Hawthorne v Thiess Contractors Pty Ltd - [2000] QSC 154

SUPREME COURT OF QUEENSLAND

CITATION: Hawthorne v Thiess Contractors Pty Ltd & Anor [2000] QSC 154

PARTIES: CATHERINE THERESA HAWTHORNE
(applicant)
v
THIESS CONTRACTORS PTY LTD
(first respondent)
WORKCOVER QUEENSLAND
(second respondent)

FILE NO/S: No 4315 of 2000

DIVISION: Trial Division

PROCEEDING: Application to commence proceedings

ORIGINATING COURT:
Supreme Court

DELIVERED ON: 2 June 2000

DELIVERED AT: Brisbane

HEARING DATE: 23 May 2000

JUDGE: Williams J

ORDER: Application dismissed with costs

CATCHWORDS:
WORKERS’ COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND THIRD PARTIES - ALTERNATIVE RIGHTS AGAINST EMPLOYER FOR DAMAGES AT COMMON LAW OR BY STATUTE - RIGHT TO PROCEED FOR DAMAGES - whether applicant entitled to seek damages for personal injuries against former employer independently of WorkCover Queensland Act 1996 - where WorkCover refused to issue certificate under s 265 such that applicant unable, by virtue of s 253, to pursue action under Act - common law test of causation and test of causation pursuant to legislation considered - distinction between tests more theoretical than real - findings of fact necessary for applicant to succeed at trial in action for damages would conflict with decision of WorkCover - application dismissed.

Judicial Review Act 1991 (Qld)
Workers’ Compensation Act 1990

WorkCover Queensland Act 1996, s 5, s 12, s 34, s 52, s 253, s 265, s 270, s 278, s 315, s 316, s 319, s 437, s 440, s 454, s 456

Bonser v Melnaci & Ors (unreported, No 4369 of 1999, judgment 22 November 1999)

March v Stramare Pty Ltd (1991) 171 CLR 505

COUNSEL: R J Douglas SC, with K F Holyoak for the applicant
G Flint for the first respondent
A I Philippides SC for the second respondent

SOLICITORS: Biggs & Biggs for the applicant
Moray & Agnew for the first respondent
Mullins & Mullins for the second respondent

Williams J: The applicant, Catherine Theresa Hawthorne, has commenced an action (S4315/00) against her former employer, Thiess Contractors Pty Ltd - the first respondent (“Thiess”) - claiming damages with respect to an injury allegedly caused by breach of the master-servant relationship. That action has been commenced notwithstanding the fact that the second respondent, WorkCover Queensland (“WorkCover”), refused to issue a certificate under s 265 of the WorkCover Queensland Act 1996 (“the 1996 Act”). [The relevant Act for present purposes is that originally passed in 1996 without the 1999 Amendments; all references herein will be to the original version.] There has as yet been no entry of appearance and defence filed by Thiess, but in correspondence both Thiess and WorkCover have asserted that the action is incompetent because the applicant’s entitlement to seek damages has been abolished in the circumstances by s 253 of the 1996 Act. In consequence the applicant has applied by originating application for a declaration that in all the circumstances alleged she “at all material times was, and is, entitled to commence and prosecute such proceeding without having to comply, or further comply” with the provisions of the 1996 Act.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QSC 154
Decision Date: 2 June 2000

CaseChat Overview and Summary

The matter of Hawthorne v Thiess Contractors Pty Ltd concerned the applicant's entitlement to seek damages for personal injuries against his former employer, independent of the WorkCover Queensland Act 1996. The case was heard in the Queensland Court of Appeal, where the primary issue was whether the applicant could pursue common law damages against the employer despite the refusal of WorkCover to issue a certificate under section 265, which would have permitted the applicant to pursue an action under the Act. The applicant's ability to pursue damages under the Act was barred by section 253 due to the absence of the certificate. The court had to determine whether the common law test of causation differed sufficiently from the statutory test to allow the applicant to proceed with his common law claim.

The legal issues before the court revolved around the interpretation and application of the WorkCover Queensland Act 1996 and its interaction with common law principles. Specifically, the court needed to examine whether the common law test of causation was distinct enough from the statutory test to permit an alternative common law action for damages. The court also had to consider whether findings of fact necessary for the applicant to succeed at trial in an action for damages would conflict with the decision of WorkCover, which had already determined the applicant's entitlements under the Act.

The court found that the distinction between the common law test of causation and the statutory test was more theoretical than real. It was concluded that the findings of fact necessary for the applicant to succeed in a common law action would conflict with the decision of WorkCover, which had already adjudicated the applicant's entitlements under the Act. Consequently, the application to seek damages under the common law was dismissed, as it would undermine the statutory scheme designed to provide a comprehensive and exclusive remedy for workers' compensation claims. The court held that the applicant was not entitled to pursue common law damages against his former employer independently of the statutory scheme. The application was dismissed with costs.

Orders

Orders of the court

Application dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hawthorne v Thiess Contractors Pty Ltd & Anor [2000] QSC 154
PARTIES:	CATHERINE THERESA HAWTHORNE (applicant) v THIESS CONTRACTORS PTY LTD (first respondent) WORKCOVER QUEENSLAND (second respondent)
FILE NO/S:	No 4315 of 2000
DIVISION:	Trial Division
PROCEEDING:	Application to commence proceedings
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	2 June 2000
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2000
JUDGE:	Williams J
ORDER:	Application dismissed with costs
CATCHWORDS:	WORKERS’ COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND THIRD PARTIES - ALTERNATIVE RIGHTS AGAINST EMPLOYER FOR DAMAGES AT COMMON LAW OR BY STATUTE - RIGHT TO PROCEED FOR DAMAGES - whether applicant entitled to seek damages for personal injuries against former employer independently of WorkCover Queensland Act 1996 - where WorkCover refused to issue certificate under s 265 such that applicant unable, by virtue of s 253, to pursue action under Act - common law test of causation and test of causation pursuant to legislation considered - distinction between tests more theoretical than real - findings of fact necessary for applicant to succeed at trial in action for damages would conflict with decision of WorkCover - application dismissed. Judicial Review Act 1991 (Qld) Workers’ Compensation Act 1990 WorkCover Queensland Act 1996, s 5, s 12, s 34, s 52, s 253, s 265, s 270, s 278, s 315, s 316, s 319, s 437, s 440, s 454, s 456 Bonser v Melnaci & Ors (unreported, No 4369 of 1999, judgment 22 November 1999) March v Stramare Pty Ltd (1991) 171 CLR 505
COUNSEL:	R J Douglas SC, with K F Holyoak for the applicant G Flint for the first respondent A I Philippides SC for the second respondent
SOLICITORS:	Biggs & Biggs for the applicant Moray & Agnew for the first respondent Mullins & Mullins for the second respondent