Dwyer v Framemaster (Qld) Pty Ltd [2013] QDC 150

DISTRICT COURT OF QUEENSLAND CITATION: Dwyer v Framemaster (Qld) Pty Ltd [2013] QDC 150 PARTIES: Applicant/Plaintiff: CRAIG ANTHONY DWYER AND Respondent/Defendant: FRAMEMASTER (QLD) PTY LTD (ABN 47 094 677 291) FILE NO/S: 4554/2011 DIVISION: CIVIL PROCEEDING: APPEAL ORIGINATING COURT: DISTRICT COURT OF QUEENSLAND DELIVERED ON: 05 JULY 2013 DELIVERED AT: BRISBANE HEARING DATE: 01 JULY 2013 JUDGE: KINGHAM DCJ ORDER: 1. The application is declined. 2. Costs are reserved. CATCHWORDS: INSURANCE- WORKPLACE COMPENSATION- WORKCOVER- DUTY TO COOPERATE- Where applicant has made a claim for damages under the Workers Compensation and Rehabilitation Act 2003 – where applicant has sought disclosure of files held by WorkCover in relation to claims by another employee for similar injuries – where the request is made under WCRA s279 – where it is common ground that the request does not fall within s279(1) – whether the court should require production of the files pursuant to s279 Angus v Cornelius & Anor [2007] QCA 190 Suncorp Metway Insurance Ltd v Brown [2004] QCA 325 Suncorp Metway Insurance Limited v Hill [2004] QCA 202 Motor Accident Insurance Act 1994 s45 Workers Compensation Rehabilitation Act 2003 s279, s301(5), s273 -- 1 of 4 -- 2 COUNSEL: G J CROSS for the Applicant G F CROWE QC for the Respondent SOLICITORS: PATINO LAWYERS for the Applicant McCULLOUGH ROBERTSON for the Respondent [1] This application concerns the scope of the duty to co-operate imposed by s279 of the Workers Compensation Rehabilitation Act 2003 on parties to a claim for damages for personal injuries. [2] Mr Dwyer has commenced proceedings claiming damages for personal injuries he sustained on 13 August 2010 when working as a labourer for Framemaster (Qld) Pty Ltd. Framemaster manufactures laminated beams. The injury occurred when Mr Dwyer was working on a planning machine. He alleges that a piece of wood became jammed in the machine and he pulled it out by hand. In the course of doing so, he says a splinter of wood pierced his glove and his skin causing a wound that later became infected. [3] He claims the machine he was working on had a history of jamming, that it was a common occurrence for machine operators to get splinters in their hands when they took steps to remove the wood, and that his employer was aware of this. He claims Framemaster failed to fulfil its duty to him by failing to take reasonable steps to avoid a foreseeable risk of harm. [4] Mr Dwyer seeks disclosure of two files held by WorkCover, which relate to claims made by another employee of Framemaster about injuries sustained in the course of that person’s employment. The information before the court does not establish whether they relate to the machine on which Mr Dwyer was working when he sustained his injuries. [5] Initially Mr Dwyer’s lawyers sought non-party disclosure from WorkCover who declined to respond, in part, because it asserted party status, having carriage of the matter for the employer under the WCRA (s301(5)). [6] Mr Dwyer’s lawyers then requested the files relying on the duty to cooperate imposed by the WCRA s279. The defence has resisted production, arguing it falls outside the scope of that duty. [7] The application turns on the content of the duty imposed by s279. It provides, relevantly: “279 Parties to cooperate (1) The parties must cooperate in relation to a claim, in particular by – (a) giving each other copies of relevant documents about – (i) the circumstances of the event resulting in the injury; and (ii) the worker’s injury; and (iii) the worker’s prospects of rehabilitation…” -- 2 of 4 -- 3 [8] The Court of Appeal has interpreted s45 of the Motor Accident Insurance Act 1994, which employs similar introductory words to s279, to impose a broad general duty on a claimant to cooperate with an insurer. In Suncorp Metway Insurance Ltd v Brown [2004] QCA 325 Williams JA, with whom the other members of the Court agreed, rejected the trial judge’s reasoning that the duty imposed by s45 means literally that the duty is to cooperate with the insurer in the particular ways specified. His Honour considered the intent of the legislature was to impose a broad general duty to cooperate. [9] Consistent with his Honour’s rejection of the trial judge’s formulation of the duty, I accept that s279(1)(a)&(b) provides a non-exclusive list of ways in which the duty to cooperate might be fulfilled. This does not mean, however, that the duty to cooperate is without limit. [10] In Suncorp Metway Insurance Ltd v Brown, Williams JA expressed concern about the width of the proposed order, which would likely have compelled disclosure of information entirely irrelevant to the claim. The terms of the order were narrowed to avoid that consequence. [11] The question in this case is whether the boundary to the duty to cooperate is drawn by reference to the circumstances of the event itself, as counsel for WorkCover contended, or by a broader test of relevance. [12] Counsel for Mr Dwyer conceded the files did not relate to the circumstances of the event which caused the injury. However, he submitted the documents were potentially relevant to an issue in the proceedings. [13] Counsel for WorkCover agreed it was possible the files might contain documents that are directly relevant to matters in issue in these proceedings, particularly the employer’s knowledge of the risk, because of previous incidents of a similar nature. Whether that is so, is not evident on the material before the Court. That question may not be capable of being determined unless the files are produced for inspection and argument. Counsel for Mr Dwyer did not ask for such an order to be made. [14] It is common ground, though, that the files could be expected to contain material which could have no bearing at all on the claim before the Court. Counsel for Mr Dwyer relied on the protection afforded by WCRA s286 and the rules of contempt of court, which would prevent information being used for any purpose expect that for which it was produced. That protection provides no answer to the objection that the order would compel production of material of no relevance to these proceedings. Further, the files can be expected to contain personal, sensitive and otherwise confidential material, such as information about the medical condition of the other employee. [15] Documents directly relevant to an issue in the proceedings might be required under the disclosure rules of the UCPR. However, the application was made and must be determined under s279 of WCRA. Counsel for WorkCover argued the scope of the duty to disclose under that section was limited to the categories specified in s279(1). [16] Neither counsel was able to point me to any case in which documents relating to events other than the one on which the claim was based had been compelled relying on either s279 or its equivalent provisions in the Motor Accident Insurance Act. I -- 3 of 4 -- 4 found little assistance from general observations about the broad nature of the duty in cases which applied s279 or its equivalents in quite different circumstances. [17] Section 279 appears in Part 5 of the WCRA. Although it is entitled Pre-Court Procedures, it has been accepted that s279 imposes an obligation which endures beyond the commencement of court proceedings. (Angus v Cornelius & Anor [2007] QCA 190 at [18]; Suncorp Metway Insurance Limited v Hill [2004] QCA 202 at [22]) [18] The object of the Part 5 is to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense (Workers' Compensation and Rehabilitation Act 2003 s273). The apparent legislative intention is to furnish the parties with as much information about the event and the claimant’s injuries and loss as early as possible to promote resolution without the need for proceedings to be instituted. Given the obligation is imposed before proceedings are instituted and the broader issues of liability are identified, it follows that the event itself, from the perspective of liability, defines the practicable boundary for the obligation to cooperate. [19] Mr Dwyer may seek disclosure of any documents directly relevant to an allegation in issue in the pleadings. (UCPR r211) [20] The orders sought by Mr Dwyer would compel disclosure of material that does not relate to the circumstances of the event which caused the injury and which, it is conceded, is not directly relevant to any issue in the proceedings. [21] I decline the application. Costs are reserved. -- 4 of 4 --