Tanks v WorkCover Queensland - [2000] QSC 326

[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…

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.

Continue reading Tanks v WorkCover Queensland

Details

AGLC: Tanks v WorkCover Queensland [2000] QSC 326
Case: [2000] QSC 326
Decision Date: 12/10/2000

CaseChat Overview and Summary

The case of Tanks v WorkCover Queensland involves the plaintiff, Mark Anthony Tanks, who seeks a declaration that the limitation period for bringing a proceeding for damages for personal injuries sustained during employment has not expired. Tanks argues that he did not have a cause of action against his employer until he received a Notice of Assessment from WorkCover on 11 May 1998. The legal issues revolve around whether Tanks had a cause of action before receiving the Notice of Assessment and whether this issue is governed by binding authority. The court must determine if the WorkCover Queensland Act 1996 abolished any pre-existing cause of action and if a new cause of action only arises upon certain statutory events. The reasoning of the court was influenced by the Queensland Court of Appeal's decision in Bonser v Melnacis and the High Court's decision in Austral Pacific Group Ltd v Air Services Australia. Both courts held that the respective legislations abolished any pre-existing cause of action, and a new right to seek damages only arises upon compliance with specific statutory requirements.

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.

Orders