Hawthorne v Thiess Contractors Pty Ltd & Anor [2000] QSC 154

[1] Williams J: The applicant, Catherine Theresa Hawthorne, has commenced an action (S4315/00) against her former employer, Thiess Contractors Pty Ltd - the first respondent ("Thiess") - claiming damages with respect to an injury allegedly caused by breach of the master-servant relationship. That action has been commenced notwithstanding the fact that the second respondent, WorkCover Queensland ("WorkCover"), refused to issue a certificate under s 265 of the WorkCover Queensland Act 1996 ("the 1996 Act"). [The relevant Act for present purposes is that originally passed in 1996 without the 1999 Amendments; all references herein will be to the original version.] There has as yet been no entry of appearance and defence filed by Thiess, but in correspondence both Thiess and WorkCover have asserted that the action is incompetent because the applicant's entitlement to seek damages has been abolished in the circumstances by s 253 of the 1996 Act. In consequence the applicant has applied by originating application for a declaration that in all the circumstances alleged she "at all material times was, and is, entitled to commence and prosecute such proceeding without having to comply, or further comply" with the provisions of the 1996 Act.

[2] In order to understand the argument it is necessary to refer to background facts some of which are not directly relevant to the present application.

[3] The applicant was born on 27 September 1961 and is now 38 years of age. In 1984 she completed a Bachelor of Architecture Degree at the University of Queensland with Honours. She commenced working for Thiess in about September 1992 and at all material times was employed as an architect. In May 1994 she was assigned to work on a project in Sarawak, Malaysia. That meant that in the period June 1994 to January 1995 she was regularly travelling to Malaysia and working there for up to 5 weeks at a time. After her return to Brisbane in January 1995 she experienced symptoms of extreme tiredness and a sore throat. Blood tests established on 30 January 1995 that she was suffering an acute case of Cytomegalovirus ("CMV"). That illness incapacitated the applicant for a significant period of time. Until February 1996 she was too ill to perform any effective work. During 1996 she worked on projects for Thiess primarily from home but as the year went on she began to spend more and more time in the office. By February 1997 she began working normally.

[4] In about June 1995 she applied for workers' compensation on the basis that the CMV was contracted while she was in Malaysia in the course of her employment. That claim was accepted and compensation was paid from 30 January to 30 June 1995. That claim was processed in accordance with the provisions of the Workers' Compensation Act 1990 ("the 1990 Act").

[5] In August 1997 the applicant again became ill and in fact she has not worked since 4 August 1997. She said in her affidavit in support of the present application that after "stopping work in August 1997 and finding that my health did not improve I began to feel very despondent".

[6] On or about 10 September 1997 the applicant sought a reopening of her earlier claim for compensation as from 7 August 1997. That application for reopening was accepted and compensation was paid from 7 August 1997 to 30 November 1998 and thereafter medical expenses only until March 1999.

[7] In March 1999 WorkCover referred the applicant's claim to a General Medical Assessment Tribunal (M) and a General Medical Assessment Tribunal (P) pursuant to s 171 of the 1990 Act. Each of those Tribunals heard representations on behalf of the applicant, conducted a clinical examination of the applicant, and considered medical reports on the file. Each Tribunal made a determination on 15 March 1999 and gave reasons. The (M) Tribunal determined that the applicant's "incapacity for work resulting from the injury is now nil". In its reasons the Tribunal recorded the history of the applicant's CMV illness, her gradual return to full time work, and the "relapse of her symptoms particularly fatigue from 1 August 1997". The reasons also referred to "fluctuating symptoms" and the fact that the applicant had "adopted a naturopathic approach to her illness". The reasons then concluded that it was the "opinion of the Members of the Tribunal that the Claimant's symptoms were not due to any organic medical condition".

"The Worker has suffered permanent partial disability resulting from the injury; and

(a) The nature of the disability is major depressive illness with somatoform features occurring in the course of her employment and aggravated by work circumstances.

