Tanks v WorkCover Qld

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

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

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

[2] In the latter respect his Honour had in mind the decision of this Court in Bonser v Melnacis & Anor.[1] The questions are important in the present case because if the limitation period ran from the occasion of the respondent's personal injury it would now have expired.

[3] The learned primary judge held, in effect, that the respondent's only cause of action against his employer for his personal injuries was one which arose under the WorkCover Queensland Act 1996 ("the Act"). The question then is whether that is the correct construction of the Act or whether, at least for the purposes of the Limitation of Actions Act, the Act assumes a cause of action arising independently of it.

[4] The appellant did not ask this Court to overrule its earlier decision in Bonser or question any of the reasoning which led to that decision. It follows that if the first question posed in [1] was decided adversely to the appellant in Bonser this appeal must fail. However it is convenient to look first at the provisions of the Act which are relevant to these questions.

[5] Section 253 is relevantly in the following 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 dependant of the deceased worker, if the injury sustained by the worker results in the worker's death.

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

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

[6] Section 253 is in Part 2, headed "ENTITLEMENT CONDITIONS", of Chapter 5 of the Act, which Chapter is headed "ACCESS TO DAMAGES". Section 252(2) provides that all of the provisions of that chapter are provisions of substantive law.

[7] Section 256, s 259(1), s 262(2) and s 265(1), all within Part 2, provide entitlement conditions which must be fulfilled before a worker may "seek damages". Section 256, s 259(1) and s 262(2) provide that a person mentioned in s 253(1)(a)(i), s 253(1)(a)(ii) or s 253(1)(b) may seek damages for the injury only after receipt from WorkCover of a notice of assessment. And s 265(1) provides that a person mentioned in s 253(1)(c) may seek damages only if he or she has received a damages certificate.

[8] Section 280 then provides for notice before action. It is also in Chapter 5. As already mentioned the respondent received a notice of assessment from WorkCover on 11 May 1998. He received a damages certificate on 24 December 1998 and he gave notice in terms of s 280 on 8 October 1999.

"It was therefore an essential finding of the Court of Appeal [in Bonser] that the WorkCover legislation has the effect of destroying an injured employee's cause of action in respect of such injury upon the occurrence of that injury and that a right to claim damages comes into existence only upon the taking of prescribed steps which include the obtaining of an assessment ... "

Consequently he answered the first of the questions posed in [1] "no" and the second "yes".

[10] There is nothing in the terms of s 253 or the other provisions already noted which affects the question whether a cause of action arose on the occurrence of the injury or which creates a new cause of action. What s 253(1) appears to do is to require certain provisions to be complied with before a worker may seek damages for injuries sustained by him in his employment.

[11] Moreover the view that, for all purposes, the Act takes away existing causes of action and creates a new one is inconsistent with the assumption upon which a number of the provisions of the Act appear to be based namely that, at least for the purposes of the Limitation of Actions Act, there is a cause of action which has arisen independently of the operation of the Act. The first of these is the definition of "damages" in s 11(1) as "damages for injuries sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker's employer to pay damages" to the worker or his dependants. That is the meaning which it must bear in s 253(1). The section then appears to assume a legal liability, created independently of the Act, to pay damages to the worker for an injury to which s 253 relates.

[12] So does s 50(2) which provides that the Act does not impose a legal liability on an employer for damages for injuries sustained by an employed worker though Chapter 5 "regulates access to damages". That section thus appears to assume legal liability to pay damages arising independently of the operation of the Act.

[13] Similarly s 262(3) and s 265(4) envisage circumstances in which there may be an urgent need to bring proceedings for damages notwithstanding that no assessment has been made (in the case of a person within s 253(1)(b)) or that WorkCover may not have given a damages certificate (in the case of a person within s 253(1)(c)). Mr Douglas SC, for the respondent, was unable to point to a sensible construction of these provisions consistent with the absence of a cause of action, at least for the purposes of the Limitation of Actions Act, before compliance with the "entitlement conditions" of Part 2. There would be no need for either of these provisions if these entitlement conditions were essential elements of the cause of action for the purposes of that Act.

