Bonser v Melnacis & Anor [2000] QCA 13

Bradley & Co for the proposed third party/respondent

[1] THE COURT: This is an appeal against a refusal by a District Court judge to issue a third party notice. Leave to appeal was granted on 15 June 1999. It raises important issues concerning the effect of certain provisions in the WorkCover Queensland Act 1996.

[2] Injuries sustained by persons in the course of their employment are often the result of joint or concurrent fault by the employer and some other party - commonly the owner or driver of a motor vehicle. For the purposes of this judgment it will be convenient to refer to those involved on such an occasion, and in particular those involved in the present proceedings, as "the plaintiff", "the employer" and "the third party". The latter term has been chosen because of its neutrality and its concise identification of a non-employer tortfeasor. It has nothing to do with description of a third party under the Rules of Court.

[3] Until 1 July 1997[1], by which time the WorkCover Queensland Act 1996 ("the WorkCover Act") was in operation, the respective rights inter se of the plaintiff, the employer and the third party were regulated in a tolerably well understood manner under the Law Reform Act 1995 and its predecessor the Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952. The WorkCover Act introduced a new system limiting the rights of plaintiffs to bring claims against employers for common law damages. The Act focuses attention upon liability between plaintiff and employer. No thought seems to have been given to the position between employers and third parties. The present case is one where an injured plaintiff has no present right to bring proceedings for damages against his employer because he fails to satisfy certain requirements specified in the WorkCover Act. Arguably both the employer and the third party were guilty of negligence causing the plaintiff's injuries. The question is this: in such a case is the third party precluded from obtaining contribution from the employer?

[4] The plaintiff suffered personal injuries when struck by a motor vehicle driven by the first defendant on 9 September 1997. He commenced an action against the first defendant and also against the second defendant which was the licensed insurer of that vehicle.

[5] The plaintiff was at the relevant time employed by the Maroochy Shire Council. According to the pleadings he was struck by the first defendant's motor vehicle whilst performing duties as a traffic controller at roadworks being constructed by the Council.

[6] In due course the defendants issued a summons seeking leave to issue a third party notice against the Maroochy Shire Council. The application was opposed by the Council. The learned District Court judge refused the application, essentially on the ground that in the events that had happened the employer's liability to the plaintiff for damages for the injuries sustained by him had been abolished by the provisions of Chapter 5 Part 2 of the WorkCover Queensland Act 1996. Accordingly, his Honour held that the proposed third party was not a "tortfeasor who is, or would if sued have been, liable in respect of the same damage"[2] (ie the same damage as that for which the plaintiff claims damages against the defendants). If this is correct there would be no basis for permitting the Council to be joined as a third party.

[7] The WorkCover Act made substantial changes to the rights of plaintiffs to bring claims for damages for personal injuries incurred in the course of their employment. It will be necessary to set out a number of the relevant provisions. It will facilitate their reading if an indication is given of the apparent structure of the new system. A worker's entitlement "to seek" such damages no longer exists unless the worker has received a specified notice of assessment from WorkCover, or in the case of a worker who has not lodged any application for compensation for the injury, a damages certificate. The worker's rights and the necessary procedures that must be followed vary according to whether the worker has sustained a "certificate injury" or a "non-certificate injury". A "certificate injury" is a serious one resulting in a work-related impairment of 20 per cent or more while "non-certificate" injuries are those resulting in work related impairment of less than 20 per cent. A worker with a non-certificate injury must elect either to accept a lump sum payment offered by WorkCover or to sue the employer for damages[3]. By contrast a worker with a certificate injury has the right to accept a lump sum compensation payment and also to proceed with a claim against the employer for damages.

[8] In the present case the plaintiff applied for and was paid periodic workers compensation. Nothing further occurred. He did not seek any lump sum compensation, and it may be inferred that no notice of assessment (either of a certificate injury or a non-certificate injury) was requested or given. The plaintiff was apparently content to obtain periodic compensation and simply to sue the third party for common law damages.

[9] It will be necessary to set out a number of sections in order to consider the competing contentions.

"(1) "Damages" is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker's employer to pay the damages to-

(b) if the injury results in the worker's death - a dependant of the deceased worker.

(2) A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under -

(b) a law of another State, the Commonwealth or of another country."

There is an express recognition of the familiar rights of action of workers against employers, including no doubt common law actions for negligence, breach of contract or breach of statutory duty.

