Airservices Australia v Austral Pacific Group Ltd & Crockford [1998] QCA 159 (1998) 157 ALR 125

IN THE COURT OF APPEAL [1998] QCA 159 SUPREME COURT OF QUEENSLAND Appeal No. 3620 of 1998 Brisbane [Airservices Aust v Austral Pacific Group Ltd] BETWEEN: AIRSERVICES AUSTRALIA (Third Party) (Applicant) Appellant AND: AUSTRAL PACIFIC GROUP LIMITED ACN 000 049 874 (Defendant) (Respondent) Respondent AND: PHILIP LLOYD CROCKFORD (Plaintiff) McPherson JA Pincus JA Ambrose J Judgment delivered 19 June 1998 Separate reasons for judgment of each member of the Court, each concurring as to the orders made APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL ALLOWED. ORDER DISMISSING APPLICATION TO STRIKE OUT THE THIRD PARTY NOTICE SET ASIDE. THIRD PARTY NOTICE STRUCK OUT. RESPONDENT TO PAY THE APPELLANT’S COSTS OF AND INCIDENTAL TO THE APPEAL AND APPLICATION FOR LEAVE TO APPEAL AND THE APPLICATION TO STRIKE OUT TO BE TAXED. -- 1 of 20 -- CATCHWORDS: NEGLIGENCE - striking out of third party notice - contribution of third party - statutory constructions. Trade Practices Act 1974 (Cwth) ss. 71, 72, 73, 74 Safety Rehabilitation and Compensation Act 1988 (Cwth) ss 44 and 45 Law Reform (Miscellaneous Division) Act 1946 (NSW) s. 5(1)(c) Law Reform Act 1995 (Qld) s. 6(c) Local Government Act 1919 (NSW) s. 580 Transport Act 1930 (NSW) s. 233(1) WBK v Grogan and the Commonwealth (Unreported C.A. Qld Appeal Nos. 5437 and 5441 of 1996, 12.8.96) Brambles Construction Pty Ltd v Helmers (1965-66) 114 CLR 213 Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 Harding v The Council of the Municipality of Lithgow (1937) 57 CLR 186 Scoles v Commissioner for Government Transport (1960) 104 CLR 339 Unsworth v Commissioner for Railways (1958) 101 CLR 73 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297 Counsel: Mr P.A. Keane QC with him Mr PA Freeburns for the applicant/appellant Mr R.N. Traves for the respondent Solicitors: Corrs Chambers Westgarth for the applicant/appellant Michael Stewart Solicitors for the respondent Hearing date: 25 May 1998 -- 2 of 20 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 3620 of 1998 Brisbane Before McPherson J.A. Pincus J.A. Ambrose J. [Airservices Aust. v. Austral Pacific Group Ltd.] BETWEEN: AIRSERVICES AUSTRALIA (Third Party) (Applicant) Appellant AND: AUSTRAL PACIFIC GROUP LIMITED ACN 000 049 874 (Defendant) (Respondent) Respondent AND: PHILIP LLOYD CROCKFORD (Plaintiff) REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered 19 June 1998 On 26 February 1994 the plaintiff, by whom this action was instituted in the District Court, was employed by the Civil Aviation Authority (CAA), which is or was a Commonwealth instrumentality. So far as appears, he was employed at Cairns airport as a firefighter. On 6 July 1995 CAA was abolished by statute, and its assets and liabilities were transferred to the third party Airservices Australia (ASA), which is a Commonwealth authority within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cwth.) -- 3 of 20 -- 5 The plaintiff claims to have sustained injury on 26 February 1994 when he was alighting from a fire engine or “appliance” as it is called. In doing so he stepped on an aluminium step forming part of the vehicle. The step had a rubber tread moulding, which came off when the plaintiff stepped on it causing him to fall to the ground. The plaintiff did not sue his employer CAA, or ASA as it now is. Instead, he brought this action against the defendant Austral Pacific Group Limited (APGL), alleging that it had supplied the appliance to CAA and was legally responsible for the defective condition of the step. In response to the claim, the defendant delivered a defence and also a third party notice against ASA claiming indemnity or contribution on the basis of its failure, as it is alleged to be, to maintain the steps of the appliance in a safe condition. ASA as third party applied to strike out the third party notice issued against it on the ground that it was not, within the meaning of s.6(c) of the Law Reform Act 1995 (Qld.), a tortfeasor “who is, or would if sued have been, liable in respect of the same damage” as the defendant APGL. The basis of that contention is the provisions of s.44 and s.45 of the Commonwealth Safety etc. Act of 1988. Section 44(1) provides that an action for damages does not lie against a Commonwealth authority in respect of an injury sustained by an employee in the course of his employment, for which the authority would otherwise have been liable. Having so provided, s.45(1)(b) nevertheless authorises such an employee to elect in writing to institute an action against the Commonwealth authority for damages for non-economic loss. In the event of such an election, s.44(1) is expressed not to apply to an action instituted by the employee against the authority. Section 45(4) limits the amount recoverable in such an action for non-economic loss to $110,000.00. The relevant statutory provisions are set out in the reasons of Ambrose J., which I have had the advantage of reading, and need not be repeated here. -- 4 of 20 -- 6 Some things are well settled. In an action for negligence for damages for personal injury a claim for contribution by one tortfeasor against another is not itself