Cocaris v Brisbane City Council [2015] QDC 319

DISTRICT COURT OF QUEENSLAND CITATION: Cocaris v Brisbane City Council [2015] QDC 319 PARTIES: VICTORIA REBECCA COCARIS (applicant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: D 4215/2015 DIVISION: PROCEEDING: Originating Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 9 December 2015 DELIVERED AT: Brisbane HEARING DATE: 23 November 2015 JUDGE: McGill SC, DCJ ORDER: Declarations as sought. CATCHWORDS: INSURANCE – Workers’ compensation – journey claim – whether claim for damages against employer must be brought in accordance with requirements of Chapter 5 of Workers’ Compensation and Rehabilitation Act 2003 – whether notice of claim valid. Personal Injuries Proceedings Act 2002 s 6(2)(c). Aydar v Pashen [2003] 1 Qd R 601 – cited. Ballandis v Swebbs [2015] QCA 76 – considered. Ballandas v Swebbs [2014] QDC 129 – cited. Bonser v Melnacis [2002] 1 Qd R 1 – cited. Devlin v South Molle Island Resort [2003] 2 Qd R 346 – cited. Hervey Bay City Council v Workers Compensation Board of Queensland [1999] 1 Qd R 274 – applied. Jaye v Grahame Allen Earthmoving Pty Ltd [1993] 1 Qd R 389 – cited. Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643 – cited. King v Parsons [2005] QSC 214 – followed. Lorimer v Thatcher [1993] 2 Qd R 25 – cited. Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 – cited. -- 1 of 20 -- 2 Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 – cited. Pukeroa v Berkeley Challenge Pty Ltd [2005] 2 Qd R 46 – applied. Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 – cited. Seery v Mt Isa Mines Ltd [2000] QSC 16 – cited. State of Queensland v Heraud [2011] QCA 297 – considered. Suncorp Insurance and Finance v Ploner [1991] 1 Qd R 69 – cited. Tanks v WorkCover Queensland [2001] QCA 103 – cited. Watkin v GRM International Pty Ltd [2006] QCA 382 – cited. COUNSEL: G A Hampson for the applicant. M T O’Sullivan for the respondent. SOLICITORS: Schultz Toomey O’Brien Lawyers for the applicant. Brisbane City Legal Practice for the respondent. [1] On 1 August 2014 the applicant’s solicitors served on the respondent a notice of claim (part 1) under the Personal Injuries Proceedings Act 2002 (“PIPA”). The solicitors were subsequently contacted by the respondent’s insurer who asserted that PIPA did not apply, and that the applicant had no right of action other than through a workers’ compensation claim, since she was at the time employed by the respondent. On 28 January 2015 the solicitors for the applicant served on the respondent a notice of claim for damages pursuant to s 275 of the Workers Compensation and Rehabilitation Act 2003 (“WCRA”). On 18 February 2015 the solicitors received from the respondent a letter asserting that WCRA was not the applicable scheme for the applicant’s common law claim, which was essentially a PIPA claim. With no doubt more than a touch of understandable frustration, the applicant has now come to the Court for a ruling that, in substance, on the second attempt, she got it right. [2] The real difficulty here is that the applicant is the innocent victim of a dispute between two insurers as to which has to wear the burden (if any) of the applicant’s claim, the public liability insurer, responsible if the claim is properly brought under PIPA, or the respondent in its capacity as a self-insurer under WCRA, if the claim is properly brought under that Act. In these circumstances it is somewhat unfortunate that the applicant had to be involved in the application at all, and that I have heard no submissions on behalf of the insurer who has the real interest in resisting the arguments advanced on behalf of the respondent. As it happens however it will not be prejudiced by its absence, since I have come to the conclusion, for the reasons that follow, that the applicant was right the second time, WCRA applies and the notice of claim given on 28 January 2015 was a valid notice pursuant to s 275. Background facts (not complex) [3] In this section I can be brief. On 12 March 2014 the applicant, who worked for the respondent, was walking from her workplace to her car to drive home after finishing work when she tripped on a paver in the footpath which was raised because, she says, -- 2 of 20 -- 3 of the negligence of the respondent, fell, and suffered personal injury for which she seeks damages. The claim is one which a personal injuries lawyer would naturally categorise as a occupiers liability claim.1 That the occupier of the footpath where the applicant fell was her employer, and that she was at the time on a journey between her place of work and her home, are relevant to the resolution of the dispute before me. The WCRA notice of claim sought an amount for the applicant’s injuries within the jurisdiction of the District Court, so it has jurisdiction: s 287. The legislation (not straightforward) [4] The scope of application of PIPA is dealt with in s 6 which in subsection (1) makes it applicable prima facie to all personal injury whenever it happened. Subsection (2) however excludes the operation of the Act in relation to, relevantly, “(c) injury within the meaning of the Workers and Compensation and Rehabilitation Act 2003 and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by Chapter 5 of that Act…”. The section goes on to give an Example, where a worker W is injured in the course of employment with E due to a design fault in a machine designed by a third party; if the worker seeks damages against the third party PIPA applies, but “if, as a result of sustaining the injury, W seeks damages against E, W must comply with the pre-court procedures under the Workers Compensation and Rehabilitation Act 2003 before starting a proceeding in a Court for damages against E. This Act does not require W to comply with pre-court procedures under this Act in seeking damages against E”. [5] The meaning of “injury” for the purposes of WCRA is determined by s 32 of that Act, which provides relevantly: “(1) an injury is personally injury arising out of, or in the course of, employment if – (a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury…. (2) However, employment need not be a contributing factor to the injury if s 34(2) or 35(2) applies.” [6] There is no dispute in the present case that the plaintiff’s injury was personal injury other than a psychiatric or psychological disorder. Whether it arose out of or in the course of employment is governed by sub-division 3 of division 6 of Pt 4 of Chapter 1 of the Act, though these provisions operate inclusively: s 33. Section 35 provides relevantly: “(1) An injury to a worker is also taken to arise out of, or in the course of, the worker’s employment if the event happens while the worker— (a) is on a journey between the worker’s home and place of employment…. (2) For subsection (1), employment need not be a contributing factor to the injury.” [7] In the present case the applicant claims that she was injured on her way from her place of employment to her car, with a view to her then driving home after work. If so, the 1 Despite the comments of Chesterman JA in State of Queensland v Heraud [2011] QCA 297 at [34]. Lawyers are a conservative lot. -- 3 of 20 -- 4 injury was suffered while she was on a journey between her home and place of employment within s 35(1)(a), so the effect of s 32(2) and s 35(2) is that her injury arose out of or in the course of employment, even though employment was not a contributing factor to the injury.2 [8] The next question is whether it is an injury in relation to which WCRA applies. As to this, s 3 of that Act provides that it binds all persons including the State, and s 5 provides that the objects of the Act are to establish a workers compensation scheme for Queensland, the main provisions of which - “provide the following for injuries sustained by workers in their employment -… (b) regulation of access to damages…” The scheme also provides for employers’ liability for compensation, employers’ obligations to insure or became a licenced self-insurer, and management of compensation claims by insurers; s 5(2) does not indicate that it is part of the scheme to provide for employers’ liability for damages. As is made clear by s 9, compensation means amounts payable for injuries to a worker under Chapters 3 and 4 of the Act. Damages on the other hand is defined in s 10 as follows: “(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.” [9] It was not suggested in submissions that s 10(2) or (3) was relevant to the resolution of the matter in issue in the application. It was also not disputed that the applicant was a worker as defined in s 11 of the Act and that the respondent was the applicant’s employer for the purposes of the Act. In these circumstances, it seems to be clear that the injury alleged by the applicant is one in relation to which WCRA applies for the purpose of PIPA s 6(2)(c), subject to the concluding requirement of that paragraph, and indeed the contrary was not argued on behalf of the respondent. Its argument was that it was not the case that an entitlement to seek damages within the meaning of WCRA Act for the injury was regulated by Chapter 5 of that Act, so that the injury did not fall within paragraph (c) of subsection (2). If that were the case, the provision that PIPA did not apply to this injury was not made applicable by the proviso to paragraph (c). In those circumstances, the application should not succeed. 