Greenall & Anor v Amaca Pty Ltd [2023] QSC 137

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE - where the deceased was employed by the defendant in 1972 - where the deceased died in 2022 as a result of malignant mesothelioma resulting from the inhalation of asbestos fibres during the course of his employment by the defendant - where the first plaintiff is the legal personal representative of the deceased - where the second plaintiff was the wife of the deceased at the time of his death - where the third party is the defendant's insurer and indemnified the defendant in respect of some of the plaintiffs' claims - where the defendant and the third party seeks to strike out several paragraphs of the plaintiffs' amended claim and further amended statement of claim on the basis the plaintiffs do not have an entitlement to the damages claimed by reason of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the 'WCRA') - whether the claims in those paragraphs can be maintained - whether those paragraphs should be struck out

PROCEDURE - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION - GENERALLY - where the third party brought a separate application pursuant to r 483(1) of the Uniform Civil Procedure Rules 1999 (Qld) (the 'UCPR') for questions to be decided as between the defendant and the third party, and as between the third party and the plaintiff, before the trial of the proceedings - whether the first plaintiff can maintain the claims against the defendant pleaded in the paragraphs of the further amended statement of claim that the third party seeks to strike out

DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - OTHER HEADS OF DAMAGE - LOSS OF CAPACITY TO CARE FOR OTHERS - STATUTORY MODIFICATIONS - where the first plaintiff brings an estate claim, including a claim for damages under s 59A of the Civil Liability Act 2003 (Qld) (the 'CLA') for loss of the deceased's capacity to provide gratuitous domestic services - whether the operation of s 36A(6) of the WCRA displaces s 603 of the WCRA - whether s 36A(4) of the WCRA has the effect that a latent onset injury is an injury defined under and within the meaning of ss 32 or 36A if the WCRA - whether the current version of s 5 of the CLA applies

TORTS - GENERALLY - STATUTORY DEPENDENTS' CLAIMS - BY WHOM OR FOR WHOSE BENEFIT ACTION MAY BE BROUGHT - OTHER CASES - where the first plaintiff brings a wrongful death claim on behalf of the second plaintiff - where the second plaintiff is not a 'dependent' within the meaning of s 27 of the WCRA - whether the first plaintiff can claim damages pursuant to pt 10 of the Civil Proceedings Act 2011 (Qld)

DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - OTHER HEADS OF DAMAGE - LOSS OF SERVICES - where the second plaintiff claims damages for loss of her husband's servitium and consortium - where the admitted negligence giving rise to the deceased's injury arose in 1972 - whether the second plaintiff's claim falls within s 306M of the WCRA - whether the second plaintiff enjoys a right to make a claim for loss of servitium if the neglect, default or breach of duty occurred before 1 January 1985

WORKERS' COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF - PREVENTION OF DOUBLE RECOVERY FROM EMPLOYER - PREVENTION OF DOUBLE RECOVERY OF COMPENSATION UNDER SAME ACT OR ANY OTHER ACT - whether the s 59A damages claim compensates the same loss of services (claimed by the same measure) which the deceased was unable to provide or loss because of his injury and then death - whether s 59A damages cannot be awarded due to the operation of ss 59B(4) or 59D of the CLA - whether the s 59A damages claim contravenes the rule against double recovery

WORKERS' COMPENSATION - ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF - RIGHTS AGAINST THIRD PARTIES - RIGHT OF INDEMNITY OR CONTRIBUTION FROM THIRD PARTY - INDEMNITY FROM PERSON LIABLE TO PAY DAMAGES - whether the third party is required to indemnify the defendant pursuant to ss 8, 10 and 48 of the WCRA

Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 32

Civil Liability Act 2003 (Qld), s 5, s 7, s 59A, s 59B, s 59D, s 83, s 85

Civil Proceedings Act 2011 (Qld), s 3, s 64, s 65, s 67

Law Reform Act 1995 (Qld), s 13, s 14

Limitation of Actions Act 1974 (Qld), s 11, s 47

Personal Injuries Proceedings Act 2002 (Qld), s 6

Succession Act 1981 (Qld), s 66

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 483, r 483, r 485

Workcover Queensland Act 1996 (Qld), s 253, s 316

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 1, s 2, s 5, s 8, s 10, s 11, s 27, s 32, s 35, s 36A, s 43, s 46, s 48, s 235, s 237, , , , ,

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited

Armstrong v Local Government Workcare [2014] ICQ 7, cited

Best v Samuel Fox & Co Ltd [1952] AC 716, considered

Burnicle v Cutelli [1982] 2 NSWLR 26, cited

Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3) [2015] QSC 295, applied

CSR v Eddy (2005) 226 CLR 1; [2005] HCA 64, cited

Equititrust Ltd v Tucker (No 2) [2019] QSC 248, applied

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, cited

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69, cited

Glenco Manufacturing Pty Ltd v Ferrari [2005] 2 Qd R 129; [2005] QSC 005, considered

Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45, cited

Hall v WorkCover Queensland [2015] 2 Qd R 88; [2014] QCA 135, distinguished

Harris v Grigg [1988] 1 Qd R 514, followed

Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157; [2001] QCA 223, followed

Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273; [2000] QCA 348, considered

Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519; [2006] QCA 048, considered

Newberry v Suncorp Metway Insurance Ltd [2005] QSC 210, considered

Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9, cited

Palmer v Magistrates Court of Queensland (2020) 3 QR 546; [2020] QCA 047, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [2998] HCA 28, cited

R v A2 (2019) 269 CLR 507; [2019] HCA 35, cited

SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81; [2018] QCA 296, distinguished

Stankovic v SS Family Pty Ltd [2018] QDC 054, distinguished

Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338, cited

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, cited

Tanks v WorkCover Qld [2001] QCA 103, cited

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12, cited

Watkin v GRM International Pty Ltd [2007] 1 Qd R 389; [2006] QCA 382, considered

Wilkinson v BP Australia Pty Ltd [2008] QSC 171, cited

Wright v Cedzich (1930) 43 CLR 493; [1930] HCA 4, followed

• [1] Between January and April 1972, the late Walter Greenall was employed as a roof fixer by the Defendant ('Amaca'). During his employment, he was exposed to asbestos.
• [2] On or about 5 August 2021, Mr Greenall was diagnosed with mesothelioma.
• [3] On 25 November 2021, Mr Greenall filed a claim against Amaca, seeking damages for personal injuries allegedly sustained by him during his employment with Amaca. Mr Greenall alleged that he developed mesothelioma as a result of inhaling asbestos fibres during the course of his employment with Amaca. He claimed the personal injuries he sustained were due to Amaca's negligence, breach of duty, breach of contract and/or breach of statutory duty.
• [4] On 1 March 2022, Mr Greenall died. The cause of death was malignant mesothelioma.
• [5] By an Amended Claim filed 5 August 2022, the Plaintiffs continue to pursue certain claims for damages against Amaca. The alleged material facts of these claims are pleaded in a Further Amended Statement of Claim, filed 16 May 2023 (the 'FASOC').
• [6] The First Plaintiff, Philip Greenall, in his capacity as the legal personal representative (the 'LPR') of the estate of the late Walter Greenall, seeks to recover damages on two bases: first, pursuant to s 66 of the Succession Act 1981 (Qld) in respect of the alleged personal injuries sustained by Mr Greenall (the 'Estate Claim'); and second, pursuant to pt 10 of the Civil Proceedings Act 2011 (Qld) (the 'CPA'), on behalf of the Second Plaintiff, for the alleged wrongful death of Mr Greenall (the 'Wrongful Death Claim', also referred to as the '').

• [12] As part of the Estate Claim, the LPR seeks to recover the following damages (the 's 59A Damages Claim') pursuant to s 59A of the Civil Liability Act 2003 (Qld) (the 'CLA'):

(a) $239,765.76 for past loss of Mr Greenall's capacity to provide gratuitous domestic services to Mrs Greenall; and

(b) $907,306.00 for future loss of Mr Greenall's capacity to provide gratuitous domestic services to Mrs Greenall.

• [13] The Estate Claim in respect of the s 59A damages is pleaded in paragraphs 19A(c) to 19A(d) of the FASOC.
• [14] The Wrongful Death Claim is pleaded in paragraphs 19B to 19F of the FASOC. The premise of that claim is that, as at the date of his death, Mrs Greenall was dependent upon Mr Greenall for her support.
• [15] On that basis, and pursuant to s 65(2) of the CPA, the LPR seeks to recover the following damages on behalf of Mrs Greenall under pt 10 of the CPA:

(a) $39,515.00 for past loss of gratuitous domestic services that would have been provided to Mrs Greenall by Mr Greenall; and

(b) $950,810.00 for future loss of gratuitous domestic services which would have been provided to Mrs Greenall by Mr Greenall.

• [16] The damages sought by the Wrongful Death Claim are pleaded as '[f]urther or in the alternative' to the s 59A Damages Claim.
• [17] The Loss of Consortium Claim is pleaded in paragraphs 19G and 22 of the FASOC. Mrs Greenall seeks to recover damages of:

(a) $30,000 for loss of consortium;

(b) $239,765.76 for past loss of her husband's servitium; and

(c) $950,810 for future loss of her husband's servitium.

• [18] For the purposes of these applications, the parties have agreed upon the following facts:[1]
  1. The deceased, Walter Greenall, died on 1 March 2022.
  2. The death of the deceased was caused by malignant mesothelioma resulting from the inhalation of asbestos fibres during the course of his employment by Amaca.
  3. The deceased died as a consequence of developing malignant mesothelioma.
  4. The development of the malignant mesothelioma, and the death of the deceased, were caused by the negligence of Amaca. This is admitted on the pleadings by both Amaca and the Third Party.
  5. The deceased and the Second Plaintiff, the wife of the deceased ("Mrs Greenall"), were each a "spouse" within the meaning of Part 10 of the Civil Proceedings Act 2011 (Qld) ("CPA").
  6. Mrs Greenall is a person "under a legal disability" within the meaning of section 59(1A) of the Public Trustee Act 1978 (Qld) and is a person "under a legal incapacity" within the meaning of the UCPR as she suffers from Alzheimer's disease.

1. The malignant mesothelioma of the deceased was a:

(a) "latent onset injury" for the purposes of the Workers Compensation Rehabilitation Act 2003 (Qld) ("WCRA").

(b) "dust related condition" for the purposes of the Civil Liability Act 2003 (Qld) ("CLA") and the Succession Act 1981 (Qld) ("SA 81").

1. The First Plaintiff is the legal personal representative ("LPR") of the deceased and brings two claims in that capacity:

(a) What is known as an "estate claim" pursuant to section 66 of the SA 81, by which substantial parts of the cause of action that the deceased enjoyed against Amaca survived to the LPR, which is enlarged in the case of "dust" claims.

(b) Pursuant to Part 10 of the CPA, known as a wrongful death or dependency action, or a Lord Campbell's Act action, for the benefit of those parties who are entitled to make such a claim under Part 10 of the CPA. The only identified person making that claim is Mrs Greenall, the Second Plaintiff.

1. Damage by injury was first sustained by the deceased:

(a) During 1972 by reason of molecular changes which inevitably and inexorably culminated in the development of the mesothelioma.

(b) In any event, before 6 November 2006.

1. Before he died the deceased suffered injury, loss and damage.
2. The deceased was diagnosed with mesothelioma by a doctor on or about 5 August 2021.
3. On or about 30 August 2021, the deceased applied for the compensation from WorkCover pursuant to the WCRA in respect of his mesothelioma injury.
4. The deceased was entitled to, and, on 30 August 2021, WorkCover accepted the deceased's application for, compensation payable under the WCRA for the mesothelioma injury of the deceased.
5. WorkCover paid compensation in the sum of $384,090.00 to the deceased pursuant to Division 4 of Part 3 of Chapter 3 of the WCRA on 14 October 2021 in respect of the deceased's said application for compensation.
6. The Second Plaintiff has not received compensation under Chapter 3 of Part 11 of the WCRA.
7. The mesothelioma injury of the deceased was:

(a) not an injury to which section 34(1)(c) or section 35 of the WCRA applied at all material times;

(b) a dust related injury for which compensation was payable (and paid) under the WCRA;

(c) a "dust related condition" within the meaning of the WCRA and for the purposes of section 305A and section 306A of the WCRA.

1. The "relevant compensation Act" for the purposes of section 36A(2) and section 36A(7) of the WCRA was the Workers Compensation Act 1916 (Qld) ("the 1916 Act").
2. The injury, comprising such molecular changes which inevitably led to the mesothelioma injury was an "injury" under the 1916 Act and the deceased was a "worker" under the 1916 Act.
3. The Third Party is not obliged to indemnify the Defendant in respect of the loss of servitium (consortium) claim of the Second Plaintiff against the Defendant.
4. The Third Party has admitted that, if the "section 59A damages" claim is maintainable against the Defendant, it is obliged to indemnify the Defendant in respect of that claim but under and governed by the WCRA.

• [19] By its amended application, filed 29 May 2023, Amaca seeks to strike out paragraphs 19G and 22 of the FASOC pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (the 'UCPR'). Those paragraphs of the FASOC concern the Loss of Consortium Claim. Amaca contends that because the Loss of Consortium Claim cannot be maintained as a matter of law, the impugned pleadings disclose no reasonable cause of action and ought to be struck out.
• [20] For the same reason, Amaca also urges the Court to strike out those parts of the Amended Claim concerning the Loss of Consortium Claim, in the exercise of the Court's inherent jurisdiction.
• [21] By its further amended application, filed 19 May 2023, WorkCover seeks to strike out paragraphs 4C(b), 19A(c) to 19A(d)3 and paragraphs 19D to 19F of the FASOC, and so much of the prayer for relief that relates to those paragraphs, pursuant to r 171 of the UCPR. Those paragraphs of the FASOC concern the s 59A Damages Claim and the Wrongful Death Claim. WorkCover contends that because none of these claimed damages are recoverable as a matter of law, the impugned pleadings disclose no reasonable cause action and ought to be struck out.
• [22] In its written submissions in support of its strike out application, Amaca adopted WorkCover's submissions in respect of the s 59A Damages Claim and the Wrongful Death Claim.
• [23] Rule 171 of the UCPR provides:
  1. Striking out pleadings

(1) This rule applies if a pleading or part of a pleading -

(a) discloses no reasonable cause of action or defence; or

(b) has a tendency to prejudice or delay the fair trial of the proceeding; or

(c) is unnecessary or scandalous; or

(d) is frivolous or vexatiouus; or

(e) is otherwise an abuse of the process of the court.

(2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.

(3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.