an action for negligence for damages for personal injury but to recover a contribution provided by statute. See Nickels v. Parks (1948) 49 S.R. (N.S.W.) 124, 129, approved in Unsworth v. Commissioner for Railways (1958) 101 C.L.R. 73, 86, 91. A right to contribution assumes the existence of a liability in the party from whom contribution is sought: Unsworth v. Commissioner for Railways, at 93. It follows that, if there was never any liability on the part of the party, there cannot be a liability to contribute or conversely to claim contribution against that party: Alex Kay Pty. Ltd. v. Fife (1966) 9 F.L.R. 246; Thompson v. Australian Capital Television Pty. Ltd. (1994) 127 A.L.R. 317, 330. But that is so only if there never was a time at which the third party was liable or could have been held liable to the plaintiff: ibid. It is otherwise if at some time the third party could have been, but cannot now, be held liable. Hence a claim for contribution is not defeated because the limitation period for an action against that party has since expired. The words in s.6(c) “would if sued have been liable” have been held to import no temporal element, but are to be read as if they said would “if sued at any time” have been liable: see Brambles Construction Pty. Limited v. Helmers (1966) 114 C.L.R. 213, 219, 220, 221, 225. “It is enough”, said Windeyer J. in his judgment in that case (114 C.L.R. 213, 221), “that there was a time ... at which the plaintiff (the victim of the tort) could have successfully brought an action against some other person (the third party), either independently or jointly with the defendant”. Was there, in the present case, any such time? In similar circumstances in Commonwealth v. Flaviano (1996) 40 N.S.W.L.R. 199, it was held that there was not; with consequence that, as was decided there, third party proceedings against the Commonwealth authority for contribution were not competent. In that instance the victim of the tort (who was Mr Flaviano) had made an election under -- 5 of 20 -- 7 the Commonwealth Act to receive compensation under ss.24, 25 or 27 of the Act. Conversely, he made no election under s.45(1) to institute an action against the Commonwealth for damages for non- economic loss. In Commonwealth v. Flaviano, it was submitted that, as long as Mr Flaviano’s right under s.45 to make an election to institute an action remained open, the Commonwealth continued to be a tortfeasor which would, if sued, have been liable in respect of the damage caused by another joint tortfeasor. But this submission was rejected by the New South Wales Court of Appeal. As has been mentioned, s.44(1) precludes an action against the Commonwealth or Commonwealth authority. Relying on that provision Sheller J.A., in giving reasons for judgment with which Meagher and Beazley JJ.A. agreed, said (40 N.S.W.L.R. 199, 204) that the language of s.44(1): “... forces the conclusion that unless and until an employee makes an election s.44(1) applies and no action lies. Put another way, until Mr Flaviano made an election in writing to institute an action, s.44(1) prevented him from suing the Commonwealth in respect of the injury sustained by him.” It is not impossible to adopt a different view of s.44(1). After all, it is introduced by the words “Subject to section 45 ...”, so that, in a sense, the prohibition it imposes is suspended until the election is made. To that extent, it might be said that the prohibition does not operate until the election to institute an action is made, and that there never was any prohibition if, in the event, the tort victim subsequently elects to sue the Commonwealth authority. On that footing, it can be seen that there is or was an instant in time at which the Commonwealth authority might if sued have been liable, which, on the authority of Brambles Construction v. Helmers, would be sufficient to satisfy the requirements of s.6(c) of the Queensland Act. Such a conclusion would, however, involve an artificial construction of s.44(1). The introductory words “Subject to section 45 ...” serve only to inform a reader of the section that the prohibition imposed in s.44(1) is subject to the qualification to be mentioned in s.45. They could have -- 6 of 20 -- 8 been omitted without altering the effect of the two sections or either of them. In my respectful opinion, those words do not operate to suspend the prohibition in s.44(1). The prohibition may be displaced by the later event or contingency of giving a written election to institute an action; but, until that happens, it operates to deprive the tort victim of his or her right to sue. Considered apart from s.45 and ss.25 to 27, the prohibition in s.44(1) has, it has been held, the effect of compulsorily transferring or of extinguishing the plaintiff’s common law right of action against the Commonwealth: see Georgiadis v. Australian & Overseas Telecommunications Corporation (1994) 179 C.L.R. 297. On that footing, its effect is not merely procedural but substantive. The contrary is plainly arguable, but it was argued and rejected in Commonwealth v. Flaviano. The Commonwealth Act is national legislation and, unless persuaded (which I am not) that the reasoning of the Court of Appeal in that case is plainly