2 Of course in a sense the employment did contribute to the injury, because she would not have been walking over this piece of footpath on this day had it not been for her attendance at the workplace that day. That is usually regarded as insufficient for causation in law: Luntz “Assessment of Damages for Personal Injury and Death” (4th Edition 2002) p 193. -- 4 of 20 -- 5 [10] The application of Chapter 5 of WCRA is dealt with in Pt 1, which by s 235 are provisions of substantive law which prevail over a provision of an Act or a rule of law.3 Section 237 deals with the general limitation of persons entitled to seek damages4 in the flowing 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- (i) has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than 5 %; or (ii) has a terminal condition; (d) a dependant of a deceased worker, if the injury results in the worker’s death. (2) The entitlement of a worker, or a dependant of the deceased worker, to seek damages is subject to the provisions of this chapter (3) If a worker – (a) is required under s 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; the worker is not entitled to seek damages. (4) However, subsection (3) does not prevent a worker from seeking damages under s 266. (5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mention in the subsection to seek damages for an injury sustained by a worker.” [11] The applicant was a worker for the purposes of this Act, and she sustained an injury for the purposes of this Act. Subject to the operation of Chapter 5 in general, and this section in particular, she would have at common law a cause of action for damages for negligence if the employer were negligent, or for breach of contact if the employer breached the contact of employment, against the employer in respect of the injury, so a claim for such damages is a claim for damages for the purposes of WCRA. On the face of it therefore s 237 regulates an entitlement to seek damages for the injury the applicant says she sustained in the present case. The applicant’s injury has been assessed at a permanent impairment of 6% of whole person, so she satisfied the requirement of s 237(1)(a)(i).5 It follows from subsection (2) that her entitlement to seek damages is subject to the provisions of Chapter 5. [12] Since s 237(2) applies to the applicant’s entitlement to seek damages for the injury she sustained, this necessarily satisfies the requirements in s 6(2)(c), that “an entitlement to seek damages within the meaning of [WCRA] for the injury is regulated by Chapter 5 of that Act.” It seems to me that saying that the entitlement is “subject to the provisions of” Chapter 5 is the same thing as saying that the 3 Except for the Limitation of Actions Act 1974: s 236. See Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 at [17]. This provision was described in Bonser v Melnacis [2002] 1 Qd R 1 at [45] as the most troubling provision in the Act. 4 Watkin v GRM International Pty Ltd [2006] QCA 382 at [20]. 5 Affidavit of Van der Walt, Exhibit MMV 3. This requirement was removed by the Workers Compensation and Rehabilitation and other Legislation Amendment Act 2015 s 6, but too late to be relevant for the applicant. -- 5 of 20 -- 6 entitlement is regulated by Chapter 5. For that reason WCRA applies, and PIPA does not apply, because the applicant’s injury falls within s 6(2)(c). The authorities (not to be questioned) [13] The idea that a local authority employer could be liable for damages in circumstances regulated by the workers’ compensation legislation where there was no breach of duty arising out of the relationship of employer and employee is not novel. In Hervey Bay City Council v Workers Compensation Board of Queensland [1999] 1 Qd R 274, the Court of Appeal allowed an appeal from a judgment of the District Court where an employee of the Brisbane City Council had sued the Council for injuries suffered during a journey home, where there was a dispute which took the form of third party proceedings involving the workers’ compensation insurer (the Workers’ Compensation Board) and the public liability insurer as to which was liable to identify the Council. In that case the plaintiff had succeeded in reaching his vehicle, a motorcycle, and was riding home when the front wheel was struck by water gushing from a hydrant, due to the negligence of someone for which the Council was liable. [14] The Court rejected an argument that there should be implied into the Workers’ Compensation Act 1990, the applicable legislation, a limitation that the liability covered by the statutory insurance must by one for breach of a duty arising out of the relationship of employer and employee. The Court noted the objects of the Act, which were similar to the objects of WCRA although expressed in slightly different terms, and noted that s 5.4(2) of that Act provided that an injury to a worker was taken to arise out of or in the course of the worker’s employment if it occurred while the worker was traveling between the worker’s place of abode and place of employment; this paralleled the provision now in s 35(1)(a) of WCRA. [15] The Court rejected the suggestion that this section applied only to workers’ compensation, notwithstanding that it was at that time included in that part of the Act which covered workers’ compensation. This was because the definition of injury in that Act was said to apply both to the legal liability to pay compensation and to a legal liability existing independently of the Act to pay damages in respect of injury to a worker, but limited the meaning to injury arising out of or in the course of employment, as does s 32(1) of WCRA. That was then given an extended meaning in the 1990 Act by s 5.4, which was held to extend the definition of injury, as does s 35 extend the definition of injury in s 32 of WCRA. In that case the injury to the applicant was also taken to arise out of or in the course of employment. The Court added that the mere fact that the circumstances where there would be liability for negligence not arising out of the relationship of employer and employee would be infrequent did not justify a different interpretation, and did not indicate that the result was contrary to the statutory intention: p 277. Indeed, the Court noted that there may have been an intention to avoid disputes as to whether the negligence of an employer arose out of or was incurred in the course of employment: p 278. [16] The approach in Hervey Bay City Council was confirmed by the Court of Appeal in State of Queensland v Heraud [2011] QCA 297. In this case the injury occurred on 5 June 2008, and the respondent claimed compensation under WCRA, and indeed accepted an offer of lump sum compensation in July 2009. In those circumstances s 239(2) prevented him from claiming damages for the injury. In December 2008 solicitors on his behalf issued a notice of claim under PIPA in respect of the injury. This led to an application for a declaration that PIPA did not apply, because the injury -- 6 of 20 -- 7 fell within s 6(2)(c) of PIPA, as the respondent’s claim was regulated by Chapter 5 of WCRA. Chesterman JA, at [13], [14] said: “The notion underlying the formulation of the declaration is that… a claim for damages for personal injuries can only be brought pursuant to the [WCRA] (if it applies) or the PIPA (if it applies). If the latter Act does not apply because the respondent’s claim for damages was regulated by chapter 5 of the former Act then the respondent cannot proceed to claim