2. A declaration that the period of limitation prescribed by Section 11 of the Limitation of Actions Act 1974 for bringing a proceeding for damages by the Applicant for personal injuries sustained in the course of his employment with J P & M E Tanks on 26 June 1997 has not yet expired.

(a) Whether the Applicant after having sustained his injury and prior to the receipt of the Notice of Assessment from WorkCover on 11th May 1998 had a cause of action against his employer, and

(b) Whether this issue is the subject of authority binding on this Court.

If he did not have a cause of action prior to that time then it follows that no time has run under any relevant limitation period until that time or some later time. It is not necessary to determine when any such cause of action arose or whether it has arisen by this time. If it did not arise prior to the 11th May 1998 the limitation period, plainly enough, could not have expired and the Plaintiff is entitled to the declaration sought.

Section 253 of the WorkCover Queensland Act 1996 provides as follows:

General limitation on persons entitled to seek damages

253.(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 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.

This section is one of a number of provisions contained in chapter 5 dealing with the subject of access to damages. Section 252(2) provides: "All the provisions of this chapter are provisions of substantive law".

For the Applicant it was contended that the effect of s.253 is to take away the cause of action which would otherwise have come into existence upon the injury being sustained by the Applicant and to provide for another cause of action in respect of such injury, a cause of action which only comes into existence upon the occurrence of certain events provided for by the Act.

The argument primarily focussed upon a judgment of the Queensland Court of Appeal (Bonser -v- Melnacis and Ors No 4369 of 1999, 8.2.2000 unreported) and a judgment of the High Court of Australia (Austral Pacific Group Ltd (in liq) -v- Air Services Australia [2000] HCA 39; (2000) 173 ALR 619).

The former case was concerned with the WorkCover Queensland Act and the latter with a Commonwealth Act, the Safety Rehabilitation and Compensation Act 1988. In each case an injured employee had sued a Defendant who was not his employer. The Defendant claimed contribution or an indemnity from the employer or in the latter case, the statutory successor to the employer.

At the time of the Court of Appeal's judgment in Bonser the judgment of the High Court in Austral Pacific had not been delivered. The High Court dismissed an appeal in that matter from the Queensland Court of Appeal. In Bonser's case the Court considered the judgment of the Court of Appeal in Austral Pacific and certain other judgments such as Commonwealth of Australia -v- Flaviano [1996] NSWSC 451; (1996) 40 NSWLR 199 and Coomblas and Gee (1998) 72 SASR 247.

In _Bonser'_s case and in Austral Pacific Group Limited's case the question arose whether a claim for contribution and indemnity could be made under the Law Reform Act of 1985.

This in turn, turned upon whether the Plaintiff's employer was a tortfeasor who would, if sued by the Plaintiff, have been liable in respect of the injuries sustained by him. In Bonser's case this issue largely turned upon the effect os S.253

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

[41]. We should therefore accept the respondent employer's submission that the combined effect of the scheme introduced by the WorkCover Act (with particular reference to s.253, s. 262 and s. 302) effectively abolishes any entitlement on the part of an injured worker to commence proceedings against the employer and that such a right comes into existence only upon compliance with the prescribed steps. Those steps in the present case would include the obtaining of an assessment, followed by an election (assuming that the assessment was of more than a nil disability) either to accept lump sum compensation or to seek damages (42). Comparison may again be drawn with the s.45 election under the Comcare Act where the need for a specific identifiable election is recognised [43] before rights of action are obtained.

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

The High Court reached a similar conclusion in Austral Pacific in relation to analogous Commonwealth legislation.

It was therefore an essential finding of the Court of Appeal 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.

It was contended by the Respondent that since the issue arises before me in a different way this judgment is not binding upon me. However whilst the circumstances in which the issue arose in Bonser's case differ from those here, the issue in my view is plainly the same, namely whether prior to the obtaining of an assessment, the Applicant has a cause of action. This question has been resolved by the Court of Appeal and is binding upon me.

It follows that no limitation period could have run against the Applicant at least until the notice of assessment. It is not necessary to attempt to identify here whether the limitation period has commenced to run and if so from what date. The Applicant seeks a declaration that the limitation period has not expired and it follows that that must be so.

That some of the provisions in chapter 5 of the WorkCover Queensland Act rest awkwardly with such a conclusion was acknowledged by the Applicant. See in particular provisions such as 262(3) and 265(4) and 270(3). This matter was raised in argument before the Court of Appeal in Bonser (see paragraph 29 of the Court's judgment) but it seems the Court did not regard these provisions as requiring a different conclusion or standing in the way of the conclusion reached.

Finally, an argument was advanced based upon s.308, the effect of which was that the Applicant in any case is unable to institute proceedings. This it was said is because even though the cause of action might not have arisen the effect of the legislation is to require proceedings to be instituted within the period of three years from the date of the injury unless one of the specified circumstances in s.308 occurs. It was said that this section picks up the period referred to in the Limitation of Actions Act for the institution of proceedings for personal injury and imposes a condition that proceedings in any case be commenced within that time as a further condition to the enforcement of the claim.

I think this is a most improbable construction and it would raise the possibility that a person could be precluded from pursuing a claim for damages by the expiration of such a period prior to any cause of action actually arising. I do not accept this argument.

(a) that the period of limitation prescribed by s.11 of the Limitation of Actions Act 1974 for bringing an action for damages by the Applicant for personal injuries sustained in the course of his employment with JP & ME Tanks on 26th June 1997 has not yet expired.

(b) that the Respondent forthwith respond (pursuant to s.282 of the WorkCover Queensland Act 1996 to the Applicant's notice of claim given to the Respondent on or about 25th November 1999.

So far as the question of costs is concerned, whilst the Applicant has succeeded there was nothing to prevent this application being made at the time of earlier proceedings in which a declaration was sought that a notice which had been sent to WorkCover complied with s.280. That application failed.

The appropriate course, in my view, is to make no order as to costs.