Coletti v Steggles Ltd [2001] QSC 487

SUPREME COURT OF QUEENSLAND CITATION: Annitta Teresa Coletti v Steggles Ltd [2001] QSC 487 PARTIES: ANNITTA TERESA COLETTI (Applicant/Plaintiff) STEGGLES LIMITED (ACN 002 759 462) (Respondent/Defendant) FILE NO/S: Claim 163 of 2000 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court Cairns DELIVERED ON: 9 November 2001 DELIVERED AT: Cairns HEARING DATE: 17 July 2001 JUDGE: Jones J ORDER: 1. Application dismissed. CATCHWORDS: WORKERS’ COMPENSATION – WORKERS’ COMPENSATION GENERALLY – “INJURY” – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – DETERMINATION OF CLAIMS – where plaintiff abattoir worker allegedly suffered a pinched nerve injury to the left side of her back in April 1996 and a muscle strain injury in February 1997 – whether subsequent condition “aggravation” of initial “injury” – whether plaintiff to comply with procedural requirements of both the Workers’ Compensation Act 1990 and the Workcover Queensland Act 1996 – whether paragraphs of defence pleading necessity for plaintiff to comply with Workcover Queensland Act 1996 should be struck out pursuant to r171 Uniform Civil Procedure Rules - whether defendant should be estopped from relying upon such paragraphs of the defence – whether an approved Workcover form for the purposes of s 182D of the Workers’ Compensation Act 1990 existed prior to 11 December 1998 – whether plaintiff able to obtain leave nunc pro tunc to proceed with an action commenced without compliance with procedural requirements of Workcover Queensland Act 1996 Workcover Queensland Act 1996 s 280, s 293, s 294, s 302, s 551 Workers’Compensation Act 1990 s 182D -- 1 of 8 -- 2 Uniform Civil Procedure Rules r 171 Australian Telecommunications Commission v Leech (1982) 44 ALR 441 Favelle Mort Ltd v Murray [1976] 133 CLR 580 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Wilkie v Doce Pty Ltd (unreported McGill DCJ 17 September 1997) Zickar v MGH Plastic Industries Pty Ltd (1996) 71 ALJR 32 COUNSEL: RM Treston for the Applicant AJ Moon for the Respondent SOLICITORS: Connolly Suthers for the Applicant/Plaintiff Thompson Hannan for the Respondent Background [1] The plaintiff, born 6 July 1951 and therefore, presently 50 years of age, has since 1995 been an employee of the defendant company, which operates a chicken abattoir at Mareeba, in the State of Queensland. For the duration of her employment, the plaintiff has worked on the chicken processing line and in particular, at the grading table and visorator. Such work required the plaintiff to lift her arms above her shoulders thousands of times per day. [2] The plaintiff maintains that she began to experience pain in her left elbow in or about February 1996. Due to the chronic nature of her condition, she was compelled to stop work occasionally during 1996 and ultimately, to cease work on 13 February 1997. [3] On 15 April 1996, the plaintiff made a claim to Workcover in respect of a pinched nerve injury to the left side of her back. She believed she sustained this injury (“the first injury/claim”) on 8/9 April 1996.1 On 14 February 1997, the plaintiff made a further claim in relation to a muscle strain in her left shoulder. She allegedly sustained this injury on 13 February 1997 (“the second injury/claim”). In making these claims, the plaintiff was relying on her understanding of her condition. The material before me does not show any specific consistent diagnosis for her condition. 1 Exhibit M to the Affidavit of Andrew Benedict Douglas sworn 27th November 2000. -- 2 of 8 -- 3 [4] Workcover issued notices of assessment in respect of the second claim, on 27 November 1998 and in relation to the first, on 9 July 1999. Workcover also made an offer of settlement to the plaintiff on 9 July 1999, which was refused. [5] On 19 March 1999, the medical assessment board assessed the plaintiff’s injury, the subject of the second claim, at 4% permanent impairment. [6] The plaintiff now brings an action against the defendant for damages for personal injury as a result of alleged negligence, breach of contract and breach of s 28 of the Workplace Health and Safety Act (Qld) 1995. She alleges, principally, that the defendant failed to provide a safe system of work. [7] The following chronology outlines the progression of the plaintiff’s claim2: February 1996 Plaintiff begins noticing pain in her left elbow 8 April 1996 Plaintiff stops work 15 April 1996 Plaintiff makes application for workers’ compensation benefits 1 February 1997 Introduction of Workcover Queensland Act 1996 13 February 1997 Plaintiff again stops work 14 February 1997 Plaintiff makes further application for compensation 27 November 1998 Plaintiff issued with Notice of Assessment 11 December 1998 Writ issued 9 July 