damages except under the [WCRA]. By accepting the lump sum compensation in accordance with s 239 the respondent lost any right he had to claim damages for his injury. Although the PIPA does not legislate for that result in clear terms that is its evident intent.” [17] The application was refused by first instance, the judge noting that the claim was not against the state as employer but as occupier. The judge said that the department occupying the site was different from the department employing the respondent, and the fact that both were parts of the one legal entity, the State of Queensland, did not make any difference. The Court of Appeal rejected the notion that there was a meaningful difference in law between the two departments, as both were part of the same juristic person: [32]. The Court also rejected the distinction between liability as employer and liability as occupier, noting that the distinction was not drawn by the definition of damages in s 10 of WCRA, as quoted above: “It extended to liability for all the employer’s actions negligently causing injury to an employee”.6 The matter was treated as having been decided against the respondent in Hervey Bay City Council (supra) which had dealt with relevantly identical sections in the Workers Compensation Act 1990. [18] Counsel for the respondent did not challenge the correctness of those two decisions as far as they went, but submitted that the legislation in force at the time relevant for the present applicant was different in significant ways from the legislation in force at the times relevant to those decisions. He also relied in particular on the more recent decision of the Court of Appeal in Ballandis v Swebbs [2015] QCA 76. This was another journey claim, but not one where it was alleged that the employer was liable on a basis other than arising out of the relationship between employer and employee. The defendant was a fellow employee, who was driving a vehicle owned by the employer when the plaintiff, who was a passenger in the vehicle on a journey home, was injured due to the negligence of the driver. The plaintiff, taking advantage of Law Reform Act 1995 s 3, sued the driver of the vehicle and, as required by the Motor Accident Insurance Act 1994 (“MAIA”), the licensed insurer of the vehicle, which was found liable for the plaintiff’s injuries. [19] The point in issue in the Court of Appeal was whether the trial judge was correct in applying certain provisions of the Civil Liability Act 2003 in the assessment of damages, particularly in the assessment of general damages and the exclusion of any amount for gratuitous care. Morrison JA held that the Civil Liability Act did apply, because the plaintiff’s injury was one to which s 35 of WCRA applied, so that it was not an injury within s 5(1)(d) of the Civil Liability Act, and it was not the case that that Act did not apply to that injury. His Honour said at [11]: 6 Para [39]. -- 7 of 20 -- 8 “The convoluted language of s 5(1)(d) means that if compensation for the injury to Mr Ballandis was covered by s 35 of the WCRA, then the Civil Liability Act applied.” [20] His Honour held that the finding by the trial judge that the plaintiff was on a journey home from his place of employment was correct on the facts, and therefore the injury fell within s 35(1)(a) of WCRA. He said, significantly, and with respect in confirmation of the approach in Hervey Bay City Council:7 “First, s 35(1) is, in effect, a deeming provision. It provides that an injury which happens on a journey between the place of employment and the worker’s home is taken to arise out of, or in the course of, the worker’s employment. It operates so that even if the injury does not actually arise out of, or in the course of, the worker’s employment, it will be taken to do so, if it occurs on the journey between home and the place of employment. On its plain words it applies even if the employee has finished work or is not then performing any work under their employment. Thus it applies to a journey outside working hours, such as to the workplace before work starts, or home after work has finished for the day, just as much as it does to a journey during working hours.” [21] His Honour went on to reject an argument that the vehicle in which the plaintiff was travelling at the time was a place of employment for the purposes of s 35 of WCRA. [22] It is also relevant to refer to the decision of the Court of Appeal in Pukeroa v Berkeley Challenge Pty Ltd [2005] 2 Qd R 46. In that case the plaintiff had commenced a proceeding against her employer in relation to a personal injury suffered in circumstances where WCRA applied, having complied with the requirements of that Act, and the employer had joined third parties on the basis that they had caused or contributed to the plaintiff’s injury. The plaintiff obtained in the District Court leave to join the third parties as defendants, but that order was set aside on appeal on the ground that the plaintiff had not complied, in relation to any claim against the third parties, with the pre-litigation procedures laid down in PIPA. Williams JA, with whose reasons Douglas J agreed, said at [4]: “That leads to a consideration of s 6… [of PIPA]… The only exceptions to the application of PIPA are set out in s 6(2). Given the wording of those subparagraphs it is clear that the exceptions only apply when the claimant is required to comply with the pre-court procedures laid down in the Motor Accident Insurance Act 1994 or the Workers’ Compensation and Rehabilitation Act 2003. Thus it is not sufficient for the exemption to apply that the injury is caught by the definition of ‘injury’ in the Workers’ Compensation and Rehabilitation Act 2003; the exemption only applies to such an injury where damages with respect thereto are sought pursuant to Chapter 5 of that Act.” [23] The third member of the Court, White J, said much the same thing at [25] and [31]. Her Honour also said at [20]: “The plaintiff’s claim against the third parties is not based on a liability for injury arising out of or in the course of her employment with either of them. It is not, accordingly, a claim for damages for injury as defined in the 7 Ballandis (supra) at [19]. Emphasis in original. -- 8 of 20 -- 9 WCRA, regulated by Ch 5 of that Act and exempted from the ambit of the PIPA by s 6(2)(b).” The clear implication is that such a claim against an employer is so exempted. That decision was delivered on 4 March 2005, at which time s 6(2)(b) provided that the Act did not apply to “injury as defined under the Workers’ Compensation and Rehabilitation Act 2003, but only to the extent that an entitlement to seek damages, as defined under that Act, for the injury is regulated by Chapter 5 of that Act”. By the Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005, s 6(2) of PIPA was substituted so that it came to be in the terms relevant to this application, but it does not seem to me that the difference in wording between the then paragraph (b) and the current paragraph (c) is significant. Section 6(2) has not been subsequently amended. The effect of Williams JA’s comment seems to be that what matters is whether the pre-court procedures laid down in WCRA apply to this claim. If they do, then PIPA is excluded. Respondent’s submissions (not persuasive and why) [24] The respondent’s submissions take up the point that s 35 of WCRA applies in this case, and that therefore the Civil Liability Act 2003 applies, not being excluded by s 5(1)(b) of that Act, as decided in Ballandis. It was submitted that therefore WCRA did not respond in respect of pre-litigation procedures, the application of the civil liability provisions in ss 305 to 305J, or the provisions for the assessment of damages in ss 306 to 306P. Hence this proceeding was not one where an entitlement to seek damages within the meaning of WCRA for the injury was regulated by Chapter 5 of that Act. It was common ground that this was a journey claim, and in those circumstances s 35(2) applied, so employment did not need to be a significant contributing factor to the injury. It was submitted that there were differences in the wording of the objects of WCRA and the Workers Compensation Act 1990, and in their respective definitions of “damages,” and significantly that Chapter 5 of WCRA provided not only for pre-court procedures but contained provisions regulating liability, and regulating the way in which damages are assessed. In this