Danielle Davison appeared for the applicant, instructed by Enyo Lawyers.
This decision is the first in Queensland to consider the operation of section 272A of the Work Health and Safety Act 2011 (Qld), which Parliament introduced in 2024. In broad terms, section 272A prohibits the provision of insurance or an indemnity for a penalty imposed on a person for contravention of the Act.
In January 2023, an employee of the applicant was injured in a workplace accident. Subsequently, the applicant was prosecuted for breach of the Act and ordered to pay a penalty of $50,000. The applicant held a policy of insurance with the respondent insurers, which provided cover for penalties of that kind. The respondents however denied cover on the basis the statutory prohibition introduced by section 272A (and, in particular, section 272A(1)(b)) applies such that paying the applicant the sum to which it was otherwise entitled in respect of the penalty might be an offence under the Act.
The proceeding relevantly turned on the meaning of “indemnity” in section 272A(1)(b). The court agreed with the applicant’s submission that paying on the policy in respect of the penalty was not an “indemnity” within the meaning of section 272A(1)(b), and would not breach that or any other section so long as the sum was paid before 28 September 2025 (that being the date by which the applicant could “take the benefit” of its insurance under section 272A(1)(c)). The court therefore ordered the respondents to pay the applicant the amount claimed by way of indemnity under the policy.
The judgment can be read by clicking here