1999 Plaintiff issued with second Notice of Assessment 1 December 1999 Statement of Claim delivered 7 January 2000 Defence of Defendant 17 January 2000 Amended Statement of Claim delivered 3 April 2000 Amended Defence delivered 16 August 2000 Application to further amend Claim and to strike out aspects of Amended Defence 19 March 2001 Further Amended Statement of Claim delivered 13 July 2001 Amended Defence delivered [8] The plaintiff now applies to have certain paragraphs of the defendant’s Further Amended Defence struck out, or alternatively for a declaration that the defendants should be estopped from relying upon those paragraphs. [9] The relevant paragraphs of the Defence (9, 9A and 9B) are as follows: “9. In relation to Paragraphs 4,6,7,8, and 9 of the Further Amended Statement of Claim, 2 Defendant’s Outline of Submissions at p1. Also note the Affidavit of Bruce Richard Thomas sworn 16 July 2001 paras 2-8. -- 3 of 8 -- 4 9.1 The Defendant objects in point of law to the plea of negligence and/or breach of contract of employment and/or breach of statutory duty in relation to the injury occurring on 13 February 1997. 9.2 The Defendant says that any injury that occurred on 13 February 1997 was one in respect of any claim at common law which the Plaintiff may have been entitled to bring as she now brings, was regulated by the WorkCover Act of 1996. 9.3 The Defendant does not admit the Plaintiff suffered an injury in the meaning of the WorkCover Act 1996. The Defendant does not admit that the Plaintiff suffered any injury, whether of the nature and extent as alleged or otherwise, as a consequence of the Plaintiff’s employment with the Defendant. However, if the Plaintiff did suffer an injury, the Defendant says that: (a) Such injury was sustained, in whole or in part, on or after 1 February 1997; and (b) Such part of the Plaintiff’s injury as was sustained on or after 1 February 1997, is “an injury” within the meaning of the WorkCover Queensland Act 1996. 9.4 The Defendant states that at no material time did the Plaintiff: (a) give notice under section 280 of the WorkCover Act 1996 to WorkCover and the Defendant; (b) attend a compulsory conference pursuant to section 293 of the WorkCover Act 1993; (c) make a final written offer pursuant to section 294 of the Workcover Act 1996; 9.5 In the premises pursuant to section 302 of the WorkCover Act 1996, the cause of action alleged therein is not maintainable by the Plaintiff against the Defendant. 9.6 In the alternative, the Defendant denies the allegations contained therein. 9A In relation to paragraph 10, the Defendant admits that WorkCover Queensland issued a Notice of Assessment for injury dated February 1997 on 27 day of November 1998. The Defendant denies that a Notice of Assessment for the injury subject of this action was provided on 27 November 1998 or at all. The Defendant further says that WorkCover has issued a Notice of Assessment for injury dated 8 April 1996 but that no further Notices of Assessments have been provided. -- 4 of 8 -- 5 9B In relation to 10A and 11 the Defendant admits that the Plaintiff did not accept the lump sum offer made with respect to injury dated 8 April 1996 but denies that the Notice of Assessment and Lump Sum Offer is relevant to the subject of present proceedings which is pleaded to have occurred over a period of time from 1995.” The issues [10] The application raises the issue of whether the Plaintiff not only had to comply with the procedural requirements of the Workers’ Compensation Act 1990 (“the 1990 Act”) but also, with the relevant provisions of the WorkCover Queensland Act 1996 (“the 1996 Act”). [11] The determination of this issue turns upon whether the plaintiff’s second injury constituted a recurrence or aggravation of the initial injury, or whether it was a “new” injury independent of the first. Both parties have conceded that the exact nature of the plaintiff’s second injury cannot be determined in interlocutory proceedings and could only be properly determined after a thorough examination of all medical evidence at trial. [12] The two remaining issues concern the opinion of the plaintiff’s solicitor, Mr Douglas, in relation to the non-existence of an approved Workcover form, for the purpsoes of s182D of the Workers’ Compensation Act 1990, prior to 11 December 1998 and, whether it would be open to the plaintiff to obtain leave nunc pro tunc to proceed with the action commenced without compliance with relevant procedural requirements. The latter will depend upon my determination of whether, on the evidence before me, the plaintiff should have but failed to comply with the provisions of the 1996 Act. [13] I shall consider each issue in turn. The law – striking out part of the defence [14] The