respect it differed from the Workers Compensation Act 1990, and indeed from WCRA as it existed at the time relevant for the decision in Ballandis. [25] Although the judgment of the Court of Appeal of Ballandis did not identify the date of the accident, and therefore the date relevant for the application of the legislation, that date was identified in the judgment at first instance as 18 May 2010.8 It follows that it occurred before the 2010 amendments to WCRA, which inserted Pts 8 and 9 in Chapter 5 in their present form. Pt 8 deals with “civil liability” and Pt 9 with “assessment of damages”. These parts include some provisions which were previously included in WCRA, usually in a different form, but many new provisions. There are a number of provisions which parallel, but are not identical to, those in the Civil Liability Act dealing with liability and the assessment of damages. All these provisions were in force when the applicant suffered her injury. [26] It was submitted that because s 35 applied, the Civil Liability Act applied, and therefore the provisions in Chapter 5 of WCRA which parallel certain provisions, particularly in relation to the assessment of damages, in the Civil Liability Act did not apply. Because of the terms of those provisions it was not possible for both Acts to apply to a particular claim. The effect of the applicability of the Civil Liability Act therefore was that necessarily the relevant provisions of Chapter 5 of WCRA did not 8 Ballandas v Swebbs [2014] QDC 129 at [1]. -- 9 of 20 -- 10 apply, and therefore the plaintiff could recover damages only in accordance with the Civil Liability Act, not in accordance with Chapter 5 of WCRA. Hence the plaintiff did not have a right to damages within the meaning of WCRA, so it was not the case that the applicant’s entitlement to seek damages within the meaning of that Act was regulated by Chapter 5 of that Act. Hence the plaintiff’s case fell into the exception to the exception of the proposition that PIPA applied to the injury. [27] This depended on the submission that damages in s 10 of WCRA referred specifically to damages assessed pursuant to that Act, which was necessarily different from damages assessed pursuant to the Civil Liability Act. However, I cannot find anything in s 10 expressly to that effect. The various sections in Chapter 5 Pt 9 contain certain provisions requiring various kinds of damages to be assessed in certain ways, for example s 306O requires general damages to be assessed by means of an injury scale value, and s 306P requires that to be calculated by reference to the provisions prescribed for a period under a regulation. This operates by reference to the definition of damages, but it does not govern the definition; it assumes that a situation arises where the definition of “damages” in s 10 is met, that is to say, there is a legal liability in the worker’s employer to pay damages for an injury sustained by a worker. [28] It is not the case that the definition in s 10 applies only when the damages are to be assessed in accordance with the Act; rather it is the case that when damages as defined in s 10 fall into specified categories, that category of damages is to be assessed in accordance with the relevant provisions of the Act. I do not accept therefore that the definition of “damages” in s 10 is not satisfied because the damages would not be assessed in accordance with Pt 9 of Chapter 5. To the contrary, there is nothing in the definition of “damages” in s 10 which makes its operation dependent on the applicability of Pt 9 of Chapter 5, nor is there anything elsewhere which confines the operation of Chapter 5 to damages assessed in accordance with Pt 9 of Chapter 5. [29] There is a difficulty with s 10 because of the existence now of certain provisions dealing with civil liability in Pt 8 and assessment of damages in Pt 9 of Chapter 5. Section 10 defines damages by reference to a liability created independently of WCRA. Part 8 now contains certain provisions dealing with civil liability, in particular s 305B, general principles in relation to when a duty to take precautions against a risk of injury has been breached, and s 305D, dealing with how it is to be decided that a breach of duty caused a particular injury. The determination of liability by reference to these provisions is not one which fits comfortably with a requirement that there be circumstances creating a legal liability independently of this Act. Even if the sections in Pt 8 of Chapter 5 are properly characterised as modifying the operations of common law liability rather than giving rise to new statutory liability,9 liability on a basis which has been modified in such a way, to an entitlement to damages which is then modified by the provisions in Pt 9, is perhaps not readily described as a liability created independently of the Act. [30] In the present case, it was not disputed that the effect of s 5 is that the Civil Liability Act applies. Given that both the Civil Liability Act and Pts 8 and 9 effectively cover the same ground, it could not be a sensible interpretation of the statutes to say that both provisions apply. If the proposition that the Civil Liability Act applies because of s 35(2), which has the support of the decision of the Court of Appeal in Ballandis, 9 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 at [173]; Douglas, Mullins and Grant “Annotated Civil Liability Legislation – Queensland” (Third Edition, 2012) p 74; both concerning other Ipp Report legislation. -- 10 of 20 -- 11 is correct, and Pts 8 and 9 of Chapter 5 will not apply in this case, it follows that this interesting conundrum of whether the liability for damages is created independently of WCRA for the purposes of s 10 will not arise.10 It is therefore not necessary for me to determine what effect the existence of these provisions has on the operation of s 10, though it occurs to me that perhaps it means that Pts 8 and 9 are ineffectual because a liability for damages in accordance with Pts 8 and 9 would not be a liability for damages as defined in s 10, and therefore would not be regulated by the Act at all (and incidentally would not be the subject of any indemnity from an insurer, because it would not be “damages” for the purpose of the definition of accident insurance in s 8). The Act in its current form appears in this respect to be internally inconsistent. Fortunately the issue does not arise in the present case. [31] The important words in s 6(2)(c) of PIPA make the exclusion operate by reference to the extent to which “an entitlement to seek damages … is regulated by Chapter 5”. What matters is not whether the damages, or the liability to damages, is regulated or governed by Chapter 5, but whether the entitlement to seek damages is regulated by Chapter 5. It cannot have the former meaning, because when s 6(2)(c) was put into its current form the provisions currently in Chapter 5 of WCRA involving civil liability and the assessment of damages, based on the Civil Liability Act, were not there. What Chapter 5 then regulated was essentially the existence of a right to seek damages and the process by which such damages must be sought.11 The wording of s 6(2)(c) in PIPA corresponds to the wording in s 5(2)(b) of WCRA, identifying as one of the main provisions of the scheme provided by the Act the “regulation of access to damages”. What is regulated is access to damages, that is whether there is an entitlement to seek damages, and it is when access to that entitlement is regulated by Chapter 5 that PIPA does not apply.12 [32] That regulation starts with s 237, providing a general limitation on persons entitled to seek damages, and abolishing any entitlement to seek damages other than by someone falling within subsection (1).13 Even if a person can pass through the gateway in s 237, it is necessary to avoid the bar in s 239 if it applies,14 and then Pt 5 of Chapter 5 requires certain pre-court procedures to be followed before starting a proceeding in a court for damages. All of these provisions were present when s 6(2)(c) of PIPA was put into its current form in 2005. The fact that the Civil Liability Act is applicable does not mean that Chapter 5 does not regulate access to damages; there is nothing in the Civil Liability Act which purports to regulate access to damages, in the sense of requirements which must be satisfied before a claim for damages may validly be started in a court. [33] There is nothing in any legislation which makes these provisions of Chapter 5 inapplicable. Assuming the effect of the proviso to s 5(1)(b) of the Civil Liability Act, making that Act applicable to claims within s 35 of WCRA, is that Pts 8 and 9 of Chapter 5 of WCRA do not apply to such claims, that is no reason to exclude the applicability of the rest of Chapter 5. The argument has to be that damages assessed 10 For the alternative outcome, that the proviso in s 5(1)(b) was impliedly repealed by the 2010 amendments to WCRA, see [31] below. 