Costello v Queensland Rail (No 2) [2014] QSC 120

SUPREME COURT OF QUEENSLAND CITATION: Costello v Qld Rail (No 2) [2014] QSC 120 PARTIES: JAMES LYNDON ROSS COSTELLO Applicant v QUEENSLAND RAIL ACN 132 181 090 Respondent FILE NO/S: S223 /2014 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Rockhampton DELIVERED ON: 16 June 2014 DELIVERED AT: Supreme Court Rockhampton HEARING DATE: On the papers – final submissions received 30 May 2014 JUDGE: McMeekin J ORDERS: 1. The notice of assessment of post traumatic stress disorder given by the Respondent to the Applicant dated 11 September 2013 (with injury description post traumatic stress disorder; degree of permanent impairment attributable to injury at 10% and lump sum compensation of $29,616.50) is invalid and of no effect for the purposes of the Workers Compensation and Rehabilitation Act (2003) (“the Act”). 2. That within seven (7) days of this order the Applicant be referred by the Respondent to the General Medical Assessment Tribunal - Psychiatric (the Tribunal) with respect to the injuries of post traumatic stress disorder and major depressive disorder in partial remission, to decide pursuant to s.502(3) of the Act: a. whether, when the Tribunal makes its decision, there exists in the worker an incapacity for work resulting from the injury for which the i. application for compensation was -- 1 of 5 -- 2 made; and b. whether the incapacity— i. is total or partial; and ii. is permanent or temporary; and c. if the worker has sustained an injury under the Table of Injuries i. resulting in permanent impairment, the nature and degree of the impairment. 3. That within ten (10) business days of receiving the said decision of the Tribunal the Respondent issue the Plaintiff with a notice of assessment. 4. That in the event the Tribunal assesses the Applicant’s work related impairment (the WRI) at 20% or more, then the sum of $29,616.50 paid by the Respondent to the Applicant on or about 18 September 2013 be considered an advance of lump sum compensation pursuant to section 178A of the Act (the advance). 5. That in the event that the Tribunal assesses a WRI at less than 20% and the Applicant elects to accept the lump sum compensation:- a. in the case that the WRI is assessed by the Tribunal at greater than 10% WRI, the Respondent pay to the Applicant the difference between the lump sum compensation payable for an “injury” or “injuries” as properly assessed by the Tribunal, and the advance, within 28 days of the Applicant’s election; b. in the case that the WRI is assessed by the Tribunal at less than 10% WRI, the Applicant repay to the Respondent the difference between the lump sum compensation payable for an “injury” or “injuries” as properly assessed by the Tribunal, and the advance, within 28 days of the Applicant’s election. 6. That in the event that the assessment by the Tribunal is less than 20% and the Applicant elects to pursue common law damages, the Applicant repay to the Respondent the advance within 28 days of the issue by the Respondent to the Applicant of the notice of assessment. 7. That the Applicant have leave pursuant to section 298 of the Act to bring proceedings with respect to -- 2 of 5 -- 3 the injuries he sustained on 7 July 2011 despite non- compliance with section 275 of the Act upon compliance with the following conditions:- a. the Applicant gives a notice of claim for damages within 28 days of the issue by the Respondent of the notice of assessment referred to in Order 3; b. if the Respondent gives notice to the Applicant that the Respondent is not satisfied that the notice of claim is a complying notice of claim and is not willing to waive the noncompliance, the Applicant remedy the noncompliance or make application to the Court under section 297 of the Act within 28 days of receiving the Respondent’s notice under section 278(3)(b) of the Act; and c. the Applicant complies with section 295 of the Act. 8. The Respondent pay the Applicant’s costs of and incidental to the application assessed on the standard basis. CATCHWORDS: PROCEDURE – COSTS – RECOVERY OF COSTS – where the applicant was partially successful and partially unsuccessful in its application – where the applicant seeks costs – where the respondent contends that no order as to costs should be made – whether the respondent should be ordered to pay the applicant’s costs Uniform Civil Procedure Rules 1999 (Qld) r 681 Workers’ Compensation and Rehabilitation Act 2003 (Qld) COUNSEL: S Deaves for the Applicant GF Crow QC for the Respondent SOLICITORS: Rees R & Sydney Jones for the Applicant McInnes Wilson for the Respondent [1] McMeekin J: On 16 May 2014 I delivered my reasons in this application. I found that the applicant was entitled to one of the declarations that he sought namely that a Notice of Assessment given by the respondent to the applicant and dated 11 September 2013 in respect of a Post Traumatic Stress Disorder was invalid and of no effect for the purposes of the Workers’ Compensation and Rehabilitation Act -- 3 of 5 -- 4 2003 (Qld) (“the Act”).1 Mr Costello was not successful in relation to a second declaration which concerned a Notice of Assessment issued by the respondent for an injury to his right ulna nerve and scarring (“the second Notice”). I invited submissions as to the appropriate orders in light of my reasons. [2] The parties have agreed on the appropriate orders save as to costs. [3] The applicant seeks costs and the respondent contends that the order should be no order as to costs. The parties are agreed that the particular provisions in the Act limiting the right to costs have no application.2 [4] Rule 681 Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) applies: General rule about costs (1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise. (2) Subrule (1) applies unless these rules provide otherwise [5] Here the respondent argues that the “event” properly understood involved success for each side in their arguments and that while an order could be made in favour of each side the practical approach would be to make no order as to costs. If all else was equal I would agree with the suggestion of the practical approach but the argument ignores several facts. [6] First, the applicant could not have obtained the relief he was entitled to unless he came to Court. In the exchange of correspondence before the application was brought the respondent made it clear that it would not agree to the order in relation to the psychiatric condition, on which the applicant succeeded. The respondent was willing to withdraw the second Notice, presumably because of the point made in paragraph [9] below, but not the Notice relating to the psychiatric injury. [7] Secondly, the problems in relation to both Notices were created by the respondent. It was not in issue at the hearing that in issuing the second Notice the respondent failed to comply with duties imposed on it under the Act. It was not blameless, far from it. Its mistake was obvious – the medical practitioner involved had told the respondent he was not assessing injuries outside his specialty and advised that there were such injuries. The Act required that the self insurer have all injuries assessed. Conversely, the applicant was relatively blameless. Self insurers under the Act have, I perceive, a duty to workers to ensure that the provisions of the Act are followed. Workers generally are not expected to be experts on the operation of the Act. Self insurers are. [8] Thirdly, as I have mentioned, the respondent had agreed to the withdrawal of the second Notice before the hearing. It was the disagreement about the Notice of Assessment relating to the Post Traumatic Stress Disorder that in truth required the application. 1 Reprint 5E 2 Sections 316 and 318C -- 4 of 5 -- 5 [9] Fourthly, the point behind the application was to protect the applicant’s right to obtain damages. Because Mr Costello accepted a small lump sum amount for the one psychiatric injury assessed he had forfeited that right. He must now be re- assessed but for both psychiatric injuries. It is of course unknown what the assessment might be. The respondent argues that in this sense Mr Costello might be worse off than if he had not brought the application. But that ignores the practical effect of his success on the application - he can now pursue his rights for both the physical and psychiatric injuries sustained, if he is so advised, whatever the outcome of the medical assessment. Presumably it was this practical effect that prevented any agreement in relation to the Notice concerning the psychiatric injuries. [10] Finally, having resolved to contest the psychiatric Notice, it is difficult to see that the respondent incurred any great additional amount of costs in contesting the second Notice. [11] In my view the respondent should pay the applicant’s costs. [12] The orders that are necessary in the light of my earlier reasons have otherwise been agreed between the parties. -- 5 of 5 --