(b) The extent of that disability which is employment caused is twenty (20) percent loss of bodily function."

[9] Again that Tribunal's reasons recorded the initial illness and the gradual return to work, and went on:

"Her work load increased and she was travelling a great deal and working long hours and she developed a depressive syndrome and was given anti-depressant medication but after a period of time, because she did not improve she thought the medication was making her condition worse ... She did attempt further return to work but found that this was impossible and at this stage she had developed symptoms of a somatoform disorder. ... The Tribunal considered that the depressive condition she developed was related to a very heavy schedule."

[10] Consequent upon the findings of those Tribunals, WorkCover forwarded to the applicant's solicitors a cheque for $15,109.00 representing lump sum compensation for a work related disability of 20%. The solicitors held that cheque without banking it whilst they disputed with WorkCover the applicant's legal entitlements. In a letter of 6 April 1999 those solicitors asserted that the findings of the Tribunals should be treated as recognising a fresh injury which should be assessed under the 1996 Act, rather than as a reopening of the original claim pursuant to the 1990 Act, as it had been treated by WorkCover. The response was a letter of 7 April 1999, referring to medical opinion, and indicating that the claim was being processed as one for post-viral depression consequent upon the CMV. That debate continued in a letter of 16 April 1999 from the applicant's solicitors and WorkCover's reply of 19 April 1999. Matters then came to a head with the letter of 6 May 1999 from the applicant's solicitors to WorkCover in the following terms:

"We confirm that there has been no application under the WorkCover Queensland Act 1996 for compensation. We do not hold instructions to make such an application on Ms Hawthorne's behalf.

We are instructed, however, that our client intends to bring a claim for common law damages in relation to her loss arising out of the injury/illness sustained by her in 1997. We now call upon WorkCover to provide damages certificates pursuant to section 265 of the Act for our client's physical relapse and her psychiatric/psychological illness."

[11] A formal Application for Damages Certificate was then completed by the applicant and forwarded to WorkCover under cover of a letter of 8 July 1999. That application said that the "event" occurred "between June and 1 August 1997". The particulars thereof were stated in the following terms: "Significant increase in workload, travel, hours and responsibility leading to post-viral fatigue and psychiatric decompensation." The nature of the injury was then said to be "post viral fatigue and depression". The application form also referred to an earlier application for compensation for CMV and associated depression and indicated that the cheque for "lump sum pay out" had "yet to be presented/accepted". Finally it should be noted that the form stated (and it has not been contested) that the applicant was a PAYE taxpayer.

[12] Consequent upon receiving that application WorkCover required the applicant to be examined by a psychologist. Then by letter dated 25 August 1999 WorkCover communicated its decision to refuse the certificate and included a statement of reasons for its decision. The letter to the applicant relevantly said:

"With reference to your Application for Damages Certificate ... , I am unable to conclude from the evidence that any event from June 1997 to 1 August 1997 was the result of an "injury" within the terms of Chapter 1 Part 4 of the WorkCover Queensland Act 1996.

Therefore, I regret to advise my decision is that your Application is rejected. Accordingly, I am unable to issue you with an Unconditional Damages Certificate in accordance with Section 270 of the WorkCover Queensland Act 1996."

[13] The wording of the first sentence is odd to say the least, but the position of WorkCover is really made clear by the accompanying reasons. The reference to s 270 was also incorrect; the relevant provision is s 265. That error was repeated in the formal reasons, but it is of no consequence.

[14] The following extracts from the reasons are relevant for present purposes:

"An application for a Damages Certificate was lodged by you for Post Viral Fatigue and Depression which you claim resulted from your employment with Thiess ... . It was claimed that the condition arose due to a significant increase in work load, travel, hours and responsibility leading to post-viral fatigue and psychiatric decompensation. It was alleged that this condition was caused/aggravated between June and 1 August 1997.

