Berhane v Woolworths Limited [2013] QDC 194

DISTRICT COURT OF QUEENSLAND CITATION: Berhane v Woolworths Limited [2013] QDC 194 PARTIES: BERHANE GHEBREIGZIABIHER BERHANE (applicant) and WOOLWORTHS LIMITED (respondent) FILE NO/S: OA2512/2013 DIVISION: PROCEEDING: Originating Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 23 August 2013 DELIVERED AT: Brisbane HEARING DATE: 30 July 2013 JUDGE: McGill DCJ ORDER: The Court declares that: (a) the applicant’s notice of claim for damages sworn 4th January 2013 and served shortly thereafter complied with s 275 of the Act; (b) the applicant is entitled to seek damages for the injury the subject of the notice of claim pursuant to s 237(1)(a)(i) of the Act. Order the respondent to proceed with the pre- court procedures laid down by the Act on the basis that the notice of claim is valid. CATCHWORDS: EMPLOYMENT LAW – Injury to employee – liability of employer – statutory preconditions – whether notice of claim referred to same injury as notice of assessment – cause irrelevant. Workers Compensation and Rehabilitation Act 2003 s 275. Andersen v Aged Care Employers Self Insurance [2011] QSC 101 – followed. Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209 – followed. Dowd v Swift Australia Pty Ltd [2008] QCA 228 – followed. Ley v Woolworths Limited [2013] QSC 59 – followed. Lincoln v Qantas Airways Ltd [2012] QDC 278 – followed. MacDonald v Teys Australia Distribution Pty Ltd [2013] QDC 139 – followed. -- 1 of 9 -- 2 Muckermann v Skilled Group Ltd [2013] QSC 51 – followed. Sayers v Hanson [2011] QSC 70 – distinguished. COUNSEL: R Morgan for the applicant J S Miles for the respondent SOLICITORS: Shine Lawyers for the applicant DLA Piper Australia for the respondent [1] The applicant formerly worked for the respondent as a storeman. On 5 October 2012 the respondent issued a notice of assessment under the Workers Compensation and Rehabilitation Act 2003 (“the Act”) to the applicant in respect of an injury described as “aggravation of underlying constitutional degenerative changes in the left shoulder” to which a degree of permanent impairment was assigned.1 The notice also stated the WRI for the injury was 12.8 percent, and contained an offer of lump sum compensation. [2] On 8 January 2013 the applicant served on the respondent a notice of claim for damages under s 275 of the Act2 which at point 41, particulars of all injuries, identified as the part of the body injured the left shoulder, and as the nature of the injury, “aggravation of underlying constitutional degenerative changes”. The respondent‟s solicitors subsequently wrote to the applicant‟s solicitors advising that the injury the subject of the notice of claim had not been assessed. The applicant has brought this proceeding seeking a declaration that the notice of claim was valid, on the basis that the injury the subject of the notice of claim is the same as the injury referred to in the respondent‟s notice of assessment. [3] The basis on which the respondent resists that relief is that the notice of claim asserts that the injury arose over a period of time, whereas the notice of assessment, which in this respect was consistent with material provided earlier by the applicant,3 had the injury occurring on a particular date, 22 June 2011. At item 36 of the notice of claim the applicant stated that the event occurred over a period of time commencing in September 2010 and ceasing on 22 June 2011, the day on which symptoms commenced. [4] The proposition that an injury is different because it is caused by a course of conduct extending over a period of some months rather than by something that happens on a particular day is a proposition which, in my view, needs merely to be stated in order to be rejected. Neither is a statement about the injury, but about what has caused the injury, at is apparent from the heading to items 35-39 in the notice of claim: “Details of the event resulting in the injury”. That is something different from the identity of the injury itself. 1 Affidavit of applicant filed 17 July 2013 Exhibit BGB03 2 Ibid, Exhibit BGB02 3 On the view that I take it is unnecessary for me to consider why that occurred, although it is obviously because that was the day the applicant says he was first conscious of symptoms. Some of the forms used seem to me to encourage the nomination of a specific date. -- 2 of 9 -- 3 Authorities [5] The authorities are clearly against the respondent‟s argument. In Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209 Davies JA, with whom the other members of the court agreed, held that it was right to declare that a notice of claim complied with s 280 of the Work Cover Queensland Act 1996, in circumstances where the notice of claim described the injury as having occurred on 24 August 2009 as a multi level disc injuries to the lower back, and the notice of assessment had described the injury as “mild aggravation of pre-existing degenerative disease in lumbosacral spine” occurring on 24 August 1999. [6] Davies JA said in an ex tempore judgment: “The term injury is defined in s 34 of the Act as a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.