Apelu v Lusty Tip Trailers Pty Ltd [2024] QCA 158 (2024) 333 IR 413

SUPREME COURT OF QUEENSLAND CITATION: Apelu v Lusty Tip Trailers Pty Ltd [2024] QCA 158 PARTIES: SHEM APELU by his litigation guardian CALEB APELU (appellant) v LUSTY TIP TRAILERS PTY LTD ACN 160 289 332 (respondent) FILE NO/S: Appeal No 16051 of 2023 SC No 11267 of 2020 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2023] QSC 262 (Brown J) DELIVERED ON: 30 August 2024 DELIVERED AT: Brisbane HEARING DATE: 1 May 2024 JUDGES: Bond and Boddice JJA and Crowley J ORDERS: 1. The appeal is dismissed. 2. The appellant is to pay the respondent’s costs. CATCHWORDS: WORKERS' COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – NOTICE OF INJURY – EFFECT OF INACCURACY, DELAY OR FAILURE TO GIVE NOTICE – where the plaintiff claims damages for personal injuries suffered in the course of employment – where the claim for personal injuries suffered include a psychiatric injury diagnosed as schizophrenia and post-traumatic stress disorder (“PTSD”) – where a separate notice of assessment was not made for schizophrenia – where the respondent admits it was negligent – where schizophrenia was not specifically raised as a work-related injury until it was pleaded in the amended statement of claim – where there is conflicting evidence regarding whether the injury was work related – whether “a psychiatric or psychological disorder/injury” in s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) refers to a single injury to the mind – whether the primary judge erred in finding that the notices of assessment issued by WorkCover in respect of the accepted injuries did not also encompass an assessment of the appellant’s schizophrenia -- 1 of 16 -- 2 WORKERS' COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – EVIDENCE – MEDICAL EVIDENCE – whether the primary judge erred in finding that for the schizophrenia to be pursued at trial, on the basis that it was “secondary” to his physical injuries and/or his PTSD, the medical opinion to that affect must be the “overwhelming” view Acts Interpretation Act 1954 (Qld), s 32C Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 32, s 179, s 237, s 500 Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; [1940] HCA 44, cited Barraclough v WorkCover Queensland [2012] QDC 321, distinguished Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209, considered Costello v Queensland Rail [2015] 2 Qd R 296; [2014] QSC 83, distinguished Dowd v Swift Australia Pty Ltd [2008] QCA 228, considered Mitchell v Clancy [1960] Qd R 62, cited COUNSEL: S J Deaves KC, with P M Nolan, for the appellant R J Douglas KC, with A S Mellick, for the respondent SOLICITORS: Maurice Blackburn Lawyers for the appellant BT Lawyers for the respondent [1] BOND JA: I agree with the reasons for judgment of Crowley J and the orders proposed by his Honour. [2] BODDICE JA: I agree with Crowley J. [3] CROWLEY J: The respondent is a manufacturer of trailers. It previously employed the appellant as a boilermaker. On 19 January 2018, an accident occurred in the respondent’s workshop in which the appellant was hit on the back of the head by a large metal hook attached to a chain. He was rendered unconscious and sustained a head injury. [4] The appellant applied for and received workers’ compensation benefits. Whilst receiving those payments, the appellant saw various medical practitioners and was further diagnosed with a work-related Post-Traumatic Stress Disorder, (“PTSD”). Work capacity certificates were issued identifying both the head injury and the PTSD as work-related diagnoses. [5] The appellant was subsequently diagnosed with schizophrenia, which was said to be not work-related. That condition was not included on any work capacity certificates. [6] Although the appellant had not included any claim for psychological or psychiatric injury at all in his application for compensation, the respondent’s insurer, WorkCover Queensland (“WorkCover”) acted upon the work capacity certificates and treated his claim as being for both the physical injury to his head as well as his PTSD. -- 2 of 16 -- 3 [7] In accordance with statutory pre-proceeding steps, WorkCover, formally accepted the appellant’s head injury and his “secondary psych injury” as injuries as defined by s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”). At no stage did it accept the appellant’s schizophrenia was such an injury. [8] WorkCover then referred the appellant for independent assessment of his capacity for work and any degree of permanent impairment (“DPI”) resulting from his injuries. Following those assessments, WorkCover issued notices of assessment, as required by the WCRA, thereby entitling the appellant to make a claim for damages in respect of his assessed injuries. It did not issue a separate notice of assessment for the appellant’s schizophrenia. [9] The appellant subsequently commenced a proceeding against the respondent, seeking damages for the personal injuries he claims he sustained as a result of the respondent’s negligence. In addition to alleged physical injuries to his head and cervical spine, the appellant claims he sustained psychiatric injury in the form of PTSD and schizophrenia (or a chronic aggravation of a pre-existing mild schizophrenia). [10] The respondent admits that it was negligent. However, it pleads in its defence that, by operation of the WCRA, the appellant is precluded from seeking damages for any aggravation or development of schizophrenia because WorkCover has not decided that his schizophrenia is an “injury” under the WCRA, nor has it issued a notice of assessment with respect to that condition. [11] The appellant subsequently brought an application, seeking declaratory relief to the effect that his claim is not so limited, and