mistaken, we ought to follow and apply it as a decision of an appellate court of co-ordinate jurisdiction. We are not told whether or not the plaintiff in the present case has elected to institute an action against the third party ASA, which makes me wonder whether we should be deciding the question in issue at this stage. It does, however, seem pretty clear that he has not made such an election, because in this action he has chosen to sue the defendant APGL alone. And if he has not yet made an election to sue the third party and Commonwealth authority ASA, then it follows from the reasoning in Commonwealth v. Flaviano that it was not competent for the defendant AGPL to issue the third party notice against ASA. -- 7 of 20 -- 9 It follows in my opinion that the learned judge of the District Courts was wrong in refusing to set aside the third party notice issued against the defendant. Leave to appeal should be granted and the appeal allowed with costs including the costs of the application for leave. The order dismissing the application should be set aside, and instead it should be ordered that the defendant’s third party notice be struck out, and that the defendant be ordered to pay the third party’s costs of and incidental to the application. IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 3620 of 1998. Brisbane Before McPherson J.A. Pincus J.A. Ambrose J. [Airservices Aust v. Austral Pacific Group Ltd] BETWEEN: AIRSERVICES AUSTRALIA (Third Party) (Applicant) Appellant AND: AUSTRAL PACIFIC GROUP LIMITED A.C.N. 000 049 874 (Defendant) (Respondent) Respondent AND: PHILIP LLOYD CROCKFORD (Plaintiff) REASONS FOR JUDGMENT - PINCUS J.A. -- 8 of 20 -- 10 Judgment delivered 19 June 1998 The issues and relevant statutory provisions are explained in the reasons of Ambrose J. which I have had the advantage of reading. -- 9 of 20 -- 11 Sections 44 and 45 of the Safety, Rehabilitation and Compensation Act 1988 (C’th), read together, produce the result that the plaintiff employee had a right of action against the employer subject to two conditions. First, the plaintiff had to elect in writing to institute an action and secondly, that election had to be made before any amount of compensation was paid. The second condition cannot avail the employer for the question is whether it would if sued at any time have been liable; the addition of "at any time" to the statutory language is justified by Brambles Construction Pty Ltd v. Helmers (1966) 114 C.L.R. 213. The question then becomes a narrow one: since there was a time, however brief, at which the employer would have been liable, subject to the performance of a very simple step, does the requirement that that step be taken save the employer from liability under a claim for contribution? An affirmative answer to this question appears to me to require a technical approach, when one keeps in mind that the notice of election is in substance superfluous; the same practical result could have been achieved by providing in the statute that an employee may sue at any time before a compensation payment is made. To hold that the absence of what is equivalent to a formal notice before action by the employee gives the employer immunity from a suit for contribution appears to me to attribute to the contribution statute a rather improbable intention. I would, were there no authority on the point, have held the claim for contribution to be good. However, as there is a decision of the New South Wales Court of Appeal reaching a contrary conclusion, I agree that we should follow that decision, the circumstances not being such as to justify a departure from it. I therefore agree with the orders proposed by Ambrose J. -- 10 of 20 -- 1 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 3620 of 1998 Brisbane Before McPherson JA Pincus JA Ambrose J [Airservices Aust v Austral Pacific Group Ltd] BETWEEN: AIRSERVICES AUSTRALIA (Third Party) (Applicant) Appellant AND: AUSTRAL PACIFIC GROUP LIMITED ACN 000 049 874 (Defendant) (Respondent) Respondent AND: PHILIP LLOYD CROCKFORD (Plaintiff) REASONS FOR JUDGMENT -B.W. AMBROSE J. Judgment delivered 19 June 1998 This is an appeal by a third party against the refusal by a District Court judge to strike out a third party notice filed and served on it by the defendant. The plaintiff in this action, one Philip Lloyd Crockford, was at material times employed by the third party at the Cairns airport as an aviation fire officer. -- 11 of 20 -- 2 In his plaint filed 13 January 1997 he alleges that on 26 February 1994 he stepped onto a rubber step tread moulding when alighting from a fire engine. The moulding gave way from the step onto which it had been glued, causing him to fall and injure himself. In his plaint he alleges that the defendant constructed the fire engine and supplied it to the third party and that it was its negligent construction of that appliance which was responsible for the step tread separating from the step, and consequently it is liable to him, either in negligence or for breach of ss. 71- 74 of the Trade Practices Act 1974 (Cth). The material indicates that the plaintiff suffered a severe injury to his right knee and it seems likely that he will have an arguable case that significant permanent impairment