"(1) An employer is legally liable for compensation for injury sustained by a worker employed by the employer.

(2) This Act does not impose any legal liability on an employer for damages for injuries sustained by a worker employed by the employer, though chapter 5 regulates access to damages".

(2) WorkCover must also, when giving the notice of assessment-

(a) give the worker a copy of sections 11, 259, 260 and 325; and

(b) advise the worker that the worker must make an irrevocable election as to whether the worker -

(i) accepts the offer of payment of lump sum compensation; or

(3) The worker may accept, reject or defer a decision about the offer by giving WorkCover written notice within the decision period.

(4) The worker is taken to have deferred the decision if, within the decision period, the worker does not advise WorkCover that the offer is accepted or rejected.

(5) If the worker accepts the offer, WorkCover must pay the worker the amount of lump sum compensation.

(6) If the worker fails to give WorkCover notice of the worker's election before the worker seeks damages for the injury, the worker is taken to have rejected lump sum compensation for the injury.

(7) For subsection (6), the worker is taken to seek damages for the injury when the worker lodges a notice of claim under chapter 5."

[13] Chapter 5 (comprising s 250 to s 329) deals with the subject of "Access to Damages".

"Requirements of chapter to prevail and are substantive law

(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."

[15] Sections 253 to 274 are contained within Part 2 of Chapter 5, under the sub-heading "Entitlement Conditions". The key section, s 253, provides:

"(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 dependant 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".

[16] The following sections 254 to 272 sequentially deal with the various sub-categories of workers who are the "only persons entitled to seek damages" under s 253(1).

[17] Section 256 applies to the worker who has sustained a certificate injury under s 253(1)(a)(i). It provides:

"The claimant may seek damages for the injury only after the claimant has received a notice of assessment from WorkCover".

[18] Section 259 applies to the worker who (in conformity with s 253(1)(a)(ii)) has sustained a non-certificate injury. It provides:

"(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 lump sum compensation for the injury; and

(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 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)".

[19] Section 262 applies to the worker who (in conformity with s 253(1)(b)) has been allowed workers compensation but whose permanent impairment (if any) has not yet been assessed by WorkCover. It provides:

"(1) The injury sustained by the claimant must be assessed in the way provided for under chapter 3, part 9.

(2) The claimant can not seek damages until WorkCover gives the claimant a notice of assessment and the claimant has complied with the requirements of chapter 3, part 9, division 3.

(3) However, WorkCover may give the claimant a conditional damages certificate if there is an urgent need to bring proceedings for damages and the claimant's permanent impairment has not been assessed or agreed.

(4) If a conditional certificate is given, the claimant may start proceedings for damages for the injury, but the proceedings are stayed until WorkCover makes the certificate unconditional and the claimant complies with parts 5 and 6.

(5) WorkCover must make the certificate unconditional when the claimant has been assessed and has been given a notice of assessment".

It may be noted in passing that the present plaintiff is a person to whom this section applies. As he has not obtained either a notice of assessment under subsection (2) or a conditional damages certificate under subsection (3) he does not comply with the requirements of s 262.

[20] Section 265 applies to the worker who (in conformity with s 253(1)(c)) has not lodged any application for compensation for the injury. It provides:

"(1) The person may seek damages for the injury only if WorkCover gives the person a damages certificate under this section.

(2) The person must apply in the approved form to WorkCover for the certificate but only for the purpose of seeking damages.

(3) WorkCover may only, and must, give the certificate if -

(a) WorkCover decides that the person was a worker when the injury was sustained; and

(b) WorkCover decides that the worker has sustained an injury; and

(c) the worker's degree of permanent impairment has been assessed in the way mentioned for the injury under chapter 3, part 9, division 2.

(4) However, WorkCover may give the person a conditional damages certificate if there is an urgent need to bring a proceeding for damages and WorkCover is not satisfied about the matters in subsection (3).

(5) If a conditional certificate is given, the person may start a proceeding for damages for the injury, but the proceeding is stayed until WorkCover makes the certificate unconditional and the person complies with parts 5 and 6.

(6) WorkCover must make the certificate unconditional when it is satisfied about the matters mentioned in subsection (3).

(7) If WorkCover makes a decision under subsection (3)(a), a person aggrieved by the decision may have the decision reviewed under chapter 9.

