Jenkins v Emerald Industries Pty Ltd

[2000] QSC 500

SUPREME COURT OF QUEENSLAND

CITATION:

Jenkins v Emerald Industries Pty Ltd [2000] QSC 500

PARTIES:

PETER DAVID JENKINS
(applicant)
v
EMERALD INDUSTRIES PTY LTD
(ACN 060 618 724)
(first respondent)
and
WORKCOVER QUEENSLAND
(second respondent)

FILE NO/S:

SC No 8840 of 2000

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

22 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6 November 2000

JUDGE:

Atkinson J

ORDERS:

Declare that: 

(a) the applicant’s notice of claim for damages sworn 6 September 2000 complies with s 280 of the WorkCover Queensland Act 1996; and
(b) the applicant’s notice of claim for damages has been given properly under s 280, within the period of limitation for bringing a proceeding for damages and costs under the Limitations of Actions Act 1974

Order that the second respondent pay the applicant’s costs of and incidental to the application to be assessed

CATCHWORDS:

WORKERS’ COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER – where claimant rejected offer of lump sum compensation and sought damages – when cause of action for damages for personal injury arose – whether limitation period ran from date of accident or date applicant received notice of assessment from WorkCover

Limitation of Actions Act 1974, s 11
WorkCover Queensland Act 1996, s 252, s 253, s 259, s 280

Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39; No 46 of 1999, 3 August 2000, considered
Bonser v Melnacis [2000] QCA 13; CA No 4369 of 1999, 8 February 2000, considered
Craig v BHP Coal Pty Ltd [2000] QSC 391; SC No 160 of 1990, 19 October 2000, followed
Harding v Lithgow Corporation (1937) 57 CLR 186, considered
Tanks v WorkCover Queensland [2000] QSC 326; SC No 465 of 2000, 12 October 2000, followed

COUNSEL:

M Grant-Taylor SC for the applicant
RC Morton for the respondents

SOLICITORS:

Boyce Garrick Lawyers for the applicant
McInnes Wilson for the respondents

1. ATKINSON J:  The applicant, Peter Jenkins, was working as a concrete pump operator for the first respondent, Emerald Industries Pty Ltd, when he was injured on 18 July 1997.  He made a claim for Workers’ Compensation benefits which was accepted by WorkCover Queensland.  He was paid benefits under the statutory scheme between 25 July and 3 November 1997.

1. On 26 November 1999, WorkCover Queensland issued a notice of assessment (which wrongly notes the date of injury as 18 July 1999).  The notice of assessment said that he had a degree of permanent impairment attributable to the injury of 15%.  He was offered lump sum compensation in the sum of $14,140.  The notice of assessment said that his injury was a “non-certificate injury”.  On 14 December 1999, the applicant returned the notice of assessment having ticked a box which said:  “I reject the offer.  In rejecting I understand that I am not entitled to lump sum compensation but may seek damages for the injury.”  His other choices were to accept the offer or to defer it.

1. The right to claim common law damages for injuries suffered during a person’s employment as a result of the negligence of the person’s employer is now covered by chapter 5 of the WorkCover Queensland Act 1996 (the “WorkCover Act”). 

1. Section 253(3) of the WorkCover Act abolishes any general entitlement of an injured worker to seek damages for that injury subject to certain specified exceptions set out in s 253(1). These exceptions include an injured worker in the applicant’s situation, that is one who has received a notice of assessment from WorkCover stating that he or she has sustained a non-certificate injury. Such a worker is then required to comply with the provisions of div 3 of part 2 of chapter 5 of the WorkCover Act. Within div 3, s 259 provides as follows:

“Claimant may seek damages only on receipt of notice of assessment

259.(1)The claimant may seek damages for the injury only after the claimant has received a notice of assessment from WorkCover. 

(2)If, in the notice, the claimant is offered a payment of lump sum compensation for the injury, the claimant is not entitled to both –

(a) payment of the lump sum compensation for the   injury; and

(b) damages for the injury.

(3)If, in the notice, a claimant is required to make an election to seek damages for the injury, the claimant can not change the claimant’s election –

(a)if the claimant has elected to seek damages for the injury – after notice of the election is given to WorkCover; or

(b)if the claimant is taken, under section 207(7), to have elected to seek damages for the injury – after the claimant lodges a notice of claim.

(4)If the notice states that the claimant has not sustained any degree of permanent impairment from the injury, the claimant’s entitlement is unaffected by subsection (2) or (3).”

1. The applicant in this case is only entitled to seek damages at common law for the injury because he received a notice of assessment offering a payment of a lump sum for compensation which he elected to reject thereby electing to seek damages for the injury.

1. Part 5 of chapter 5 of the WorkCover Act provides for procedures that must be undertaken by a claimant before he or she starts court proceedings. These include the provision of a notice of claim for damages to WorkCover. The provisions of chapter 5 are not merely procedural law, as is shown by s 252 of the WorkCover Act, which provides:

“Requirements of chapter to prevail and are substantive law
252.(1)   If a provision of an Act or a rule of law is inconsistent

with this chapter, this chapter prevails.

(2)All the provisions of this chapter are provisions of substantive law.

(3)However, subsection (2) does not affect minor variations in procedure.”

1. Section 280 sets out onerous requirements for the notice of claim for damages. In addition subsection 280(1) provides that:

“280. (1) Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974.”

1. The applicant sent a notice of claim for damages sworn on 6 September 2000 to WorkCover and his employer.  This notice of claim for damages was in the form provided by WorkCover Queensland.  This is a document of some 22 pages which appears to have been filled in by the applicant with great particularity.