[14] Section 280 also assumes a cause of action arising, for the purposes of the Limitation of Actions Act, before notice under it is given by providing that such notice must be given within the period of limitation under that Act.

[15] Yet another indication of an assumption that a cause of action arises independently of the operation of the Act, at least for the purposes of the Limitation of Actions Act, is s 308 which permits the bringing of proceedings after the period of limitation under that Act upon compliance with certain conditions. One of these is compliance with s 302 which in turn requires compliance with the entitlement conditions.[2] The fact that compliance with the entitlement conditions is a condition of the bringing of an action outside the limitation period appears to assume that the limitation period commences before that compliance can occur.

[16] There is, however, an apparent inconsistency between these provisions, which appear to assume the existence of a cause of action arising independently of the operation of the Act, at least for the purposes of the Limitation of Actions Act, and s 252(2) which makes the entitlement conditions and s 280 provisions of substantive law. If the entitlement conditions and s 280 are to be given effect as provisions of substantive law then it seems to me that that can be so in one of only two ways. Either they must prevent a cause of action or part of a cause of action from coming into existence until they are complied with or they must bring a cause of action to an end if they are not complied with.[3] Operating in the first of those ways they would extinguish the common law cause of action and substitute a statutory one. But it is only in the second of those ways that they would be consistent generally with the assumption of a pre-existing cause of action.

[17] However in Bonser, as I shall endeavour to show, this Court construed the Act generally as substantive in the first of those ways. That is the apparent inconsistency which must be resolved.

[18] In Bonser this Court considered a number of decisions upon Commonwealth and Victorian provisions apparently operating in a similar way to the above provisions. Section 44 and s 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) considered by the High Court in Austral Pacific Group Ltd v Airservices Australia[4] operate in the first of the above ways. Section 44(1) provides "Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth" in respect of an injury sustained by an employee in the course of his or her employment. Section 45 then deems s 44 never to have applied in relation to an action or other proceeding to recover damages for non-economic loss which is instituted by the employee subsequently to the making of the election referred to in s 45(1). The High Court held that s 44 denies, from the outset, the existence of a cause of action merely from the circumstances of the accident.[5]

[19] It is more difficult to categorize the relevant provisions of the Transport Accident Act 1996 (Vic) the subject of the decisions in Wilson v Nattrass[6] and Swannell v Farmer;[7] relevant provisions of which have some similarities to those of the Act here. Section 93(1) of that Act is in somewhat similar terms to the opening words of s 253(1). That section provides:

"A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section."

The section then goes on to state some conditions which must be fulfilled before the person may recover damages in respect of the injury. And the section provides that its provisions are of substantive law.[8]

[20] In Wilson Ashley and Hedigan JJ described the effect of s 93(1) as contingently to extinguish the right to recover common law damages.[9] In Swannell the Victorian Court of Appeal described the section, as so interpreted, as not adding an element to any causes of action arising from the transport accident and not creating a statutory cause of action. The court said:

"The section contemplates a cause of action consisting only of its common law elements and is concerned with imposing a barrier to enforcing that cause of action rather than creating a new, more complex cause of action."[10]

However, like Kirby P in Thompson v Hill[11] I have some difficulty in seeing how, if it is substantive, it does not create a new statutory cause of action consisting of the common law elements together with the requirements of s 93.[12]

[21] Bonser was concerned with a quite different question from that with which we are concerned here. The plaintiff was employed by the Maroochy Shire Council. He was struck by the first defendant's motor vehicle whilst performing duties as a traffic controller at roadworks being constructed by the council. The defendant sought to join the council, the plaintiff's employer, and the question was whether it was a "tortfeasor who ... would if sued have been liable in respect of the same damage"[13] as that for which the plaintiff had sued the car owner. This Court thought that that question depended on "whether the relevant WorkCover Act provisions are of a ... kind that destroy the plaintiff's right of action against the employer."[14]

[22] Their Honours then stated the submission which they rejected in the following terms:

"The heart of the submission for the third party is that the relevant provisions do not abolish the plaintiff's right of action against the employer, but merely bar the remedy until the procedural requirements of the Act have been satisfied."[15]

[23] They then accepted the employer's submission -

"... that the combined effect of the scheme introduced by the WorkCover Act ... effectively abolishes any entitlement on the part of an injured worker to commence proceedings against the employer and that such a right comes into existence only upon compliance with the prescribed steps."[16]

[24] The court, in reaching that conclusion, referred with approval to Wilson and Swannell and the reference in the former case to s 93(4) as providing "'gateways' through which a plaintiff must pass before anything more than a contingent right was obtained".[17] And they said of those decisions:

"If the Victorian decisions are correct, it is difficult to think that the language of the WorkCover Act is any less destructive of a plaintiff's cause of action than the words of the Transport Accident Act (Vic)."[18]

[25] Because in Bonser the plaintiff had received neither a notice of assessment nor a damages certificate, this Court held that no "entitlement to commence proceedings" or, in the words of Sir Owen Dixon, "title to enforce the liability"[19] ever arose. Consequently the council was not a tortfeasor who would, if sued, have been liable in respect of the same damage; there was no time at which the plaintiff could have successfully brought an action against his employer.[20]

[26] Consequently the effect of the decision of this Court in Bonser is, in my opinion and as the learned primary judge held, to the effect that, generally, no cause of action arises in respect of an injury to which the Act applies, before the entitlement conditions are complied with. That is to give the entitlement conditions substantive effect, in the first of the ways referred to earlier, as s 252(2) requires. Is it possible to reconcile that construction with the clear assumption which the Act makes that, for the purposes of the Limitation of Actions Act, the cause of action arises independently of the operation of the Act? I think it is.

[27] It requires the Act to be construed as providing an exception to the substantive operation of these provisions for the purposes of the Limitation of Actions Act. The Act deems the cause of action which it substitutes to have commenced when a cause of action for damages by a worker or a dependant of a deceased worker would have arisen independently of the operation of the Act. In that way a sensible meaning can be given to s 50(2), s 262(3), s 265(4), s 280 and s 308. That construction also gives some content and meaning to the definition of "damages" in s 11(1). And if the Act is construed in that way the absurdity of, in effect, leaving the commencement of the limitation period in the hands of a potential plaintiff is avoided.

[28] Such a construction achieves the legislature's purpose in enacting s 252(2).[21] The legislature was plainly aware of the problems associated with forum shopping.[22]

[29] Whether or not that construction, which I favour, is the correct one it is unfortunate that the legislature did not make its intention clear. For example, if its intention was as I have construed the legislation, then a provision similar to s 93(19) of the Transport Accident Act would have avoided the present problem which, as counsel have informed us, has given rise to litigation in other cases as well as this one.

[30] For the reasons which I have given I would allow the appeal, set aside the declaration and orders made by the learned primary judge, refuse the declaration sought and order that the respondent pay the appellant's costs here and before the learned primary judge. If an application were made by the respondent for a certificate under the Appeal Costs Fund Act I would grant it.

[31] WILLIAMS JA: The issues raised by this appeal have been fully analysed by Davies JA in his reasons for judgment which I have had the advantage of reading. Though I agree with his conclusion the matter is of such importance that it is desirable that I add my own reasons for arriving at that result.

[32] The most critical provision for present purposes is s 253 of the WorkCover Queensland Act 1996 ("the Act"). Significantly it does not speak of a cause of action, but rather of an entitlement to seek damages; in other words the provision is not concerned directly with the cause of action giving rise to the right to seek damages, but rather with the recovery of damages through the taking of proceedings to enforce the right. The section specifies the conditions which a worker must satisfy before damages may be recovered through legal proceedings; in a number of cases the term "gateways" is used to refer to the steps which an injured worker must take before having an entitlement to enforce a claim for damages.