(8) If WorkCover makes a decision about a matter mentioned in subsection 3(b) and a person does not agree with the decision, WorkCover must refer the matter to a medical assessment tribunal for decision.

(9) If WorkCover makes a decision about a matter mentioned in subsection (3)(c) and a person does not agree with the decision, WorkCover must-

(a) refer the matter to a medical assessment tribunal for decision; and

(b) ask the tribunal to decide if the claimant has sustained a degree of permanent impairment resulting from the injury".

[21] It is unnecessary to set out further provisions relating to claims by dependants.

[22] Sections 273 and 274 make provision for circumstances (in the main when there is material deterioration resulting in a substantial additional work related incapacity) following which further procedures involving WorkCover, a review panel and a medical assessment tribunal may result in a review of permanent impairment. If all necessary conditions are satisfied, the worker may re-elect and seek damages for the injury notwithstanding that the worker had earlier elected not to seek damages.

"The claimant may start a proceeding in a court for damages only if the claimant has complied with -

(b) part 5, other than as provided by section 304 and 305; and

This section requires compliance not only with the "entitlement conditions" of Part 2, but also with pre-court procedures which require a detailed notice accompanied by a genuine offer of settlement (or statement of the reasons why one cannot be made). The pre-court procedures are said to be aimed at achieving early resolution of claims for damages. Part 6 deals with the attempted settlement of claims by means of a compulsory conference and mediation facilities.

[24] Rights of contribution between tortfeasors are dealt with by s 6 of the Law Reform Act 1995. Relevantly it provides:

"Where damage is suffered by any person as a result of a tort ...-

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought".

[25] A question immediately arises whether s 253(3) abolishes rights such as those asserted by the third party. The answer is that such claims are not "damages for an injury sustained by a worker". Similar questions were considered by the Full Court in Guyder v Lipscombe & Others[4] and in the High Court in Unsworth v The Commissioner for Railways[5]. It is sufficient to note that in Unsworth it was held that a claim for contribution pursuant to the equivalent of s 6(c) of the Law Reform Act is not an action to recover damages or compensation in respect of personal injuries[6]. Taylor J considered that the claim by one tortfeasor against another was not "an action to recover damages in respect of personal injury" observing:

"The cause of action given by s. 5(3) of The Law Reform Act, is of an entirely different character; it is, in effect a claim for a partial indemnity, and, although one of the ingredients which must be established is that the person against whom the claim is made is a person "who is, or would if sued have been, liable in respect of the same damage", it is in no sense an action to recover damages in respect of personal injury"[7].

[26] The main question here is whether the employer is a "tortfeasor who ... would if sued have been liable in respect of the same damage", that is to say the same damage as that for which the plaintiff has sued the third party[8]. The words of s 6(c) of the Law Reform Act have been construed in the High Court and elsewhere to the effect that the words "if sued" are taken to mean "if sued at any time"[9]. Thus the fact that a claim by the plaintiff against a second tortfeasor would be barred by a statute of limitation was held in Brambles Constructions Pty Ltd v Helmers[10] not to stand in the way of a claim for contribution between the tortfeasors. Interestingly Barwick CJ observed:

"The obscurity of the word "liable" in the context of this section cries out for some legislative intervention in order to make it quite plain whether or not defences particular to the tort-feasor in an action by the injured party are to be available to him in an action by another tort-feasor for contribution."[11]

More than 20 years later similar concerns have been again expressed in the High Court[12].

[27] The question in the present case is whether the inability of the plaintiff to sue the employer defeats the right of the employer to sue the third party for contribution. Windeyer J observed in Brambles Constructions as follows:

"I see no reason for limiting the denotation of the description by assuming that the words "if sued" refer to some particular point of time. It is enough that there was a time, before the liability of the defendant tort-feasor was actually ascertained, at which the plaintiff (the victim of the tort) could have successfully brought an action against some other person..."[13].

That of course does not necessarily limit the liability of the employer to some moment in the past. Barwick CJ's view would equally seem to cover future liability:

"It seems to me that there is no need whatever to specify any point of time as at which the expression "if sued" should be applied. It can be read "if sued at any time" which, of course, does not import any temporal element into the section"[14].

[28] The effect of a statute of limitation is to destroy the remedy rather than the right of the plaintiff. It is a defence that may be waived, and if not pleaded it will not be noticed by the court or regarded as destroying the substantive rights of a plaintiff[15]. The question in the present case is whether the relevant WorkCover Act provisions are of a different kind that destroy the plaintiff's right of action against the employer.