• [24] It is not necessary to traverse in any great detail the relevant principles that apply to the determination of an application made pursuant to r 171 of the UCPR. I have been referred to, and apply, the relevant principles identified by Bowskill J (as her Honour the Chief Justice then was) in Equititrust Ltd v Tucker (No 2).[2] Whilst it, of course, remains a matter for the exercise of the Court's discretion, there is no real dispute here that if the Contested Damages Claims disclose no reasonable cause of action, the impugned paragraphs of the FASOC ought to be struck out. If the arguments of Amaca and WorkCover are correct, then the Contested Damages Claims would be 'manifestly groundless' and 'so obviously untenable' that they 'cannot possibly succeed'.[3] Similar conclusions would apply in respect of the impugned parts of the Amended Claim and would enliven the Court's discretion to act in the exercise of its inherent jurisdiction to stay or dismiss the claims in order to prevent an abuse of process.[4]

• [25] By an amended application filed in court with leave during the hearing, WorkCover sought an order, pursuant to r 483(1) of the UCPR, that the following questions be decided, as between Amaca and itself and as between itself and the LPR, summarily and before the trial of the proceedings:

(1) "Can the First Plaintiff maintain the claims against the Defendant pleaded in paragraphs 19D to 19F of the Further Amended Statement of Claim of the Plaintiff ("FASOC"), and so much of the prayer for relief that relates to those paragraphs?"

(2) If "yes' to question (1); "Can the First Plaintiff maintain both the claims pleaded in paragraphs 4C(b), 19A(c) and 19A(d)3, of the FASOC further to the claims pleaded in paragraphs 19D to 19F of the FASOC?"

(3) If "yes" to question (1); "Is the Third Party obliged to indemnify the Defendant in respect of the claims in paragraphs 19D to 19F of the FASOC against the Defendant, and so much of the prayer for relief that relates to those paragraphs?"

(4) "Is the Third Party obliged to indemnify the Defendant in respect of the claims in paragraph 19G of the FASOC against the Defendant, and so much of the prayer for relief that relates to those paragraphs?"

• [26] During the course of the hearing of these applications, counsel for WorkCover advised the Court that the issue of indemnity relating to Question 4 had been resolved as between Amaca and WorkCover and therefore the Court would not be required to decide that question.
• [27] As to the remaining questions, WorkCover contends that each ought to be answered 'no' or alternatively, in the case of questions (2) and (3), 'unnecessary to answer'. On that basis, WorkCover further seeks an order for judgment against Amaca in the Third Party proceedings, in respect of so much of those proceedings, and the prayer for relief, that relate to paragraphs 19D to 19F (the Wrongful Death Claim) of the FASOC.
• [28] In its written submissions, Amaca essentially concurred with WorkCover's submissions in respect of its r 483 Application.[5]
• [29] Rule 483 of the UCPR relevantly states:
  1. Order for decision and statement of case for opinion

(1) The court may make an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding.

• [30] Again, it is not necessary to discuss the relevant principles that apply to an application of this kind at any length. They are not in doubt. In that regard, I adopt and apply the principles conveniently summarised by Flanagan J (as his Honour then was) in Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3).[6] The ultimate question to be determined in respect of the r 483 Application is whether it is just and convenient to decide the stated questions summarily and before trial.[7] It is, of course, also relevant to have regard to the overriding obligations in r 5 of the UCPR when considering whether it is appropriate to separately determine the stated questions in the exercise of the wide discretion conferred by r 483.[8]
• [31] Given that all relevant material facts are agreed and the matters raised for consideration by the stated questions concern discrete matters of law, I am satisfied that the issues are ripe for separate and preliminary determination.
• [32] As both the Strike Out Applications and the r 483 Application concern the same subject matter, issues and contentions, it follows that the answers to the separate questions will depend upon whether the Contested Damages Claims may be maintained as a matter of law.

• [33] For the purposes of these applications, the specific issues for consideration are outlined in a 'List of Issues'[9]. They are reproduced below.

1. Should paragraphs 19A(c) to 19A(d)(3) of the Plaintiffs' Further Amended Statement of Claim ("FASOC") be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR"), requiring consideration of:

(a) whether the First Plaintiff is entitled to maintain a claim for damages for gratuitous care that would have been provided by the deceased to his wife, Mrs Audrey Greenall, pursuant to section 59A of the Civil Liability Act 2003 ("CLA"); and

(b) whether the First Plaintiff's claim for section 59A damages is precluded by section 5 of the CLA.

1. Should paragraphs 19D to 19F of the FASOC be struck out pursuant to r 171 of the UCPR, requiring consideration of:

(a) whether the First Plaintiff is entitled to maintain a claim of loss of dependency on behalf of the deceased's wife, Mrs Audrey Greenall, pursuant to the Civil Proceedings Act 2011 (Qld); and

(b) whether the claim for loss of dependency is precluded by section 237 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("WCRA").

1. Should paragraph 19G of the FASOC be struck out pursuant to r 171 of the UCPR requiring consideration of:

(a) whether the Second Plaintiff is entitled to maintain a claim for loss of consortium and servitium; and

(b) whether a claim for loss of consortium and servitium is precluded by section 306A of the WCRA.

1. Was the deceased's injury "defined under" the Workers' Compensation Act 1916 (Qld) (the "1916 Act") or the WCRA? In that regard:

(a) What is the effect of section 36A of the WCRA in relation to the deceased's claim in respect of a latent onset injury?

(b) Is section 603 of the WCRA displaced by the operation of section 36A(6) of the WCRA?

(c) What is the effect of section 36A(4) of the WCRA in relation to the deceased's claim (maintained pursuant to section 66 of the SA 81 by the legal personal representative of the deceased, the First Plaintiff) and, in particular, whether it has the effect that, in deeming the injury which was sustained to have a date of the doctor's diagnosis on 5 August 2021, the latent onset injury is then an injury "defined under" the WCRA:

(i) Under, and within the meaning of, section 32 of the WCRA; or

(ii) Under, and within the meaning of, section 36A of the WCRA.

1. Whether the version of section 5 of the CLA as it stood prior to 6 November 2006 (Reprint 2) applies or whether the version of section 5 of the CLA, as it stood on 5 August 2021 (the current version) applies?
2. What is the effect of the section 59A damages provisions introduced by the Civil Liability and other Legislation Amendment Act 2010 (Qld) ("the 2010 amendments")? In particular what is the effect of section 85 of the CLA, having regard to the definition of "section 59A damages provisions" in section 85(5) of the CLA? In that respect, is the effect of section 85(1) of the CLA, when read with the definition of "section 59A damages provisions" in section 85(5) of the CLA, to give retrospective effect to section 5 as it stood and then as amended or inserted, by the amending legislation in 2010, including section 5(1)(b) of the CLA as it then stood?

1. As the Second Plaintiff is not a "dependant" within the meaning of section 27 [of the WCRA] can the Plaintiff, nonetheless, claim damages, pursuant to Part 10 of the Civil Proceedings Act 2011 (Qld) ("CPA"), unregulated by the WCRA against the employer of the deceased, the Defendant?
2. Should the answer to Question 1 of the UCPR 483 application be answered "no"?
3. If a claim by the Second Plaintiff under Part 10 of the CPA is maintainable, because it is not a claim for "damages" under the CPA, is the Third Party required to indemnify the Defendant pursuant to sections 8, 10, and 48 of the WCRA?
4. Whether Question 3 of the UCPR 483 application is unnecessary to answer or should be answer [sic] "no"?

1. What is the effect of section 306A of the WCRA in relation to section 306M of the WCRA?
2. Does the Second Plaintiff enjoy a right to make a claim for loss of servitium if the neglect, default or breach of duty occurred before 1 January 1985?

1. Can the Plaintiff claim the section 59A damages (if maintainable) and loss of services in the dependency claim (if maintainable) and the loss of consortium claim (if maintainable)?
2. If not, whether the section 59A damages ought be disallowed, inter alia, because it compensates the same loss of services (claimed by the same measure) which the deceased was unable to provide or lost because of his injury and then death either by section 59B(4) or section 59D of the CLA, or because, as pleaded, it contravenes the rule against double recovery?
3. Whether Question 2 of the UCPR 483 application is unnecessary to answer or should be answered "no"?

• [34] In general, the issues for consideration in each instance revolve around the whether the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the 'WCRA') precludes the Plaintiffs from recovering the subject claimed damages, which might otherwise be available under the general law or under the provisions of the CLA or the CPA.
• [35] Amaca and WorkCover contend that any rights to recover such damages are either extinguished or excluded by the application and operation of the WCRA. The Plaintiffs contend that their rights to recover the subject claimed damages arise independently of the WCRA and are not so extinguished or excluded.

• [36] In order to comprehend the issues and the arguments of the parties, it is useful to first commence with a general overview of the principal statutes and the legislative schemes for which they provide.

• [37] The CLA governs and regulates civil liability claims in Queensland. The CLA does not contain any express statement of its purpose or objects. The long title of the CLA is 'An Act to reform the law of civil liability for negligent acts, and for other purposes'. When the relevant Bill for the CLA was first introduced into Parliament, the Explanatory Notes to the Bill identified the purpose of the proposed legislation as follows:[10]

The main purpose of this Act is to further facilitate the ongoing affordability of insurance through clarification of some basic principles within the substantive law and sustainable awards of damages for personal injury.

The Act contains fundamental changes to the law of negligence.

• [38] Consistently with this purpose, the CLA reformed the law to which it applies, mandating certain legislative principles, rules and requirements that are to be applied in determining liability and assessing damages for civil liability claims. The principal provisions of the CLA are set out in chs 2 and 3. Chapter 2 deals with civil liability for harm. Chapter 3 deals with the assessment of damages for personal injury.
• [39] Section 4 of the CLA stipulates that, subject to s 5, the CLA applies to 'any civil claim for damages for harm'.

• [40] In its current form,[11] s 5 of the CLA relevantly provides:
  1. Civil liability excluded from Act

(1) This Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes -

(a) an injury for which compensation is payable under the WorkCover Queensland Act 1996, other than an injury to which section 36(1)(c) or 37 of that Act applies; or

(b) an injury for which compensation is payable under the Workers' Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies; or

(c) an injury that is a dust-related condition; or

(d) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

(2) For subsection (1)(a) or (b), the following is immaterial -

(a) whether compensation for the injury is actually claimed under the relevant Workers' Compensation Act;

(b) whether the entitlement to seek damages for the injury is regulated under that Act.

(3) Despite subsection (1)(c) and (d), this Act applies for deciding awards of section 59A damages relating to an injury mentioned in subsection (1)(c) or (d).

(4) To remove any doubt, it is declared that a breach of duty mentioned in subsection (1) includes a breach of duty giving rise to a dependency claim.

compensation for injury, under a relevant Workers' Compensation Act, includes payment of -

(a) reasonable expenses for medical treatment or attendance; and

(b) funeral expenses.

(a) for compensation, or an entitlement to seek damages, for an injury mentioned in subsection (1)(a) - the WorkCover Queensland Act 1996; or

(b) for compensation, or an entitlement to seek damages, for an injury mentioned in subsection (1)(b) - the Workers' Compensation and Rehabilitation Act 2003.

• [41] The clear effect of the current s 5 of the CLA is to exempt certain civil claims from the application of the legislative principles, rules and requirements under the CLA that otherwise generally apply to all civil claims in Queensland.
• [42] As is apparent from the terms of the current s 5(1)(b), the CLA does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes an injury for which compensation is payable under the WCRA, other than an injury to which ss 34(1)(c) or 35 of the WCRA applies.[12] Further, as s 5(1)(c) provides, the CLA does not apply to an injury that is a 'dust-related condition'.
• [43] However, s 5(3) provides a specific exception to the exclusionary provision of s 5, stipulating that, despite ss 5(1)(c) and (d), the CLA will apply for deciding awards of s 59A damages relating to an injury that is a 'dust-related condition' or an injury 'resulting from smoking or other use of tobacco products or exposure to tobacco smoke'.
• [44] There have been various relevant amendments to the , and to in particular, since the commenced. Each iteration of has identified the types of civil claims in respect of which application of the is excluded.

This Act does not apply in relation to any civil claim for damages for personal injury if the harm resulting from the breach of duty owed to the claimant is or includes -

(a) an injury as defined under the WorkCover Queensland Act 1996, other than an injury to which section 36(1)(c) or 37 of that Act applies; or

(b) an injury that is a dust-related condition; or

(c) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

• [46] With respect to cl 5 of the Civil Liability Bill 2003 (Qld), which later became s 5 of the CLA, the relevant Explanatory Notes to the Bill stated:[13]

Clause 5 sets out the exclusions to the application of the Act. Excluded from the application of the Act are matters involving "injuries" as defined under the WorkCover Queensland Act 1996, except those injuries which are identified in sections 36(c) and 37 of that Act. This exclusion will result in liability for those injuries in which employment is likely to be a significant factor being decided in accordance with the law as current before commencement of the Act. An example is provided of the multitude of claims from one incident that may be excluded from application of the Act.

The provision also excludes injuries which result from smoking, or the use of or exposure to tobacco products, and also dust-related diseases.

• [47] Subsequently, s 5 was further amended by the Justice and Other Legislation Amendment Act 2004 (Qld) (the '2004 CLA Amendments') to renumber ss 5(b) and 5(c) as 5(c) and 5(d), respectively, and to insert a new s 5(b) in these terms:

(b) an injury as defined under the _Workers' Compensation and Rehabilitation Act 200_3, other than an injury to which section 34(1)(c) or 35 of that Act applies...

• [48] The 2004 CLA Amendments to s 5 were required because of the repeal of the WorkCover Queensland Act 1996 (the 'WQA') and the enactment of the WCRA. The Explanatory Notes to the relevant Bill for the Justice and Other Legislation Amendment Act 2004 (Qld) stated the following in respect of the proposed amendment to s 5: [14]

Clause 22 amends section 5 of the Act to preclude operation of the Act to workers' compensation claims under the Workers' Compensation and Rehabilitation Act 2003 in the same way that claims under the WorkCover Queensland Act 1996 were excluded by section 5(a) of the Act...

• [49] At the same time, a transitional provision, s 80, was added in respect of the application of s 5(b). Section 80 provided that s 5(b) had effect whether the relevant injury as defined under the WCRA happened before, on or after the commencement of s 80.[15]
• [50] Section 5 was next relevantly amended by the Criminal Code and Civil Liability Amendment Act 2007 (Qld) (the '2007 CLA Amendments'). The 2007 CLA Amendments substantially amended the introductory chapeau to s 5 by omitting the words '...any civil claim for damages for personal injury ...' and replacing them with '...deciding liability or awards of damages for personal injury...' The amendments also added new subsections to s 5 and renumbered all subsections into a form consistent with the current s 5.[16]
• [51] Further, and of particular relevance for present purposes, amendments were made to the wording of the ss 5(a) and (b) exceptions to the application of the CLA, which were renumbered as ss 5(1)(a) and (b). In respect of s 5(1)(b), the words 'as defined' were omitted and replaced with the words 'for which compensation is payable', which now appear in the current s 5.

