[2000] QSC 326
IN THE SUPREME COURT OF QUEENSLAND
REGISTRY: TOWNSVILLE
NUMBER: S 465 of 2000
Plaintiff: MARK ANTHONY TANKS
AND
Defendant: WORKCOVER QUEENSLAND
DECISION - CULLINANE J.
DELIVERED THE TWELFTH DAY OF OCTOBER 2000
The Applicant seeks an order and a declaration. These are:
1.An order that the Respondent forthwith respond (pursuant to Section 282 of the WorkCover Queensland Act 1996) to the Applicant's Notice of Claim given (pursuant to Section 280 of the WorkCover Queensland Act 1996) to the Respondent on or about 25 November 1999.
2.A declaration that the period of limitation prescribed by Section 11 of the Limitation of Actions Act 1974 for bringing a proceeding for damages by the Applicant for personal injuries sustained in the course of his employment with J P & M E Tanks on 26 June 1997 has not yet expired.
What is in issue on this application is:
(a)Whether the Applicant after having sustained his injury and prior to the receipt of the Notice of Assessment from WorkCover on 11th May 1998 had a cause of action against his employer, and
(b)Whether this issue is the subject of authority binding on this Court.
If he did not have a cause of action prior to that time then it follows that no time has run under any relevant limitation period until that time or some later time. It is not necessary to determine when any such cause of action arose or whether it has arisen by this time. If it did not arise prior to the 11th May 1998 the limitation period, plainly enough, could not have expired and the Plaintiff is entitled to the declaration sought.
Section 253 of the WorkCover Queensland Act 1996 provides as follows:
General limitation on persons entitled to seek damages
253.(1) The following are the only persons entitled to seek damages for an injury sustained by a worker --
(a)the worker, if the worker has received a notice of assessment from WorkCover stating that--
(i)The worker has sustained a certificate injury; or
(ii)The worker has sustained a non-certificate injury; or
(b)the worker, if the worker's application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment; or
(c)the worker, if the worker has not lodged an application for compensation for the injury; or
(d)a dependant of the deceased worker, if the injury sustained by the worker results in the worker's death.
(2) The entitlement of a worker, or a dependent of a deceased worker, to seek damages is subject to the provisions of this chapter.
(3) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.
This section is one of a number of provisions contained in chapter 5 dealing with the subject of access to damages. Section 252(2) provides: "All the provisions of this chapter are provisions of substantive law".
For the Applicant it was…
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- Tanks v WorkCover Queensland [2000] QSC 326
- Case
- [2000] QSC 326
- Decision Date
CaseChat Overview and Summary
The court found that the WorkCover Queensland Act similarly abolishes any pre-existing cause of action and only provides a right to seek damages upon compliance with prescribed steps. The court ruled that Tanks did not have a cause of action prior to receiving the Notice of Assessment, and thus, the limitation period had not expired at the time of the application. The court rejected an argument that section 308 of the WorkCover Queensland Act imposes a three-year limitation period for instituting proceedings, regardless of when the cause of action arises. The court concluded that such an interpretation would be improbable and potentially preclude a person from pursuing a claim before a cause of action arises. Therefore, the court declared that the limitation period had not expired and ordered WorkCover Queensland to respond to Tanks' Notice of Claim. The court decided not to make an order regarding costs as the application could have been made during earlier proceedings, which had failed.
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