... In his report of 03/07/98 [Dr Georgiou, Consultant Physician in Infectious Diseases] states "I would not regard Ms Hawthorne's recent return of symptoms as a new illness, but rather a representation of the initial illness as a consequence of increased stresses related to her work. If an alternative psychological causation is considered, then I would still relate the psychological disturbance back to, and consider it a consequence of, her initial Cytomegalovirus infection."

Dr Chalk ... stated: "I think that the increase in symptoms of mid 1997 relate to the 1995 CMV episode.".

Dr Persley provided a report dated 27/07/99 and ... states "Her illness appears to have been precipitated by the CMV Infection in 1995 and she suffered a relapse again in 1997 which she attributes to increased work load. The original illness now appears to be complicated by psychosocial factors."...

From the medical evidence received, WorkCover has determined that the psychiatric condition has arisen from the CMV infection of 1995 and that the relapse of symptoms in mid 1997 is not a new illness. The evidence on file shows that you had signs of depression in 1995 for which you were taking medication.

It is further found that the work duties of early 1997 were fairly minimal and at this time you were not performing a normal work load. The duties in mid 1997 do not appear to be dramatically different to what you were working prior to contracting the virus in 1995.

As such, it has been concluded that there was not a new injury in mid 1997 and that this further application is a continuation of the previous claim for compensation ... . This previous claim was finalised ... in accordance with the legislation applicable at the time you contracted the virus, i.e. Workers' Compensation Act 1990.

I therefore regret to inform you that your further application of 18/06/99 does not constitute an "injury" within the terms of section 34 of the WorkCover Queensland Act 1996. Accordingly, I am unable to issue you with a Unconditional Damages Certificate in accordance with section 270 of the WorkCover Queensland Act 1996."

[15] It is clear that the Certificate was sought with respect to events which occurred in June-August 1997 and that those events were alleged to have caused a fresh injury at that time. That is of significance because any action commenced consequent upon the granting of such a Certificate would have been filed late 1999 at the earliest. In consequence (assuming no extension of the limitation period) such action must have been based on events which occurred subsequent to a date late in 1996. The applicant could not in late 1999 have commenced an action for damages for an injury essentially related to her contracting CMV in January 1995. That undoubtedly explains why the application for the certificate alleged a fresh injury sustained in the period June-August 1997.

[16] The applicant by letter dated 22 September 1999 applied to WorkCover for a review of its decision of 25 August 1999. That letter advanced reasons in support of a conclusion that the applicant had suffered a "new illness" at about August 1997.

[17] The response from WorkCover was a letter dated 5 October 1999. It is not necessary to quote here from it; the original decision was upheld.

[18] By letter of 3 November 1999 the solicitors for the applicant asked WorkCover to refer the matter to a Medical Assessment Tribunal pursuant to s 265(8) of the 1996 Act. WorkCover arranged for certain medical examinations prior to a tribunal hearing and advised that there would be a hearing before Tribunals (M) and (P) on 23 February 2000. Each Tribunal received representations from the solicitor acting for the applicant and conducted a clinical examination. Each also had regard to numerous medical reports on the WorkCover file.

[19] Tribunal (M) determined "that the matters alleged for the purpose of seeking damages do not constitute an injury to the worker"; therefore it said that the "claim is not accepted". The determination went on to say that the "Tribunal considers that she appears to have depression which is not related to work circumstances and there is no evidence of any organic medical condition present on critical examination. The Tribunal considers that she has a somatoform disorder.".

[20] Tribunal (P) determined that "the matters alleged for the purpose of seeking damages do not constitution an injury". The determination went on:

"The current application is based on a relapse of her symptoms between June and August 1997. During the first six months of 1997 the Claimant had worked with a reduced work load and coped well. When the work load was increased to what would be regarded as a normal work load for a person with her ability and expertise she was unable to cope and resulted in a relapse of her symptoms. She has been off work since then. She currently attends a psychiatrist and physician. It was the Tribunal's assessment that the personality factors were the dominant cause of her current state and that her work load would be regarded as a reasonable one in her position."

