Dib v WorkCover Queensland [2002] ICQ 15 (2002) 169 QGIG 768

768 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 April, 2002 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Workers Compensation Act 1990 – s. 105 appeal against decision of industrial magistrate Elias Dib AND WorkCover Queensland (No. C3 of 2002) PRESIDENT HALL 16 April 2002 REPORT ON DECISION (as edited) In giving his decision from the Bench on 16 April 2002, President Hall stated:– “This appeal raises a short point about the construction of s. 5.3 of the Workers Compensation Act 1990. The section relevantly provided:– ‘5.3 Where right to damages exists. If in respect of an injury suffered by a worker there is– • an entitlement to compensation under this Act; and • a right of action against the worker’s employer, or other person, to recover damages independently of this Act; a claim for compensation under this Act may be made and proceedings to recover such damages may be taken but an entitlement to such compensation does not exist at any time, or in respect of any period, after judgment for damages is given, or settlement is agreed, in such proceedings.’. The facts are that by plaint number 4337 of 1997 the appellant commenced proceedings in the District Court of Queensland against his employer. By a judgment of 17 December 1998 His Honour Judge McGill, SC held the action to be statute barred and held that the plaintiff was not entitled to an extension of time. In those circumstances on 30 November 2001 the Industrial Magistrate at Townsville ruled that because the proceedings commenced by plaint 4337 of 1997 related to an action for damages s. 5.3 operated to deprive the appellant of any claim for compensation under the Workers Compensation Act 1990. I am, with respect, unable to agree with His Worship’s view. I accept counsel for the respondent’s submission that there has been a judgement in an action for damages. But that is not what s. 5.3 requires. The section is triggered only by a “judgement for damages”. There is not and has not at any time been such a judgement. I have referred to the Minister’s Second Reading Speech at Hansard for 8 November 1990. There is nothing in that Speech which gives any indication that s. 5.3 has other than its natural meaning. The natural meaning of s. 5.3 accords with the other provisions of the Act, which provide that if subsequent to receiving payment of compensation a claimant recovers money in other proceedings, WorkCover is entitled to recover the moneys paid out. In all the circumstances the appeal is allowed. I remit the matter to WorkCover Queensland. In all the circumstances I reserve the question of costs. On the matter of costs in the Industrial Magistrates Court I ask that counsel attempt to reach agreement as to the amount. There is no taxing master in the Industrial Court. In the event that agreement is not reached, taxation will be remitted to the Industrial Registrar. I adjourn.”. Dated 16 April 2002. By the Court, [L.S.] E. EWALD, Industrial Registrar. Released: 17 April 2002 Appearances:– Mr M.E. Pope instructed by Connolly Suthers, Lawyers as town agents for Balot Reilly for the appellant. Mr W. Elliot instructed by Boulton Cleary and Kern Solicitors for the respondent. -- 1 of 1 --