has resulted from that injury. He claims from the defendant the sum of $200,000 damages. On 23 December 1997 the defendant applied for and was granted leave to issue a third party notice to the plaintiff's employer, asserting that it also was under a tortious and contractual obligation to the plaintiff by virtue of the relationship between them. It claims contribution from the third party on the ground of its breach of its implied contractual, tortious or statutory duty to the plaintiff in failing to maintain the steps of the fire engine in a safe condition. Various other particulars of negligence are also pleaded by the defendant against the third party. It is pleaded in the third party notice that the third party would, if sued by the plaintiff, have been liable in respect of the damage claimed by the plaintiff against the defendant. The defendant claims indemnity or contribution having regard to the extent of the third party's responsibility for damage alleged to have been suffered by the plaintiff. On 26 March 1998 the third party applied to have third party notice struck out. -- 12 of 20 -- 3 This application was dismissed by a District Court judge and it is against that dismissal that the third party appeals. It contends that the defendant must fail in its claim against it. Upon the hearing of the application to strike out the third party notice, the third party referred to ss.44 and 45 of the Safety Rehabilitation and Compensation Act 1988 and to the decision of the New South Wales Court of Appeal in Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199 which was referred to in a decision of this Court in WBK v Grogan and the Commonwealth (unreported Queensland Court of Appeal 12/8/97). Section 44 of the Safety Rehabilitation and Compensation Act 1988 (Cwth) provides: “44.(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of: (i) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or (ii) the loss of, or damage to, property used by an employee resulting from such an injury; whether that injury, loss or damage occurred before or after the commencement of this section. (iii) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section.” 45(1) provides: “Where: (a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and (b) the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury; the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth -- 13 of 20 -- 4 authority, the licensed corporation nor other employee for damages for the non-economic loss. (2) Where an employee makes an election: (a) subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and (b) compensation is not payable after the date of election under section 24, 25 or 27 in respect of the injury. (3) an election is irrevocable. (4) In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee.” Sections 24, 25 and 27 of the Act deal with compensation under the Act for permanent impairment. The defendant argued that Commonwealth of Australia v Flaviano (supra) was either wrongly decided or is distinguishable upon its facts in the present case. The defendant also referred to Brambles Construction Pty Ltd v Helmers (1965-66) 114 CLR 213 to support the argument it advanced that s.5(1)(c) of the Law Reform (Miscellaneous Divisions) Act 1946 (NSW) did not make available to a tortfeasor in third party proceedings for contribution any procedural constraint such as a time limitation which would be available if an action in tort were brought against it as defendant by the plaintiff. It was contended that s.5(1)(c) should be read without the import of any “temporal” element as if the words “at any time” were present after the words “if sued”. In effect it was argued before the District Court judge that s.6(c) of the Law Reform Act 1995 (Qld) (indistinguishable from s.5(1)(c) of the Law Reform Act 1946 (NSW)) should be read as if the -- 14 of 20 -- 5 word “properly” were inserted between the words “if” and “sued” in that section. In essence it was contended that it was strongly arguable that the statutory immunity given by s.44 of the Safety Rehabilitation and Compensation Act 1988 (Cwth) should be read down by virtue of the provisions of s.45(1) of that Act so that read together those two sections merely placed a procedural constraint upon a plaintiff. The argument in essence as I understand it is that the necessity for a plaintiff to elect in writing to institute an action or proceedings to recover damages in respect of which compensation is payable under ss. 24, 25 or 27 of the Act, before doing so, is really of similar effect to a requirement that a plaintiff give notice of intention to take action to recover damages. These or similar arguments were advanced before the Court of Appeal in New South Wales in Flaviano's case and upon the application to have the third party notice struck out it was made clear to the learned District Court judge that the third party wished to contest the correctness of and in any event the application of the decision in Flaviano to s.6(c) of the Queensland Law Reform Act 1995 upon the facts of this case. In course of his extemporary reasons, the learned District Court Judge observed: “... I was initially persuaded that it would seem that the Commonwealth Act has taken away or