Evans v Suncoast Fencing [2023] QDC 192

DISTRICT COURT OF QUEENSLAND CITATION: Evans v Suncoast Fencing [2023] QDC 192 PARTIES: JIMMY MARTIN EVANS (plaintiff/respondent) v MARYBOROUGH/HERVEY BAY FRIENDLY CHEMISTS PTY LTD TRADING AS SUNCOAST FENCING ACN 122 937 026 (defendant/applicant) FILE NO: D98/23 DIVISION: Civil PROCEEDING: Originating application DELIVERED ON: 27 October 2023 DELIVERED AT: Maroochydore HEARING DATE: 20 October 2023 JUDGE: Cash DCJ ORDERS: 1. The application is dismissed. 2. I will hear the parties as to costs. CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – EFFECT OF INACCURACY, DELAY OR FAILURE TO GIVE NOTICE – GENERALLY – where the plaintiff alleges an injury to his wrists or hands arising at work on a specific date – where the plaintiff has received a notice of assessment for an injury said to have occurred on a specific date – where the plaintiff pursues common law damages – whether the plaintiff is prevented from pursuing a claim that the injury was caused over a period of time – meaning of ‘injury’ and ‘event’ LEGISLATION: Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 31, s 32, s 235, s 237 Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), reg 120 CASES: Andersen v Aged Care Employers Self Insurance [2011] QSC 101, [23] Sayers v Hanson t/as Alguard Security Services [2011] QSC 70, [12] -- 1 of 6 -- 2 COUNSEL: T A Nielsen for the plaintiff/respondent J M Sorbello for the defendant/applicant SOLICITORS: Slater and Gordon Lawyers for the plaintiff/respondent Cooper Grace Ward for the defendant/applicant Introduction [1] The plaintiff alleges he was injured at work. Having engaged in pre-court procedures mandated by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’) the plaintiff commenced a claim against the defendant for common law damages. In pre-court procedures, the plaintiff described the injury as arising on a single day, 26 November 2020. In his statement of claim he alleges the injury arose either then or because of events over a period of time leading up to that date, or a combination of both. The defendant applies to strike out part of the pleadings, saying that the plaintiff is prevented by the WCRA from pursuing the part of his claim that alleges his injury was caused by events over a period of time. It is common ground that the plaintiff cannot pursue a claim for damages unless he satisfies the terms of section 237 of the WCRA, which in this case means that he must have received a notice of assessment for ‘the injury’ in respect of which he claims damages. For the reasons which follow, the defendant has not shown that the parts of the statement of claim it challenges by this application plead a different injury to the one identified in the notice of assessment. The application to strike out part of the pleadings will be dismissed. The legislation [2] Any right to pursue a claim for common law damages for ‘an injury sustained by a worker’ is governed by the WCRA. It is necessary to commence with a consideration of the relevant provisions. [3] Chapter 5 of the WCRA is titled ‘Access to damages’ and provides the only basis on which a worker can pursue damages for an injury sustained at work.1 Section 237 is found in Chapter 5. The relevant part of section 237 is as follows. 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… … (5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker. [4] ‘Injury’ is a defined term in the WCRA. Pursuant to section 32 it means a ‘personal injury arising out of, or in the course of, employment if the employment is a significant 1 WCRA, section 235. -- 2 of 6 -- 3 contributing factor to the injury’. ‘Injury’ is to be contrasted with an ‘event’, which is also a defined term to be found in section 31, the terms of which are set out below. 31 Meaning of event (1) An event is anything that results in injury, including a latent onset injury, to a worker. (2) An event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker. (3) A worker may sustain 1 or multiple injuries as a result of an event whether the injury happens or injuries happen immediately or over a period. (4) If multiple injuries result from an event, they are taken to have happened in 1 event. [5] This distinction identified by the legislation is important. While it is necessary for a worker to have a notice of assessment for the injury said to give rise to an entitlement to damages, section 237 does not depend on the identification of the event or events that resulted in the injury. The pleadings [6] The present application turns upon the part of the statement of claim in which the plaintiff identifies the injury for which he seeks damages. The plaintiff pleads: Injuries 16. The Plaintiff suffered the following injuries:- (a) Bilateral wrist pain and hand numbness, relating to carpal tunnel syndrome/medial nerve injuries; (b) A secondary psychological injury, namely an Adjustment Disorder with anxiety and depression; (c) Hereinafter, collectively referred to as “the Personal Injuries”. 