[33] The term "damages" is frequently used in the Act, particularly in sections of importance for present purposes. Section 253(1) applies to a person "entitled to seek damages for an injury sustained by a worker". Sub-section (2) thereof provides that the entitlement of a worker "to seek damages is subject to the provisions of this chapter". Chapter 5 extends from s 250 to s 329. Then subs (3) "abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker". Section 256 provides that a claimant "may seek damages for the injury only after the claimant has received a notice of assessment". The term "damages" is again used in s 257, s 259, s 260, s 262, s 263, s 265, s 266 and s 267.

[34] One can then jump ahead to s 275(1) which provides: "The common law duty of mitigation applies to all workers in relation to claims or proceedings for damages". In subs (5) the court is instructed that it must consider certain matters in "assessing damages for personal injury". Again reference can be made to s 276 and s 277 where the term "damages" is used.

[35] Then relevantly comes s 280(1): "Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for damages under the Limitation of Actions Act 1974".

[36] One can then move forward to Chapter 5 Part 7 headed "Start of Court Proceedings". Section 302 provides:

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

(a) the relevant division under part 2; and

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

(c) part 6; and

[37] Section 253 is found in part 2.

[38] In my view s 306 is significant for present purposes; relevantly it provides:

"(1) If a proceeding is brought for damages, the proceeding must be brought against the employer of the injured or deceased worker and not against WorkCover."

[39] Section 312(1) commences with the words "In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim"; thereafter there are particularised a number of matters relevant to the issue of liability. That is then followed by s 314 which provides for reduction of damages on account of contributory negligence.

[40] Finally I would refer to s 308(1) which is in these terms:

"A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if -

(i) the claimant gives a notice of claim that is a complying notice of claim; or

(ii) the claimant gives a notice of claim for which WorkCover waves compliance with the requirements of section 280; or

(iii) the court makes a declaration under section 304; or

[41] It seems to me that in each of the sections to which I have referred the term "damages" bears the meaning ascribed to it by s 11(1) of the Act, which provides:

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

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

[42] It follows that, in all of the sections to which I have referred, the Act is dealing with a situation where the worker has, independently of the Act, a cause of action against the employer for damages. If there is no such cause of action vested in the worker then none of the sections to which reference has been made applies to or is relevant to the worker.

[43] Construed in that light s 253(1) can only apply to a worker in whom is vested a cause of action against the employer which arose independently of the provisions of the Act. What then subs (2) provides is that a worker in whom is vested such a cause of action may recover damages only subject to the provisions of Chapter 5 of the Act. To make the position clear, subs (3) abolishes (the equivalent of the term "destroys" used in some of the relevant judgments) the entitlement to recover damages with respect to that cause of action if the requirements ("gateways") set out in the section have not been satisfied.

[44] Section 252(2) of the Act provides that all of the provisions of Chapter 5 "are provisions of substantive law". That was undoubtedly inserted to resolve difficulties created by decisions such as Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 and Stevens v Head [1993] HCA 19; (1993) 176 CLR 433. However it must be borne in mind that saying a provision is one of substantive law does not mean that the provision has effect otherwise than in accordance with the ordinary meaning of the language used. At the end of the day the provisions of Chapter 5 must be read in the light of relevant definitions and other provisions contained in the Act and effect must be given to those sections properly construed.

[45] In that context s 306 is of particular importance. It speaks of bringing proceedings for damages against the employer of the worker. Given the definition of "damages" in s 11 that can only mean an action with respect to a legal liability in the employer to pay damages which arose independently of the Act. If that legal liability was absent then purported compliance with the provisions of Chapter 5 would be beside the point. Even if the worker had apparently passed safely through all the "gateways" created by Chapter 5, the worker would not have a viable cause of action on which to sue if a legal liability in the employer arising independently of the Act was not established. The proceeding referred to in s 306 must be to enforce a common law liability to pay damages for negligence which arose independently of the Act. How else could contributory negligence (s 314) be relevant. The liability to which the employer is exposed remains that which arose independently of the operation of the Act.