affects the rights of the defendant.” However his Honour observed that the construction of s.6(c) for which the defendant contended was perhaps open on the legislation and that the defendant might arguably have rights against the third party. His Honour concluded: “These matters are going to be fairly difficult in the end to determine finally and I would not at all be surprised if it would go beyond my decision here when the matter is finally determined by the judge who actually deals with the matter. But this being in the nature of a summary proceedings and having taken the view of the legislation which I have I dismiss the application.” -- 15 of 20 -- 6 As I read his Honour's judgment and indeed from submissions by counsel for the defendant upon the appeal, the defendant, undoubtedly indemnified by an insurer, seeks to challenge the decision in Flaviano's case and/or to distinguish the facts in that case from those in the present one. To enable this to be done, this Court granted leave to appeal and because the point involved is a short one, agreed to take submissions from the defendant and the third party upon that appeal on the question whether Flaviano should be followed in Queensland. In Flaviano's case the principal judgment was delivered by Sheller JA. The first point of distinction from Flaviano's case upon the facts in this case is that in that case the plaintiff had made what purported to be an election under s.45 of the Safety Rehabilitation and Compensation Act 1988 to receive compensation under that Act for permanent impairment and non economic loss. On the facts of this case the plaintiff has never purported to make such an election. In that case the Commonwealth proposed to rely upon s.44(1) of the Act to contend that either the plaintiff had no cause of action against it or that it had a complete defence to any such cause of action, and that therefore the defendant could not recover against it under the third party notice. Sheller JA distinguished Brambles Constructions Pty Ltd v Helmers (supra) on the basis that on the events which had occurred in Flaviano “there was no time at which if sued it (the Commonwealth) would have been liable for the same damage”. He pointed out that the plaintiff in that case had never elected in writing to institute an action or proceedings against he Commonwealth for damages for non economic loss. He did elect to receive compensation under the Act for permanent impairment and non economic loss. At p. 204 his Honour observed: “If one ignores s.45, s.44 provides that an action for damages does not lie against the Commonwealth in respect of an injury sustained by an employee in the course of his -- 16 of 20 -- 7 or her employment. The application of the principle stated in Unsworth v Commissioner for Railways leads in that situation to the conclusion that the Commonwealth could not be required pursuant to s.5(1)(c) to make any contribution to another tortfeasor liable for the same damage. Section 44(1) is subject to section 45 subs (2) which provides that ‘where an employee makes an election’ section 44(1) does not apply in relation to an action subsequently instituted by the employee against the Commonwealth for damages for the non economic loss to which the election relates. This language in my opinion forces the conclusion that unless and until an employee makes an election section 44(1) applies and no action lies. Put another way, until Mr Flaviano made an election in writing to institute an action, section 44(1) prevented him from suing the Commonwealth in respect of the injury sustained by him.” His Honour adverted to the result of such a construction and on the same page observed: “This argument has force particularly when it is remembered that if the Commonwealth although a joint tortfeasor is not liable to make contribution to another tortfeasor, the whole of the liability is thrown onto that joint tortfeasor, although the extent of the responsibility for the damage may be considerably less. However I do not think the argument should prevail.” One unsatisfactory consequence of adopting this approach of course is that a defendant may be denied the right to obtain contribution and indemnity from another tortfeasor partly responsible for the plaintiff's injury (whom the plaintiff has elected not to sue) merely because the plaintiff has failed to make a timely election under s.45. One might think it was the intent of the legislature to give such a right when it enacted s.6(c) of the Law Reform Act 1995. Merely because the plaintiff has failed to elect in writing to take action against the Commonwealth and to take it, that right is said to be circumvented. If the matter were free from authority I would be tempted to construe the legislation so that the words “would if sued be liable” in s.6(c) would read as “would if properly sued be liable” or as “would if sued in accordance with all procedural requirements be liable”. I should then be tempted to construe ss.44 and 45 of the Safety Rehabilitation and Compensation Act 1988 as imposing upon a plaintiff who sought to sue the Commonwealth as employer the procedural requirement of first giving a written election before taking that course. -- 17 of 20 -- 8 Such an approach would