[29] The heart of the submission for the third party is that the relevant provisions do not abolish the plaintiff's right of action against the employer, but merely bar the remedy until the procedural requirements of the Act have been satisfied. Counsel for the appellants (in effect for the third party), Mr R Douglas SC, submitted that Chapter 5 of the WorkCover Act assumes the existence of a cause of action in favour of a worker against the employer. To expose the right there must of course be satisfaction of the requirements of Part 2 of Chapter 5. He cites the example of the worker who sustains a "certificate injury" who does not need to make any election between compensation and damages, although he still needs to obtain a certificate before seeking damages. Mr Douglas further submitted that the Act assumes that a cause of action exists in an injured worker as its recognition that an urgent damages certificate may be needed to bring proceedings[16] contemplates that time is running for the purposes of relevant limitation provisions. In such a situation the proceedings are "stayed" until the certificate is made unconditional (s 262(4)). This he submits would not be necessary if the cause of action did not arise until the notice of assessment or other statutory condition was satisfied.

[30] In recent years various legislative schemes have been introduced in the States and the Commonwealth designed to control access to damages by claimants in both the motor vehicle accident and employer/employee fields. Some of these were concerned only with limiting or "capping" damages which could be obtained upon various heads of damages and plainly did not destroy the cause of action as such[17]. Another example of a statutory condition that was regarded as procedural and as barring a remedy but not extinguishing the right to sue can be found in Scoles v Commissioner for Government Transport[18]. This concerned the effect of the notice of action required by s 233(1) of the Transport Act 1930 (NSW).

[31] Other statutory schemes such as the Transport Accident Act 1986 (Vic) have been held to destroy not merely the remedy but the cause of action unless and until the necessary certificate of determination of "serious injury" has actually been obtained from the Transport Accident Commission. In Wilson v Nattrass[19] the majority (Ashley and Hedigan JJ, Brooking J contra) were of the view that that Act contingently extinguished such rights of action for damages at common law as had hitherto been enjoyed by persons injured in traffic accidents in that State[20]. It was held that once the contingency was fulfilled the right to bring proceedings based upon the traditional elements of the cause of action came into existence, but not before.

[32] This was followed in Swannell v Farmer[21] by the Victorian Court of Appeal, which held that an injured person who had not established that his injuries were a "serious injury" at the time of his death had no cause of action that could survive for the benefit of his estate. The court considered that relevant parts of s 93 of the Transport Accident Act were more than procedural provisions barring remedies; they were substantive provisions which conditionally extinguished potential rights and liabilities. The relevant words in s 93(1) were "[a] person shall not recover any damages ... except in accordance with this section". Subsection 4 provided what were described in Wilson v Nattrass as "gateways" through which a plaintiff must pass before anything more than a contingent right was obtained. The prohibition was expressed in terms that "the person may not bring proceedings for the recovery of damages in respect of the injury" unless the Commission was satisfied that the injury was serious and issued a certificate, or a court gave leave to bring the proceedings.

[33] If the Victorian decisions are correct, it is difficult to think that the language of the WorkCover Act is any less destructive of a plaintiff's cause of action than the words of the Transport Accident Act (Vic). For our part however, with respect, we find the reasoning in these decisions less than compelling. Were the matter free from recent authority such as these decisions and the line of authority which now proceeds from Commonwealth of Australia v Flaviano concerning the Comcare Act[22], we should have been inclined to hold that an injured worker obtains a right of action when injured through the fault of the employer and that only the remedy is precluded unless and until various steps are taken. The decision of Harding v The Council of the Municipality of Lithgow[23] is a persuasive authority in which Latham CJ, Rich J, Starke J, Dixon J, Evatt J and McTiernan J each wrote separate judgments arriving at the same conclusion. The statutory provision in question was a provision of the Local Government Act 1919-1935 (NSW) that required a notice in writing to be served on the council. It required that "a writ or other process in respect of any damage or injury to person ... shall not be sued out ... until the expiration of one month after" the necessary notice in writing had been served on the Council. The injured man died before any such notice had been given and the question was whether his widow was "entitled to maintain an action and recover damages" under s 3 of the Compensation to Relatives Act 1897-1928 (NSW). Latham CJ considered that the deceased man had a "right to maintain an action"[24] notwithstanding his failure to serve the prescribed notice and notwithstanding that if he had not given such notice his action would have failed. Rich J stated that "the cause of action or right to compensation may subsist without the claimant having taken any or all of the preliminaries essential to the issue of process"[25]. Starke J considered that "the right of the deceased, if death had not ensued, to maintain an action depends not upon the procedural steps necessary to enforce the right but upon the liability to him of the person guilty of the wrongful act, neglect or default. The deceased, as has been pointed out in the cases "may have lost such a right in a number of ways". But neglect to give a notice of action before commencing proceedings would not affect his cause of action, but only the process by which it is enforced". Dixon J observed that "the imposition in favour of a particular defendant of a condition of suit, such as giving notice, is a procedural matter not going to the validity of the title to enforce the liability, but only to the mode of enforcing it, or the fulfilment of a preliminary procedural condition". Evatt J stated "[t]he fact that such person may subsequently lose his right to maintain an action is immaterial". McTiernan J stated that "[i]f he had survived there would have been no bar to him maintaining the action, but the section would have required him to serve the prescribed notice of action before suing the respondent".