• [52] The context and reason for the 2007 CLA Amendments was explained in the Explanatory Notes to the relevant Bill in these terms:[17]

The Civil Liability Act 2003 was introduced as part of the Government's broader personal injury law reform agenda with the aim of placing downward pressure on insurance premiums...Section 5 of the Civil Liability Act 2003 was inserted to exclude work related injuries from the application of the Act.

The amendment to the Civil Liability Act 2003 aims to redress the effect of the Queensland Court of Appeal decision in Newberry v Suncorp Metway Insurance Limited [2006] QCA 48 (Newberry),[18] which was handed down on 3 March 2006. In Newberry, although the claimant was injured in a motor vehicle accident while at work, the damages were assessed under the Civil Liability Act 2003 because his claim was against a third party (the driver of the other vehicle) and his employment was not a material ingredient to the claim against the third party.

The intention of the amendment is to protect workers' rights by providing that a common law claim for damages by a worker in factual situations such as those in Newberry, will be assessed at common law, rather than under the Civil Liability Act 2003. The amendment will reinstate the Government's stated intention regarding the protection of worker's rights under the Civil Liability Act 2003.

• [53] In Newberry, the respondent had been injured in the course of his employment whilst travelling as a passenger in a truck. He claimed that he was injured in a motor vehicle collision which occurred because the other vehicle was travelling on the wrong side of the road. The respondent made a claim against the CTP insurer of the other vehicle. He did not make any claim against his employer. A question arose as to whether application of the CLA was excluded by the terms of s 5(b) of the CLA. The primary judge decided that it was, because the plain meaning of s 5(b) excluded 'from its operation every case where the injury meets the definition in the WCRA other than two specified and presently irrelevant exceptions'.[19] The primary judge found that the respondent's injury was an 'injury' as defined under s 32 of the WCRA, accepting that the respondent's employment was a 'significant contributing factor' to the occurrence of his injury.[20]
• [54] On appeal, the appellant contended that the primary judge erred because, inter alia, on its proper construction, s 5(b) excluded application of the CLA to those injuries for which damages are payable under the WCRA.[21] Keane JA rejected that argument in the terms in which it was cast because it assumed that damages were payable under the WCRA. As his Honour went on to confirm, such an assumption was wrong as the WCRA did not provide for the payment of damages; rather, it regulated access to damages by injured workers.[22]
• [55] However, Keane JA concluded that the primary judge wrongly approached the 'plain meaning' of of the by treating as if it operated by reference to a defined injury. His Honour observed that on its proper construction, was directed at 'civil claims for damages for personal injury' and, therefore, the exclusion effected by directed attention to the terms of the claim itself. Accordingly, Keane JA held that for the purposes of , it was sufficient to exclude the application of the if the claim sought damages for an injury caused by a breach of duty owed to the injured worker by the worker's employer. As the respondent's claim did not allege that his employment contributed in any way to his alleged injury, did not exclude the application of the .

Clause 8 amends section 5 of the Civil Liability Act 2003 so that the Act will not apply to a decision about liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes an injury for which compensation is payable under the Workers Compensation and Rehabilitation Act 2003 or the repealed WorkCover Queensland Act 1996, apart from injuries pursuant to ss.34(1)(c) and 35 of the Workers Compensation and Rehabilitation Act 2003 and ss.36(1)(c) and 37 of the repealed WorkCover Queensland Act 1996.

Subclause (3) inserts three new subsections into section 5 of the Civil Liability Act 2003.

The new subsection (2) clarifies that for the purpose of s.5(1), as renumbered, it is immaterial whether compensation for an injury is actually claimed under the relevant Workers' Compensation Act or whether entitlement to seek damages is regulated by that Act.

The new subsection (3) provides that to remove any doubt, it is declared that a breach of duty mentioned in s.5(1), as renumbered, includes a breach of duty giving rise to a dependency claim. "Dependency claim" is defined in schedule 2 of the Civil Liability Act 2003.

The new subsection (4) clarifies that compensation under a relevant Workers' Compensation Act includes the payment of medical expenses for medical treatment or attendance, and funeral expenses. The subsection also provides a definition of "relevant Workers' Compensation Act".

• [57] In his speech to Parliament on the occasion of the second reading of the relevant Bill, the Attorney-General stated:[28]

The Bill also amends the Civil Liability Act 2003 to exclude the application of the Act to all work injuries, apart from recess and journey claims, regardless of whether the injury is caused by an employer, a host employer or a third party.

The Government always intended to exclude work-related injuries from the application of the Act so that claims for work-related injuries would be governed by the common law.

It was made clear in the second reading speech, that the exclusion was to apply to all work-related injuries, regardless of whether the defendant to an action was an employer or a third party.

However, on 3 March 2006 the Court of Appeal, in Newberry v Suncorp-Metway Insurance Limited, interpreted the Act in a way that restricted the intended scope of this exclusion.

The decision has the potential to create a disparity in the way common law damages for work-related injuries are calculated.

It potentially reduces the entitlements for workers injured by the actions of a third party where the employer is not at fault, such as the driver of a motor vehicle involved in a collision with a claimant, which was the case in Newberry.

The Bill aims to restore workers' rights by redressing the effect of the Newberry decision and reinstating the government's intention regarding the exclusion from the Civil Liability Act.

• [58] The 2007 CLA Amendments also inserted a transitional provision, s 83, concerning the operation of amended s 5. Section 83(1) provides:
  1. Personal injury to which the amended s 5 extends as a result of the amendment

(1) It is declared that section 5, to the extent it is amended by the amending Act, has effect to disapply this Act to a decision in relation to personal injury only if the personal injury, or any part of it, is or was caused on or after 6 November 2006.

• [59] A subsequent erratum to the Explanatory Notes to the relevant Bill clarified the intended effect of the amendment to s 5 as follows:[29]

It is intended that the amended section 5 of the Civil Liability Act 2003 will disapply the Act to a decision made under that section in relation to personal injury, only if the personal injury, or any part of it, is or was caused on or after 6 November 2006...

• [60] By virtue of s 2 of the Criminal Code and Civil Liability Amendment Act 2007, the 2007 CLA Amendments were taken to have commenced on 6 November 2006.
• [61] The final notable amendments to the CLA were brought about by the Civil Liability and Other Legislation Amendment Act 2010 (Qld) (the '2010 CLA Amendments'). The 2010 CLA Amendments included the insertion of new ss 59A to 59D, creating and regulating a statutory basis for the recovery of damages for gratuitous domestic services previously provided by an injured person.
• [62] The Explanatory Notes to the relevant Bill identified the purpose of the proposed s 59A in these terms:[30]

Clause 10 inserts a new section 59A. The purpose of new section 59A is to partially re-instate damages for loss of an injured person's capacity to provide gratuitous domestic services (also known as Sullivan v. Gordon[31] damages). This amendment is in response to the decision of the High Court in CSR Limited v Eddy [2005] HCA 64[32] which held that damages for loss of capacity to provide gratuitous domestic services are not part of the common law of Australia.

• [63] Of particular relevance to the present applications, s 5 of the CLA was also amended at this time to include a new subsection, the current s 5(3), providing for the application of the CLA for deciding awards of s 59A damages relating to an injury mentioned in s 5(1)(c) or 5(1)(d) It is to be recalled that s 5(1)(c) deals with an injury that is a 'dust-related condition'. A related amendment was also made to s 7(1), to insert the words, 'Subject to sections 5(3) and 59A,' at the commencement of the subsection.
• [64] With respect to these proposed amendments, the Explanatory Notes to the Bill stated:[33]

Clause 4 inserts a new subsection 5(3). This subsection ensures that damages for gratuitous domestic services provided by an injured person (refer to clause 10) are available to claimants who have suffered injuries that:

• are dust-related; or
• result from smoking or other use of tobacco products or exposure to tobacco smoke.

Clause 5 amends subsection 7(1). This amendment is required as a result of the introduction of a new statutory cause of action by clause 10.

• [65] Another significant aspect of the 2010 CLA Amendments was the inclusion of a transitional provision, s 85, in respect of the new s 59A damages. Section 85 relevantly provides:
  1. Retrospective effect of section 59A damages provisions for dust-related claims only

(1) The section 59A damages provisions apply to any dust-related claim, even if the relevant breach of duty has happened or happens before 1 July 2010.

(3) The section 59A damages provisions apply to another type of personal injury claim only if the relevant breach of duty happens on or after 1 July 2010.

(4) To remove any doubt, it is declared that in a proceeding for a dust-related claim started before 1 July 2010, section 59A damages may be claimed even though the section 59A damages provisions have not yet commenced.

amending Act means the Civil Liability and Other Legislation Amendment Act 2010.

dust-related claim means a claim for personal injury damages resulting from a dust-related condition.

section 59A damages provisions means sections 5, 7, 59, 59A to 59D and 60 and schedule 2, definition section 59A damages, as amended or inserted under the amending Act.

• [66] The relevant transitional provision was contained in c 15 of the Bill for the 2010 CLA Amendments. The Explanatory Notes to the Bill when first introduced noted the following in respect of the proposed transitional provision that would later become s 85 of the CLA:[34]

Clause 15 inserts a transitional provision required as a result of the amendments made in the previous clauses. Proposed new section 85 will ensure that damages for an injured person's loss of capacity to provide gratuitous domestic services are only available in relation to breaches of duty that happen after 1 July 2010.

• [67] Subsequent amendments were made to cl 15 to recast proposed s 85 in the terms in which it was ultimately enacted. The effect of those amendments was described in the further Explanatory Notes to the proposed amendments as follows:[35]

Clause 3 replaces the transitional provision inserted by clause 15 of the Bill with a new transitional provision. The purpose of the new transitional provision is to ensure that the amendment in the Bill to partially reinstate Sullivan v Gordon damages has retrospective operation in the case of certain dust-related claims that are not otherwise excluded from the Act.

• [68] The amendment to the proposed transitional provision was moved during the consideration-in-detail stage of the Bill's second reading. On that occasion, in the course of discussing the purposes of the Bill and the change to the proposed clause 15 transitional provision, the Attorney-General relevantly informed Parliament:[36]

This bill implements important changes to the civil liability and personal injury regime in Queensland. The measures contained in the bill have been drafted carefully to strike a fair balance between the rights of victims of negligence and the stability of the insurance market. Key initiatives in the bill include the removal of the statutory limitation period for dust related conditions, the partial reinstatement of Sullivan v Gordon damages for seriously injured Queenslanders, the indexation of caps on general damages and an amendment to ensure that loss of consortium is available to the de facto partner of an injured person.

At the outset, I would like to note that a number of the initiatives contained in this bill would be of particular importance to those persons in our community who are, most regrettably, suffering from a dust related condition. Firstly, the removal of the statutory limitation period for dust related conditions will mean that a person suffering from asbestosis, mesothelioma or another dust related condition will no longer need to make an application to the court to extend the limitation period. There is no doubt, in my view, that the removal of this hurdle will improve access to justice and reduce the stress and cost associated with pursuing a claim. Secondly, although as a general rule dust related conditions are excluded from the Civil Liability Act 2003, the amendment in this bill to partially reinstate Sullivan v Gordon damages has been drafted deliberately so as to capture a dust related condition that is not otherwise excluded from the act. That would include claims by a home handyman or other persons.

Although a person who has contracted a dust related condition as a result of their employment will not be entitled to Sullivan v Gordon damages, I can assure the House that there are already substantial statutory lump sums available to those people under the Workers' Compensation and Rehabilitation Act 2003. Furthermore, I have also given a commitment to the Queensland Asbestos Related Disease Support Society to consider how, if possible, workers with a dust related condition are compensated for gratuitous services they provide in the context of the review of the WorkCover scheme which is currently underway. I thank again the members for Waterford and Bulimba for their work with the society and for their advocacy on behalf of the society.

• [69] It is also to be noted that at the same time that it amended the CLA, the Civil Liability and Other Legislation Amendment Act 2010 also amended s 11 of the Limitation of Actions Act 1974 (Qld) (the 'LAA') to abolish, with retrospective effect, the statutory limitation period for a rights of action relating to personal injury resulting from a dust- related condition.[37] In respect of this amendment of the LAA, the Explanatory Notes to the subject Bill relevantly stated:[38]

While the retrospective removal of the statutory limitation period for dust-related conditions may adversely affect insurers and defendants, the amendment will mean that a person suffering from a dust-related condition will no longer need to make an application to the court to extend the limitation period before pursuing their claim. The retrospective removal of this hurdle will deliver significant benefits to those suffering from a dust-related condition by improving their access to justice and reducing the cost and stress associated with pursuing a claim. It is justified on the basis that:

• many of the current cases of dust-related disease arise from exposure to asbestos during the 1950s, 1960s and 1970s when few, if any, adequate precautions were taken to protect workers and others; and
• dust-related conditions are often characterised by a rapid onset of symptoms, with death sometimes occurring within a very short time from diagnosis.

• [70] Section 7(1) of the CLA confirms that, subject to ss 5(3) and 59A, the CLA does not create or confer any cause of civil action for the recovery of damages. In other words, save for where specifically provided by the CLA, it is the common law or some other statutory source that creates or confers a cause of civil action for the recovery of damages. Further, s 7(5) of the CLA makes plain that the CLA is not a codification of the law relating to civil claims for damages for harm.
• [71] The dictionary in sch 2 of the CLA defines the following relevant terms for the purposes of the CLA:

claim means a claim, however described, for damages based on a liability for personal injury, damage to property or economic loss, whether that liability is based in tort or contract or in or on another form of action, including breach of statutory duty and, for a fatal injury, includes a claim for the deceased's dependants or estate.

damages includes any form of monetary compensation.

harm means harm of any kind, including the following -

(a) personal injury;

(b) damage to property;

(c) economic loss.

(a) fatal injury; and

(b) pre-natal injury; and

(c) psychological or psychiatric injury; and

(d) disease.

personal injury damages means damages that relate to the death of or injury to a person.

