Tanks v WorkCover Queensland

[2001] QCA 103

SUPREME COURT OF QUEENSLAND

CITATION:

Tanks v WorkCover Qld [2001] QCA 103

PARTIES:

MARK ANTHONY TANKS
(applicant/respondent)
v
WORKCOVER QUEENSLAND
(respondent/appellant)

FILE NO/S:

Appeal No 9435 of 2000
SC No 610 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

20 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2001

JUDGES:

Davies and Williams JJA and Mullins J
Separate reasons for judgment of each member of the Court each concurring as to the orders made

ORDER:

1.  Appeal allowed.
2.  Set aside declaration and orders made at first instance.
3.  Order that the application be dismissed.
4.  Order that the respondent pay the appellant's costs of and incidental to the application and appeal to be assessed.

CATCHWORDS:

LIMITATION OF ACTIONS – GENERAL – APPLICATION OF STATUTES OF LIMITATION – APPLICATION TO NEW RIGHT CREATED BY STATUTE – where employee brought action for damages for personal injuries against employer – whether, for the purposes of the Limitation of Actions Act 1974, the cause of action existed prior to receipt of notice of assessment from WorkCover – whether new cause of action for damages created by WorkCover Queensland Act 1996 abolishing common law cause of action or whether it arises independently of the operation of the Act – effect of the substantive operation of provisions pursuant to s 252(2)

INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – OTHER STATES AND TERRITORIES – QUEENSLAND – interpretation of WorkCover Queensland Act 1996

Limitation of Actions Act 1974 (Qld), s 11
WorkCover Queensland Act 1996 (Qld), s 252(2), s 253

Austral Pacific Group Ltd v Airservices Australia (2000) 74 ALJR 1184, considered
Bonser v Melnacis & Anor [2000] QCA 13; Appeal No 4369 of 1999, 8 February 2000, considered

Swannell v Farmer [1999] 1 VR 299, considered
Wilson v Nattrass (1995) 21 MVR 41, considered

COUNSEL:

P A Keane QC with R C Morton for appellant
R J Douglas SC with G R Mullins for respondent

SOLICITORS:

Bain Gasteen for appellant
Connolly Suthers (Townsville) for respondent

1. DAVIES JA: This is an appeal against a decision of a judge of the Supreme Court that the period of limitation prescribed by s 11 of the Limitation of Actions Act 1974 for bringing an action for damages by the respondent for personal injuries sustained in the course of his employment with J P and M E Tanks on 26 June 1997 has not expired. That decision, as the learned primary judge recognized, involved two questions:

1.          whether the respondent after having sustained his injury and prior to the receipt of the notice of assessment from WorkCover on 11 May 1998 had, for the purposes of the Limitation of Actions Act, a cause of action against his employer;  and

2.          whether that question was the subject of authority binding on him.

1. In the latter respect his Honour had in mind the decision of this Court in Bonser v Melnacis & Anor.[1]  The questions…