an order to strike out the relevant paragraph of the respondent’s defence that asserted to the contrary. In short, his position was that he was not required to have a separate notice of assessment for his schizophrenia because, either: (a) his claim was in respect of a single “psychiatric injury” and that necessarily incorporated either or both of his diagnosed conditions of PTSD and schizophrenia. The notice of assessment issued for his PTSD therefore extended to his schizophrenia; or (b) his schizophrenia was “secondary” to his accepted physical injuries and/or his PTSD and therefore covered by the notices of assessment issued in respect of those injuries. [12] The primary judge rejected the appellant’s arguments and dismissed his application. Her Honour determined that, in the absence of a separate notice of assessment for his schizophrenia, the appellant was precluded from seeking damages in respect of that condition. [13] The appellant appeals that decision. He maintains that he was not required to have a separate notice of assessment in respect his schizophrenia before he could make a claim for damages for that condition. He says the primary judge erred in finding otherwise. [14] The appellant advances two separate grounds of appeal. Ground one asserts the primary judge erred in finding that the notices of assessment issued by WorkCover in respect of the accepted injuries did not also encompass an assessment of the appellant’s schizophrenia condition or otherwise entitle him to pursue damages for -- 3 of 16 -- 4 that condition. Ground two asserts that the primary judge erred in finding that in order for the schizophrenia condition to be pursued at trial, on the basis that it was “secondary” to his physical injuries and/or his PTSD, the medical opinion to that affect must be the “overwhelming” view on the hearing of his application. [15] In my view the primary judge did not err as the appellant contends. For the reasons that follow I would dismiss the appeal. Do the issued notices of assessment encompass the appellant’s schizophrenia? Referral of the injuries for assessment [16] The decision by WorkCover to refer the appellant’s injuries for assessment to determine whether his injuries resulted in any DPI was made under s 179 of the WCRA, which relevantly provided: “179 Assessment of permanent impairment (1) An insurer may decide, or a worker who has made an application under section 132 may ask the insurer, to have the worker’s injury assessed to decide if the worker’s injury has resulted in a degree of permanent impairment. … (2) The insurer must have the degree of permanent impairment assessed— (a) for industrial deafness—by an audiologist; or (b) for a psychiatric or psychological injury—by a medical assessment tribunal; or (c) for another injury—by a doctor. (3) The degree of permanent impairment must be assessed in accordance with the GEPI1 to decide the DPI for the injury, and a report complying with the GEPI must be given to the insurer. (4) If the worker sustains permanent impairment from multiple injuries sustained in 1 event— (a) the degree of permanent impairment for the injuries, other than a psychiatric or psychological injury, must be assessed together to decide the DPI for the injuries; and (b) the degree of permanent impairment for the psychiatric or psychological injury must be assessed separately to decide the DPI for the injury.” [17] At the relevant time, s 32(1) of the WCRA defined an “injury” to mean personal 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; or 1 The Dictionary in sch 6 to the WCRA provided that “GEPI” means the Guidelines for the Evaluation of Permanent Impairment made under s 183 of the WCRA. -- 4 of 16 -- 5 (b) for a psychiatric or psychological disorder – the employment was the major significant contributing factor to the injury. [18] The appellant’s physical injury was assessed by an occupational physician, who identified the work-related injury as “laceration of the scalp” and determined that the appellant’s DPI for that injury was 0%. [19] The appellant’s PTSD injury was referred to the Medical Assessment Tribunal, (“MAT”). The referral was made, in accordance with s 179(2)(b) and s 500(1) of the WCRA, which relevantly provided: “500 Reference to tribunals (1) An insurer may refer the following matters in relation to an injury under this Act to the appropriate tribunal for decision on the medical matters involved— (a) a worker’s application for compensation for an alleged injury; (b) a worker’s capacity for work; … (e) a worker’s permanent impairment under section 179”. [20] The referral was only in respect of the matters stipulated in s 500(1)(b) and (e). The referral form specified the details of the “injury diagnosis” as “PTSD”. In accordance with s 500A of the WCRA, the MAT was given a copy of all relevant documentation, which included the various specialist medical reports that had been obtained in respect of the appellant’s PTSD and schizophrenia. [21] On 11 July 2019, as required by s 516 of the WCRA, the MAT gave a written decision in relation to the matters that had been referred to it for determination. The decision noted at the outset that the appellant had lodged an application for compensation in relation to injuries sustained as a result of the incident on 19 January 2018 and then stated: “In relation to the application for compensation WorkCover Queensland accepted liability for the following injuries: • Laceration to head • Posttraumatic Stress Disorder The referral is with respect to the psychological/psychiatric injury.” [22] The MAT determined that the appellant had a partial permanent incapacity for work “resulting from the injury for which the application for compensation was made” and that the DPI resulting