• [72] The long title of the WCRA is 'An Act to establish a workers' compensation scheme for Queensland, and for other purposes'.[39] The WCRA gives effect to the principal purpose stipulated by the Act's long title by providing for the establishment of a centrally funded, 'short-tailed', no-fault scheme, with access to common law damages.
• [73] Save for a handful of sections which are not presently relevant, the provisions of the WCRA commenced on 1 July 2003.[40]
• [74] The WCRA is the current legislation providing for a workers' compensation scheme in Queensland. Previous schemes operated under earlier, now repealed legislation, including the Workers Compensation Act 1916 (Qld) (the '1916 Act') and the WQA.
• [75] With respect to the purpose of the WCRA, the Explanatory Notes to the relevant Bill for the Act stated:[41]

The purpose of the Bill is to give effect to the model approved by Government for the separation of WorkCover's insurance and regulatory functions as a result of the National Competition Policy review of the WorkCover Queensland Act 1996. Key features of the approved model included:

• the repeal of the WorkCover Queensland Act 1996 and provision for new legislation to provide for the separate delivery and regulation of the workers' compensation scheme;
• maintaining WorkCover as a fully commercial statutory body;
• providing for the establishment of a statutory authority to regulate the scheme; and
• centralising policy and legislative development functions within the Department of Industrial Relations (DIR).

• [76] The Explanatory Notes also provided the following overview of the proposed WCRA:

The main elements of the Workers' Compensation and Rehabilitation Bill 2003 provide for the:[42]

• repeal of the WorkCover Queensland Act 1996 and the WorkCover Queensland Regulation 1997;
• maintenance of the essential characteristics of Queensland's workers' compensation scheme;
• establishment of WorkCover's regulatory arm, Q-COMP, as a statutory authority with a board to regulate Queensland's workers' compensation scheme;
• establishment of WorkCover as a commercial entity and candidate GOC[43] in the business of workplace accident insurance, including premium setting, with a smaller board divested of regulatory functions;
• establishment of Workers' Compensation Advisory Committees to provide advice to the Minister on scheme design and other policy issues;
• centralisation of policy development and scheme design functions in the Department of Industrial Relations; and
• creation of a complementary regulatory regime for the new Act.

• [77] Unlike the CLA, the WCRA details its main objects. In that respect, s 5 of the WCRA relevantly provides:
  1. Workers' compensation scheme

(1) This Act establishes a workers' compensation scheme for Queensland -

(a) providing benefits for workers who sustain injury in their employment, for dependants if a worker's injury results in the worker's death, for persons other than workers, and for other benefits; and

(b) encouraging improved health and safety performance by employers.

(2) The main provisions of the scheme provide the following for injuries sustained by workers in their employment -

(a) compensation;

(aa) implementation of the national injury insurance scheme for serious personal injuries resulting from workplace incidents connected with Queensland;

(b) regulation of access to damages;

(c) employers' liability for compensation;

(d) employers' obligation to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self-insurer;

(e) management of compensation claims by insurers;

(f) injury management, emphasising rehabilitation of workers particularly for return to work;

(g) procedures for assessment of injuries by appropriately qualified persons or by independent medical assessment tribunals;

(h) rights of review of, and appeal against, decisions made under this Act.

(a) maintain a balance between -

(i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and

(ii) ensuring reasonable cost levels for employers; and

(b) ensure that injured workers or dependants are treated fairly by insurers; and

(c) provide for the protection of employers' interests in relation to claims for damages for workers' injuries; and

(d) provide for employers and injured workers to participate in effective return to work programs; and

(da) provide for workers or prospective workers not to be prejudiced in employment because they have sustained injury to which this Act or a former Act applies; and

(e) provide for flexible insurance arrangements suited to the particular needs of industry.

(5) Because it is in the State's interests that industry remain locally, nationally and internationally competitive, it is intended that compulsory insurance against injury in employment should not impose too heavy a burden on employers and the community.

• [78] As s 5(4)(a) makes plain, the scheme of the WCRA seeks to maintain a balance between providing fair and appropriate benefits for injured workers or dependants and ensuring reasonable cost levels for employers. One way in which the WCRA seeks to achieve this objective is through the ready availability of compensation, but with restricted and regulated access to damages.
• [79] With respect to compensation claims, an injured worker who meets the criteria prescribed by the WCRA is entitled to statutory compensation, irrespective of whether the injury was caused by the fault of the worker or the employer. The WCRA provides for, and regulates, the injured worker's entitlement to receive such compensation.
• [80] In contrast, the WCRA does not provide an injured worker with a cause of action or an entitlement to recover damages. However, the WCRA regulates access to damages where an injured worker sustains a work injury and suffers harm due to an employer's negligence. In such instances, the provisions of ch 5 of the WCRA govern the availability and assessment of the damages recoverable by the injured worker.
• [81] A key provision within ch 5 is s 237, which impose a general limitation on access to damages. Section 237 relevantly states:
  1. General limitation on persons entitled to seek damages

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker -

(a) the worker, if the worker -

(i) has received a notice of assessment from the insurer for the injury; or

(ii) has not received a notice of assessment for the injury, but -

(A) has received a notice of assessment for any injury resulting from the same event (the assessed injury); and

(B) for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or

(iii) has a terminal condition;

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

(i) compensation for the worker's death has been paid to, or for the benefit of, the dependant under chapter 3, part 11; or

(ii) a certificate has been issued by the insurer to the dependant under section 132B.

(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter and the provisions of chapter 4A, part 5.

(a) is required under section 239 to make an election to seek damages for an injury; and

(b) has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;

(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.

(5) 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.

• [82] Section 237 creates a 'gateway' through which a person must pass to recover damages for an injury sustained by a worker.[44]
• [83] Putting aside the various sub-categories of claimant identified in s 237(1)(a) and (b), it can be seen that the general limitation under s 237 restricts access to damages for an injury sustained to a worker to two classes of person: the 'worker' or, if the injury results in the worker's death, a 'dependant' of the deceased worker.
• [84] The WCRA provides specific definitions for various important terms contained within s 237.
• [85] Section 10 defines 'damages':
  1. Meaning of damages

(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 damages to -

(a) the worker; or

(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 -

(a) another Act; or

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

(3) Also, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages for loss of consortium resulting from injury sustained by a worker.

• [86] The definition in s 10 thus identifies and further confines the damages available under the WCRA.
• [87] As to a person who is a 'worker', s 11 provides:
  1. Who is a worker

(a) works under a contract; and

(b) in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.

(2) Also, schedule 2, part 1 sets out who is a worker in particular circumstances.

(3) However, schedule 2, part 2 sets out who is not a worker in particular circumstances.

(4) Only an individual can be a worker for this Act.

• [88] As to the meaning of a 'dependant', s 27 provides:
  1. Meaning of dependant

A dependant, of a deceased worker, is a member of the deceased worker's family who was completely or partly dependent on the worker's earnings at the time of the worker's death or, but for the worker's death, would have been so dependent.

• [89] The meaning of 'injury' is dealt with by s 32, which relevantly provides:
  1. Meaning of injury

(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

(2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;

(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -

(i) a personal injury;

(ii) a disease;

(iii) a medical condition, if the condition becomes a personal injury or disease because of the aggravation;

(c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;

(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;

(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;

(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.

(4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.

(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b) the worker's expectation or perception of reasonable management action being taken against the worker;

(c) action by the Regulator or an insurer in connection with the worker's application for compensation.

• [90] A further key provision of the WCRA, which is related to the definition of 'injury' and which assumes particular significance in the present case, is s 36A, which provides:

(a) is diagnosed by a doctor after the commencement of this section as having a latent onset injury; and

(b) applies for compensation for the latent onset injury.

(2) The following questions are to be decided under the relevant compensation Act as in force when the injury was sustained -

(a) whether the person was a worker under the Act when the injury was sustained;

(b) whether the injury was an injury under the Act when it was sustained.

(2A) However, subsection (2)(b) does not apply if the latent onset injury is a specified disease and section 36D applies to the person.

(3) Section 131 applies to the application for compensation as if the entitlement to compensation arose on the day of the doctor's diagnosis.

(4) Subject to subsections (2) and (3), this Act applies in relation to the person's claim as if the date on which the injury was sustained is the date of the doctor's diagnosis.

(5) To remove any doubt, it is declared that nothing in subsection (4) limits section 236.

(6) Subsections (2) to (4) have effect despite section 603.

relevant compensation Act means this Act or a former Act.

• [91] A 'latent onset injury' is defined in the dictionary in sch 6 of the WCRA to mean 'an insidious disease'. As noted already, it is an agreed fact that mesothelioma is a 'latent onset injury'.
• [92] Section 36A was inserted by amendments to the WCRA made by the Workers' Compensation and Rehabilitation and Other Acts Amendment Act 2005 (Qld) (the '2005 WCRA Amendments'). As is evident from its terms, in the case of a 'latent onset injury', s 36A operates to deem the date of a doctor's diagnosis of the injury as the date on which the injury was sustained. It is obvious that s 36A was included in the WCRA to deal with the kinds of injuries, such a dust-related conditions, which do not become manifest until many years after the incident or event that initially caused the injury.
• [93] The Explanatory Notes to the Bill for the 2005 WCRA Amendments relevantly stated:[45]

Clause 6 introduces a new subdivision into Chapter 1, part 4 to establish the date of injury for latent onset injuries as the date of diagnosis by a medical practitioner of the latent onset injury. For deciding whether a claimant is entitled to compensation or damages the insurer must apply the relevant tests applicable at the time that the event occurred. These tests may be in a former Act. The current Act will apply to the other elements of the claim such as provisions for application for compensation and review/appeal rights.

For example, a person is diagnosed with pleural plaques on 2 January 1996. At the time, the doctor states that, given the person's history of exposure to asbestos, the person may develop asbestosis. On 2 February 2006 the person is diagnosed with asbestosis, and advised that this disease will develop to the point where it will significantly affect their life. The relevant date of injury for the purposes of the proposed s 36A is 2 February 2006. For the purposes of determining whether the person is entitled to compensation the insurer must apply the legislation in force at the time of the person's exposure to the asbestos fibres.

• [94] The 2005 WCRA Amendments also inserted a new ch 3, pt 3, div 5, dealing with compensation for workers with latent onset injuries that are 'terminal conditions'. Section 39A provides a definition of 'terminal condition'. Mr Greenall's mesothelioma injury was a terminal condition. Within the new div 5, s 128B provides for an amount of lump sum compensation payable to a worker for such a latent onset injury.
• [95] Further significant amendments were made to the WCRA by the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2010 (Qld) (the '2010 WCRA Amendments'). In particular, a raft of new provisions mirroring similar provisions within the CLA were inserted into the WCRA under a new ch 5, pts 8 and 9.
• [96] Part 8 of the WCRA, which deals with principles of liability for civil claims for damages, was amended by the 2010 WCRA Amendments to include provisions concerning the general standard of care, causation and contributory negligence. However, the amendments to pt 8 also included s 305A, which relevantly states:[46]

305A Provisions not to apply to particular injuries

(1) The provisions of this part other than division 4,[47] do not apply in relation to deciding liability for injury if the injury resulting from the breach of duty is or includes -

(a) an injury that is a dust-related condition; or

(b) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

(2) To remove any doubt, it is declared that a breach of duty mentioned in subsection (1) includes a breach of duty giving rise to a dependency claim.

• [97] Part 9 of the WCRA, which deals with the assessment of damages, was amended by the 2010 WCRA Amendments to include, inter alia, provisions restricting the damages that may be awarded for services provided to a worker and for loss of earnings. However, similar to the inclusion of s 305A in pt 8, the amendments to pt 9 also included s 306A, which relevantly states:

306A Provisions not to apply to particular injuries

(1) The provisions of this part other than division 2, division 3, subdivision 1 and division 4 do not apply in relation to deciding awards of damages for injury if the injury resulting from the breach of duty is or includes -

(a) an injury that is a dust-related condition; or

(b) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

(2) To remove any doubt, it is declared that a breach of duty mentioned in subsection (1) includes a breach of duty giving rise to a dependency claim.

• [98] The background to, and impetus for, the 2010 WCRA Amendments was identified by the Attorney-General in his speech to Parliament upon the second reading of the Bill, when he stated:[48]

The Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2010 follows the business review of WorkCover Queensland presented to me on 18 November 2009 by the WorkCover board. The independent business review of WorkCover Queensland by Deloitte identified possible solutions to ensure WorkCover's financial position. The review identified a number of issues that were impacting on WorkCover's financial position. These impacts have also affected other schemes in operation in Australia.

WorkCover was not immune to the global financial crisis, and two consecutive years of significant negative investment returns had made its impact. The independent review found that WorkCover was experiencing an increasing number of claims and claims costs, particularly common law claims. It also found that premium income was not keeping pace with claims growth. These factors resulted in a loss of $381 million before tax in 2007-08 followed by a loss of $894 million in 2008-09, totalling an accumulated operating deficit of $1.3 billion before tax which has been absorbed by investment reserves. The management and performance of WorkCover Queensland had been strong for so long that, despite these losses, the scheme remained fully funded at 30 June 2009 with a positive funding ratio of 127 per cent.

While it was clear from the business review of WorkCover Queensland that action needed to be taken to ensure the solvency of the scheme, the government was not prepared to consider significant changes without careful consultation with scheme stakeholders...

• [99] With respect to the means by which the proposed amendments to the WCRA would ensure the solvency of the scheme, the Explanatory Notes to the Bill for the 2010 WCRA Amendments relevantly stated:[49]

The policy objectives of the Bill are to be achieved by:

• harmonising common law claims brought under the Workers' Compensation and Rehabilitation Act 2003 with those brought under the Civil Liability Act 2003 in terms of liability (standard of care), contributory negligence and caps on general damages and damages for economic loss;

• [100] The Explanatory Notes further stated:[50]

The Bill makes a range of amendments that may be considered adverse to the rights of individuals taking legal action for damages for work-related injuries. In large part, these amendments seek alignment with the Civil Liability Act 2003. Generally, these amendments are to apply prospectively for injuries sustained or diagnosed after the date of commencement.

Clause 21 inserts a new part 8 and part 9 in chapter 5. Part 8 concerns the civil liability of persons or parties against whom a worker is seeking damages for injury. Part 9 regulates the assessment of damages paid to a worker. These provisions closely resemble certain provisions in the Civil Liability Act 2003. They have been brought into the Act in order to achieve the stated policy objectives of the Bill, and to maintain the clear distinction between the two statutes. It is considered inappropriate for the Civil Liability Act 2003 as a whole to apply to work injuries, as some of the limitations on liability conflict directly with common law principles regarding master and servant claims. For example, provisions regarding voluntary assumption of risk in the Civil Liability Act 2003 have not been brought over, as they are inappropriate for work situations.