[34] Of course different statutory provisions may produce different results. Perhaps Harding should be distinguished on the ground that s 580 of the Local Government Act 1919-1935 (NSW) contained a proviso which gave the court a discretion to direct that non-compliance with the section should not be a bar to the maintenance of the action, though that provision is mentioned only in the judgments of Latham CJ and McTiernan J. Harding was not mentioned in any of the judgments in Wilson v Nattrass or Swannell v Farmer. However the wording of the WorkCover Act would seem to be more comparable with that of the Victorian legislation than that in Harding.

[35] Reference was made during submissions to decisions under the Safety Rehabilitation and Compensation Act 1988 (Cth) ("the Comcare Act"). Section 44 of that Act relevantly provides that "[s]ubject to section 45, an action ... for damages does not lie against the Commonwealth ... in respect of ... an injury sustained by an employee in the course of his or her employment ...". Section 45 provides that where compensation is payable in respect of an injury the employee, before compensation is paid, may elect to institute an action, and that where an election is made s 44(1) does not apply to the action. Mr Douglas sought to draw a distinction between these words and those of s 262 of the WorkCover Act which apply to the present plaintiff namely "the claimant cannot seek damages until ...". In my view the prohibitions in the three Acts to which reference has been made are in substance the same. A prohibition against seeking damages is wider than a prohibition against bringing proceedings (as in the Victorian legislation) and it is as clear and effective a prohibition as the declaration that an action does not lie (as in the Commonwealth legislation). Accordingly the decisions made in relation to the Comcare Act are of some relevance in the context of the WorkCover Act.

[36] In Commonwealth of Australia v Flaviano[30] the New South Wales Court of Appeal held that unless and until the necessary election was made under the Comcare Act no action lay, and the employer (the Commonwealth) could not be required under the Law Reform (Miscellaneous Provisions) Act 1946 to make contribution to another tortfeasor who was liable for the same damage. It is very much on point, provided of course that the legislation is not properly distinguishable. That decision was followed in this Court in Airservices Australia v Austral Pacific Group Ltd[31].

"unless and until an employee makes an election s 44(1) applies and no action lies. Put another way, until Mr Flaviano made an election in writing to institute an action, s 44(1) prevented him from suing the Commonwealth in respect of the injury ..."[32].

[38] In Airservices v Austral Pacific all three members thought that the opposite view was reasonably open and seemingly both Pincus JA and Ambrose J found that opposite view more attractive. However the Court felt constrained to follow the construction given in the New South Wales Court of Appeal noting that the adoption of a different construction would merely ensure inconsistency in approach between commensurate Australian appellate courts. In neither Flaviano nor Airservices Australia had the plaintiff made any election to sue the Commonwealth (or its agency) although in Flaviano the plaintiff had elected to receive compensation for permanent impairment and non-economic loss. Despite the doubts expressed in Airservices, that decision tends to reinforce the construction that the Comcare Act is destructive of a plaintiff's cause of action unless and until the election has occurred, and that in such a case contribution proceedings by a third party against the employer Commonwealth are not open. Flaviano has also been followed in Coomblas v Gee[33], a decision of the South Australian Full Court.