[21] There was then correspondence (letter from applicant solicitor 9 March 2000 and WorkCover reply 14 March 2000) relating to the cheque for $15,109, the lump sum pay out for the 20% permanent partial disability determined by the (P) Tribunal in March 1999. The applicant's solicitors wanted some acknowledgment that acceptance of the cheque would not amount to an election not to pursue damages on the ground that the applicant suffered a new injury in June-August 1997. The response probably did not allay the applicant's concerns because it is clear that the parties were approaching the question from a different standpoint. However, I do not consider that it is necessary to consider this aspect of the matter further.

[22] It was against all that background that the claim was filed on 14 April 2000. Thiess was named as the defendant and the endorsement was in these terms:

"The Plaintiff claims damages for personal injuries caused by the Defendant's breach of contract, breach of statutory duty and/or negligence together with interest in accordance with the Supreme Court Act 1995 and costs."

[23] In accordance with the rules a statement of claim accompanied the claim. It alleges that the defendant employed the plaintiff as an architect, and spoke of implied terms of that contract of employment. It then alleges the contraction of CMV in January 1995 and the plaintiff's consequent incapacity for work, leading to her return "to full time employment, but not full duties, in or about January 1996". There follow a number of allegations made which are introduced by use of the expression "pursuant of the contract of employment". There is then an allegation that from about May 1997 "the work load of the Plaintiff under the contract of employment was increased by the defendant significantly ...".

[24] There are a number of subsequent paragraphs of the statement of claim which are of some significance for present purposes:

"27. In about June, July or August of 1997, in response to an increased work load and demands in performance of the contract of employment, the Plaintiff developed a symptom complex resulting from or similar to that resulting from CMV, described as relapse of post viral fatigue reflecting a reduced capacity to tolerate increased physical and emotional stress ...

28. Further, in about June, July or August of 1997, the Plaintiff suffered a relapse and/or aggravation of, a psychological or psychiatric disturbance as a reaction to her increased work load and demands or in consequence of, and/or in association with, the post viral fatigue.

30. The Plaintiff's psychiatric or psychological disturbance consists of Chronic Fatigue Syndrome, a somatisation disorder, major depression and general anxiety ...

(a) is not an injury within the meaning of section 34 of the WorkCover Queensland Act 1996 ...; and

(b) was determined by the General Medical Assessment Tribunal (M) of WorkCover Queensland under the 1996 Act not to be an injury within the meaning of section 34 of the 1996 Act on 23 February 2000.

(a) has been refused a damages certificate, conditional or unconditional, under the 1996 Act in relation to the post-viral fatigue in consequence of the determination of the General Medical Assessment Tribunal (M) on 23 February 2000; and

(b) does not need to comply with the 1996 Act in relation to the post viral fatigue because the 1996 Act does not have application to that injury.

(a) is not an injury within the meaning of section 34 of the 1996 Act; and

(b) was determined not to be an injury within the meaning of section 34 of the 1996 Act by the General Medical Assessment Tribunal (P) of WorkCover Queensland under the 1996 Act on 23 February 2000.

(a) has been refused a damages certificate, conditional or unconditional, by WorkCover Queensland under the 1996 Act in relation to the psychiatric condition in consequence of the determination of the General Medical Assessment Tribunal (P) on 23 February 2000; and

(b) does not need to comply with the 1996 Act in relation to the psychiatric condition because the 1996 Act does not have application to that injury."

[25] There are various paragraphs in the statement of claim (for example, paras 31 to 36 inclusive and 41) in which the allegation is made that the defendant was negligent in imposing on the applicant a heavy work load in mid 1997 when it knew, or ought to have known, that because of her earlier CMV and associated illnesses she was more vulnerable and her health was likely to be adversely affected by that work load.

[26] As noted at the outset the question is whether or not the provisions of the 1996 Act preclude the applicant from prosecuting in the circumstances outlined above the action she has already commenced.