conform with that taken in Harding v The Council of the Municipality of Lithgow (1937) 57 CLR 186 where a defendant to a Lord Campbell's Act action pleaded that no notice of action had been given by or on behalf of the deceased in his life time as required by the Local Government Act 1919 s.580. It was contended that it followed necessarily that at the time of his death the deceased was not entitled to maintain an action and therefore the defendant was not liable in an action by his widow based upon the provisions of Lord Campbell's Act. At p.192 Latham CJ observed: “It is clear that s.580 provides a condition precedent to the maintenance of an action for negligence against the Municipality but I think that it is also clear that satisfaction of a condition precedent to the bringing of an action cannot itself be regarded as part of the cause of action. ... The procedural steps which must be taken whether before or after the issue of a writ are not part of the cause of action and do not determine whether or not a person injured is entitled to maintain an action within the meaning of section 3 of the Act.” In the present case upon the allegations contained in the declaration the deceased person would if death had not ensued have been entitled to maintain an action against the defendant and to recover damages. It is true that it would have been necessary for him to give notice under section 580 of the Local Government Act and that if he had not given such notice his action would have failed unless the court had exercised its discretion in his favour under the proviso of subsection 5. But the fact that he had not taken this procedural step when he died did not cause him to forfeit or lose the right of action which was vested in him. He was still entitled by taking steps which were within his own power to maintain an action in respect of his injury.” At p.194 Starke J observed: -- 18 of 20 -- 9 “That the right of the deceased if death had not ensued to maintain an action depends not upon the procedural steps necessary to enforce the right but upon the liability to him of the person guilty of the wrongful act, neglect or default.” In Scoles v Commissioner for Government Transport (1960) 104 CLR 339 the High Court considered the sufficiency of a purported notice of action required by s.233(1) of the Transport Act 1930 (NSW). It was held unanimously that the purported notice in that case was insufficient to constitute an effective notice of intended action. However Windeyer J at 343 observed: “Counsel for the respondent said that giving a notice of action was a condition precedent to the right of action. That is so; but it is a procedural condition only. It is not an ingredient of the cause of action (Harding v Lithgow Corporation). The absence of such a notice if not waived bars the remedy but it does not extinguish the right.” In my view the reasons expressed in Harding and Scoles (supra) support the argument that service of an election in writing to institute action against the Commonwealth does not form part of that cause of action. Section 45 in its clear terms assumes the existence of a pre-existing cause of action for damages for non economic loss suffered by an employee of the Commonwealth of the sort for which compensation is payable under ss. 24, 25 and 27 of the Act. Section 45(4) then limits the amount of damages that may be recovered by an employee against the Commonwealth for non economic loss to the sum of $110,000. No doubt, adopting the approach in Harding and Scoles, it would still be arguable whether having regard to Unsworth v Commissioner for Railways (1958) 101 CLR 73, a defendant could recover a contribution from the third party greater than the sum of $110,000. It is unnecessary however to consider that matter. -- 19 of 20 -- 10 The approach which I have discussed has been canvassed before the New South Wales Court of Appeal in Flaviano's case and has been rejected. It is not clear however that Harding and Scoles were cited in support of that approval. Undoubtedly this Court will follow the interpretation placed on legislation of this kind by another Australian intermediate appellate court unless satisfied that it is clearly incorrect or perhaps given per incuriam. In this respect I refer merely to Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 and David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 272. In this case both constructions are arguable and, although I find the argument advanced on behalf of the defendant attractive, nevertheless in my view it is undesirable for this Court to depart from a construction already given by the New South Wales Court of Appeal to the Safety Rehabilitation and Compensation Act 1988 and its determination of the effect of the interaction of that Act with the Law Reform Contribution Act in New South Wales. To do so would merely ensure inconsistency in approach between commensurate Australian appellate courts. Should the defendant wish to challenge Flaviano it should attempt to obtain leave to appeal from the High Court to do so. I would allow the appeal. I would also order that the defendant pay the appellant's costs of and incidental to the appeal and application for leave to appeal to be taxed. -- 20 of 20 --