[46] That such must be so is confirmed by a consideration of s 308. It is only if the relevant cause of action is one which arises independently of Chapter 5 that meaning can be ascribed to the provisions of s 308. If that were not the case one could not speak in a meaningful way of doing something "before the end of the period of limitation" which involved complying with the requirements of Chapter 5.

[47] It follows, in my view, that the ultimate proceedings in court in which the worker claims damages are proceedings based on a cause of action which is vested in the worker independently of the Act. In other words s 253 (and associated provisions) do not abolish or destroy the common law cause of action for damages. That is a matter which, in my view, follows from a construction of the statute read as a whole.

[48] If further confirmation is required that that is the correct construction of the Act as a whole it is provided by s 50(2). It expressly provides that the "Act does not impose any legal liability on an employer for damages for injuries sustained by a worker employed by the employer". Given that, the proceedings commenced against the employer pursuant to s 306 cannot be based on some cause of action which arose by operation of s 253 or some other provision of Chapter 5. The only possible cause of action therefore is that which arose independently of the operation of the Act. The final words of s 50(2) - "though chapter 5 regulates access to damages" - confirm that chapter 5 does not affect the cause of action in any substantive way. That was the view of McPherson JA (with whom the Chief Justice agreed) in Karanfilov v Ingham Enterprises Pty Ltd [2000] QCA 348; there he said after referring to s 50(2):

"The effect of that provision is to confirm that an employer's liability for 'damages' . . . for injuries sustained by a worker remains a liability of common law arising or created "independently of the Act". It is not a creature of the Act, or a liability created on arising under it."

[49] Although there are similarities between the Act and statutes in other jurisdictions the Act with which the court is here concerned is unique. Because of that, decisions on the statutes in other jurisdictions are not helpful to the issues of construction now before this court, and over concentration on decisions from other jurisdiction can lead to error. The Queensland Act is unique; its language its not reciprocated in statutes in other jurisdictions.

[50] It follows, in my view, that the Act does not abolish the common law cause of action for damages by a worker against an employer until the requirements of Chapter 5 are not (or cannot be) complied with; nor does the Act substitute a new statutory cause of action for the common law cause of action. Rather, the provisions of Chapter 5 operate so that proceedings to enforce the common law cause of action cannot be commenced (the worker cannot sue) unless the requirements specified therein are complied with; the right to commence proceedings is suspended until the requirements of the Act are satisfied. If the three year limitation period, which generally applies to the common law action for damages for personal injury, passed without the requirements of Chapter 5 being complied with then (subject to any possible question of extension of time) the worker would lose the right (entitlement) to seek (to sue for) damages with respect to the injury giving rise to that cause of action; in that sense the entitlement is established or destroyed.

[51] Counsel for the respondent submitted that adoption of the foregoing reasoning would be inconsistent with my judgment (sitting as a judge of the Trial Division) in Hawthorne v Thiess Contractors Pty Ltd and WorkCover Queensland (4315 of 2000, Judgment 2 June 2000). Having again read those reasons I can see no such inconsistency; to the contrary the reasoning in Hawthorne to my mind is consistent with what I have said above. Where the cause of action arising independently of the Act is of a kind which is caught by the provisions of the Act, then the worker's only entitlement to sue for and recover damages is in accordance with the provisions of the Act. If the provisions of the Act are not complied with (or cannot be complied with) then the entitlement to sue for damages is abolished by operation of s 253.

[52] The final question is whether or not the above reasoning is inconsistent with the reasoning and decision of this court in Bonser v Melnacis and Anor [2000] QCA 13. In that case the plaintiff was injured when struck by a motor vehicle whilst in the course of his employment. The action was commenced only against the driver of the motor vehicle and the licensed insurer thereof. Because of the election to proceed in that way the plaintiff took no steps to comply with the provisions of the Act, nor was he obliged to do so. The defendants in the action issued a summons seeking leave to issue a third party notice against the plaintiff's employer. The contention of the defendants was that the employer was a "tortfeasor who . . . would if sued have been liable in respect of the same damage" within s 6 of the Law Reform Act 1995. The employer resisted the application on the basis that it was not caught by those words as it could not be sued by the plaintiff because he had not complied with the provisions of Chapter 5 of the Act. As the plaintiff had not complied with the requirements of the Act his cause of action against his employer was "abolished" and in consequence the employer was not a tortfeasor who could have been sued by the plaintiff. The Court of Appeal essentially accepted that argument. The ratio is in my respectful view found in paragraph 41 of the reasons for judgment where it is said:

"We should therefore accept the respondent employer's submission that the combined effect of the scheme introduced by the WorkCover Act (with particular reference to s 253, s 262 and s 302) effectively abolishes any entitlement on the part of an injured worker to commence proceedings against the employer and that such a right comes into existence only upon compliance with the prescribed steps."

[53] Critically that passage does not say the cause of action is abolished; all that is affected is the right to "commence proceedings", that is to sue.

[54] Counsel for the respondent in this case placed emphasis on the use therein of the word "abolishes", the term taken from s 253 itself. In the section it is clear that what is abolished is not the cause of action existing independently of the Act, but rather the entitlement to seek (sue for) damages flowing from such cause of action. In the passage from the judgment in Bonser the term must carry that same meaning. What is abolished is the right to sue for damages unless the provisions of the Act are complied with. The cause of action continues in existence though not enforceable by action until the statutory conditions are satisfied. If the limitation period expires before that is done the abolition is complete. Pending compliance, the cause of action is suspended and the worker cannot sue on it. Once that is appreciated it is clear that the employer in Bonser was not someone who could have been sued by the injured plaintiff and therefore the defendant was not entitled to join the employer as a third party. Some may think such a conclusion to be odd, but that is not the only oddity associated with the legislation in question.

[55] Looked at in that light Bonser is not inconsistent with the reasoning herein.

[56] Subject to any modification required by my express reasoning I agree with all that has been said by Davies JA. I agree with the orders he proposes.

[57] MULLINS J: I have had the advantage of reading the separate reasons for judgment of Davies and Williams JJA.

[58] It is apparent from the respective analyses of the WorkCover Queensland Act 1996 ("Act") undertaken by each of their Honours that, as a matter of statutory construction, s 253(1) of the Act is a limitation on the common law causes of action for damages for an injury sustained by a worker and does not substitute statutory causes of action.

[59] The decision in Bonser v Melnacis[23] does not preclude giving effect to this statutory construction. That decision was not concerned with the issue of whether a cause of action accrues for the purpose of the Limitation of Actions Act 1974 only when s 253(1) of the Act has been complied with.

[60] I therefore agree with the orders proposed by Davies JA.

[1] [2000] QCA 13; Appeal No 4369 of 1999, 8 February 2000.

[3] As to the second of these, see Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 268. Substantive provisions were arguably defined more broadly in Pfeiffer v Rogerson [2000] HCA 36; (2000) 172 ALR 625 at 651 but the difference, if any, is, for present purposes immaterial.

[4] [2000] HCA 39; (2000) 74 ALJR 1184.

[6] (1995) 21 MVR 41.

[7] [1998] VSCA 104; [1999] 1 VR 299.

[11] (1995) 38 NSWLR 714 at 728.

[12] Otherwise s 93(19) would be unnecessary. It provides that, notwithstanding anything to the contrary, for the purpose of the Limitation of Actions Act the cause of action arises on the day of the transport accident or the day on which the injury first manifests itself. This provision appears to avoid the present problem.

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

[19] Per Dixon J in Harding v Lithgow Corporation (1966) 144 CLR 213 at 218, quoted with approval in the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Austral Pacific Group Ltd at 1192 [32].

[20] Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213 at 221.

[21] The explanatory memorandum (Acts Interpretation Act 1954 s 14B(1), 3(e)) provides that this section "is intended to prevent forum shopping by claimants attempting to overcome the rules provided by this chapter".

[22] See for example Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 and Stevens v Head [1993] HCA 19; (1993) 176 CLR 433.

[23] [2000] QCA 13