[27] The 1996 Act, and Chapter 5 thereof in particular, has greatly impacted on the right of a person injured in a master-servant relationship to sue for common law damages. There must now be compliance with a number of conditions before such an action may be commenced against an employer seeking recovery ultimately from the insurance specified in the 1996 Act. The Court of Appeal in Bonser v Melnacis & Ors (unreported, No 4369 of 1999, judgment 8 February 2000) confirmed that unless those conditions were satisfied such an action was abolished by s 253 of the 1996 Act; in that judgment the expression is used that there are a number of "gateways" through which a plaintiff must pass before such an action can be pursued.

[28] The critical provision is s 253 which is in these terms:

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

(a) the worker, if the worker has received a notice of assessment from WorkCover stating that -

(i) the worker has sustained a certificate injury; or

(ii) The worker has sustained a non-certificate injury; or

(b) the worker, if the worker's application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment; or

(c) the worker, if the worker has not lodged an application for compensation for the injury; or

(d) a dependent of the deceased worker, if the injury sustained by the worker results in the worker's death.

(2) The entitlement of a worker, or a dependent of a deceased worker, to seek damages is subject to the provisions of this chapter.

(3) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker."

[29] It is necessary to analyse that section in some detail. It is patently clear that it only applies to an action for damages brought by a "worker", a term which has a specific and limited meaning for purposes of the 1996 Act. Section 12 defines a "worker" as an individual who works under a contract of service and is a PAYE taxpayer in relation to the remuneration received for the performance of work under that contract. It is immediately obvious that there is no necessary equivalence between a "worker" for purposes of the 1996 Act and a "servant" for purposes of the master-servant relationship giving rise to a claim for damages at common law. The probability is (the matter does not have to be decided now) that a "servant" for common law purposes who is not a "worker" for purposes of the 1996 Act would be entitled to maintain an action for common law damages without complying with the provisions of the 1996 Act. (The disparity has been significantly reduced by the 1999 amendments.) For present purposes the important feature is the narrow definition of "worker"; it is a clear indication of a legislative intent to limit the right to recover common law damages from the insurance funds referred to in the legislation. But as it is not disputed that the applicant was at all material times a PAYE taxpayer, she clearly meets the definition, so her rights are not affected by the limiting effect of that definition.

[30] The next relevant, and again limiting, term in s 253 is "injury", a term defined in s 34 of the 1996 Act. That definition relevantly provides:

"An "injury" is personal injury arising out of, or in the course of, employment if the employment is the major significant factor causing the injury"

[31] Subsequent paragraphs of that section make it clear that a "psychiatric or psychological disorder" may constitute an injury provided that certain conditions are met. Subsection (3)(b) provides that the term "injury" includes an aggravation of an injury provided that the employment was the major significant factor causing the aggravation.

[32] A test requiring employment to be "the major significant factor" causing the injury is, at least in theory and possibly in practice, different from the common law test of causation expounded by the High Court in March v Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506. That would probably still be so since the 1999 Amendment which amended the test for purposes of the legislation to "a significant contributing factor to the injury". It is the difference between the common law test of causation and the test of causation pursuant to the legislation which senior counsel for the applicant has pointed to in support of the contention that the action commenced by the applicant falls outside the scope of operation of the legislation. The argument, as I understand it, accepts WorkCover's decision that the applicant did not sustain an injury within the meaning of s 34 of the 1996 Act in June-August 1997, but contends she can establish at common law that at that time she did suffer an injury through the negligence of her employer. It will be necessary to return to that submission later.