[39] At present then there is a relative consistency in decisions on legislation with which the WorkCover Act is arguably comparable. The respondent in Airservices has been granted special leave to appeal to the High Court (24 June 1999) to test the correctness of Flaviano and Coomblas v Gee. No suggestion was made that this Court should defer its present decision until after the High Court hands down its decision in Airservices. Although distinctions can be drawn, the Queensland legislation is not substantially different from that which was considered in the cases to which reference has been made. If anything, the Queensland legislation is more destructive of a plaintiff's rights, particularly when regard is had to s 253(2). Whilst expressing some doubt as to the correctness of those decisions, we are unwilling to hold that they are plainly wrong.

[40] In Airservices Australia v Austral Pacific Group Ltd[34] Ambrose J observed:

"If the matter were free from authority I would be tempted to construe the legislation so that the words "would if sued be liable" in s 6(c) would read as "would if properly sued be liable" or as "would if sued in accordance with all procedural requirements be liable""[35].

Kirby J (although in dissent) expressed a similar view in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd[36]. Ambrose J noted that such an approach would conform with that taken in the High Court decision of Harding v The Council of the Municipality of Lithgow[37] which tends to run counter to the decisions in Wilson v Nattrass[38], Swannell v Farmer[39] and Commonwealth of Australia v Flaviano[40]. However those three cases have established an approach to legislation in pari materia and should be followed unless and until the High Court (or the relevant legislature) indicates otherwise[41].

[41] We should therefore accept the respondent employer's submission that 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 lump sum compensation or to seek damages[42]. Comparison may again be drawn with the s 45 election under the Comcare Act where the need for a specific identifiable election is recognised[43] before rights of action are obtained.

[42] Finally the question remains whether there is a potential future entitlement which is sufficient to satisfy the requirement of s 6(c) of the Law Reform Act that the employer "would if sued (at any time) have been liable ...". Section 274 of the WorkCover Act gives certain rights to a worker to have a reconsideration of his degree of permanent impairment, and if certain conditions are met, an earlier decision not to seek damages may be reversed. That section is not apposite in the present case as it applies only to workers who have already received an assessment of permanent impairment. Its relevance however is that in theory at least there is a possibility in any case, even one where a worker has elected against suing, that a damages action may later be brought against the employer. We do not think that this possibility is enough to undermine what must at this stage be construed as a legislative intention of destroying the substance of a plaintiff's rights unless and until compliance has been achieved with the procedural steps that are specified. Section 274 will enliven rights only when the necessary combination of circumstances mentioned therein are shown to exist.

[43] For the above reasons the respondent's submission that the employer has no "liability" to the plaintiff which can support a claim by a third party for contribution under s 6(c) of the Law Reform Act must be accepted.

[44] It is appropriate that some reservations be expressed in relation to this conclusion. In the first place the legislature has not seen fit to make any express provision concerning liability between an employer and a third party who are joint or concurrent tortfeasors. Such claims arise in a significant minority of cases where a worker sustains personal injury in the course of employment. The legislature has deliberately reduced the circumstances in which a worker can successfully sue the employer (s 311 to s 314), has reduced or eliminated certain heads of damage (s 315 to s 319) and has hedged worker's rights to claim damages by means of stringent procedural requirements that have been discussed above. Among the declared objects of the Act are that the workers compensation scheme "be maintained in a fully funded state that meets insurance industry solvency standards"[44] and that "it is intended that compulsory insurance against injury in employment should not impose too heavy a burden on employers and the community"[45]. As between workers and employers the objectives of the Act and the means provided to attain them are admirably transparent. However if it were intended to lighten the financial burden of that sector of the community known as "employers" at the expense of another sector of the community such as third party insurers (and ultimately those who own or drive motor vehicles), one would have expected some adversion to the subject, or at the least some very clear implication.

[45] In the absence of the above decisions on other statutory schemes, we would have decided that the language of the WorkCover Act, although destructive of workers' remedies, is not clear enough to take away third party rights of contribution. The most troubling provision in the WorkCover Act is s 252(2) ("all the provisions of this Chapter are provisions of substantive law"). It presents a paradox, as many if not all of such provisions would seem to be procedural. Section 252(2) is however a poor substitute for an express statement such as "joint or concurrent tortfeasors may not obtain contribution from an employer unless the employer is held liable to the worker in accordance with the provisions of this Act".