from the injury was 5%. In its reasons for decision, the MAT relevantly recorded the following: “The tribunal considered incapacity due to the work related Posttraumatic Stress Disorder and considered that Mr Apelu would be able to undertake work and earn wages, however, this was diminished as previously he was working full-time hours. The tribunal considers -- 5 of 16 -- 6 that the incapacity for work due to work related psychiatric condition is ongoing for the foreseeable future. Therefore the tribunal considers that Mr Apelu has partial and permanent incapacity caused by the work related psychiatric condition. The tribunal accepts that, in response to the work related incident on 19 January 2018, Mr Apelu developed a range of emotional symptoms consistent with a diagnosis of Posttraumatic Stress Disorder. The tribunal notes that Mr Apelu also presents with the symptoms of Schizophrenia. The independent medical examination indicated development of that condition prior to the index injury. The tribunal does not consider the chronic Paranoid Schizophrenia to be work related. The tribunal assessed the deficits in daily living that are currently present and provided determination according to the accepted work related psychiatric condition, which is Posttraumatic Stress Disorder.” The notices of assessment and election to pursue damages [23] On 16 July 2019, WorkCover issued two notices of assessment, as required by s 185 of the WCRA. The first notice was in respect of the appellant’s head injury, which was again described as a “laceration of the scalp”. The assessed DPI for that injury was stated as 0%. The second notice was in respect of his “psychiatric/psychological injury.” That notice relevantly stated: “You have sustained a degree of permanent impairment from psychiatric/psychological injury assessed for the purposes of this Notice of Assessment. The degree of permanent impairment (DPI) for your psychiatric/psychological injury is: 5%.” [24] The notice also specified that in determining the total DPI the “diagnosed injuries and/or conditions” assessed were, “Post Traumatic Stress Disorder”. [25] The appellant was informed by the second notice that he was entitled to lump sum compensation and he was offered an amount of $16,512. He did not accept the offer and instead elected to pursue damages, for which he gave a notice of claim to WorkCover on 25 September 2019. [26] Section 275 of the WCRA provided that before starting a proceeding in a court for damages a notice of claim, complying with the requirements of the section, must be given. One such requirement was to give particulars of all injuries alleged to have been sustained by the claimant. The appellant’s notice of claim identified the particulars of his alleged injuries as: (a) Mind – Post-traumatic stress disorder, Depression & Anxiety; (b) Head – Soft Tissue and Laceration of the scalp; (c) Neck – Soft Tissue strain. [27] The appellant indicated in his notice of claim that he had received a notice of assessment in respect of each of the claimed injuries to his mind and head. At no stage did he make a request for an assessment to be made of any schizophrenia injury. -- 6 of 16 -- 7 [28] During subsequent pre-court proceedings, the appellant underwent further assessment in respect of his psychiatric injury. Reports of those assessments confirmed PTSD and schizophrenia but diverged as to whether his schizophrenia was work-related. Despite the further assessments and reports, the appellant did not amend his notice of claim to add schizophrenia as a specific work-related injury. [29] The appellant also did not seek to have WorkCover make a decision about whether he had sustained an injury, as defined under s 32, in respect of his schizophrenia. In that regard, s 239A of the WCRA provided that, where a claimant had not received a notice of assessment for an injury but had received a notice of assessment for any injury resulting from the same event and had elected to seek damages, the claimant could only seek damages for the unassessed injury if the relevant insurer decided that the claimant had sustained an injury. Commencement of proceedings [30] On 10 October 2019, WorkCover advised the appellant, pursuant to s 278 of the WCRA, that it was satisfied that his notice of claim was a complying notice. On 10 February 2020, WorkCover gave notice to the appellant, pursuant to s 281 of the WCRA, that it admitted liability for his claim, but without admission that he had sustained injury, whether of the nature and extent alleged or at all. [31] The appellant commenced proceedings in October 2020. That was the first occasion he formally raised his claim for damages in respect of schizophrenia as a psychiatric injury resulting from the workplace accident. Under s 295 of the WCRA the appellant was permitted to start the proceeding only if he had, amongst other things, complied with s 237 of the WCRA, which relevantly provided: “237 General limitation on persons entitled to seek damages (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”. [32] After his claim and statement of claim were filed, the appellant obtained further reports from Professor Alexander McFarlane, a professor of psychiatry. In his first report of 28 January 2022, Professor McFarlane opined that there was a link between the appellant’s workplace accident and the onset of his schizophrenia. He considered the appellant’s PTSD was a significant contributing risk factor to developing schizophrenia and that it should not be assumed that the two disorders existed independently of each other. In his view, the two conditions were “inextricably intertwined”. In his second report, dated 19 May 2022, Professor McFarlane confirmed his opinion that there was a causal link between the