[33] Before leaving s 253 it should be recorded that it was agreed that in the circumstances subsection (1)(c) applied to the applicant. That is why she applied for a certificate pursuant to s 265 of the 1996 Act. She could not rely on the assessments and certificate relating to the contracting of CMV in January 1995 because that was well outside the limitation period applicable to an action to be commenced in late 1999 or early 2000. If the applicant had a claim for damages under the legislation then it was dependent upon her obtaining the certificate under s 265. The issues for WorkCover to consider on such an application were the matters specified in s 265(3). As noted above there was no doubt but that the applicant was a "worker" as defined at the material time. The decision of WorkCover was that the applicant did not in mid 1997 incur an injury within the terms of s 34; the decision and reasons have been quoted in full previously. The argument of the applicant concentrates on the fact that it is WorkCover, who will generally be the insurer standing behind the employer if the action proceeds, who "decides" whether the certificate should or should not be granted; in this case that means decides whether or not an injury within s 34 has been sustained. The argument for the applicant is that it is only if WorkCover holds the requisite opinion of the facts that the common law action may proceed. Again that is something to which I will have to return.

[34] The applicant was, of course, not in agreement with WorkCover's decision to refuse a certificate and exercised her right pursuant to s 265(8) to require the matter to be referred to a medical assessment tribunal. That is what WorkCover did, and the decisions of the tribunals of 23 February 2000 have been set out above. In broad terms each tribunal considered that the applicant had not suffered an injury in mid 1997.

[35] In the course of argument there was discussion as to whether or not the decisions of the tribunals of 23 February were final. Section 265(3)(b) brings into play sections 437 and 440. Each tribunal in accordance with s 440 had to decide whether the matters relied on for the purpose of seeking damages constituted an injury to the worker, and if so, the nature of the injury. Section 454 allows for a reconsideration of a matter before a tribunal on the ground of fresh evidence; but before such reconsideration a review panel must be satisfied the fresh medical evidence is relevant and was not known at the time of the earlier decision. That section however applies to a "worker's application for compensation"; that is not apt to describe an application for a certificate pursuant to s 265 or a determination pursuant to s 440. Then s 456 says: "A tribunal's decision about an application for compensation referred to it is final and cannot be questioned in a proceeding before a tribunal or a court, except under s 454." Again that section relates to an "application for compensation" referred to a tribunal. Construed strictly the section would not apply to a reference to a tribunal for a certificate under s 265 or a decision under s 440. It may well be, therefore, that a decision of a tribunal pursuant to s 265 and s 440 could be reviewed pursuant to the provisions of the Judicial Review Act 1991. However, I do not consider it necessary to determine whether or not the decisions of the tribunals of 23 February 2000 could be so reviewed. It is sufficient to say that the applicant has taken all the steps contemplated by the 1996 Act and the decision of WorkCover, confirmed by the tribunals, is that she did not sustain an injury within s 34 of the Act in mid 1997.

[36] I return now to the argument addressed to the court by counsel for the applicant. It is based on the premise, which must be accepted, that the 1996 Act expressly retreats from the position under the statutes it replaces which did not interfere significantly with an injured worker's rights to recover common law damages. The 1996 Act by its very terms regulates and limits access to such damages. That is done for the express purpose of ensuring that the scheme remains fully funded and that premiums are kept to a reasonable level. So much can be gleaned from perusing s 5, but confirmation is provided by reference to the Minister's Second Reading Speech and the accompanying Explanatory Memorandum.

[37] The 1996 Act also makes it expressly clear that the amount of damages recoverable where proceedings are taken in accordance with Chapter 5 will not always equal what could have been recovered at common law. Sections 52(2), 315, 316, 319 and 278 clearly establish that. Sections 315, 316 and 319 are in Chapter 5 and s 253(2) makes it clear that the only entitlement a worker has to recover damages for an injury within s 34 is limited to what is recoverable pursuant to that Chapter; in other words, such a worker has no right to claim damages for the value of gratuitous services or exemplary damages against the employer in an action taken independently of the 1996 Act.