‟ It is plain that in that subsection „personal injury‟ is used in its ordinary meaning of damage to the body. In s 34(2) there is an immaterial exception to the requirement in that definition that the employment be a significant contributing factor to the injury. And then in s 34(3) injury is said to include, amongst other things, an aggravation of a personal injury or of a disease.” [7] Later his honour said: “It is not suggested by the appellant that the respondent suffered more than one injury and, of course, the respondent has contended the contrary. Moreover the descriptions „aggravation of pre-existing degenerative disease of the lumbosacral spine‟ in the notice of assessment and „multilevel disk injuries‟ in the „lower back‟ in the notice of claim are not by any means necessarily inconsistent. They both describe injuries to the lower spine which, possibly on both views, aggravated a pre-existing degenerative condition. The descriptions of injury in the notices differ in two respects. The first is that the description in the notice of assessment is more specific than that in the notice of claim. However, the very generality of the second description should not prevent a conclusion… that it is of the same injury as that described in the earlier notice of assessment.” [8] His Honour then went on to reject the notion of that different injuries were referred to because there was a difference between the two documents in their assessment of the seriousness of the injury and its consequences. These were said simply to be “descriptions of the same injury in different ways.” His Honour then concluded: “Once it is seen, as I think it is, that the injury referred to in the two notices is the same injury, the question in issue between the parties in my opinion resolves. That is because, if the injuries are the same, the notice of claim is, as his Honour held, a notice of claim in compliance to s 280 of the Act. The only basis upon which the appellant has contended that the notice of claim did not comply with s 280 depended on the conclusion that the injury to which it referred was an injury different from that which has been assessed.” -- 3 of 9 -- 4 [9] In Dowd v Swift Australia Pty Ltd [2008] QCA 228 Dutney J, with whom the other members of the court agreed, rejected an argument that an injured worker could not validly allege that he had suffered an injury to his lumbar spine over a period of time, or on two specific dates which were about a month apart, because the notice of assessment specified one of the particular dates as the date of injury. His Honour noted at [10] that the submissions of the employer were predicated upon the assumption that the Act requires an injury to be related to a specific event, and at [13] said: “Chapter 3 part 9 is concerned with the identification of, and assessment of permanent disability arising from an injury. While undoubtedly the date an injury is suffered is significant in its identification, it is not per se a matter to which the statutory provisions make reference.” [10] In that matter the issue arose at a different point of time, after proceedings had commenced but before trial, on an application to strike out parts of the statement of claim. A judge‟s refusal to do this, on the basis, in so far as there was any issue about whether the injury was one included in the notice of assessment, it could be decided that the trial, was upheld by the Court of Appeal, but it seems to be clear from his Honour‟s reasons that he rejected the notion that the event which is related to an injury, or the date on which the injury was suffered, is part of the injury for the purposes of the statutory provisions. [11] I am not aware of any subsequent decision of the Court of Appeal which modifies or overturns the effect of those two decisions. It seems to me that they clearly indicate that what matters for the purposes of determining whether the injury is one referred to in the notice of assessment is (relevantly) whether it is the same piece of physical damage to the body which is being spoken about. Further, the Court of Appeal has not required a high degree of precision in the process of describing that physical damage, so long as the conclusion is appropriate that it is the same physical damage to the body which is being spoken about in both the notice of assessment and the notice of claim. Single Judge Decisions [12] In Andersen v Aged Care Employers Self Insurance [2011] QSC 101 the applicant suffered a back injury but was uncertain as to whether it occurred on 22 or 23 August 2007. A notice of assessment issued giving a date of the injury as 23 August, and after the notice of claim was given, the applicant accepted that one of two events she had originally suggested may have caused the injury must have occurred on 20 or 21 August. It was submitted for the respondent that any injury on either of those days had not been assessed. Those submissions however were rejected by Dalton J who said at [22] that “they rest on a confusion between the concepts of injury and event as defined by the [Act]; they also mistake the role of an insurer which issues a notice of assessment.” [13] Her Honour