1. On 21 September 2000, WorkCover Queensland wrote to the applicant’s solicitors saying that, as the date of the event to which the notice of claim refers is 18 July 1997, the applicant was precluded from bringing proceedings for damages for personal injury under the Limitation of Actions Act 1974. WorkCover Queensland returned the notice of claim to the applicant’s solicitors.

1. Whether or not s 11 of the Limitation of Actions Act precludes the applicant from bringing an action for damages for personal injuries depends on the proper interpretation of chapter 5 of the WorkCover Act and section 11 of the Limitation of Actions Act 1974. Section 11 of the Limitation of Actions Act 1974 relevantly provides:

“Actions in respect of personal injury

11         Notwithstanding any other Act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person. . . shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”

1. The applicant concedes that because of section 280(1) of the WorkCover Act it was necessary for him to give WorkCover and his employer a notice of claim for damages within the period of three years from the date on which the cause of action arose.  The question to be decided in this application is when the cause of action arose.  The applicant argues that no cause of action arises unless or until a right to seek damages comes into existence. 

1. Section 253(3), as I have observed, effectively abolished any entitlement of a worker not mentioned in subsection 253(1) to seek damages for any injury sustained by the worker. The applicant in this instance falls within s 253(1)(a)(ii). He is therefore entitled to seek damages because he is a worker who has received a notice of assessment from WorkCover stating that he has sustained a non-certificate injury. The right of such a person to seek damages for the injury is subject to s 259(1). He or she cannot commence an action for damages until after he or she has received a notice of assessment from WorkCover. Only then does he or she have an effective cause of action for which he or she can seek damages.

1. This is the date on which the cause of action arose under s 11 of the Limitation of Actions Act. Section 11 specifically refers to an action for damages consisting of and including damages in respect of personal injury. There is no cause of action entitling a person to seek damages consisting of or including damages in respect of personal injury until the right to sue for such damages arises. That right arose in this case on 26 November 1999 when the applicant received the notice of assessment. The cause of action of such a worker does not arise until the notice of assessment is received from WorkCover.

1. This view is in conformity with the Court of Appeal decision in Bonser v Melnacis[1] where the court, following comparable authority with regard to the Safety Rehabilitation and Compensation Act 1998 (Commonwealth) (“the Comcare Act”), held that: [2]

“the combined effect of the scheme introduced by the WorkCover Act (with particular reference to s 253, s 262 and s 302) effectively abolishes any entitlement on the part of an injured worker to commence proceedings against the employer and that such a right comes into existence only upon compliance with the prescribed steps. Those steps in the present case would include the obtaining of an assessment, followed by an election (assuming that the assessment was of more than a nil disability) either to accept a lump sum compensation or to seek damages.”

[1] [2000] QCA 13; CA No 4369 of 1999, 8 February 2000.

[2] (supra) at [41].

1. The provision of the Comcare Act to which the Court of Appeal referred was s 44(1) which provides that:

“(1)       Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a)        an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b)      the loss of, or damage to, property used by an employee resulting from such an injury;

whether that injury, loss or damage occurred before or after the commencement of this section.”

1. In Austral Pacific Group Ltd v Airservices Australia[3] the High Court held that the phrase in s 44(1), ‘an action. . . . does not lie’, operated “not to bar the action but to extinguish it.”  This High Court judgment was the decision dismissing an appeal from a decision of the Court of Appeal which is referred to in detail in Bonser v Melnacis in support of its decision that the WorkCover Act effectively abolished a cause of action rather than merely barring the remedy.

   [3] [2000] HCA 39; No 46 of 1999, 3 August 2000 at [20].

1. In Austral Pacific v Airservices,[4] the High Court held that the effect of s 44 of the Comcare Act was substantive rather than merely procedural. Section 44 of the Comcare Act is a provision which:[5]

“to adapt the words of Dixon J in Harding v Lithgow Corporation[6], [goes] ‘to the validity of the title to enforce the liability’ not merely ‘to the mode of enforcing it, or the fulfilment of a preliminary procedural condition’.”

“It was. . . an essential finding of the Court of Appeal that the WorkCover legislation has the effect of destroying an injured employee’s cause of action in respect of such injury upon the occurrence of that injury and that a right to claim damages comes into existence only upon the taking of prescribed steps which include the obtaining of an assessment.”

[4] (supra) at [21].

[5] (supra) at [32].

[6] (1937) 57 CLR 186 at 195.

1. This decision has been followed by Dutney J in Craig v BHP Coal Pty Ltd[7] where his Honour held:

“it seems to me that there is no limitation problem because no action can be commenced under section 182D of the Workers’ Compensation Act until a certificate or a conditional certificate has been issued.  It seems to me therefore that the certificate is itself an essential element of the cause of action and since the cause of action is not complete until at least the issue of the conditional certificate, the limitation period would not begin to run before then and in that regard I agree with the conclusion arrived at by Justice Cullinane last week in Tanks v WorkCover, the result of which in my view is plainly correct.”

[7] [2000] QSC 391; SC No 160 of 1990, 19 October 2000 at 7.

1. As the claim in all other respects complies with s 280 of the WorkCover Act, it is appropriate to declare that the applicant’s notice of claim for damages sworn 6 September 2000 was given to the respondent within the period of limitation prescribed by the Limitation of Actions Act 1974 for the applicant to bring a proceeding against the first respondent for personal injuries suffered by him in the course of his employment with the first respondent on 18 July 1997.

1. The second respondent should pay the applicant’s costs of and incidental to the application to be assessed.