[38] The applicant's argument is that the 1996 Act only tampers with the common law rights of "servants" who seek to recover damages from the fund maintained pursuant to the scheme provided for by the 1996 Act. The argument here is that, as it has been decided by WorkCover that the applicant's asserted injury sustained in mid 1997 was not an injury within s 34 of the Act, she is not seeking to recover damages from the fund established pursuant to the Act in the action she has commenced. However, the difficulty, as I see it, with that argument is that if the applicant establishes the facts alleged in her statement of claim she will necessarily have established that she sustained an injury within s 34 of the 1996 Act. The only cause of the injury relied on in the statement of claim as giving rise to an award of damages is alleged to be the negligence of her employer in the course of her employment. In other words the findings of fact which it would be necessary for the court to make in order to award damages would be in direct conflict with the decision of WorkCover.

[39] It is somewhat unusual for the potential defendant to legal proceedings to have the right to determine whether or not the action may be commenced, but that is the clear import of this statute and the courts must recognise what Parliament has decreed. The fact that WorkCover's decision may be reviewed by a medical tribunal lessens somewhat the apparent injustice of such a provision; if the decision could be judicially reviewed the position would be even more acceptable. But such considerations cannot result in a conclusion that the applicant is not bound by the conditions imposed by the 1996 Act if on a proper construction the provisions apply to her.

[40] I said previously that in theory, if not in practice, it may be possible to conclude that negligence by an employer caused an injury applying the March v Stramare test, where the evidence would not support a finding that such negligence was "the major significant factor causing the injury". But for there to be no conflict between a court's finding that there was causation based on the March v Stramare test and WorkCover's decision that causation was not proved applying "the most significant factor" test, the actual decision of WorkCover would have to be couched in those terms. If the decision of WorkCover was that there was no injury within s 34 because employment was not "the major significant factor causing the injury", it may be possible for a court to conclude that causation was established according to the common law test without the two decisions being in conflict. But I suspect that the distinction is more theoretical than real.

[41] Here when the reasons given by WorkCover and the tribunals for rejecting the certificate and finding there was no relevant injury are carefully considered it is clear that the decisions were not that the applicant suffered no injury in a broad sense at all in mid 1997, but rather that what she then suffered was a manifestation of the earlier injury (disease) of 1995. If a court in the common law action concluded that the applicant suffered a "fresh injury" in mid 1997 it would not be the consequence of applying a different test for causation. Such a finding would be in direct conflict with the decision of WorkCover.

[42] Therefore, as I see it, the consequence of allowing the present action to proceed would be that if the applicant was successful at trial the court would be concluding that the injury was within the scope of the 1996 Act, but Thiess would be unable to obtain indemnity from WorkCover because the action was not prosecuted in compliance with the Act. The findings of the court would mean that the injury was covered by the employer's obligation to insure pursuant to s 52 of the 1996 Act, but the employer would not be entitled to indemnity pursuant thereto. That really demonstrates that the applicant's argument must be fallacious.

[43] Primarily because the applicant to be successful in the action must establish that she suffered an injury which of necessity would be caught by the definition of injury in s 34 of the 1996 Act, I am of the view that she does not enjoy a right to pursue a cause of action against Thiess independently of the 1996 Act.

[44] There was a subsidiary point raised by counsel for the applicant in the course of argument. His concern was that WorkCover could change its mind and determine that the applicant did in fact suffer in mid 1997 an injury within s 34 of the 1996 Act. If, contrary to my conclusion expressed above, action S4315/2000 was allowed to proceed, such a change of mind by WorkCover could have serious consequences. The new decision would mean that the action was no longer viable because the applicant had not complied with the further provisions of the 1996 Act, and it would be too late (the limitation period having expired) for her to pass through the necessary gates entitling her to commence an action for common law damages in accordance with the provisions of the 1996 Act.

[45] Given my principal conclusion that scenario is entirely hypothetical. Even if I had concluded that the applicant presently enjoyed a right to pursue the action she has commenced, I would have held that it was inappropriate for the court now to make rulings on events which may or may not occur in the future. Final rulings can only be made in the light of actual factual circumstances, and it is obvious that questions of waiver and estoppel could arise in the scenario foreshadowed by counsel. I will not consider those submissions further.

[46] It follows that the application should be dismissed with costs.