17. The Personal Injuries arose from:- (a) The Incident; and/or (b) Swelling in his wrists due to his work grinding, sanding or welding over a period of time between 12 March 2019 and the date of the Incident, with the Incident causing symptoms to occur. [7] The ‘Incident’ mentioned at paragraph 17 is defined earlier in the statement of claim. It concerns events at the plaintiff’s workplace on 26 November 2020 in which he was engaged in grinding and sanding metal fence posts immediately before sensing the symptoms of the injury. [8] The defendant does not challenge paragraph 16 of the statement of claim. This application is concerned only with paragraph 17(b), and some paragraphs describing a system of work that depend on paragraph 17(b) for their relevance. -- 3 of 6 -- 4 The pre-court procedures [9] On 27 November 2020 the plaintiff spoke to a claims officer at Workcover Queensland. He told them that at 1.30 pm on 26 November 2020, while he was working on a job, he experienced pain in both wrists, his hand cramped and he lost grip strength. The plaintiff said he did not have injuries or symptoms in his wrists before the event. [10] The plaintiff saw an orthopaedic surgeon on 16 September 2021. The surgeon noted there was no suggestion of any pre-existing condition. The history given by the plaintiff, as recorded by the surgeon, described the injury as having arisen on a discrete day.2 On 11 November 2021, Workcover Queensland issued a notice of assessment. This detailed the assessed injury as ‘carpal tunnel left wrist’ and ‘carpal tunnel syndrome right wrist’. The date of injury was recorded as 26 November 2020. [11] Subsequently, on 24 May 2022, the plaintiff issued a notice of claim for damages. Beside a box labelled ‘Date of injury (for limitation period purposes)’ the plaintiff recorded ‘26/11/2020’. Later in the document the same date is recorded under ‘Details of the event resulting in the “injury”’, adjacent to a box labelled ‘Date and time of event’. The claim and statement of claim was filed on 23 June 2023 and was soon followed by this application. Consideration [12] From this background the following facts emerge. First, the plaintiff has consistently described the 26th of November 2020 as being the first occasion he experienced symptoms of an injury to his wrists. Secondly, the plaintiff has not alleged any other injury to his wrists or hands apart from that which he became aware of on 26 November 2020. Thirdly, the plaintiff has received a notice of assessment for an injury to his wrists arising on 26 November 2020. This is sufficient to demonstrate that the plaintiff has received a notice of assessment for the injury to his wrists that is pleaded in paragraph 16(a) of the statement of claim. [13] It is important to distinguish between paragraphs 16 and 17 of the statement of claim. The injury described in paragraph 16(a) of the statement of claim may be understood as a description of matters that meet the definition of ‘injury’ in the WCRA. Paragraph 17 is concerned with how that injury occurred. This includes reference to the plaintiff’s work over a period of time and may be understood as a description of the event (or events) that resulted in the injury, consistent with the definition in section 31 of the WCRA. The dates endorsed by the plaintiff on the notice of claim are not inconsistent with this view, and those dates do not restrict the plaintiff as the defendant suggests. One date entry was expressly for the purpose of any relevant limitation period. This represented the date by which the plaintiff must have been aware of the injury. The other date entry was tied to ‘the event resulting in the “injury”’, rather than the injury itself. Nothing in this document, or the plaintiff’s other conversations relied upon by the defendant, suggest he is claiming for a different injury to his wrists or hands. [14] Of course, the notice of assessment is critical. The ‘injury’ identified in the notice of assessment, as set out above, is sufficiently connected to the ‘injury’ described in 2 Said by the surgeon to be in October 2020. Whether this is an error by the surgeon or the plaintiff is not clear, and does not matter for this application. -- 4 of 6 -- 5 paragraph 16(a) of the statement of claim as to satisfy section 237(1)(a)(i). Section 237 of the WCRA is a gateway through which the plaintiff must pass, but it does not prohibit the plaintiff setting out whatever events he said caused or contributed to the injury. The present case has similarities to the case considered by Dalton J in Andersen v Aged Care Employers Self Insurance.3 There, as here, there was ‘confusion between the concepts of injury and event as defined by the WCRA’. I agree with Dalton J that ‘[a]n injury is not the means by which damage is inflicted, but is the effect on the person of the worker of an event’.4 Paragraph 17(b) of the