11 Tanks v WorkCover Queensland [2001] QCA 103 at [32]. 12 This is shown by the reference in the example in the section to the pre-court procedures, as pointed out by McMurdo J in King v Parsons [2005] QSC 214 at [25], approved in Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 at [32]. 13 Bonser (supra); Phipps (supra) at [17]. 14 The difficulty that the respondent faced in Heraud (supra) at [12]. -- 11 of 20 -- 12 in accordance with Chapter 5 Pt 9 are not “damages” for the purpose of WCRA, but as I have indicated that is not the way WCRA works. The fact that the Civil Liability Act applies to s 35 claims does not mean that an entitlement to seek damages for the injury is not regulated by Chapter 5. Hence the concluding words of paragraph (c) do not exclude this case from the operation of that paragraph generally, and do not prevent that provision from having the effect that PIPA does not apply. [34] The alternative way to resolve the inconsistency between the applicability of both the Civil Liability Act and Pts 8 and 9 of Chapter 5 is that the amendment inserting Pts 8 and 9 in Chapter 5 impliedly repealed the exclusion in the proviso of s 5(1)(b) of the Civil Liability Act. But the argument on behalf of the respondent collapses if that is the effect of the 2010 amendments. Since on my analysis the argument does not work either way, it is not presently necessary for me to decide that issue, and it can be left to the trial, if this claim ever gets to a trial. Access to damages for the applicant is regulated by Chapter 5 of WCRA, so the notice of claim was valid. As a result of the respondent’s failure to respond to it within the period specified, it is now taken to be compliant: s 278(4). I am prepared to make appropriate declarations to that effect but will hear further submissions before finalising the precise terms of those declarations. The history of the legislation (not essential) [35] This is not an essential part of my reasoning process, though I think that a consideration of the history of the legislation supports the correctness of my conclusion. I am setting it out mainly because I get interested in this sort of thing. The original Workers’ Compensation Act of 1905 provided a right to compensation for accidental injuries to workers regardless of whether there was negligence, so long as it was proved that the accident causing injury arose out of and in the course of the worker’s employment on, in or about one of the employments to which the Act related, and that the worker was as a result of the accident disabled from earning full wages for at least two weeks.15 At that stage compensation was not payable if the injury occurred while the worker was proceeding to or from the place of work (s 4(2)(iii)), and the Act did not affect ordinary liability in tort, except that an injured worker could not recover both statutory compensation and damages independently of the Act: s 6. There was, however, a provision that, if a claim for damages was brought and failed, the Court could order compensation under the Act: s 7. Although s 11 of the Act contemplated the possibility of an employer having insured against such liability, there was no requirement in the Act for such insurance.16 [36] The Workers’ Compensation Act of 1916 changed the situation, by establishing a state accident insurance fund guaranteed by the government and the State which was liable to pay workers’ compensation in accordance with that Act. Workers’ compensation insurance was provided by the State Government Insurance Office established by the Insurance Act of 1916, through its workers’ compensation department. Section 8 of the former Act required employers to insure with the insurance commissioner against their liability under the Act. The absence of insurance did not affect the worker’s entitlement, though it meant that the insurance commissioner could recover from the employer any amount paid. The Act did not deal with an entitlement to damages apart from the Act, which was preserved (s 16(1)) but a worker who had obtained 15 Blair on Workers’ Compensation (1906), p xxxi. 16 The Public Acts of Queensland (1936 reprint) Vol 4, p 654 (preliminary note). -- 12 of 20 -- 13 judgment for damages against an employer was not entitled to compensation under the Act. [37] By the Workers’ Compensation Acts Amendment Act 1962 the scope of accident insurance was broadened so that it covered not only compensation under the Act but also “damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay damages in respect of that injury” in the case of an injury suffered on or after 1 July 1963: s 2, amending s 3; s 4 amending s 8. A new s 9A was inserted providing that if the employer was so liable the amount of the damages were to be reduced by the total amount of compensation in respect of the injury, and the plaintiff was to receive the balance from the state accident insurance fund. There was, however, an important exception in the scope of this cover: it did not apply to an injury “in respect whereof the employer is required by some other Act to provide against such liability as prescribed by such other Act”. [38] This accommodated the fact that compulsory insurance against liability for damages for negligence had already been introduced by the Motor Vehicles Insurance Act of 1936 (“MVIA”), which required the owner of any motor vehicle to obtain “a contract of insurance with the insurance commissioner or some licensed insurer against all sums for which he shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury to any person other than a person living with the owner as a member of his family, or in the service of the owner, or being conveyed in or entering or alighting from such motor vehicle, where such injury is caused by, through, or in connection with such motor vehicle”: s 3(1). The exclusion of the persons specified was soon omitted17 so that well before 1962 it extended to liability to employees in respect of accidental bodily injury caused by, through or in connection with such a motor vehicle. From 1962 the entitlement to indemnity under the policy taken out under the Workers’ Compensation Act 1916 did not extend to a situation where there was a right to indemnity under MVIA policy. [39] The division between the two schemes of compulsory insurance was, therefore, fairly clearly laid down at the beginning. Insurers, however, like medieval monarchs, have always been assiduous in fighting over the limits of their territory; the difference being, that the medieval monarchs fought to expand their territory, whereas insurers fight to minimise the scope of the indemnities they are required to offer. In the case of policies defined by statutes, as occurs with employers and motor vehicles, this has largely been conducted in the political arena, with lobbying for legislation defining the indemnity in favourable terms, though there have also been many skirmishes in the law courts, arguing about the true meaning and effect of such legislation. [40] Prior to amendments made in 1988 the effect of changes to MVIA over the years was to increase progressively the beneficial reach of the statute.18 In the 1980’s, however, the motor vehicle insurers became more aggressive. In a series of cases, culminating in a decision of the High Court, they established that for indemnity to be provided by them there must be liability in respect of the insured motor vehicle, as well as an injury caused by, though, or in connection with it.19 In other litigation the licensed 17 By the Motor Vehicles Insurance Acts Amendment Act of 1944 s 2(a); see Suncorp Insurance and Finance v Ploner [1991] 1 Qd R 69 at 78 per Byrne J. 18 Suncorp Insurance and Finance v Ploner [1991] 1 Qd R 69 at 78 per Byrne J. 19 Stevens v Nudd [1978] Qd R 96; Boath v Central Queensland Meat Export Co. Pty Ltd [1986] 1 Qd R 139; Technical Products Pty Ltd v SGIO (Qld) (1989) 167 CLR 45. -- 13 of 20 -- 14 insurers