trauma the appellant had experienced as a result of the work accident and the onset of PTSD, a major depressive disorder and schizophrenia. The appellant’s application and the decision of the primary judge [33] The issues for determination below were whether, for the purposes of s 237 of the WCRA, the appellant has one “psychiatric injury” for which he had received a notice -- 7 of 16 -- 8 of assessment, irrespective of his diagnoses, and is therefore able to pursue his claim for damages for that condition; or whether his schizophrenia is a separate psychiatric injury to his PTSD and therefore he would require a separate notice of assessment before he could pursue a claim for damages for that injury. [34] Drawing support from the terms of s 179(4) of the WCRA, the appellant’s argument was that regardless of how the assessed psychiatric injury was described in the second notice of assessment, a referral of a psychiatric or psychological injury to the MAT under s 179 of the WCRA was only in respect of a single “injury to the mind”. Therefore, he argued, he was entitled to pursue a claim for damages for his schizophrenia as that condition was necessarily encompassed by the second notice of assessment which had been issued by WorkCover in respect of his single psychiatric or psychological injury. [35] In dealing with this aspect of the appellant’s application, the primary judge recorded that the following matters were uncontentious: (a) the plaintiff suffers from schizophrenia; (b) schizophrenia was not specifically raised as a work-related injury until it was pleaded in the amended statement of claim, but medical reports provided during the pre-court proceedings did raise it as an injury suffered from the work- related event; (c) there is conflicting medical evidence as to whether the plaintiff’s condition of schizophrenia is work-related or not; and (d) there is conflicting evidence as to whether schizophrenia or the aggravation of schizophrenia was caused by the work-related incident. [36] The primary judge found that whilst WorkCover had accepted the appellant’s “secondary psych claim”, that phrase could not be fairly construed as extending to a psychological injury which had been identified as being non-work-related, given the definition of “injury” under s 32 of the WCRA. Her Honour did not find that WorkCover had, by its conduct, accepted schizophrenia as an injury under s 32 of the WCRA. [37] The primary judge further found, as a matter of fact, that the MAT had only assessed PTSD and had specifically treated schizophrenia as a separate injury. Accordingly, the primary judge found that the MAT did not assess the appellant’s schizophrenia as an injury for the purposes of s 237(1)(a)(i) of the WCRA. [38] The primary judge rejected the appellant’s argument that, under s 179(4) of the WCRA, multiple psychological or psychiatric injuries are treated as a single injury and that the notice of assessment issued for the appellant’s PTSD was therefore an assessment of the psychological or psychiatric injury caused by the work-related event, even if a particular psychiatric condition was not referred to the MAT, nor assessed by it in its determination of incapacity and the degree of permanent impairment. In doing so, her Honour reasoned: “…if different psychological conditions were identified as discrete and separate conditions and the assessment is confined to one of the identified psychological or psychiatric conditions the Notice of Assessment could not serve as an assessment of those discrete conditions where it is plain they have not been assessed.” -- 8 of 16 -- 9 [39] Consequently, the primary judge concluded that the second notice of assessment was limited to the psychiatric injury that was assessed by the MAT, namely PTSD. As a result, the appellant was not entitled to pursue his damages claim for schizophrenia. Submissions on appeal [40] The appellant contends that the second notice of assessment for his PTSD injury necessarily encompassed an assessment of his schizophrenia condition or otherwise entitled him to pursue his claim for damages for that condition. He submits that the primary judge erred in her construction of s 179 of the WCRA. Relying again upon the language used in s 179(4), he maintains that the referral of his “psychiatric/psychological injury” to the MAT was in respect of the single psychiatric injury that was the subject of his claim for compensation, regardless of diagnosis. The appellant’s argument seizes upon the fact that s 179(4) of the WCRA refers in the singular to “a” or “the” psychiatric or psychological injury, but otherwise refers in the plural to other physical “injuries”. He says s 179 and s 32 of the WCRA each contemplate one single injury to the mind when referring to a psychological or psychiatric injury and this is plain from the principles that come from the previous decisions which have interpreted s 32, such as Bell v Australia Meat Holdings Pty Ltd2 and Dowd v Swift Australia Pty Ltd.3 [41] The appellant further contends that WorkCover could not arbitrarily limit his right to claim damages by issuing a notice of assessment which only described a diagnosis of PTSD. He submits that it would be consistent with the scheme of the WCRA and that the proper approach to the issue is that the second notice of assessment is sufficient for his single psychiatric injury, and it would be a matter for the trial judge to determine the nature, extent and cause of that injury, in terms of symptoms and diagnoses, upon the evidence adduced at trial. [42] The appellant’s ultimate submission is that if his construction argument is correct, it is open for this Court to then find, contrary to the erroneous finding of the primary judge, that the second notice of assessment extends to cover his schizophrenia condition and therefore he satisfies the requirement imposed by s 237(1)(a)(i) of the WCRA, enabling him to pursue his damages claim for that alleged psychiatric injury. Consideration [43] The appellant does not challenge any of the factual findings made by the primary judge, nor does he suggest that the second notice of assessment is invalid. Disposition of the first ground of appeal therefore turns upon his construction argument concerning s 32, s 179 and s 237 of the WCRA. [44] The proper construction of those provisions is to be determined having regard to the statutory text, interpreted having regard to their context and legislative purpose.4 An interpretation that will best achieve the purposes of the WCRA is to be preferred to any other interpretation.5 2 [2003] QCA 209. 