statement of claim addresses the means by which the damage was inflicted, but does not plead a new or different injury to that identified in the notice of assessment. [15] The conclusion I have reached is not, I think, inconsistent with the conclusion reached by de Jersey CJ in Sayers v Hanson t/as Alguard Security Services.5 The facts of that case were quite different. The claimant in Sayers had been assessed for a psychiatric injury said to have arisen from seeing a corpse that had fallen from a high-rise building. Subsequently the claimant gave a notice of claim for damages, again referring only to a psychiatric injury caused by seeing the dead body. It was not until a statement of claim was filed that the claimant alleged his psychiatric injury was also caused by intimidation and harassment that occurred after he saw the dead body and when the claimant did not return to work. The Chief Justice held that the notice of assessment concerned a condition referable to the claimant seeing the corpse, and ‘not [to] a condition attributable to, in the sense of exacerbated by, some quite separate and distinct subsequent occurrence’.6 The facts in Sayers presented at least three possibilities. First, that the psychiatric injury resulted from seeing a dead body on a specific day. Secondly, that it resulted from intimidation or harassment that followed this event. Thirdly, that it arose from a combination of both. There being a possibility that the injury was not one that was caused by seeing a corpse on a specific date, and instead was the result of harassment or intimidation afterwards, the pleadings in that case raised the possibility of a different injury to the one that had been assessed. [16] In this case the injury is the same, it is only the description of the event or events which were its cause that has expanded over time. Whether the injury pleaded at paragraph 16(a) was one caused solely by the event on 26 November 2020 or in combination with events at work over a period of time is properly a matter for resolution at trial.7 [17] I note the written submissions of the defendant made little reference to the governing statute or why it was that the statute prohibited the plaintiff from pursuing his claim for damages. It did not appear to me during submissions that the defendant argued there was some other non-compliance by the plaintiff, apart from section 237, that barred him from pursuing the claim. For example, there was no reference in the defendant’s written submissions to section 275, which requires the claimant to give a notice of claim in the approved form before commencing a proceeding. (In oral submissions the defendant’s counsel mentioned section 279 as a ‘gateway’ provision, 3 [2011] QSC 101. 4 Ibid, [23]. 5 [2011] QSC 70. 6 Ibid, [12]. 7 Cf. Ley v Woolworths Limited [2013] QSC 59, [25] and Bakhit v Brisbane City Council [2014] QDC 240, [60]-[61]. -- 5 of 6 -- 6 but this section is one that imposes a duty on the parties to cooperate, including by giving each other relevant documents and information.) [18] The notice of claim given by the plaintiff has been mentioned above. The parts that relate to events or injuries over a period of time have been left blank. Section 275 required the notice of claim to include the particulars prescribed under a regulation. These particulars include the ‘date, time and place of the event’ and a ‘description of the facts of the circumstances surrounding the worker’s injury’.8 This may raise a question of whether the notice of claim was deficient, and whether section 275 means the plaintiff could not commence the proceeding. But it is unnecessary to come to a concluded view about the effect of the notice of claim and section 275 in this case. This is not an application to strike out or stay the entire proceeding as one improperly commenced, as it would be if the defendant submitted that section 275 prohibited the commencement of the proceeding. There is nothing in section 275 to indicate that, having commenced a proceeding claiming damages, the plaintiff cannot plead the cause of the injury was events over a period of time.9 [19] In the result, the defendant’s application to strike out paragraph 17(b) of the statement of claim must be dismissed. The occasion to consider striking out the other paragraphs identified by the defendant would only arise if they were rendered irrelevant in the event the defendant succeeded in its challenge to paragraph 17(b). As the defendant has not succeeded in relation to paragraph 17(b) such the balance of the application must also be dismissed. [20] I will hear the parties as to costs. 8 Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), reg 120. 9 I note as well the apparent ease with which a notice of claim might be changed (section 277) as an indication that section 275 may not be as proscriptive as first appears – see Andersen v Aged Care Employers Self Insurance [2011] QSC 101, [30]. -- 6 of 6 --