were unsuccessful,20 but the fact that these matters were pursued, generally to appeal, demonstrated an extra level of aggression on the part of the motor vehicle insurers, usually manifested by their champion, SGIO. [41] The major victory for the licensed insurers, however, came in the form of the Motor Vehicles Insurance Act Amendment Act 1988. Section 2(2) was inserted, limiting accidental bodily injury to which the Act applied to such injury which was a consequence of: “(a) the driving of a motor vehicle; (b) a collision, or action to avoid a collision, with a motor vehicle when stationary; (c) a motor vehicle running out of control; or (d) a defect in a motor vehicle.” [42] There were other amendments which tended to wind back the scope of the legislation, most significantly two amendments to s 3(1): in the first, the cover provided by the policy no longer extended to the owner and all other persons, but only to “the owner and every authorised agent of the owner.” As well, a provision was inserted that in respect of liability incurred on or after 22 September 1988 cover did not extend to liability to pay damages to an employee who was a worker within the meaning of the Workers’ Compensation Act 1916 “in circumstances such as would give rise to an entitlement to the payment of compensation under that Act”. [43] The purpose of this amendment was said by the Minister in the second reading speech to be to restrict the ambit of the indemnity under the compulsory third party motor vehicle policy by ensuring that it was “not extended to matters which are rightly workers’ compensation claims”.21 T’was a famous victory, but not as complete,22 and nowhere near as lasting, as the licensed insurers would have hoped. Following a change of government, in 1994 there was a new Act, the Motor Accident Insurance Act 1994 (“MAIA”). This carefully preserved, in s 5(1), the restriction in s 2(2) inserted into the previous Act in 1988, but the restriction in relation to the liability of employers was gone. Instead, the policy of insurance in the Schedule to the Act merely excluded the liability of an employer to pay workers compensation: s 3(1). [44] This was the legislation which introduced the system of compulsory pre-litigation procedure to Queensland, a matter which dominated the attention given to it at the time.23 The claims management system was based on that of the Motor Accidents Act 1988 of NSW. There was no mention of any reason for the change in the scope of cover in the Minister’s second reading speech, or in the explanatory notes for the Bill.24 One might almost suspect the government was not publicising the change 20 McEwan v Gold Coast City Council [1987] 1 Qd R 337; Tonga v John Holland (Construction) Pty Ltd [1988] 2 Qd R 587; Suncorp Insurance and Finance v Workers’ Compensation Board of Queensland [1990] 1 Qd R 185; Glover v Politanski [1990] 2 Qd R 41; Novak v Meggitt Ltd [1990] 2 Qd R 170. 21 Quoted in Jaye v Grahame Allen Earthmoving Pty Ltd [1993] 1 Qd R 389 at 390. 22 See Jaye (supra); Lorimer v Thatcher [1993] 2 Qd R 25. It was said to have “significantly reduced what had been previously productive litigation between the Workers Compensation Board and the licenced insurers”: Wilson KN, (1994) 24 QLSocJ 567 at 570. (Productive for the bar!) 23 Neither of the articles at 14 Qld Lawyer 88 and 14 Qld Lawyer 197 mentions the change for employers, though it was noted in Wilson KN (1994) 24 QLSocJ 567 at 570, as possibly leading to more litigation, and discussed in Quinlan SG, “The Scope of Indemnity under [MAIA]” 15 Qld Lawyer 187, a helpful analysis which characterised it as a “statutory windfall” for the Board: p 195. 24 1994 Explanatory Notes, p 100, which were singularly uninformative. -- 14 of 20 -- 15 because of the risk that it could lead to talk of higher premiums for compulsory third party motor vehicle insurance, but it was mentioned during the debate on the Bill, when the change was said by the Treasurer to have “restored the balance.”25 [45] This victory, though complete at the time, also did not last. There was an extensive review of the MAIA which led to a large number of changes by the Motor Accident Insurance Amendment Act 2000, generally designed to make it more difficult to recover damages and to reduce the number of small claims under the Act. The amendments introduced restrictions on awards of costs in the case of damages of not more than $50,000 in s 55F; damages for loss of earning capacity were capped at three times average weekly earnings (s 55A); there was an attempt to limit damages for gratuitous services (s 55D); and interest on past loss was capped by a formula set out in s 55E. The pre-litigation procedures were refined, and generally made more difficult for claimants.26 [46] One of the changes effected was to introduce into the exclusions from the policy of insurance a provision that it did not insure an employer against a liability- “to pay damages for injury to an employee if- (a) the injury arises from the employer’s failure to provide a safe system of work for the employee or the employer’s breach of some other duty of care to the employee; and (b) neither the employer nor another employee of the employer was the driver of the motor vehicle at the time of the motor vehicle accident out of which the injury arose.” [47] This was justified in the explanatory notes in the following terms:27 “The intention of the legislation has been to exclude liability of an employer for worker’s compensation. The clause strengthens the exclusions under the policy of insurance to specifically exclude a failure of an employer to provide a safe system of work.” This somewhat cryptic formulation skated over the well-established distinction between workers’ compensation and common law damages. The practical effect was that the licensed insurers had another victory, as this substantially expanded the scope of the previous exclusion. The battle goes on, and given the time that has passed we are probably about due for another change. [48] The Workers’ Compensation Act of 1916 was finally repealed and replaced by the Workers’ Compensation Act 1990, which however continued to provide that the compulsory policy of accident insurance covered “damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay such damages, other than a liability against which the employer is required to provide in accordance with some other Act…”28 There was little in the 25 Qld Hansard Vol 328 p 7193 (D’Arcy – see R v D'Arcy [2005] QCA 292), p 7200 (Treasurer). 26 They were already quite difficult. In Aydar v Pashen [2003] 1 Qd R 601 Wilson J at [77] said of MAIA before this amendment that it was “regrettable that Parliament enacted such a turgid legislative scheme to achieve its laudable goal of the speedy resolution of motor vehicle accident claims.” 27 2000 Explanatory Notes volume 1, p 758. I suppose it was not going to say that its purpose was to upset the balance restored by the 1994 Act! 28 Workers Compensation Act 1990 s 4.9(2), s 2.1(1). For a (mercifully brief) time the section numbers of Queensland statutes were expressed in this way, by reference to the part of the Act in which they appeared. -- 15 of 20 -- 16 Act dealing with the liability of the employer for damages, though there were provisions which took into account the fact that compensation was payable or paid, by requiring the damages to be reduced by such amount (s 10.1) and by making the amount of compensation a charge on damages recovered: s 10.8. The originating process had to be served on the Workers Compensation Board before any other step was taken, and the Board could elect to be joined as a party to the proceeding: s 10.3. This gave it carriage of the proceeding: s 10.5. Judgments were to be satisfied out of the fund established under the Act (s 10.1) and if the employer was not available the proceeding could be brought directly against the Board: s 10.4. Jury trial was excluded, and there was a mechanism for compulsory medical examination of plaintiffs: s 10.6. [49] In 1995 the Act was amended to introduce a restriction that an injured worker could not obtain both lump sum compensation and common law damages in respect of a particular injury (s 182B), and a requirement that a worker who has not received an offer of lump sum compensation obtain from the Board a certificate prior to seeking damages at law for the injury: s 182D.29 The following year, an inquiry into workers, compensation