legal Topics
Uninsured Liability and Indemnity Scheme, Broker Liability, Interpretation of S 156 a Workers Compensation Act 1987
Workers Compensation Insurance Law Uninsured Liability and Indemnity Scheme Broker Liability Interpretation of S 156 a Workers Compensation Act 1987

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Parties

Janet Ato

Applicant

George and Diana Goorkiz t/as Dolphin Day Care Centre

First Respondent

WorkCover Authority of New South Wales

Second Respondent

Liverpool Insurance Brokers Pty Ltd

Third Party

Procedural Posture

Workers Compensation Application and Third Party Notice / Judgment After Hearing on Third Party Notice

Legal Issues

  1. 1 Whether representations made by insurance broker triggered liability under s 156A of the Workers Compensation Act 1987
  2. 2 Meaning of 'representation' under s 156A(2) of the Act
  3. 3 Whether failure of broker to obtain workers compensation insurance as requested constitutes a contravention of s 156A

Ratio Decidendi

The broker’s failure to effect workers compensation insurance as requested was a negligent omission but did not amount to a 'representation' as required under s 156A(2); no positive statement was made that insurance was comprehensive for business needs without workers compensation. The Court’s limited jurisdiction under s 156A did not extend to the facts as found, and thus no order could be made against the broker under this provision.

Court Disposition

Third party claim dismissed; each party to pay their own costs of third party proceedings; consent orders on commutation and costs between first and second respondent ordered.

Orders

  • Award for the third party on the third party notice.
  • Orders by consent in accordance with MFI-X (as amended) regarding commutation and costs between first and second respondent.