3 [2008] QCA 228. 4 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 31 [4] (French CJ) and 46–47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). 5 Acts Interpretation Act 1954 (Qld), s 14A(1). -- 9 of 16 -- 10 [45] The starting point is to consider the text of s 32. As the appellant acknowledges, it is the definition of “injury” in s 32 that applies whenever the word is used in the WCRA, including in s 237 and s 179. For the appellant’s argument to succeed, the phrase “a psychiatric or psychological disorder” within s 32(1), would need to be interpreted as referring to a single injury to the mind. [46] Aside from the use of the definite article “a” to distinguish “a psychiatric or psychological disorder” from some other type of injury, there is no textual indication within the section that the phrase should be given the limited meaning for which the appellant contends. Indeed, when read as a whole, it seems to me to be contrary to the actual language used within the section. Definite articles and singular phrases are employed within the section simply to distinguish between injury types and the different criteria that must be met to satisfy the definition of “an injury”. To my mind, the fact that s 32(1) speaks of alternatives of “psychiatric or psychological disorder” strongly suggests that either kind of disorder may constitute an injury. It would logically follow then, in my view, that an injured worker who develops a psychiatric disorder and a psychological disorder, as a result of the one work-related event, will have sustained two injuries. Much of course would depend on the evidence concerning the particular conditions experienced by an injured worker in a given case. [47] In this case there is no such evidence suggesting that the appellant’s PTSD and schizophrenia are one and the same condition or disorder. In any event, the appellant’s argument solely concerns the construction of provisions of the WCRA. [48] Although the appellant submitted that various cases dealing with the interpretation of s 32 established principles that supported his argument, that is not the case. [49] Bell was a case that concerned the former regime that applied under the WorkCover Queensland Act 1996 (Qld), (“WCQA”). The injured worker had given a notice of claim in respect of an injury described in the notice as “multi level disk injuries” to the lower back. The earlier notice of assessment had described the injury as “mild aggravation of pre-existing degenerative disease in the lumbosacral spine”. Because of these differences in description, the employer did not accept that the worker’s notice was a complying notice. The worker sought, and obtained, a declaration that his notice of claim was a complying notice. The employer appealed. [50] Davies JA, with whom Jerrard JA and Wilson J agreed, noted that a central question argued and determined in the primary court was whether the injury referred to in the notice of claim was the same injury as that referred to in the notice of assessment. In addressing that issue on appeal, Davies JA considered the definition of “injury” in s 34 of the WCQA, for which s 32 of the WCRA is the present analogue. His Honour noted that under s 34, the term “injury” was defined as “personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury” and that “personal injury” was used in its ordinary meaning of damage to the body. Davies JA concluded that despite the differences in descriptions, the injury described in the notice of claim was the same as that which had been described in the notice of assessment, as in each case they described the personal injury that the worker had suffered to his lower spine on a particular identified occasion. [51] Dowd was also a case to which the WCQA applied. There, the plaintiff worker had commenced an action against the defendant employer for personal injuries said to -- 10 of 16 -- 11 have been sustained by him during his employment as a meatworker. The plaintiff’s statement of claim alleged he had suffered an injury to his lumbar spine. He alleged that the injury occurred on 13 April 2002, or alternatively over a period of time between September 1999 and 13 April 2002. As a further alternative, he alleged that the injury occurred on 15 May 2002, during a period when he was on light duties after 13 April 2002. The defendant sought to strike out those parts of the worker’s statement of claim which dealt with the allegations that the plaintiff had suffered an over period of time injury or an injury while he was on light duties, because the notice of assessment that the plaintiff had received for his injury specified the date of injury as 13 April 2002. The primary judge dismissed the defendant’s application, on the basis that there was only one injury pleaded and that issues concerning causation and the date of the injury should properly be left to the trial. [52] The Court of Appeal dismissed the defendant’s application