plaintiff brings the application pursuant to R 171 of the UCPR. This rule applies if – “a pleading or part of a pleading – (a) discloses no reasonable cause of action or defence; or (b) has a tendency to prejudice or delay the fair trial of a proceeding; or (c) is unnecessary or scandalous; or (d) is frivolous or vexatious; or -- 5 of 8 -- 6 (e) is otherwise an abuse of the process of the court; and further, (2) the court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis … ” [15] In this regard, Counsel for the respondent, Ms Treston, drew my attention to the decision of General Steel Industries Inc v Commissioner for Railways (NSW)3. In that case Barwick CJ expressed the view that a Court “will generally only strike out a part of a pleading where it can be clearly demonstrated, on an interlocutory basis, that the pleading is so clearly untenable that it cannot possibly succeed”. Further, Ms Treston submitted that the merits of a defence should not be decided in a summary way prior to trial unless they are quite clear4. [16] In this matter the paragraphs of the Defence which the plaintiff intends to strike out, refer to the plaintiff’s failure to comply with relevant provisions of the 1996 Act. Therefore, the plaintiff, in order to succeed on this application, must establish that the 1996 Act does not at all apply to her injury, the subject of this action, and that the only applicable legislation is the 1990 Act. [17] The 1996 Act which commenced on 1 February 1997, repealed the 1990 Act. However, s 551 of the 1996 Act provided that the 1990 Act applies “if a worker sustains an injury before the repeal” of the 1990 Act. As a result, a worker who sustained an injury before the repeal of the 1990 Act is to comply with the procedural requirements of the 1990 Act whilst any injury sustained thereafter is governed by the provisions of the 1996 Act. [18] The plaintiff took the view that she was not required to comply with the provisions of the 1996 Act as her injury was not a fresh injury, as that term is defined in the 1996 Act, but rather a recurrence or aggravation of a previous injury and thus, subject to the provisions of the 1990 Act. [19] Therefore, the plaintiff argued that by receiving a notice of assessment in respect of her injury, which she treated as a 1990 Act injury, and subsequently rejecting the 3 (1964) 112 CLR 125 at 129 – 130 per Barwick CJ. 4 Wilkie v Doce Pty Ltd unreported decision of McGill DCJ delivered 17 September 1997. -- 6 of 8 -- 7 offer contained therein, she was entitled, then, to commence proceedings pursuant to the relevant provision of the 1990 Act. [20] The term “injury” for the purpose of the 1996 Act is defined as: “An ‘injury’ is a personal injury arising out of, or in the course of, employment if the employment is the major significant factor causing the injury”. [21] Ms Treston submitted that the term “injury” also encompasses an aggravation of an injury and in that regard, drew my attention to several authorities supporting that proposition, including Favelle Mort Ltd v Murray5, Australian Telecommunications Commission v Leech6, Zickar v MGH Plastic Industries Pty Ltd7, Wilkie v Doce Pty Ltd8. [22] Therefore, the defendant contends that the structure of the 1990 Act and 1996 Act is such that if there is an aggravation of a 1990 Act injury after the commencement of the 1996 Act, the aggravation is still an “injury” within the meaning of s 34 of the 1996 Act and the procedural provisions of the 1996 Act must be complied with. If this leads to a suggestion that a plaintiff should be forced to undertake complex and confusing procedural steps every time he/she suffers an aggravation to a notified injury, I would regard it as being absurd. However, as the defendant does not seek to strike out any part of the plaintiff’s action in this application, it is not necessary to further comment on the point. [23] If, however, the 13 February 1997 injury is “new” and a previously unnotified condition, then the worker is obliged to follow the procedures relevant to making a claim at that time. [24] The difficulty on this application is that there is no way of determining whether on the 13 February 1997 there was a new injury or the aggravation of a prior injury. [25] It is clear to me that the paragraphs of the defence which the plaintiff seeks to strike out raise issues which can only be determined at trial and that therefore, the defendant should not be deprived of its defence based on interlocutory argument. 5 [1976] 133 CLR 580 at 589. 6 (1982) 44 ALR 441 at 445. 7 (1996) 71 ALJR 32 8 supra -- 7 of 8 -- 8 The remaining questions of estoppel and whether there was an approved form are similarly affected. [26] For these reasons, I dismiss the application. -- 8 of 8 --