in Queensland conducted by Mr Jim Kennedy recommended sweeping changes, most of which were incorporated in the WorkCover Queensland Act 1996, though the most contentious recommendations, a 15% work related impairment threshold for access to damages and the abolition of journey and recess claims, were not included, in order to secure the support of an independent member necessary to get the Bill through parliament.30 [50] The 1996 Act introduced most of the concepts which now appear in WCRA, including restrictions on who can sue for damages, the requirement of a notice of claim and other pre-litigation steps.31 Damages were defined in s 11 in the same terms as s 10(1) and (2) of WCRA, while injury was defined in s 34 as “personal injury arising out of, or in the course of, employment if the employment is the major significant factor causing the injury” although there was a proviso that that requirement need not be met in the case of injuries occurring at the place of employment, or journey claims. The equivalent of the current s 237 was s 253, although there were four categories in subsection (1), and subsections (3) and (4) were not then included. The four categories included dependents, or the worker if the worker had not lodged an application for compensation for the injury, or if the worker’s application had been allowed and the injury had not been assessed for permanent impairment, or if the worker had received a notice of assessment stating that the worker had sustained either a certificate or a non-certificate injury. There were in subsequent divisions of part 2 of chapter 5 various further requirements for the different categories of worker. The pre-court procedures laid down in part 5 were broadly similar to, but different in detail from, the pre-court procedures pioneered in Queensland by MAIA, although the scheme in that Act was said to have produced relatively few complications.32 By 29 Inserted by the Workers’ Compensation Amendment (No. 2) Act 1995 s 23. 30 See WorkCover Queensland Bill 1996 Explanatory Notes, p 721, an unusually informative note. 31 Chapter 5 Part 7 set out the conditions to be satisfied before a proceeding could be commenced: Seery v Mt Isa Mines Ltd [2000] QSC 16 at [10]. Essentially this was compliance with the earlier parts of Chapter 5. 32 Mullins, G, “The WorkCover Queensland Act 1996 – So where are we now?” Paper presented at APLA WorkCover Intensive 19 May 2001 p 4. -- 16 of 20 -- 17 contrast, the 1996 Act produced a flood of litigation,33 and some judicial criticism of the legislation.34 [51] There have of course been many later changes of detail; for example, the restrictive formulation in the original version of s 34(1) was changed from “the major significant factor causing” to “a significant contributing factor to” by the WorkCover Queensland Amendment Act 1999 s 8 following a change of government, to remove what was said to be a restriction on a worker’s access to compensation under the then system which made it the most restrictive in Australia.35 [52] The imposition of pre-litigation procedures in these two areas was regarded as a success in reducing the amount paid out to injured claimants, and the amount of legal costs incurred.36 There was at the time growing disquiet in the community over the cost and availability of public liability insurance which led to, among other things, the establishment of a ministerial meeting on public liability which, on 30 May 2002 agreed to set up the panel of four persons which in September 2002 produced what came to be known as the Ipp Report, The Review of the Law of Negligence.37 In 2002 the benefit of pre-litigation procedures was extended to personal injury claims other than those involving industrial accidents and motor vehicle accidents when those claims came to be regulated by the passing of PIPA in June 2002. It declared its main purpose to be to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury: s 4(1). This was to be achieved by providing a procedure for the speedy resolution and early settlement of claims, putting reasonable limits on awards of damages, minimising the costs of claims and regulating inappropriate advertising. [53] The pre-court procedures in Chapter 2 were based heavily on the mechanism in MAIA. There were in chapter 3 restrictions on advertising personal injury services and touting, and restrictions on damages paralleling those introduced into MAIA in 2000 were imposed.38 The explanatory notes acknowledged that huge increases in insurance premiums were causing hardship, particularly for smaller businesses and not-for-profit organisations, which was to be addressed by reducing the costs of legal proceedings, based on the success of MAIA in reducing claims costs and legal costs associated with injuries in that area.39 The effectiveness of the pre-litigation procedures as a means of reducing claims may be gauged by the comment of McMurdo J in December 2003: 33 Grant-Taylor, M, SC, “Time Limits – An analysis of the Tanks decision and its implications”, Paper presented at APLA WorkCover Intensive 19 May 2001 p 1, referred to 6 Court of Appeal decisions, and at least 45 Supreme Court decisions, on the Act in the previous two years. 34 For example, Tanks v WorkCover Queensland [2001] QCA 103 at [16], [54]; Stergioulas v Hemsley [2000] QSC 388 at [9]; Bonser v Melnacis [2002] 1 Qd R 1 at [3], [44], [46]. 35 WorkCover Queensland Amendment Bill 1999 Explanatory Note, pp 281-2. 36 To some extent just by making things difficult for claimants. The process in the 1996 Act was described as “hurdles” that have “to be endured” by Byrne J in James v WorkCover Queensland [2000] QCA 507 at [45], and as a “gamut of provisions surrounding commencement of proceedings” by the Court in Bonser (supra) at [46]. In Tanks (supra) at [43] Williams JA described them more kindly as “gateways”. 37 Review of the Law of Negligence, September 2002 (Ipp Report) p 25; Explanatory Notes 2002, Vol 1, Personal Injuries Proceedings Bill 2002 p 480. 38 Sections 51, 54, 55, 56. These and the MAIA provisions were later moved to the Civil Liability Act 2002. 39 Explanatory Notes 2002 volume 1, pp 480-1. -- 17 of 20 -- 18 “This application is one of several attempts by the applicant to find his way through the labyrinth which is the Personal Injuries Proceedings Act 2002.”40 [54] This legislation was intended to extend to public liability insurers the sort of protection which had previously been conferred by MAIA on motor vehicle insurers and the WorkCover Queensland Act 1996 on WorkCover, but neither of them wanted their legislation interfered with, so the intention was that this Act would not apply where those Acts applied.41 Hence, s 6 of PIPA, after providing that the Act applied in relation to all personal injury arising out of an incident happening on or after 18 June 200242 provided in subsection (3): “However, this Act does not apply to- (a) personal injury as defined in the Motor Accident Insurance Act 1994 and in relation to which that Act applies; or (b) injury as defined under the WorkCover Queensland Act 1996.” [55] There was no particular difficulty with the first of these exclusions, which remains to this day. The exclusion of industrial accident matters simply on the basis of the definition of “injury” was however soon thought to be inadequate,43 and paragraph (b) was amended by the Civil Liability Act 2003 s 80, with effect from 9 April 2003, to exclude application to- “(b) injury as defined under the WorkCover Queensland Act 1996, but only to the extent that an entitlement to seek damages, as defined under that Act, for the injury is regulated by chapter 5 of that Act.” [56] The Civil Liability Act also inserted an Example to the same effect as the Example currently in the subsection. The explanatory notes for the Bill said of this: “It is, and was at the time of passage of that Act, the intention that all claims for personal injury must go through a form of pre-proceedings process. Concern has been raised that the current section and proposed amendment do not achieve this. The provision as inserted by amendment will ensure the intent is achieved, whilst providing guidance on application of the provision.”44 [57] The PIPA Amendment Act in 2002 had the effect of making PIPA apply retrospectively, and inserted a number of provisions to accommodate personal injuries arising out of incidents happening before 18 June 2002. In addition, certain provisions were inserted to exclude certain politically sensitive cases from the operation of the Act: unlawful intentional acts done with intent to cause personal injury, unlawful sexual assault or other sexual misconduct, and (for most of the Act) 40 Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643 at [2]. That case also concerned s 77D, one of the transitional provisions introduced when PIPA was made retrospective, also discussed by his Honour in Cuthbert v Adams [2004] 1 Qd R 366, in effect overruled in Patterson v Baptist Union of Qld [2004] QCA 146, which was in turn reversed by a retrospective amendment to PIPA by the Justice and Other Legislation Amendment Act 2004 s 87: Explanatory Notes 2004 Vol 2 p 1509. 