for leave to appeal the primary judge’s decision. In doing so, Dutney J, with whom Keane JA and Mackenzie AJA agreed, noted that the defendant’s argument below and on appeal was predicated upon the assumption that the WQCA required an injury to be related to a specific event and that, by nominating alternative events as giving rise to the injury, the plaintiff was alleging three separate injuries. Dutney J considered the terms of s 33 of the WQCA, which defined “event”, and s 253(1)(a)(ii) of the WCQA, which enabled an injured worker with a certain assessed level of impairment for one injury to also bring a claim for another injury arising out of the same event. Materially similar provisions are now contained in s 31 and s 237(1)(ii) of the WCRA respectively. His Honour determined that neither provision advanced the defendant’s argument, noting that whilst the date an injury was suffered was no doubt significant in its identification, it was not a matter to which the statutory provisions referred. Dutney J ultimately concluded that the primary judge’s approach of deferring consideration of the plaintiff’s entitlement to claim until the relevant facts are ascertained by a trial was one which was difficult to criticise. [53] Neither Bell, nor Dowd, nor any other case relied upon by the appellant on this issue, establishes any relevant legal principle that informs the interpretation of s 32 of the WCRA. [54] The appellant ultimately sought to draw support for his interpretation of the meaning of “injury” in s 32 by reference to s 179. He submitted that the use in s 179(4) of the singular phrases of “a psychiatric or psychological injury” and “the” psychiatric or psychological injury”, in contrast to the plural term “injuries” in respect of other injuries, bears out his argument that an injury by reason of a psychiatric or psychological disorder constitutes a single injury to the mind as that is the sole body part affected, whereas there may be multiple physical injuries sustained as they may affect multiple systems or parts of the body. [55] I reject the appellant’s argument. Aside from the limited support that may be gained from a superficial reading of certain phrases used in s 179(4), his argument is neither supported by a reading of the full text of the provision and understanding its purpose, nor by reading the provision within context of the WCRA as a whole, nor when regard is had to the objects and intent of the legislation. Furthermore, there is a fundamental difficulty, in my view, in attempting to construe an exhaustive definitional provision of general application that applies to an entire Act, such as s 32, by reference to the terms of a specific provision with a limited scope and purpose, such as s 179. -- 11 of 16 -- 12 [56] Section 179 provides for when and how an assessment of a worker’s injury may be made about whether a worker’s injury has resulted in a degree of permanent impairment. Section 179(1) provides for how such an assessment is initiated; either the insurer may decide to have the injury so assessed, or the worker may ask the insurer to have it assessed. Section 179(2) mandates the designated entity that must assess a particular type of injury. In the case of “a psychiatric or psychological injury”, s 179(2)(b) stipulates that the assessment must be by the MAT. The singular reference to “a” psychiatric or psychological injury in that subsection is solely a product of grammatical expression consistent with the way in which the subsection is drafted, whereby all injuries are referred to in the singular. In a like manner, s 179(2)(a) provides that “industrial deafness” must be assessed by an audiologist and s 179(2)(c) provides that “another injury” must be assessed by a doctor. The requirements of s 179(3), that the DPI for “the injury” must be assessed in accordance with the GEPI, and a report must be given to the insurer, each relate to whichever of the injuries referred to in s 179(2) that are referred for assessment. [57] The decision of McMeekin J in Costello v Queensland Rail6 provides further support for the proposition the phrase “a psychiatric or psychological injury” within s 179(2)(b) is not to be construed in the way the appellant contends. In that case, the injured worker had been stabbed by a co-worker. In addition to his physical injuries resulting from the incident, the injured worker had been diagnosed with a depressive disorder and PTSD. Each was said to be a separate injury arising from the same event. The employer only referred the injured worker’s PTSD injury to the MAT for assessment under s 179(2)(b) of the WCRA. The MAT assessed the PTSD in terms of the injured worker’s ongoing incapacity and whether that injury had resulted in a degree of permanent impairment. WorkCover subsequently issued a notice of assessment in respect of the PTSD injury. The appellant accepted the lump sum compensation amount offered to him in respect of that injury. He subsequently contended that the notice of assessment was invalid as it had not referred to his depressive disorder and he was therefore not precluded from seeking damages for that injury. He sought declarations to that effect. [58] In considering the matter, McMeekin J noted that the injured worker had been referred to a psychiatrist, who had diagnosed him as suffering the two, quite separate, conditions. McMeekin J therefore accepted that on the evidence before him the injured worker had sustained two injuries. His Honour determined that under s 179(2) of the WCRA it was mandatory for an insurer to refer all psychiatric or psychological injuries for assessment. In those circumstances, McMeekin J held that it was not sufficient compliance with s 179(2) for WorkCover to simply provide the psychiatrist’s