[46] The result of the construction that this Court is constrained to follow is that in cases where a worker fails for any reason to run the gamut of provisions surrounding commencement of proceedings against the employer, the former rights of third part tortfeasors to recover contribution from the employer have been abolished. This will certainly produce a distortion of loss allocation in respect of injuries caused by co-tortfeasors. There will be many instances where the worker will deliberately refrain from pursuing a damages claim against the employer, including cases where it will be easier and more expedient to pursue a third party target against whom some negligence can be established. In consequence there will be many cases in which the third party (and ultimately third party motor vehicle insurers) will pay the full damages which otherwise would have been paid in proportions determined by the court by both the employer and the third party. A plaintiff, by applying or failing to apply for assessment, can dictate where the eventual loss is going to fall. That the rights of a third party tortfeasor should depend upon the fortuitous circumstance of choice of the particular plaintiff seems unsatisfactory to say the least. Such a situation was regarded in Guyder v Lipscombe[46] as a result that should not readily be arrived at. As Kirby J noted in Seltsam[47] one of the chief reasons for introduction of the tortfeasors contribution legislation was to remove the difficulty to which co-tortfeasors were subjected by reason of the power of plaintiffs to determine the incidence of loss between various parties all of whom might actually be responsible. By contrast an employer is not prevented in any way or form from pursuing longstanding rights of claim for indemnity or contribution against another co-tortfeasor. Indeed WorkCover is given additional and enhanced powers to pursue co-tortfeasors under s 278 for recovery not only of damages but of compensation.

[47] On the proper construction of the WorkCover Act, consistently with the decisions that have been mentioned, the defendants are precluded from obtaining contribution from the employer (the Maroochy Shire Council). The purpose of issuing the third party notice was to make a claim for contribution which could not succeed. The learned District Court judge was correct in refusing to issue a third party notice. The appeal should be dismissed with costs.

[1] Most provisions were in operation from 1 February 1997.

[2] Law Reform Act 1995 s 6(c).

[4] [1966] Qd R 24.

[5] [1958] HCA 41; (1958) 101 CLR 73.

[6] Ibid per Fullagar J at p 86 and per Taylor J at p 91.

[8] James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 73 ALJR 238.

[9] Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213; Guyder v Lipscombe & Others [1966] Qd R 24.

[10] [1966] HCA 3; (1966) 114 CLR 213.

[12] James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 73 ALJR 238 per Gaudron and Gummow JJ at par 7 (p 240) and per Kirby J at par 46 (p 246).

[13] [1966] HCA 3; (1966) 114 CLR 213 at p 221.

[15] The Commonwealth v Verwayen (1990) 170 CLR 394, 473, 482-486; The Commonwealth of Australia v Mewett (1997) 191 CLR 471 per Gummow and Kirby JJ at 534-535.

[17] Eg legislation considered in Stevens v Head [1993] HCA 19; (1993) 176 CLR 433.

[18] [1960] HCA 29; (1960) 104 CLR 339.

[19] (1995) 21 MVR 41.

[21] [1998] VSCA 104; [1999] 1 VR 299.

[22] Discussed hereunder par 36 to par 37.

[23] [1937] HCA 46; (1937) 57 CLR 186.

[30] [1996] NSWSC 451; (1996) 40 NSWLR 199.

[31] (1998) 157 ALR 125.

[32] [1996] NSWSC 451; (1996) 40 NSWLR 199 at p 204.

[33] (1998) 72 SASR 247.

[34] (1998) 157 ALR 125.

[36] (1998) 73 ALJR 238 at par 74 (p 253).

[37] [1937] HCA 46; (1937) 57 CLR 186.

[38] (1995) 21 MVR 41.

[39] [1998] VSCA 104; [1999] 1 VR 299.

[40] [1996] NSWSC 451; (1996) 40 NSWLR 199.

[41] Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485, 492; Coomblas v Gee (1998) 72 SASR 247, 252.

[42] See Chapter 3 Part 9 Division 3, s 202 to s 208.

[43] Grogan v Commonwealth of Australia [1999] 1 Qd R 30; Commonwealth of Australia v Flaviano [1996] NSWSC 451; (1996) 40 NSWLR 199.

[44] Section 5(4)(e).

[45] Section 5(6).

[46] [1966] Qd R 24.

[47] (1998) 73 ALJR 238 at par 87 (p 256).