referred to the definitions in ss 31(1), 32(1) and 37 and continued at [23]: “An injury is not the means by which damages inflicted, but is the effect on the person of the worker of an event, as can be readily seen -- 4 of 9 -- 5 when the schedules to the WCR regulation are perused. In common parlance one might speak of being injured by lifting a heavy load. But in terms of the WCRA definitions, lifting the heavy load is the event, the injury is what result from that, say a back strain. Ms Andersen‟s application for compensation was for one injury within the meaning of the WCRA. … [Her] statement of 11 September 2007 was manifestly about one injury… . Looked at in the context of all the material available to ACES as at the date of assessment pursuant to s 185 of the WCRA, the only reasonable view of Ms Andersen‟s claim was that Ms Andersen made a claim for one injury, to her back, which she suggested, but did not definitely assert, may have been caused by events which occurred on 22 or 23 August 2007. She did not assert two injuries, nor did she assert one injury caused solely by an event on 23 August 2007.” [14] Her Honour referred to the evidence and to s 179 and 185 of the Act and at [28] continued: “Under these provisions of the WCRA, ACES‟ task in issuing a notice of assessment was to assess injury and impairment, not to make findings about what events caused the injury or the date those events might have occurred. ACES was not entitled to allocate a date as the date of the event causing injury when the claimant did not assert it; the factual material before it did not justify it, and where that date contradicted the view of the doctor who had assessed the degree of permanent impairment on its behalf.” [15] It could be argued that that decision was distinguishable on the basis that in that case the date allocated in the notice of assessment was inconsistent with the material then before the employer, whereas that was not the situation in the present case.4 But I do not think that that is what is significant about her Honour‟s decision, namely her conclusion that the function of a notice of assessment is to assess injury and impairment, not to make findings about causation or the date of the events that caused the injury. Identifying a date on which an injury was suffered, or on which an event occurred which caused a particular injury, may be part of the process of identifying a particular injury, and may be of importance in circumstances where more than one injury has been suffered, but it is not part of the statutory function of a notice of assessment to make determinations about those matters. In my view, in circumstances where it is clear that there has only been one injury suffered, the effect of the authorities is that the date stated for the injury in the notice of assessment is irrelevant. That appears to be consistent with her Honour‟s conclusion that it did not matter that Ms Andersen had initially mistaken the date on which she believed the injury had been suffered. [16] In Lincoln v Qantas Airways Ltd [2012] QDC 278 the factual situation was similar to that in the present case, in that the notice of assessment specified a particular date, which was the date the applicant had specified previously in an application for workers compensation as the date of injury, and where the respondent contended that the notice of claim was for a different injury because it identified the injury as 4 This appeared to be the main focus of the respondent‟s argument. -- 5 of 9 -- 6 having been caused over a period of time. In that matter Samios DCJ agreed with the approach of Dalton J and declared that the plaintiff was entitled to seek damages for the back injury specified in the notice of claim, on the basis that that was the same injury as in the notice of assessment. [17] In Muckermann v Skilled Group Ltd [2013] QSC 51 the plaintiff alleged that he sustained physical injuries and that as a consequence of these he was placed on light duties, during which he was subjected bullying and harassment so that he then suffered psychiatric injury. There was no dispute that the physical injuries had been covered by a notice of assessment, but after proceedings commenced the claim for damages in respect of the psychiatric injury was resisted on the ground that this injury was not included in a notice of assessment.5 In that case the dispute between the parties was based on the different descriptions which had been applied to the psychiatric disorder in the different documents. But North J, applying Bell (supra) concluded that these were simply different descriptions of the same injury, and made a declaration that the statutory requirements had been complied with. [18] In Ley v Woolworths Limited [2013] QSC 59, a matter very like this one came before North J. In that matter the respondent issued a notice of assessment for “exacerbation of pre-existing degeneration of cervical spine” with a specific date of injury. When the notice of claim was delivered, it described the injury as muscular ligamentous and disc injury to the cervical spine, having occurred over a period of time from December 2008 to February 2011. In