New section 305A states that part 8 does not apply to injuries that result from dust-related conditions, smoking, or the use of or exposure to tobacco products, with the exception of the provisions regarding contributory negligence. This includes claims by dependants of a worker who died of such injuries. These exclusions are consistent with the exclusions under the Civil Liability Act 2003.

New part 9 regulates the assessment of damages paid to a worker. New section 306 defines the terms future loss, general damages and loss of earnings. These are modelled on the definitions used in the Civil Liability Act 2003.

New section 306A states that part 9 does not apply to injuries that result from dust-related conditions, smoking, or the use of or exposure to tobacco products, with the exception of the provisions regarding exemplary damages and damages for gratuitous services. This includes claims by dependants of a worker who died of such injuries. These exclusions are consistent with the exclusion of such injuries under the Civil Liability Act 2003.

• [101] The CPA is a statute of general application to all civil proceedings in Queensland. It contains a range of procedural and substantive laws that apply to civil proceedings conducted in this state.
• [102] The long title of the CPA is 'An Act to provide for various matters concerning civil proceedings and proceedings in relation to contempt of court in the Supreme Court, the District Court and the Magistrates Court'. As s 3 of the CPA stipulates, unless the Act itself otherwise provides, the CPA applies to civil proceedings in each of those three courts.
• [103] Of particular relevance to the present matter, pt 10 of the CPA deals with wrongful death proceedings. For civil proceedings in Queensland courts, the provisions of pt 10 are the applicable modern equivalent of Lords Campbell's Act in this jurisdiction, providing for a cause of action for the recovery of damages by particular persons following the wrongful death of another.
• [104] I will return to consider pt 10 in further detail later when dealing with the Wrongful Death Claim.

• [105] The general issue in respect of the Estate Claim is whether s 59A damages are recoverable by the First Plaintiff against Amaca.
• [106] The First Plaintiff contends s 59A damages are recoverable under the provisions of the CLA as they are not excluded in the case of an injury that is a 'dust-related condition', such as that sustained by Mr Greenall. Amaca argues that they are not recoverable as the LPR's claim for damages is regulated by the WCRA and application of the CLA is therefore excluded by s 5 of the CLA.

• [107] The LPR raises two principal arguments. Each turns upon whether or not s 5 of the CLA excludes application of the Act, and therefore the s 59A Damages Claim, in the circumstances of the present case. On either argument, the LPR says that s 5 does not exclude application of the CLA in respect of an injury of the kind sustained by Mr Greenall, namely a 'dust-related condition'.
• [108] The LPR's primary argument is that the current s 5 of the CLA does not apply in this case. He contends that as Mr Greenall's injury was not caused on or after 6 November 2006, the transitional provisions of s 83 of the CLA operates so that the 2007 CLA Amendments version of s 5 does not apply.[51] Rather, the version of s 5 in force immediately before 6 November 2006 applies.
• [109] On the LPR's argument, the applicable previous version of s 5 is that which appeared in Reprint No. 2 of the CLA, which relevantly provided:
  1. Civil liability excluded from Act

This Act does not apply in relation to any civil claim for damages for personal injury if the harm resulting from the breach of duty owed to the claimant is or includes -

(b) an injury as defined under the Workers' Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies; or

(c) an injury that is a dust-related condition; or

• [110] The LPR submits that, by virtue of the previous s 5(b) of the CLA, it is only if Mr Greenall suffered 'an injury as defined' under the WCRA that application of the CLA would be excluded in respect of the s 59A Damages Claim. Accordingly, it is submitted, it is necessary to consider what an 'injury as defined' is under the WCRA.
• [111] Whilst the LPR accepts that s 32 defines what is an 'injury' under the WCRA, he argues that s 32 has no application in the present case. He submits this is so upon consideration of s 603 of the WCRA, which relevantly provides:
  1. Injury under former Act

(1) This section applies if a worker sustained an injury before the commencement of this section.

(2) A former Act, as in force when the injury was sustained, applies in relation to the injury.

injury means injury as defined in the former Act.

• [112] The LPR submits that because Mr Greenall sustained an injury before the commencement of s 603 on 1 July 2003, 'a former Act, as in force when the injury was sustained' applies in relation to the injury. On his argument, the applicable former Act is the 1916 Act, and it is under that Act, and not s 32 of the WCRA, that Mr Greenall's dust-related condition is defined as an 'injury'.
• [113] The LPR further submits that a 'parallel situation' pertains in the case of 'latent onset injuries'. In that regard, the LPR relies upon s 36A of the WCRA.
• [114] As noted earlier, it is an agreed fact that Mr Greenall's malignant mesothelioma was a 'latent onset injury' for the purposes of the WCRA. It is further agreed that Mr Greenall was diagnosed with mesothelioma on or about 5 August 2021, being a date after the commencement of s 36A of the WCRA, and that on or about 30 August 2021 he applied for compensation from WorkCover pursuant to the WCRA in respect of his injury.
• [115] The LPR's argument fixes upon the words 'the relevant compensation Act as in force when the injury was sustained' that appear in s 36A(2). He submits that there is no binding authority concerning the time at which a worker has 'sustained' a latent onset injury for the purposes of s 36A(2) of the WCRA. He contends, however, that the proper construction of the subsection is that a latent onset injury is 'sustained' when harm is caused, rather than when it becomes manifest. In the circumstances of this case, he argues that the harm occurred in 1972 and that is therefore when the injury was 'sustained' by Mr Greenall.
• [116] Consequently, the LPR submits, by the route of either ss 603 or 36A of the WCRA, it is the 1916 Act which 'defines' Mr Greenall's injury and, for that reason, the previous s 5(b) of the CLA will not exclude application of the CLA to the First Plaintiff's s 59A Damages Claim.
• [117] The alternative argument raised by the LPR is that according to its own terms, s 5 of the CLA does not preclude the s 59A Damages Claim. Although application of the CLA is generally excluded by s 5(1)(c) in respect of an injury that is a 'dust-related condition', the LPR submits that s 5(3) makes plain that the specifically applies for deciding awards of section 59A damages relating to such an injury. The LPR further submits that on its proper construction, s 5(1)(c) is not limited by the categories of excluded workers' compensation injuries within ss 5(1)(a) or (b). Rather, it applies to all injuries that are dust-related conditions, regardless of whether they might also fall within the scope of an injury covered by ss 5(1)(a) or (b).

• [125] WorkCover submits that the LPR's arguments are flawed. It contends that the CLA does not apply to provide the LPR with a cause of action for the s 59A Damages Claim.
• [126] With respect to the LPR's primary argument that the previous s 5 of the CLA applies and does not exclude the application of the CLA to the s 59A Damages Claim because Mr Greenall's injury was not an 'injury as defined under' the WCRA, but rather an 'injury as defined in' the 1916 Act, WorkCover submits that the LPR misunderstands and misconstrues the operation of s 36A of the WCRA and the argument is incorrect as a matter of law.
• [127] WorkCover submits there is an important distinction to be drawn between Mr Greenall's 'factual injury', which it accepts began in 1972, and the statutorily determined date of injury under s 36A of the WCRA. In that respect, WorkCover contends that s 36A(4) operates as a statutory deeming provision which creates a legal fiction for statutory purposes as to the date Mr Greenall sustained his injury. That legal fiction applies in relation to Mr Greenall's damages claim that survives to the LPR. WorkCover submits that the proper construction and application of s 36A therefore deems Mr Greenall's injury as an injury 'sustained' on or about 5 August 2021, when he was diagnosed with mesothelioma.
• [128] Accordingly, WorkCover submits, by virtue of ss 36A(4) and (6), the transitional provisions of s 603 of the WCRA do not apply and no recourse is thereby had to the 1916 Act to determine if Mr Greenall's injury was an 'injury as defined in' that Act.
• [129] On this premise, WorkCover further argues that by virtue of the deeming provision in s 36A(4), Mr Greenall's injury is an 'injury as defined under'[53] and/or an 'injury for which compensation is payable'[54] under the WCRA. WorkCover submits this follows because Mr Greenall's injury is either within the meaning of the s 32 definition of 'injury' or is otherwise an injury defined by s 36A itself.

• [135] It is evident from the foregoing submissions that resolution of the challenge to the s 59A Damages Claim requires me to consider the proper construction and interaction of various legislative provisions.

• [136] Statutory construction involves attributing meaning to statutory text.[55] The Court's task begins, and ends, with the text of the statute.[56] However, the Court does not simply adopt a literal construction of the words of the provision.[57] The duty of the Court is to give the words of the relevant provision the meaning which the legislature is taken to have intended them to have. Ordinarily, that meaning will correspond with the grammatical meaning of the provision, but not always.
• [137] Whilst the language which was actually employed in the text of the legislation is the surest guide to legislative intention, determining the meaning of the text requires consideration of context.[58] Consideration of the context of the relevant statutory provision is undertaken at the first stage of the process of construction.[59] Context is to be understood its widest sense. It includes the existing state of the law, the general purpose and policy of a provision and the mischief it is seeking to remedy.[60] It will also include surrounding statutory provisions and consideration of the statute as a whole.[61] The legislative history and extrinsic materials will also form part of the context, but they cannot displace the meaning of the statutory text.[62]
• [138] The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[63] Considerations of context and purpose recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[64]
• [139] A statutory provision must be construed in a way that it is consistent with the language and purpose of all provisions of the statute. The meaning of the provision must be determined by reference to the language of the statute viewed as a whole.[65] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. The Court must strive to give meaning to every word of the provision.

• [142] Whilst it may be accepted that the transitional provisions of s 83 of the CLA, relating to the effect of the 2007 CLA Amendments, had the effect that the previous s 5 in force immediately prior to 6 November 2006 continued to apply in respect of an injury caused before that date,[72] that does not mean that the viability of the s 59A Damages Claim is to be determined according to the terms of the previous s 5.
• [143] Section 59A damages did not exist at law until they were created by the 2010 CLA Amendments. It was only then that an exception to the exclusion of the application of the CLA to an injury that is a dust-related condition was made by the addition of s 5(3) in respect of s 59A damages.
• [144] Section 83 of the CLA has no bearing upon the retrospective availability of s 59A damages; that is to be determined according to the transitional provisions of s 85 of the CLA, which gave retrospective effect to the 'section 59A damages provisions' for dust-related claims consequent upon the 2010 CLA Amendments. As WorkCover submits, s 85 does not simply give retrospective effect to a dust-related claim; rather it gives retrospective effect to the 'section 59A damages provisions'. That phrase is specifically defined in s 85(5) and includes s 5 'as amended or inserted under the amending Act'.
• [145] Consequently, for the purposes of the retrospective effect of s 85, the relevant version of s 5 of the CLA is the version amended or inserted by the 2010 CLA Amendments. In other words, the current s 5 applies, and in determining whether the CLA is excluded because Mr Greenall's injury falls within the workers' compensation exception in 5(1)(b), the question therefore is whether it is 'an injury for which compensation is payable' under the WCRA.
• [146] In respect of that matter, it is an agreed fact that Mr Greenall was entitled to, and was paid, compensation under the WCRA. Section 5(1)(b) therefore operates to exclude the application of the CLA.
• [147] In those circumstances, it is a redundant exercise to further consider whether Mr Greenall's injury was an 'injury as defined under' the or the . Accordingly, it is not strictly necessary for me to resolve the further competing submissions of the parties concerning the proper construction and effect of ss 32, 36A and 603 of the for the purposes of the s 59A Damages Claim.

[23] The reference in s 36A(2)(a) to "when the injury was sustained" demonstrates an assumption that the term "injury" includes "latent onset injury". The words used in s 36A are consistent with "latent onset injury" being treated as a type of "injury".

[24] Section 36A(4) operates to apply the Act in relation to the claim "as if the date on which the injury was sustained is the date of the doctor's diagnosis". There is no reason to read "injury" in that sentence as being anything other than an "injury" as defined in s 32 of the Act. Reading it that way is also consistent with the requirement of s 32AA of the Acts Interpretation Act.[75]

• [152] In my view, s 603 of the WCRA does not operate to simply apply the 1916 Act to Mr Greenall's injury for all purposes. Although s 603 provides that where a worker sustained an injury before the commencement of the section (i.e. 1 July 2003), a former Act in force when the injury was sustained will apply in relation to the injury, s 603 does not result in the WCRA having no application. That is because, in the case of a latent onset injury, such as that sustained by Mr Greenall, s 36A(4) of the WCRA operates to deem the date on which the injury was sustained as being the date of the doctor's diagnosis. Accordingly, 36A(4) deems Mr Greenall's injury was sustained on or about 5 August 2021, being the date a doctor diagnosed his latent onset injury.
• [153] In my view, the 1916 Act only has application in this case in respect of the two questions in ss 36A(2)(a) and (b) which must be answered positively before s 36A(4) will apply. The questions in ss 36A(2)(a) and (b) identify necessary historical facts that must be established to engage the beneficial operation of s 36A(4). I consider that the references to 'when the injury was sustained' in s 36A(2) contemplate the factual injury sustained by the injured worker. That would accord with the time when harm was first sustained.
• [154] However, that does not mean that the time when the factual injury was sustained is taken to be the date when the injury was sustained for the purposes of s 603. As I have concluded, in my view the effect of s 36A(4) is to deem the later date (i.e. the date of doctor's diagnosis) as the date when the injury was sustained for relevant purposes under the WCRA. This interpretation is consistent with s 36A(6), which provides that subsections (2) and (4) have effect 'despite section 603'. Where s 36A(4) is engaged, s 603 is displaced. Construing s 36A in this way promotes the obvious intention and purpose of the section as a remedial provision: to ensure compensation is claimable and damages may be sought under the WCRA in cases where the injured worker sustains a latent onset injury.
• [155] There is a further reason why the LPR's primary argument cannot succeed. As the relevant legislative history of the CLA set out earlier shows, since its inception, s 5 has always excluded application of the in respect of a civil claim for damages for personal injury where the injury is a dust-related condition. The 2007 Amendments did not change this position. Section 5(c) of the as it stood immediately before the 2007 Amendments (and as it appears in Reprint No. 2) continued to exclude the application of the to such an injury.