report to the MAT without an express referral of the depressive injury for assessment. [59] Section 179(4) provides for how an assessment of DPI is to be made where a worker had sustained multiple injuries in the same event. Under s 179(4)(a), the DPI for all injuries other than “a psychiatric or psychological injury” must be assessed together to decide the total DPI. Under s 179(4)(b), the DPI for “the psychiatric or psychological injury” must be assessed separately. In each case the use of the singular terms “a” or “the” psychiatric or psychological injury is again plainly employed to distinguish such an injury type from other types of injury, namely physical injuries. The language is expressed in the singular because the purpose of the subsection 6 [2015] 2 Qd R 296. -- 12 of 16 -- 13 requires injury type categorization and differentiation. It is not used in a way that suggests that regardless of diagnoses an injured worker will simply be treated as having one single psychiatric or psychological injury and it is that single injury that is to be assessed by the MAT. [60] The evident purpose of s 179(4) is to ensure that separate, rather than combined, assessments of the degree of permanent impairment are made for physical injuries and for psychiatric or psychological injuries. An obvious reason why such separate assessments are not to be combined is because of the nature of the assessment entities involved and the review rights that follow such assessments. [61] Where the DPI has not been assessed by the MAT in the first instance, such as in the case of a physical injury, a worker who disagrees with the DPI stated in a notice of assessment issued by the insurer may make a request under s 186(2)(b) of the WCRA for either a reassessment by a doctor or referral of the question of degree of permanent impairment to the MAT for decision. In contrast, where the assessment of DPI is made by the MAT in the first instance, as is required for a psychiatric or psychological injury, a worker dissatisfied with the DPI stated in a subsequently issued notice of assessment may not request a reassessment. Section 515 of the WCRA provides that, except as provided under s 512, a decision of the MAT on a medical matter referred to it under s 500 is “final and can not be questioned in a proceeding before a tribunal or a court”. In certain circumstances, s 512 allows for a further decision by the MAT in the event of there being fresh medical evidence about a worker’s injury. [62] Quite aside from the textual analysis I have undertaken, s 32C of the Acts Interpretation Act 1954 (Qld), which states that in an Act “words in the singular include the plural”, provides a complete answer of itself to the appellant’s construction argument. The appellant was unable to articulate any convincing argument why s 32C would not apply to the interpretation of s 179 and s 32 of the WCRA. [63] I would also add that the appellant’s construction argument appears to me to be contrary to the objects and intent of the scheme created by the WCRA. Section 5(4) of the WCRA makes plain that it is intended that the legislative scheme should maintain a balance between, amongst other things, “providing fair and appropriate benefits for injured workers” and “ensuring reasonable cost levels for employers”; that it should “ensure that injured workers or dependants are treated fairly by insurers”; and that it will provide for “the protection of employers’ interests in relation to claims for damages for workers’ injuries”. The pre-proceeding steps required by the WCRA seek to give effect to these objects by enabling an injured worker to have their injuries independently assessed and to be offered payment of a commensurate lump sum amount of compensation, which they may accept in lieu of pursuing a claim for damages. If the appellant’s argument was correct, it would not be necessary for all psychological or psychiatric conditions allegedly sustained by an injured worker in the one event to be assessed, or to be the subject of a notice of assessment, with an accompanying offer of compensation, before a claim for damages could be commenced. That seems to me to run counter to the intent of a legislative scheme that regulates access to damages, which is designed to reduce costs by providing for mandatory steps to avoid litigation costs and to achieve earlier resolution of claims and payment of appropriate amounts of compensation. [64] In my opinion, the terms of s 179(4) do not support the appellant’s argument in respect of the proper construction of the meaning of “injury” in s 32. -- 13 of 16 -- 14 [65] The primary judge was correct to find that the only psychiatric injury assessed by the MAT was PTSD and the only psychiatric injury that has been the subject of a notice of assessment is PTSD. [66] In my view the first ground of appeal therefore fails. Is the appellant’s schizophrenia a “secondary injury”? [67] An alternative argument made by the appellant before the primary judge was that if his schizophrenia condition was not covered by the second notice of assessment, he did not need a separate notice of assessment for the condition as it was a “secondary injury” to either his head injury or his PTSD. The basis for the appellant’s alternative argument is the common law legal principle referred to by Durward SC DCJ in Barraclough v WorkCover Queensland.7 [68] In Barraclough, the applicant worker claimed that she had sustained injuries to her hands as a result of exposure to bleach when cleaning plates in a kitchen operated by her employer at a mining camp. She made an application for workers’ compensation, which was accepted by WorkCover. WorkCover assessed her injury as “bilateral burns to the hands”. The applicant subsequently gave a notice of