that matter his Honour gave a detailed analysis of the evidence and concluded at [21] – [23]: “So while it may be that different „events‟ within the meaning of that term found in s 31 of the WCRA have been expressly or by implication identified when the application for compensation is compared with the notice of claim for damages on the view I take the same „injury‟ within the meaning of that term used in s 32 of the WCRA is the subject of both the application and the notice of claim. In the former the applicant identified his injury as „strain of cervical spine‟ and affecting his „neck, left shoulder, arm, hand‟ while in the notice of claim the part of the body identified was „cervical spine‟ and the nature of the injury was specified as „musculoligamentous and disc‟. … The injury referred to in the application for compensation should be regarded as the same injury as the subject of the notice of claim for damages. To the extent that Dr Gibberd in his report of 12 December 2011 assessed a discrete injury by way of exacerbation to the cervical spine on 4 January 2011 and disagreed with the notion that the applicant had suffered an injury over a period of time because of workplace practices the doctor was expressing a medical opinion not a conclusion involving a mixed question of law and fact that the question of the meaning of the term „injury‟ poses. … The consequence is that the injury assessed in the notice of assessment dated 16 December 2011 should be regarded for the purposes of the WCRA and the applicant‟s notice of claim for damages of 12 December 2011 as the same injury.” 5 The notice of claim had referred to both the physical injuries and the psychiatric injury. -- 6 of 9 -- 7 [19] Most recently, in MacDonald v Teys Australia Distribution Pty Ltd [2013] QDC 139 Samios DCJ rejected an argument that, because the notice of assessment referred just to a thoracic spine injury, the plaintiff was precluded from seeking damages in respect of anything else, in particular any back injury extending beyond the thoracic spine. His Honour said that there was no suggestion that the applicant suffered more than one injury although there may be arguments about the nature, extent and cause of the injury, which were matters for trial: [12]. I respectfully agree. [20] In the present case it is unnecessary for me to consider whether the approach of North J provides authority for the proposition that it is sufficient if the injury the subject of the notice of claim is identified as the same as the injury the subject of the application for compensation, even if the injury referred to in the notice of assessment is or might be different, for example by identifying the injury as the aggravation of a pre-existing condition rather than a free standing injury. In the present case that issue does not arise: the description of the injury in the notice of claim is precisely that in the notice of assessment, the only issue being as to whether the injury was one which was caused by an event on a particular date, or whether it was caused over a period of time. It seems to me quite clear from all the authorities to which I have referred that that issue has nothing to do with the identification of the injury. That point I think was made abundantly clear by what was said by Dutney J in the Court of Appeal, and by what was said by Dalton J. [21] No authorities were cited or reasoning advanced on behalf of the respondent to cast any doubt on this line of authority, which supports the conclusion that as a matter of law the respondent‟s position is not only wrong but misconceived. There was a decision referred to in some of those cases of Sayers v Hanson [2011] QSC 70, a case where it was held that a plaintiff had suffered two separate psychiatric injuries, one as a result of finding a dead body, and a later one as a result of alleged workplace harassment. In circumstances where the notice of assessment referred to only the injury caused by finding the body, it was held that the plaintiff was not entitled to seek damages in respect of the injury caused by the alleged workplace harassment. Plainly that case is distinguishable: it proceeded on the basis that there were two separate injuries, there had been an assessment in respect of one of them but not the other, and the effect of the Act was that the plaintiff was therefore not entitled to seek damages in respect of the injury for which there had been no assessment. [22] It may, however, be noted that the Chief Justice at [6] drew a distinction between the injury and the event that gave rise to it, and said that a question of the date on which an injury is suffered is likely to be related to the event rather than the identification of the injury: “Under s 237(1)(a)(i), the plaintiff‟s entitlement to seek damages depends on his having received a notice of assessment for „the injury‟. The plaintiff received a notice of assessment for an injury specified, in that notice, as having occurred at 2:55am on 2 October 2007. Now obviously that was the designation of the „event‟ (s 31(1)) which resulted in the injury, being the psychiatric illness. The challenged paragraphs of the amended