• [158] As I have outlined above, although the current s 5(1)(c) excludes the application of the CLA generally in respect of an injury that is a dust-related condition, s 5(3) provides a specific 'carve out' in respect of s 59A damages.
• [159] In those circumstances, the essential constructional question in this case is whether s 5(1)(c) of the CLA applies to all injuries that are dust-related conditions, or whether it only applies to such an injury that is not otherwise within the ambit of the workers' compensation exclusion of the CLA in s 5(1)(b).
• [160] In resolving this issue, it is useful to begin by first examining the s 5(1) exclusions of the application of the CLA. A plain reading of the text suggests that each of the categories of injury enumerated in ss 5(1)(a) to (d) are separate, independent exceptions. So much is apparent from the drafting style of the various exceptions, whereby they each appear in sequence in distinct, numbered sub-paragraphs, separated by the disjunctive word 'or'. Each sub-paragraph describes a particular category of injury to which the CLA does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty falls within the scope of any one of the sub-paragraphs. None of the sub-paragraph exceptions are stated to be qualified by, or subject to, any other.
• [161] It is apparent, however, that the exceptions in s 5(1)(a) to (d) deal with different types of injuries. Sections 5(1)(a) and (b) deal with injuries for which workers' compensation is payable. Obviously enough, these exceptions will apply to an injured worker where the injury is compensable under the relevant workers' compensation legislation because, inter alia, the injury arises out of, or in the course of, the worker's employment and the worker's employment is a significant contributing factor.[76] The relationship of employment is an essential feature for these exceptions.
• [162] Sections 5(1)(c) and (d) deal with different types of injuries. The essential feature of these exceptions is an injury that results from exposure to a particular type of substance or product that causes harm and injury of a certain kind. That the injury arose out of, or in the course of, employment and that the person's employment was a significant contributing factor are not requirements for these exceptions.

• [178] The basis for the LPR's claim is s 64 of the CPA, which relevantly provides:
  1. Liability for a death

(a) a death is caused by a wrongful act or omission, whether or not an offence; and

(b) the act or omission would, if death had not resulted, have entitled the deceased person to recover damages in a proceeding for personal injury.

(2) The person who would have been liable if the death had not resulted is liable for damages despite the death and whether or not the death was caused by circumstances that were an offence.

(3) In a proceeding under this part, a court may award to the members of the deceased person's family the damages it considers to be proportional to the damage to them resulting from the death.

(4) The amount of damages awarded to a person under a legal incapacity may include an amount for management fees relating to the amount awarded to the person.

• [179] In terms of the damages that are recoverable, s 67 of the CPA relevantly provides:
  1. Damages for spouse's benefit

(1) This section applies if, in a proceeding under this part, a court is assessing damages in relation to financial benefits lost by a spouse of the deceased person as a result of the deceased's death.

(2) The court must not take into account any financial benefits that the spouse may receive as a result of a new relationship that the spouse may enter into after the assessment.

(3) Subsection (2) applies even if the spouse intends to enter into a new relationship.

(4) However, if the spouse has entered into a new relationship since the deceased person's death, the court may take into account any financial benefits that the spouse has received, and any financial benefits that the spouse is likely to receive, as a result of the new relationship.

(5) Subsection (4) applies even if the new relationship ends before the assessment.

(6) In considering what financial benefits the spouse is likely to receive as a result of the new relationship, the court must not assume -

(a) that the new relationship will necessarily continue; or

(b) that the spouse will necessarily continue to receive the same financial benefits as a result of the new relationship as the spouse has already received as a result of the new relationship.

financial benefits means either or both of the following -

(a) monetary benefits;

(b) other material benefits having a monetary value, including, for example, domestic services.

(a) a marriage; or

(b) a de facto relationship within the meaning of the Acts Interpretation Act 1954, schedule 1; or

(c) a civil partnership within the meaning of the Acts Interpretation Act 1954, schedule 1.

• [180] The LPR submits that at the time of Mr Greenall's death, Mrs Greenall was his dependent spouse. On her behalf, the LPR seeks to recover damages under the CPA for past and future loss of gratuitous domestic services that would have been provided to her by Mr Greenall but for his death. The LPR maintains that the claim is permitted under pt 10 of the CPA and is not regulated by the WCRA.
• [181] The LPR further submits that as he seeks to recover these damages under the CPA, the entitlement to recover the damages sought is not restricted by s 237 of the WCRA. In that regard, the LPR accepts that Mrs Greenall was not a 'dependant' under the WCRA. However, he contends that is precisely why the claim is not regulated by the general limitation 'gateway' in s 237 of the WCRA. The LPR argues that on its proper construction, s 64 of the CPA permits the Dependency Claim.
• [182] The LPR further draws the distinction that the claim is in respect of Mrs Greenall's reliance upon Mr Greenall for 'services' and not for 'earnings', as is required under the definition of 'dependant' in s 27 of the WCRA. The LPR cites various authorities for the proposition that the entitlement of a widow or widower to damages on account of a loss of services is very-well established.[79] Accordingly, on this basis, the LPR says the claim is not under the WCRA but under the CPA. He relies upon the inclusion of the term 'domestic services' in the definition of 'financial benefits' in s 67 of the CPA to support his argument.
• [183] The LPR submits that it would not be fair to conclude that the Dependency Claim could not proceed by reasoning that there would be no right of indemnity from WorkCover by Amaca because any such liability would be uninsured under the WCRA. In support of that argument, the LPR relies upon the decision at first instance in and the subsequent appeal decision of the Court of Appeal (the ' decisions').

• [184] WorkCover submits that although the claim is brought under pt 10 of the CPA, it is subject to the operation of the WCRA in terms of who may bring such a claim against an employer. WorkCover submits that only a dependant of a deceased worker, as defined under the WCRA, has an entitlement to seek damages against an employer by passing through the gateway in s 237(1)(b) of the WCRA.
• [185] WorkCover further submits that the contention that the claim is brought under the CPA, and therefore s 237 of the WCRA has no application, is contrary to the established position that no claims 'outside the Act' are possible.[83]
• [186] WorkCover contends that Mrs Greenall does pass through the s 237 gateway as she is not a 'dependant' within the definition of that term in s 27 of the WCRA. It says that from 2021, and thereafter until his death, Mr Greenall did not have any earnings. Consequently, Mrs Greenall was not dependent on Mr Greenall's earnings at the time of his death and would not have been so dependent but for his death.

• [187] Ultimately, the issue for consideration is whether the LPR is entitled to recover damages on behalf of Mrs Greenall, as a 'dependent spouse', in the Dependency Claim made pursuant to s 64 of the CPA, independently and irrespective of the limitations imposed by s 237 of the WCRA.
• [188] In my view, he cannot. There is no separate entitlement to pursue the Dependency Claim under the CPA, independent of the regulation of access to damages imposed by the WCRA.
• [189] Despite the LPR's submissions to the contrary, in my view, the starting point is s 237 of the WCRA. As already canvassed, s 237 provides a general limitation on the persons who are entitled to seek damages for an injury sustained by a worker. Those persons are expressly identified in ss 237(1)(a) and (b). In my opinion, the LPR is only entitled to pursue the claim if Mrs Greenall was a 'dependant of the deceased worker' as provided by s 237(1)(b). Consequently, the LPR will only have an entitlement to seek damages if Mrs Greenall comes within the definition of a 'dependant' in s 27 of the WCRA.
• [190] The LPR does not contend that Mrs Greenall was a 'dependant of the deceased worker' within s 237(1)(b). Accordingly, it is not strictly necessary to further consider whether she falls within the definition of a 'dependant' within s 27 of the WCRA. Nevertheless, in my view, she does not, as she was neither dependent on Mr Greenall's earnings at the time of his death nor, but for his death, would she have been so dependent. It is not to the point, as the LPR submits, that Mrs Greenall relied on Mr Greenall for services, rather than earnings, as at the time of his death. Section 64 of the CPA provides a single cause of action pursuant to which damages may be recovered in a Dependency Claim. In this case, access to such damages is regulated by the WCRA. The WCRA provides a specific definition of 'dependant' and Mrs Greenall does not satisfy the definition.
• [191] In my view, there is no separate category of dependant, existing outside the strictures of the WCRA, that may pursue a Dependency Claim in respect of an injury that results in a worker's death. The LPR's argument ignores the express restrictions on seeking damages for an injury sustained by a worker imposed by ss 237(2) and (5) of the . Section 237(5) makes it abundantly clear that s 237(1) abolishes any entitlement of a person not mentioned in that subsection to seek damages for an injury sustained by a worker. The position is reinforced by s 235(1) of the which provides that if a provision of an Act or a rule of law is inconsistent with ch 5 of the , ch 5 prevails. Accordingly, as Mrs Greenall is not a person entitled to seek damages within s 237(1), the LPR has no entitlement to seek the claimed damages.

[37] It seems most unlikely that a statutory regime with those objects and incidents, and which so clearly and fundamentally affects damages claims where there is a substantial causal relationship between features of employment and complaints, was designed to exempt from its operation claims involving a tenuous employment connection. For such an arrangement would function as an incentive to injured staff of wealthy employers to avoid the rigours of the statutory regime by setting up a case that the connection with employment, though sufficient to attract liability, is remote where in fact it is considerable. The Parliament is unlikely to have wished to encourage such a fiction. Perhaps more to the point, an employer sued in such proceedings is in economic peril. Although WorkCover may also insure employers in respect of claims by non-PAYE staff, such additional insurance "must not exceed the cover available under this Act for ... damages", which appears to mean that the extra cover cannot extend to cases where employment is not "the major significant factor ...". So the employer - or where the employer procures cover from another insurer in respect of claims involving insubstantial connection between employment and injury, that insurer - could be expected to defend the case on the different basis that the connection between employment and symptoms is substantially greater than that asserted; and to advance such a case against WorkCover in an attempt to secure indemnity under the compulsory policy. Predictable complications such as those are not easily to be reconciled with the expressed intention of "ensuring reasonable premium levels" and "the protection of employers' interests ...". In short, the consequences which would attend acceptance of the interpretation for which the appellant contends seem so peculiar that it is scarcely to be supposed that Parliament could have intended them.

• [197] In brief reasons, agreeing with Byrne J, McMurdo P stated:[86]

[4] It would be a nonsense to conclude that Parliament intended the Act to limit the right of workers to obtain damages for personal injuries in circumstances where the employment was "a significant contributing factor to the injury" but left in place the worker's common law rights where the employment was merely "a" contributing factor but not "a significant contributing factor".

[5] To decide otherwise would lead to an irrational and unjust result: a claim, such as that of the appellant, that the employment was not a significant contributing factor to the injury could be defeated by proof that it was, so that only claims for damages for injuries with a minimal link to the employment could proceed by way of a common law action. The contrary interpretation should be preferred to avoid such an irrational and unjust result.

• [198] Similarly, in separate reasons also agreeing with Byrne J, Thomas JA stated:[87]

[16] In my view the Act limits the right of employees to obtain damages for personal injuries against their employers to those who have suffered an "injury" as defined. I agree with the reasons which Byrne J. has written in reaching the view that there is no residual category of common law claim for damages for personal injury in favour of employee claimants who fail to obtain a certificate of the kind required by the Act. There is no room for a further category of gap cases in which the employee might have succeeded had the previous common law test of causation been retained. Some odd consequences follow if the appellant's arguments are correct, namely -

• a new category of claims in which a plaintiff would lose if he or she proved too much causation;
• a need for additional insurance by employers who were identified in the legislation as intended to be protected against too heavy a burden;
• a second level of insurance in respect of the somewhat nebulous gap that has been mentioned; and
• the prospect of contribution proceedings between WorkCover and other insurers whose incentive would be to prove that their client's fault contributed mightily to the consequences.

Such possible consequences could not reasonably have been intended. It is quite clear that the workers' compensation scheme and associated common law damages scheme covered by compulsory insurance were intended to be the sole avenue for claims against employers in respect of injuries sustained by workers in their employment. The legislature has simply, and understandably in my view, stiffened the test for proof of causation.

• [199] In Glenco Manufacturing Pty Ltd v Ferrari,[88] Douglas J rejected a similar type of argument. The plaintiff in that case claimed to have been injured at work. WorkCover refused his application for compensation on the basis that his employment was not a 'significant contributing factor' to the injury. The plaintiff also served a notice of claim on his employer, under the PIPA. He did so on the basis that if his injury did not satisfy the 'significant contributing factor' requirement of what was then the definition of 'injury' under the WQA, then he was nevertheless entitled to bring proceedings against his employer in accordance with the PIPA. To the extent that the decision in Hawthorne suggested otherwise, the plaintiff sought to distinguish Hawthorne on the basis that s 6 of the PIPA generally expressed it to apply 'in relation to all personal injury...' and that the relevant exception stated in s 6(2)(b) did not apply as his injury was not 'an injury as defined under the WorkCover Queensland Act', because it did not satisfy the 'significant contributing factor' aspect of the definition.
• [200] In rejecting this argument, Douglas J stated:[89]

[6] When one reads the Acts together, the proper view is that an action of the nature anticipated under the Personal Injuries Proceedings Act against Glenco by its former employee Mr Ferrari has been abolished by s. 253 of the WorkCover Queensland Act and has not been revived by some inference to be drawn from the form of s. 6 of the Personal Injuries Proceedings Act. In other words, the general provisions of the latter Act do not override the specific provisions of the WorkCover Queensland Act. In fact they stand together. Although the Personal Injuries Proceedings Act does not apply to an injury as defined under the WorkCover Queensland Act the entitlement of a worker to seek damages under the WorkCover Queensland Act for an injury sustained by him has been abolished except in the circumstances set out in s. 253(1) of that Act and now in s. 237 of the Workers' Compensation and Rehabilitation Act. The language of s. 6 of the Personal Injuries Proceedings Act does not suggest that the legislature's purpose was to overturn this Court's recent interpretation of the effect of the WorkCover Queensland Act in Hawthorne v. Thiess Contractors Pty Ltd and to revive causes of action it, the legislature, had recently abolished. Thus there is no point to Mr Ferrari's pursuing the procedures under the as there is no cause of action available to him to be dealt with under that Act.

• [201] In Watkin, the Court endorsed the reasoning in Hawthorne in its application to s 237 of the WCRA. The Court confirmed that the terms of s 237 of the WCRA are clearly concerned to limit the 'entitlement to seek damages' only to those workers listed and described in s 237(1). The Court further held that there was no residual category of common law claims for damages which were not subject to the limitations imposed by s 237.[90]
• [202] By reference to Hawthorne, the Court stated:[91]

[20] It is securely established that the provisions of s. 237(1) of the WCRA exhaustively describe those persons who may seek damages, and s. 237(5) denies a person who is not within any of those descriptions any entitlement to seek damages from the appellant for the injury in question. That this reflects the scope of s. 237 of the WCRA was affirmed by each member of this Court in Hawthorne v. Thiess Contractors Pty Ltd...