41 King v Parsons [2005] QSC 214 at [22]. 42 It was subsequently made retrospective. 43 When the issue came before the courts, the necessary limitation was readily implied: Devlin v South Molle Island Resort [2003] 2 Qd R 346 at [20] – [22]; King v Parsons [2005] QSC 214 at [20]. In the former it was said that the additional words in paragraph (a) would have been superfluous in paragraph (b). Despite this, a bill to insert such words was introduced within one month. 44 Explanatory Notes 2003 Vol 1 p 493; the relevant provision was amended in Committee. -- 18 of 20 -- 19 personal injury that is a dust related condition. It also overcame some of the drafting errors in the original Act, though not all of them. It is no coincidence that the Act has been much amended over the years. [58] Following the publication of the Ipp Report, many of its provisions were implemented in Queensland by the Civil Liability Act 2003.45 This Act became the repository of the damages provisions previously appearing in parallel in MAIA and PIPA, and contained a number of other provisions dealing with liability and the assessment of damages, though the political influence of the union movement was, at the time, sufficient to exclude most industrial accident claims from the operation of the Act. Hence, s 5 excluded situations where the harm the subject of the proceeding was or included “an injury as defined under the WorkCover Queensland Act 1996, other than an injury to which s 36(1)(c) or s 37 of that Act applies.”46 An example made it clear that this exclusion applied whether or not the proceeding was brought against the employer. [59] Hence the exclusion of industrial accident matters did not apply to the recess and journey claims; the explanatory note said that this would “result in liability for those injuries in which employment is less likely to be a significant factor being decided in accordance with the law as modified by the Act”.47 Given the restrictive effect of the Civil Liability Act on the assessment of damages, this went part of the way towards achieving the objective in the recommendation of the Kennedy Report in 1995, that these claims be excluded from the workers’ compensation legislation. The reason for this, no doubt, was not because of any weakening of the unions’ resolve to defend these claims, but because in respect of these claims the requirement in the definition of injury in the WorkCover Queensland Act 1996, that employment be a significant contributing factor to the injury, was not present.48 There have been various changes in the formulation of s 5 of the Civil Liability Act since it was originally enacted, said to have been intended to render the exclusion more frequently engaged.49 The position of the recess and journey claims has not changed. It is I think significant that the Civil Liability Act was made applicable to these claims, but nothing was said about them in the new version of s 6(2)(b) of PIPA inserted by this Act. There was then nothing in PIPA or in the WorkCover Queensland Act 1996 to suggest that recess and journey claims were not regulated by Chapter 5 of the 1996 Act.50 [60] Later in 2003 WCRA was enacted. The Act applied to injuries sustained on and after 1 July 2003: s 2(2). The WorkCover Queensland Act 1996 continued to apply to earlier injuries: WCRA s 603(2). That seems to have been overlooked when WCRA amended s 6(2)(b) of PIPA simply to substitute a reference to “Workers Compensation and Rehabilitation Act 2003” for the previous reference to “WorkCover Queensland Act 1996”. It was only with the amendment effected by the Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005 s 12 that 45 Explanatory Notes 2003 Vol 1 p 450. 46 The section also excluded its application to an injury that was a dust related condition or resulted from smoking or other use of tobacco products or exposure to tobacco smoke, other areas of political sensitivity. 47 2003 Explanatory Notes, p 453. 48 Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 at [24]. In WCRA it was covered by deeming provisions. 49 Douglas, Mullins and Grant “Annotated Civil Liability Legislation – Queensland” (Third Edition, 2012) p 15. 50 There was no suggestion in Heraud (supra) that these changes had made the reasoning in Hervey Bay City Council (supra) no longer applicable. -- 19 of 20 -- 20 s 6(2)(a)-(g) was put into its current form, covering both WCRA and the 1996 Act, and incidentally the 1990 and 1916 Acts and MVIA. [61] In 2010 the government finally ended the special treatment of industrial accident claims for the purposes of liability and of assessing damages, but it did not do this in what might have been thought to be the obvious way, simply by making the provisions of the Civil Liability Act applicable. There were said to be some provisions in that Act which would not apply to claims for damages by workers,51 though I suspect that it had more to do with a desire by WorkCover to preserve the existing provisions of WCRA. Rather what occurred were extensive amendments to WCRA to duplicate, in parts 8 and 9 of Chapter 5, the provisions from the Civil Liability Act which were regarded as applicable, though with some changes in wording and some other changes. The explanatory notes for the amendment Bill constantly repeat the proposition that a particular proposed section is “modelled on a similar provision in the Civil Liability Act 2003.” These changes were not in effect at the time which was relevant to the decision of the Court of Appeal in Ballandis (supra). Accordingly, nothing was said in that judgment about their effect, though there is no reason to think that the consequences of that decision as to the effect of s 5 of the Civil Liability Act are any different as a result of those amendments. [62] It also seems to me that there is no reason why the meaning of the provisions inserted into s 6(2) of PIPA by the amendments in 2005 should change as a result of the 2010 amendments to WCRA. If s 6 determined the application of PIPA by reference to the application of the pre-litigation procedures in Chapter 5 of WCRA prior to the 2010 amendments, it does not seem to me that there is any good reason why the situation should have changed after that. The question is whether the pre-litigation procedures in WCRA apply to this claim. For the reasons given earlier, in my opinion they do. The fact that parts 8 and 9 of Chapter 5 do not apply does not mean that the rest of Chapter 5 does not apply, but that step is essential for the respondent’s argument to succeed. [63] The legislative history shows that the legislative purpose of s 6 of PIPA has always been to ensure that PIPA fills in the gap in the statutory requirement for a “pre- proceedings process” left by the scope of the processes provided by the applicable motor vehicle and industrial accident legislation for their respective fields. There was not to be an overlap in relation to a particular claim, but there was to be a process under one Act for every claim, so if no other Act required a process, PIPA did. That is what s 6 has always been about, as shown consistently by the various Explanatory Notes, and by the authorities which have commented on its purpose. That is the purpose, derived from the terms of the statute and the extrinsic material within s 14B of the Acts Interpretation Act 1954, which should be reflected in the application of s 14A of that Act in the interpretation of s 6. [64] For the reasons given earlier, however, I will make declarations in terms to be finalised when these reasons are delivered. 51 Explanatory Notes to the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2010 p 10. The application of these could have easily been excluded; this is not a real reason. -- 20 of 20 --