Under the WorkCover Queensland Act 1996, where an injured worker has not complied with the statutory preconditions for seeking damages against the employer (assessment, election, certification), the employer is not a person who 'would if sued have been liable' for the same damage under s 6(c) of the Law Reform Act 1995 (Qld), and a co-tortfeasor cannot obtain contribution from the employer. This means that in cases of joint or concurrent fault by an employer and a third party, the third party may bear the full burden of damages if the worker chooses not to pursue the employer. The Court expressed reservations about this result and noted the High Court had granted special leave in Airservices Australia to reconsider the underlying Flaviano principle.
The full text is available to signed-in members, including the 14 later cases that cite this judgment.
6 of the 14 citing cases carry a classified treatment. How each court treated it is available to signed-in members.