• [203] In my view, these cases put beyond any doubt the conclusion that any entitlement the LPR might have to recover damages under the Wrongful Death Claim is subject to the WCRA and the limitation on access to damages imposed by s 237 in particular. I do not consider the propositions of law which may be derived from these cases are not applicable here simply because, as the LPR submits, the present case involves a dependency claim and is therefore distinguishable. In my view, the cases I have cited apply equally in the case of a 'dependent spouse' who seeks to recover damages from an employer under a CPA dependency claim. They support a general proposition that the WCRA has abolished any entitlement of a worker, or in the case of the death of the worker, a dependant, to seek damages from an employer for an injury sustained by the worker other than in the circumstances stipulated by s 237 of the WCRA.
• [204] Although the LPR cited Hall v WorkCover Queensland,[92] as an example where a dependency claim had been made by a widow of a worker who had died from a mesothelioma contracted in the course of employment, that case does not establish any point of principle relevant to the issue for determination the present case. In that case, the Court considered whether the widow's pleaded dependency claim was statute barred by s 11(1) of the LAA. The Court determined that it was not as s 11(2) of the LAA, which provides that 'a right of action relating to a personal injury resulting from a dust-related condition is not subject to a limitation period...', applied to a dependency claim.[93] The Court did not consider the point raised here of whether a dependency claim brought on behalf of the widow of a deceased worker who died as a result of a work-related injury may be maintained under the CPA without regulation by the WCRA.
• [205] I also do not consider the Stankovic decisions compel any contrary conclusion. Indeed, I fail to see how they have any real relevance at all the present issues. In those cases, WorkCover had determined that the plaintiff was a worker to whom compensation was payable under the WCRA in respect of an injury sustained by him as a worker. In subsequent proceedings for damages for that injury, WorkCover took a different view and denied that the plaintiff was a 'worker'. The issue was whether WorkCover was bound by its initial determination that the plaintiff was a worker.

[109] As to Trendbuild's second point, Trendbuild contends that injustice and inconvenience could arise if the Act permits a proceeding to be brought against an employer by a worker for injury sustained by the worker, but then the insurer is permitted to refuse indemnity. Trendbuild contends that that could leave the employer without indemnity and the employee with an empty judgment in proceedings which were only able to be brought because of the insurer's determination that permitted the proceedings to be brought. I do not accept that that those consequences would follow.

[110] The plaintiff/worker will only be affected if he or she succeeds at trial. If the plaintiff succeeds in establishing that he or she sustained an injury as a worker under the Act, the accident insurance policy will respond and Workcover's denial of indemnity will ultimately fail.

[111] If success follows despite a finding that the plaintiff is not a worker who sustained an injury under the Act, but because the plaintiff establishes some quite distinct source of liability such as contractor/subcontractor or occupier's liability, then other employer's insurance would likely respond, such as defendant's public liability policy. However, even if the employer's other insurance did not respond, it is hard to see the injustice which arises in that circumstance from the operation of the Act for plaintiff or defendant. The Act provides indemnity limited by s. 8. I cannot see how it is unjust for indemnity to be confined in accordance with that section.

• [209] In my view, these observations provide no support for the LPR's argument concerning the Dependency Claim and the construction of s 64 of the CPA. There is no other distinct source of liability here. Contrary to the LPR's argument, I consider it would be an anomalous result if the Dependency Claim could be maintained in this instance, irrespective of whether Mrs Greenall was a 'dependant' within the meaning of s 27 and regardless of whether she passed through the gateway imposed by s 237 of the WCRA.
• [210] I also do not accept the LPR's further submission that the damages claimed are not 'damages' as defined by s 10(1) of the WCRA because the s 10(2) 'carve out' is operative since the liability of Mr Greenall's employer to pay damages arises under 'another Act'. The LPR argues that the s 10(2) 'carve out' is engaged because any liability on the part of Mr Greenall's employer would be a liability against which the employer is required to provide under 'another Act', viz. the 1916 Act. This is of similar effect to the argument made by the LPR in respect of the Estate Claim, that it is the 1916 Act and not the WCRA that defines Mr Greenall's injury. I reject this argument for the same reasons I gave for rejecting the similar Estate Claim argument.

• [211] Mrs Greenall makes a claim for damages for loss of her husband's consortium and servitium. Neither the Amended Claim nor the FASOC identifies the basis at law for these claims.
• [212] In order to assess the issues raised in respect of this claim, it is first necessary to outline some of the features of an action for damages for loss of consortium under the common law and subsequent legislative developments.

• [213] Loss of consortium is a compensable head of damage under the common law. Damages for loss of consortium are awarded to compensate a husband for all the practical domestic disadvantages suffered as a consequence of his injured wife's impaired bodily condition.
• [214] Where damages for loss of consortium are sought, they may include a claim for damages for a husband's loss of his wife's consortium, meaning 'society', and loss of her servitium, meaning 'services'.[97]
• [215] It is an anomalous remedy[98] that has now been abolished in most jurisdictions in Australia.
• [216] As Lord Goodard explained in Best v Samuel Fox & Co Ltd,[99] an action for loss of consortium is founded on the traditional understanding that a husband has a propriety right in his wife, based on the same ground that gave a master a right to sue for an injury to his servant which left the servant unable to perform his duties.
• [217] At common law, a wife cannot recover damages for the loss of her husband's consortium.
• [218] In Wright v Cedzich,[100] the High Court confirmed that a claim brought by a wife for damages for the loss of the society, comfort, protection and support of her husband could not be sustained, with Knox CJ and Gavan Duffy J remarking:[101]

...the right of the husband in the consortium of his wife is entirely different in character from the right of the wife in the consortium of her husband, the right of the husband being of material value capable of being estimated in money while the right of the wife is no more than a right to the comfort of the husband's society and attention. Moreover, although it may not be possible to ascertain with certainty the origin of the cause of action which undoubtedly existed in a husband to recover damages for the loss of the consortium of his wife, there is authority for the proposition that it arose out of the status of the husband and the relation between him as head of the family and his wife... The common law has always recognized the dominion exercised by the husband over the wife, though the exact nature and extent of the dominion has changed with the development of society, and the husband's action is apparently based on an interference with such dominion. The wife has never had any such dominion over her husband.

• [219] In Best v Samuel Fox & Co Ltd, the House of Lords agreed there was no legal basis for extending such a right to a wife in the same position. As Lord Morton explained:[102]

[The cause of action for loss of consortium] is founded on old authorities decided at a time when the husband was regarded as having a quasi-proprietary right in his wife, and is now so firmly established that it could only be abolished by statute. A wife, on the other hand, was never regarded as having any proprietary right in her husband, and the old authorities do not help the appellant.

• [220] In Harris v Grigg,[103] the Queensland Court of Appeal considered a claim for damages for loss of consortium and loss of servitium brought by a wife whose husband had been injured in a road accident. Dowsett J, with whom Matthews and Ryan JJ agreed, struck out the claim and relevantly held:[104]

Changes in social values...do not, as far as I can see, undermine the authority of the decisions to which I have referred...[T]he cases all suggest that the cause of action as a whole is based on broader considerations concerning the previous status of a husband and a wife and the relationship between them. It is these wider considerations which have led to the limitation of this class of action to husbands, parents and employers.

Loss of consortium under the Law Reform Act

• [221] In Queensland, the anomalous situation under the common law was rectified to an extent by the Law Reform Act 1995 (Qld) (the 'LRA'). Section 13 of the LRA creates a statutory entitlement to damages for loss or impairment of consortium for an injured person's spouse, regardless of gender:
  1. Spouse's remedy for loss or impairment of consortium

(1) This section applies if a person causes injury to another by wrongful act, neglect or default, whether or not the injury results in death.

(2) The person is liable in damages to the injured person's spouse for loss or injury suffered by the spouse because of the loss or impairment of consortium.

(3) The damages must be assessed in the same way as in a claim by a husband for damages in tort for loss or impairment of consortium.

(4) A husband can only recover the damages mentioned in this section under either the common law or this section but not both.

• [222] However, s 14 of the LRA imposes a temporal limitation on the availability of this statutory remedy:
  1. Application of part

This part shall not be construed to confer a right of action in respect of a wrongful act, neglect or default that occurred -

(b) before 1 January 1985, where the application of section 13 is in question.

• [223] The result is that all spouses, regardless of gender, are equally entitled to pursue damages for loss of consortium in respect of a wrongful act, neglect or default that occurred on or after 1 January 1985. However, where the wrongful act, neglect or default occurred before this date, there is no statutory basis upon which damages may be claimed for loss of consortium. Any such claim would have to be brought under the common law and, as such, the gender-based distinctions inherent in the common law would continue to apply.

Loss of consortium under the WQA and the WCRA

• [224] In Karanfilov v Inghams Enterprises Pty Ltd,[105] the Court of Appeal considered a claim for damages for loss of consortium brought by a plaintiff in respect of a work injury sustained by his wife, who was an employee of the defendant. The defendant contended that the plaintiff's claim was untenable as the WQA had abrogated any right he had to recover such damages. The primary judge refused an application brought by the defendant to strike out the proceedings. The defendant subsequently appealed. The issue on appeal concerned the interpretation of ss 253 and 316 of the WQA.
• [225] Section 253(1) of the WQA, which was the predecessor provision in the WQA to the present s 237 of the WCRA, specified that the 'only persons entitled to seek damages for an injury sustained by a worker' were 'the worker' or 'a dependant of the deceased worker'. Section 253(5) declared that s 253(1) 'abolish[ed] any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker'.

• [226] Section 316 of the WQA also provided:
  1. Damages other than to claimant

A court can not award damages of any kind under this Act to a person other than the claimant, including damages for loss of consortium as a result of the injury sustained by the worker.

• [227] The Court upheld the appeal. In doing so, McPherson JA stated with respect to s 253:[106]

...s. 253(3) confirms that s. 253(1) abolishes the entitlement of a person not mentioned in s. 253(1) to seek damages for that injury. The plaintiff is a person not mentioned in s. 253(1). It follows that his entitlement at common law to seek damages for loss of consortium for the injury sustained by his wife is not sustainable.

• [228] McPherson JA did not find it necessary to consider s 316 in detail but expressed some doubt that it confirmed the abolition of a husband's rights to damages for the loss of his wife's consortium.[107] His Honour reasoned that was because the liability for damages for loss of consortium did not arise 'under this Act', as s 316 suggested, but rather at common law 'independently of this Act'.[108] Nonetheless, his Honour's opinion remained that s 253 abolished any right the plaintiff had to bring a claim for loss of consortium.[109]
• [229] Although Mullins J (as her Honour then was) agreed that the appeal ought to be allowed, her Honour disagreed that s 253(3) had the effect of abolishing the action for loss of consortium by the spouse of an injured worker.[110] Her Honour was of that view because damages for loss of consortium by the spouse of an injured worker was not caught by the definition of 'damages' in s 11 of the WQA.[111] However, with respect to s 316, Mullins J concluded:[112]

[73] As meaning must be given to s. 316, the only interpretation which is open is that it provides for the abolition of an action for damages for loss of consortium by a spouse of an injured worker whose action for damages is regulated by the Act. It provides for the abolition not expressly, but by preventing a court from awarding damages for loss of consortium. Even though this interpretation abolishes a cause of action, effect must be given to it, when it is the only interpretation which can reasonably be given to s. 316.

• [230] The third member of the Court, de Jersey CJ, agreed with both McPherson JA's interpretation of s 253(3)[113] and Mullins J's interpretation of s 316.[114]
• [231] In response to Karanfilov v Inghams Enterprises Pty Ltd, the WQA was amended by the WorkCover Queensland Amendment Act 2001 (Qld). The Explanatory Notes to the relevant Bill stated:[115]

Clause 38 amends s 316 of the WorkCover Queensland Act 1996, which currently prevents a court from awarding damages to a person other than the claimant, including damages for loss of consortium.

The Bill repeals reference to damages for loss of consortium in s 316. The Bill provides for the use of judicial discretion when considering applications for damages dealing with loss of consortium. It is intended that the Bill overturn the decision of Karanfilov v Inghams Enterprise P/L [2000] QCA 348 (25 August 2000), which decided that s 253 of the WorkCover Queensland Act 1996 interpreted to abolish the ability to claim loss of consortium (refer clause 17). However, consortium is not a matter for which an employer is provided with any indemnity under the WorkCover Queensland Act 1996.

• [232] The WorkCover Queensland Amendment Act 2001 also inserted a new s 590 into the WQA, which provided:
  1. Formal revival of claim for loss of consortium

To the extent that the amended Act excluded an entitlement to seek damages for loss of consortium, on the commencement of this section that entitlement is revived in relation to an injury arising after 30 June 2001.

• [233] As previously noted, in July 2003, the WCRA repealed and succeeded the WQA. While the WCRA does not contain a provision commensurate to s 316 of the WQA, s 610 of the WCRA provides:
  1. Claim for loss of consortium

To remove any doubt, the repeal of section 316 of the repealed Act does not affect the preservation of the entitlement to seek damages for loss of consortium in relation to an injury.

• [234] The Explanatory Notes to the Workers' Compensation and Rehabilitation Bill 2003, noted in respect of proposed s 610:[116]

Clause 610 clarifies that an entitlement to seek damages for loss of consortium in relation to an injury continues despite the repeal of the WorkCover Queensland Act 1996.

• [235] The WCRA now also includes s 306M, which specifically addresses awards of damages for loss of consortium or loss of servitium. Section 306M is located in ch 5, pt 9 of the WCRA. It provides:

306M Damages for loss of consortium or loss of servitium

(1) A court must not award damages for loss of consortium or loss of servitium unless -

(a) the injured worker died as a result of injuries sustained; or

(b) general damages for the injured worker are assessed (before allowing for contributory negligence) at the amount prescribed under a regulation for this provision, or more.

(2) The court must not assess damages for loss of servitium above the limit fixed by subsection (3).

(4) Section 10(3) does not apply to the reference to damages in subsection (1).

• [236] Section 306M was inserted at the same time as s 306A, as part of the 2010 WCRA Amendments. As previously discussed, s 306A relevantly provides that certain provisions of ch 5, pt 9 'do not apply in relation to deciding awards of damages for injury if the injury resulting from the breach of duty is or includes... an injury that is a dust-related condition'.[117]
• [237] The Explanatory Notes to the relevant Bill for the 2010 WCRA Amendments referred to the intended operation of proposed s 306M as follows:[118]

New section 306M establishes a threshold for eligibility for damages in respect of loss of consortium (between husband and wife, the entitlement to companionship, love, affection, comfort, and support of the other) and loss of servitium (loss or impairment of the services, duty, or labour to be rendered by one person to another). The threshold for entitlement to such damages is to be prescribed by regulation, to facilitate the future indexation of the amount. The section also limits compensation to a weekly amount not exceeding three times QOTE. This section is modelled on a similar provision in the Civil Liability Act 2003.