claim for damages in which she particularised her injuries as soft tissue injuries and burns to both her hands, “reflex sympathetic dystrophy/causalgia” (“RSD”) of the right hand/upper limb and “psychiatric/psychological injuries, including adjustment disorder and depression (unassessed)”. WorkCover initially maintained that the notice of claim was non-compliant because it included a claim for damages for which it considered no entitlement existed. It ultimately accepted the soft tissue and chemical burn injuries but advised it would undertake a review of the RSD and the unassessed psychological injury. Subject to those matters, it otherwise deemed the notice of claim compliant. The applicant then brought an application for declarations that the notice of claim was compliant and that she was entitled to pursue damages for all the physical injuries, including RSD. The relevant issues for determination by the primary judge were whether RSD, or symptomology described in that way, was a separate injury and whether it had been accepted by WorkCover as an injury. [69] In determining the application, Durward DCJ was asked to, and did, consider the relevant medical evidence concerning the applicant’s physical injuries. His Honour then considered various common law authorities, including Adelaide Chemical & Fertilizer Co Ltd v Carlyle8 and Mitchell v Clancy,9 in respect of which his Honour said: “The thrust of those cases are, in simple terms, that the subsequent development of a condition was not a new injury but rather a not unexpected consequence of the original injury. Whilst I accept that those cases dealt with common law claims for injuries, the approach of the courts in making that determination is, to some extent, a relevant consideration - by way of analogy to the considerations which need to be applied to the situation in this application and the statutory regime in which the applicant’s claim is made.” 7 [2012] QDC 321. 8 (1940) 64 CLR 514. 9 [1960] Qd R 62. -- 14 of 16 -- 15 [70] By applying that principle to the evidence before him on the application, Durward DCJ ultimately concluded that the RSD condition was not a “separate injury” or a “different unassessed injury”. Rather, it was causally connected to the chemical burn injury to the applicant’s hands and hence a secondary consequence of the injury described in the notice of assessment. In reaching these conclusions, his Honour noted that the “overwhelming thrust of the medical evidence” was supportive of a causal connection between the diagnosis of RSD and the original injury rather than the two being separate injuries. His Honour described the RSD as a progression of symptomology of an injury that had manifested itself in a progressive and developmental way and in a continuum. [71] In the present case, the primary judge noted that, relying upon Barraclough, the alternative basis upon which the appellant put his case was on the basis that the subsequent development of a condition from an injury is not a new injury but the consequence of the original injury. Her Honour observed that the appellant’s argument relied principally upon the opinions expressed by Professor McFarlane in his reports, in which he expressed the view that there was a causal link between the appellant’s PTSD and his schizophrenia. [72] The primary judge recorded that the respondent did not contend that Barraclough was incorrect, but rather submitted that a clear distinction had been made by the various psychiatrists and the MAT between PTSD and schizophrenia. [73] In rejecting the appellant’s argument, the primary judge said: “The present case is different insofar as that while Professor McFarlane opined that schizophrenia may have developed as a result of PTSD, that is not supported by other psychiatric opinions or the MAT. The MAT in its reasoning clearly treated schizophrenia as a discrete and separate condition from PTSD. The plaintiff had been diagnosed as suffering Schizophrenia prior to any assessment by the MAT and the issuing of the Second Notice of Assessment. Professor McFarlane’s opinion cannot be regarded as the overwhelming view, as was the case in Barraclough. Barraclough does not support a finding that in the present case the subsequent development of schizophrenia should be regarded as a consequence of the original injury such that no separate notice of assessment was required.” [74] It is of course to be borne in mind that the impugned conclusions of the primary judge concerned the determination of an interlocutory application, by which the appellant sought discretionary declaratory relief and an order striking out part of the respondent’s defence on the ground that it disclosed no reasonable defence. [75] It is clear that, for the purposes of deciding the application before her Honour, the primary judge accepted the correctness of the general principle referred to in Barraclough but considered the appellant’s case was distinguishable from the circumstances that pertained in Barraclough. In short, the primary judge was simply not satisfied on the evidence before her that the appellant’s schizophrenia could be regarded as a secondary consequence of the injury described in either of the issued notices of assessment. Such a finding does not preclude the appellant advancing his secondary injury argument at trial, albeit I note that at present he has not pleaded that his schizophrenia is a secondary consequence of his PTSD. -- 15 of 16 -- 16 [76] In my view, the primary judge did not err as the appellant contends. The second ground of appeal fails. Conclusion [77] In my opinion neither of the appellant’s grounds of appeal have been made out. I would order: 1. The appeal is dismissed. 2. The appellant is to pay the respondent’s costs. -- 16 of 16 --