statement of claim, alleging -- 7 of 9 -- 8 subsequent harassment, should be taken as alleging a further event or events which allegedly led to exacerbation of the originally sustained condition. The notice of assessment should be read as relating to the injury resulting from the event on 7 October 2007, not an injury resulting from the subsequence alleged harassment, while accepting that the injury suffered as a result of the event on 7 October 2008 persisted and perhaps developed over time after that date.” [23] His Honour went on to note that the plaintiff‟s entitlement to seek damages was tied to the injury to which the notice of assessment related, so that where there had been a subsequent injury caused by a different event there was no entitlement to seek damages in respect of that injury. [24] There is no factor arising from either the structure and purpose of the legislation, as expounded in the authorities, or an analysis of the text of the relevant sections in those decisions, which provides any justification for a conclusion that a plaintiff or potential plaintiff is confined in the pursuit of a claim for damages by the precise semantic description of the injury in the notice of assessment. So long as it is clear that the notice of assessment and the notice of claim (or subsequent statement of claim) are referring to the same injury, differences in the seriousness and significance attributed to that injury are matters to be resolved on the merits at the trial. But that I think is not really the issue in the present case: it is whether a notice of assessment which by implication attributes the injury to a particular “event”, precludes a claimant from pursuing a claim for damages on the basis that the injury identified in the notice of assessment was caused by some different “event” within the meaning of those expressions in the Act. Once the issue in the present case is correctly identified in those terms, the respondent‟s proposition becomes, it seems to me, essentially unarguable, being supported neither by the terms of the legislation nor any of the authorities to which I have been referred. [25] It follows in my opinion that it is appropriate to make the declarations sought by the applicant. I should say that the court has jurisdiction under s 297 of the Act to declare that a notice of claim has been given under s 275, and under s 287 to make an order enforcing compliance with the provisions of chapter 5, in particular, the pre-court procedures in part 5. It seems to me that, as a result of the respondent‟s incorrect attitude to the notice of claim, the respondent has failed properly to comply with its obligations under part 5 of chapter 5. Jurisdiction to deal with these matters depends on the proposition that the claim that the applicant is making is one which the court had jurisdiction to determine, that is, the amount of damages claimed would be under the monetary limit. This is not a matter which was the subject of any dispute before me. There is a good deal of medical information about the plaintiff, and, in circumstances where it appears that he was working prior to this injury as a casual storeman, on relatively modest income, and where medical evidence suggests that there was some underlying degenerative condition of the shoulder which was therefore likely to be a problem for him at some time, it is I think reasonable enough to conclude that the plaintiff‟s award of damages would not exceed $750,000.6 In those circumstances, I am satisfied that this court has jurisdiction in this matter. 6 Applying the text in Woolworths Ltd v Graham [2007] QDC 301. -- 8 of 9 -- 9 [26] It was not suggested that, apart from the issue argued on behalf or the respondent, the notice of claim was otherwise not valid. The respondent, in my opinion quite inappropriately7, has purported to give a notice of assessment under s 258 in respect of the different injury which it asserts is in fact the subject of the notice of claim. No request that it do so was made on behalf of the plaintiff, and I do not consider that this purported assessment was valid, or of any consequence for the purposes of this application. [27] I therefore declare: (a) the applicant‟s notice of claim for damages sworn 4th January 2013 and served shortly thereafter complied with s 275 of the Act; (b) the applicant is entitled to seek damages for the injury the subject of the notice of claim pursuant to s 237(1)(a)(i) of the Act. I also order the respondent to proceed with the pre-court procedures laid down by the Act on the basis that the notice of claim is valid. [28] I shall invite submissions in relation to costs when these reasons are delivered. There may be an issue arising under the Act as to the availability of costs. In addition, given the number and clarity of the various authorities against the respondent‟s position, it seems to me that this may be a matter for ordering costs to be assessed on the indemnity basis. 7 Section 258 does not apply because the applicant is not a person mentioned in s 237(1)(d), having applied for compensation for the injury on 12 July 2011: Affidavit of applicant, Exhibit BGB01. -- 9 of 9 --