The inclusion of this section does not authorise WorkCover Queensland to indemnify an employer for a liability of the employer to pay damages for loss of consortium resulting from injury sustained by a worker.

• [238] Mrs Greenall maintain that the WCRA specifically recognises the existence of a right to damages for loss of consortium in ss 10 and 610, and the existence of a right to damages for loss of servitium in s 306M. She argues that s 306A does not preclude a statutory entitlement to damages for loss of consortium or servitium for dust-related conditions. Instead, in her submission, s 306M introduces certain restrictions in relation to the award and assessment of damages for loss of consortium and servitium, and the effect of s 306A is simply that the restrictions in s 306M of the WCRA do not apply for dust-related conditions.
• [239] Mrs Greenall did not specifically address in her submissions whether a wife is precluded at common law from claiming damages for loss of consortium or loss of servitium.

• [240] Amaca submits that s 306M of the WCRA imposes a 'test of entitlement' to damages for loss of consortium. However, it submits that, by reason of s 306A(1)(a) of the WCRA, s 306M does not apply to an injury that is a dust-related condition. Accordingly, it submits Mrs Greenall is unable to recover such damages.
• [241] Irrespective of s 306A, Amaca further submits Mrs Greenall is not entitled to recover damages for loss of consortium or servitium by reason of s 14 of the LRA. Since the admitted negligence giving rise to Mr Greenall's malignant mesothelioma, namely his exposure to asbestos fibres in the course of his employment with Amaca, occurred in 1972 (i.e. before 1 January 1985), Amaca submits that, pursuant to s 14(b) of the LRA, no right of action under s 13 of the LRA is conferred upon Mrs Greenall.
• [242] Furthermore, Amaca submits Mrs Greenall has no entitlement under common law to maintain such a claim.
• [243] WorkCover points out that to the extent that the submissions of Mrs Greenall or Amaca suggest that an 'entitlement' to damages for loss of consortium arises under the WCRA, that is not correct. It again reiterates that, pursuant to s 10(1) of the WCRA, any such right must arise from a legal liability to pay damages created independently of the WCRA.

• [244] Mrs Greenall does not have a right under the WCRA to claim damages for loss of consortium or loss of servitium. None of the provisions of the WCRA upon which Mrs Greenall relies create an independent cause of action in this regard. As previously canvassed, so much is clear from s 10(1) of the WCRA, which defines damages narrowly to only include damages for a liability created 'independently of this Act'. Therefore, for her claim to succeed, Mrs Greenall would need to establish a basis for an entitlement to damages arising outside the WCRA.
• [245] In my view, it is patently clear that s 13 of LRA does not confer such a cause of action upon Mrs Greenall. It is admitted by paragraph 4B of the FASOC that the wrongful act, neglect or default that caused Mr Greenall's injury occurred in 1972. As such, s 14(1)(b) of the LRA precludes any claim for damages under s 13.
• [246] As archaic and offensive as it is to modern values, Mrs Greenall is not entitled to damages at common law for loss of her husband's consortium or servitium.
• [247] It follows that, irrespective of s 306A of the WCRA, the claim for damages for loss of consortium cannot be maintained. In those circumstances, I do not consider it necessary to resolve the disputed interpretation of s 306A.

• [248] None of the Contested Damages Claims can be maintained as a matter of law.
• [249] With respect to each of the Strike Out Applications by Amaca and WorkCover, I am satisfied that the impugned paragraphs of the FASOC are clearly untenable and manifestly hopeless. They disclose no reasonable cause of action and they should be struck out pursuant to r 171 of the UCPR.
• [250] Further, insofar as the Contested Damages Claims are pursued by the Amended Claim, those parts of the Amended Claim should also be struck out for the same reasons in the exercise of the Court's inherent jurisdiction. Again, they are so clearly untenable and manifestly groundless that it would be an abuse of the Court's process to allow them continue.
• [251] With respect to WorkCover's r 483 application, I am satisfied that it is appropriate to summarily determine the stated questions at this stage of the proceedings and that they should be decided in favour of WorkCover and Amaca. That being so, it will also be appropriate to order judgment for WorkCover against Amaca in respect of the relevant parts of the 3PASOC in the Third Party proceeding that concern the Loss of Consortium Claim.

1. In respect of the Defendant's strike out application:

(a) pursuant to r 171 of the UCPR, paragraphs 19G and 22 of the First and Second Plaintiffs' Further Amended Statement of Claim are struck out; > > (b) pursuant to the Court's inherent jurisdiction, the part of the First and Second Plaintiffs' Amended Claim that relates to the claim for damages for loss of consortium is struck out; and > > (c) the costs of and incidental to the application are reserved.

1. In respect of the Third Party's strike out application:

(a) pursuant to r 171 of the UCPR, subparagraphs 4C(b), 19A(c) to 19A(d)3, paragraphs 19D to 19F and so much of the prayer for relief that relates to those paragraphs and subparagraphs of the First and Second Plaintiffs' Further Amended Statement of Claim are struck out; and > > (b) the First and Second Plaintiffs are to pay the Third Party's costs of and incidental to the application.

1. In respect of the Third Party's application for decisions on separate questions:

(a) pursuant to r 483(1) of the UCPR, each of Questions 1, 2 and 3 stated in the amended application filed with the Court's leave on 15 June 2023 are to be decided separately and summarily before the trial of the proceedings; > > (b) as to Question 1, the Court's answer is 'No'; > > (c) as to Question 2, the Court's answer is 'Not necessary to answer'; > > (d) as to Question 3, the Court's answer is 'Not necessary to answer'; > > (e) pursuant to r 485 of the UCPR, judgment for the Third Party against the Defendant in the Third Party proceedings in respect of so much of the Third Party proceedings and the prayer for relief that relate to paragraphs 19D to 19F of the First and Second Plaintiffs' Further Amended Statement of Claim; and > > (f) the Defendant is to pay the Third Party's costs of the judgment in respect of the Third Party proceeding referred to in order 3(e), including the costs of the r 483 application.

[1] As set out in the 'List of Facts and Contentions Not in Dispute', Exhibit 1.

[2] [2019] QSC 248, [5]-[19].

[3] General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, 129-30 (Barwick CJ).

[4] Palmer v Magistrates Court of Queensland [2020] QCA 47; (2020) 3 QR 546, 559 [26], 561 [33] (Fraser JA, Morrison JA and Boddice J agreeing).

[5] Amaca's primary submission, like WorkCover's, was that since the answer to Question 1 should be 'no', Question 3 is not necessary to answer. However, unlike WorkCover, Amaca contended that, if it was necessary to answer Question 3, the answer should be 'yes'. For reasons that will become clear, it is unnecessary that I consider WorkCover's submissions in this regard.

[6] [2015] QSC 295, [44]-[46].

[10] Explanatory Notes, Civil Liability Bill 2003 (Qld) 1.

[11] Being 'current' as of August 2021.

[12] Neither of which is relevant here.

[13] Explanatory Notes, Civil Liability Bill 2003 (Qld) 5-6.

[14] Explanatory Notes, Justice and Other Legislation Amendment Bill 2004 (Qld) 8.

[15] By Proclamation (Subordinate Legislation 2004 No. 263), signed 2 December 2002, s 80 commenced on 3 December 2002.

[16] However, the current subsections (4) and (5) were numbered subsections (3) and (4), as the currently subsection (3) had not yet been inserted.

[17] Explanatory Notes, Criminal Code and Civil Liability Amendment Bill 2007 (Qld) 2-3 (footnote added).

[18] Newberry v Suncorp Metway Insurance Limited [2006] QCA 48; [2006] 1 Qd R 519 ('Newberry').

[19] Newberry v Suncorp Metway Insurance Ltd [2005] QSC 210, [28] (Dutney J).

[27] Explanatory Notes, Criminal Code and Civil Liability Amendment Bill 2007 (Qld) 8.

[28] Queensland, Parliamentary Debates, Legislative Assembly, 7 February 2007, 139 (Kerry Shine, Attorney-General).

[29] Erratum to Explanatory Notes, Criminal Code and Civil Liability Amendment Bill 2007 (Qld) 1.

[30] Explanatory Notes, Civil Liability and Other Legislation Amendment Bill 2009 (Qld) 4-5 (footnotes added).

[31] In Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319, a five-member bench of the New South Wales Court of Appeal overruled the Court's earlier decision in Burnicle v Cutelli [1982] 2 NSWLR 26 and held that in a negligence claim an injured plaintiff could recover damages for the loss of their capacity to provide gratuitous care to a dependent.

[32] In CSR v Eddy [2005] HCA 64; (2005) 226 CLR 1, [23]; [68]-[69] (Gleeson CJ, Gummow and Heydon JJ) the High Court determined that Sullivan v Gordon damages were not part of the common law of Australia and rejected the argument that such damages were an extension of the principle established by Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, whereby damages may be awarded to a plaintiff to compensate them for the cost or value of gratuitously provided care services rendered to them because of their incapacity to render them to themselves.

[33] Explanatory Notes, Civil Liability and Other Legislation Amendment Bill 2009 (Qld) 4.

[35] Explanatory Notes for Amendments, Civil Liability and Other Legislation Amendment Bill 2009 (Qld) 3.

[36] Queensland, Parliamentary Debates, Legislative Assembly, 11 March 2010, 885 (Cameron Dick, Attorney-General) (emphasis added).

[38] Explanatory Notes, Civil Liability and Other Legislation Amendment Bill 2009 (Qld) 2-3.

[41] Explanatory Notes, Workers Compensation and Rehabilitation Bill 2003 (Qld) 1.

[43] A 'GOC' is a Government Owned Corporation under the Government Owned Corporations Act 1993 (Qld).

[44] Tanks v WorkCover Qld [2001] QCA 103, [32] (Williams JA), in respect of the equivalent WQA predecessor provision, s 253.

[45] Explanatory Notes, Workers' Compensation and Rehabilitation and Other Acts Amendment Bill 2005 (Qld) 6-7.

[47] Division 4 deals with contributory negligence.

[48] Queensland, Parliamentary Debates, Legislative Assembly, 18 May 2010, 1545-6 (Cameron Dick, Attorney-General).

[49] Explanatory Notes, Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2010 (Qld) 2.

[51] It is to be recalled that the 2007 CLA Amendments version of s 5 is not in the same terms as the current s 5 as further amendments were made by the 2010 CLA Amendments.

[52] It is to be recalled that each of ss 5(3) and 59A to 59D were inserted into the CLA by the 2010 CLA Amendments, which commenced on 1 July 2010.

[53] Referring to the previous s 5(b) of the CLA.

[54] Referring to the current s 5(1)(b) of the CLA.

[55] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).

[56] Ibid 671-2 [22], quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 56 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[57] R v A2 [2019] HCA 35; (2019) 269 CLR 507, 520 [32] (Kiefel CJ and Keane J).

[58] Alcan (NT), 31 [4] (French CJ), [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[59] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ); R v A2, 521 [33] (Kiefel CJ and Keane J).

[60] SZTAL, 368 [14] (Kiefel CJ, Nettle and Gordon JJ); R v A2, 521 [33] (Kiefel CJ and Keane J).

[61] R v A2, [33] (Kiefel CJ and Keane J).

[62] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[63] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

[64] SZTAL, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).

[65] Project Blue Sky Inc v Australian Broadcasting Authority, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).

[66] Ibid 381-2 [70] (McHugh, Gummow, Kirby and Hayne JJ).

[67] Ibid 382 [71] (McHugh, Gummow, Kirby and Hayne JJ).

[68] Acts Interpretation Act 1954 (Qld), s 14A(1).

[69] Ibid s 14B(1).

[70] Ibid s 14(B)(1)(a).

[71] Ibid ss 14B(1)(b)-(c).

[72] Wilkinson v BP Australia Pty Ltd [2008] QSC 171, [7]-[15] (McMeekin J).

[73] [2014] ICQ 7.

[74] Ibid [23]-[24] (footnote added).

[75] Section 32 of the Acts Interpretation Act 1954 (Qld) provides that a definition in or applicable to an Act applies to the entire Act.

[77] [2001] QCA 223; [2002] 2 Qd R 157.

[78] [2006] QCA 382; [2007] 1 Qd R 389.

[79] Including Nguyen v Nguyen (1990) 169 CLR 245 and Hall v WorkCover Queensland [2014] QCA 135; [2015] 2 Qd R 88.

[80] [2018] QDC 54 (Porter DCJ).

[81] SS Family Pty Ltd v WorkCover Queensland [2018] QCA 296; [2019] 3 Qd R 81.

[82] Without detailing the arguments made, it should be noted that Amaca also made oral submissions to a similar effect in support of WorkCover's application concerning the Wrongful Death Claim.

[84] [2001] QCA 223; [2002] 2 Qd R 157 (McMurdo P, Thomas JA and Byrne J).

[85] Ibid 166 [37] (footnotes omitted).

[86] Ibid 159 [4]-[5] (footnotes omitted).

[87] Ibid 162 [16] (footnotes omitted).

[88] [2005] QSC 5; [2005] 2 Qd R 129.

[92] [2014] QCA 135; [2015] 2 Qd R 88.

[93] Ibid [45]-[52], [60] (Muir JA, McMurdo P and Atkinson J agreeing).

[94] Stankovic v SS Family Pty Ltd, [162]-[163].

[95] SS Family Pty Ltd v WorkCover Queensland, [36]-[37] (Fraser JA, Sofronoff P and Davis J agreeing).

[96] Stankovic v SS Family Pty Ltd, [109]-[111].

[97] Harris v Grigg [1988] 1 Qd R 514, 517 (Dowsett J, Matthews and Ryan JJ agreeing).

[98] Best v Samuel Fox & Co Ltd [1952] AC 716, 728-9 (Lord Porter), 733 (Lord Godard), 735 (Lord Morton).

[100] [1930] HCA 4; (1930) 43 CLR 493.

[102] Best v Samuel Fox & Co Ltd, 735.

[103] [1988] 1 Qd R 514.

[105] [2000] QCA 348; [2001] 2 Qd R 273.

[111] The definition of 'damages' is now found in s 10 of the WCRA.

[115] Explanatory Notes, Workcover Queensland Amendment Bill 2001 (Qld) 38.

[116] Explanatory Notes, Workers' Compensation and Rehabilitation Bill 2003 (Qld) 178. It is to be noted that when first enacted, s 610 appears to have erroneously referred to former s 316 of the WQA as 'section 613'. The 2010 WCRA Amendments subsequently amended the reference in s 610 to 'section 613' to 'section 316'.

[118] Explanatory Notes, Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2010 (Qld) 13.