Conway v WorkCover Queensland [2000] QSC 406

SUPREME COURT OF QUEENSLAND [2000] QSC 406 File No 7952 of 2000 BETWEEN: KEITH LESLIE CONWAY Applicant AND: WORKCOVER QUEENSLAND Respondent MOYNIHAN J – REASONS FOR JUDGMENT DELIVERED ON: 13 November 2000 HEARING DATE: 27 September 2000 ORDER: 1. Application is dismissed. 2. Each party bear their own costs. CATCHWORDS: WORKERS’ COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER AND THIRD PARTIES – ALTERNATIVE RIGHTS AGAINST EMPLOYER FOR DAMAGES AT COMMON LAW OR BY STATUTE – RIGHT TO PROCEED FOR DAMAGES – whether a notice of claim has been submitted – whether notice is complaint – interpretation of s 280 of the WorkCover Queensland Act 1996 – whether more than one notice can be lodged – applicant injured in the course of employment suffering multiple injuries Anagnostou v Woolworths Limited & Anor [2000] QSC 160 (Unreported, Williams J, 7 June 2000), referred to Steley v Harbrew Pty Ltd (Queensland Supreme Court, Demack J, 22 December 1999), distinguished WorkCover Queensland Act 1996 WorkCover Queensland Regulation 1997 COUNSEL: GJ Cross for the applicant BLP Hoare for the respondent SOLICITORS: Watling Roche for the applicant Bain Gasteen for the respondent -- 1 of 5 -- 2 [1] The applicant, through his solicitors, is pursuing claims for damages and for compensation as a consequence of injuries he suffered in the course of his employment on 28 April 1998. The WorkCover Queensland Act 1996 (the ‘Act’) impacts on both claims. The Act makes provision in respect of claims for compensation particularly by Chapter 3 and for access to damages particularly by Chapter 5. [2] The applicant seeks a declaration pursuant to s 304 of the Act that he has given a notice of claim in terms of s 280. In the circumstances of this case, such a declaration is necessary if the plaintiff is to pursue a claim for damages. [3] Sections 280 and 304 are contained in Chapter 5 Parts 5 and 7 of the Act respectively. The object of the Chapter is expressed to be to “enable WorkCover to enter into early negotiations with claimants to achieve early resolution of claims of damages claimed before the start of court proceedings”. Paradoxically, it seeks to do this by a labyrinth of provisions specifying in exquisite detail, a series of steps each of which has to be negotiated to progress to the next stage. These provisions continue to be a fruitful source of applications to the Court. One cannot help but wonder whether the time of the Court, WorkCover’s officers and of lawyers would not be more productively spent in dealing with issues other than whether a claimant has successfully negotiated one of the series of obstacles set up by the Act. [4] Be that as it may, at the risk of oversimplification, but to avoid becoming inextricably entangled in the legislation, the relevant provisions appear to be to the following effect. An applicant for compensation can seek damages only after a notice of assessment is received from WorkCover. A notice of assessment is a step in the process of obtaining compensation and deals with whether a worker has sustained a degree of permanent impairment from injury. Section 203(2) provides that in the case of multiple injury, WorkCover can give such a notice only when permanent impairment from all injuries is assessed. This assessment may involve medical examinations by various specialists and others and reference to an Act constituted Tribunal. [5] For the sake of completeness it may be noted that when an application for compensation has not been lodged, an applicant can seek damages for injury only if WorkCover issues a damages certificate. Such a certificate is defined in s 250 as: “. . a certificate under section 262, 265 or 270 given to a claimant by WorkCover that entitles the claimant to seek damages.” Section 262 provides a claimant cannot seek damages unless WorkCover gives a notice of assessment and the plaintiff complies with Chapter 3 Part 9 Division 2. Section 265 deals with damages certificate if there has been no previous applications for compensation. Section 260 deals with claims for loss of dependency. [6] For a damages claim to be pursued, s 280 of the Act requires a notice of claim for damages to WorkCover “in the approved form” and includes these terms: “(1) Before starting a proceeding in a court for damages a claimant must give notice under this section . . . . . . (3) The notice must include the particulars prescribed under a -- 2 of 5 -- 3 regulation.” [7] WorkCover Queensland Regulation 1997 (the ‘Regulation’), s 74 prescribes the particulars in the following terms: “(1) A notice of claim must be made in the approved form and include the following particulars- . . . . (c) full particulars of the nature and extent of- (i) all injuries alleged to have been sustained by the claimant because of the event; and (ii) the degree of permanent impairment that the claimant alleges has resulted from the injuries; and (iii) the amount of damages sought under each head of damage claimed by the claimant and the method of calculating each amount; and (iv) how the claimant is presently affected by the injuries.” [8] WorkCover must respond to a notice of claim for damages within thirty days with a certificate of compliance or identify any non-compliance and indicate whether or not it waives compliance. [9] If WorkCover maintains the position that the notice is non-compliant after the procedure specified in s 282 is followed, a claimant may apply under s 304 for declaration that a notice of claim under s 280 has been given. This is such an application. [10] The application arises in the following circumstances. On 28 April 1998, the applicant claims he suffered injuries to his right shoulder, back, both elbows and head in the course of his employment. As I have already said, he seeks to pursue claims for compensation and damages. It is unnecessary to canvass the steps in respect of the compensation claim in detail. It may be noted however, that when the applicant gave a notice of claim for damages dated 23 November 1999 (it was served on WorkCover somewhat later) in respect of an injury to his right shoulder, that was the only injury for a notice of assessment which had been issued. The applicant then set about securing separate notices of assessment for elbow and lower back injuries and a head injury and these notices of assessment had been issued on 3 March and 22 June 2000 respectively. [11] As I mentioned, the applicant lodged a notice of claim for damages in respect of the injury to his right shoulder dated 23 November 1999. On 30 June 2000, following correspondence as to its adequacy, WorkCover accepted the notice as compliant. [12] The applicant lodged a notice of claim in respect of his head, elbow and lower back injuries dated 19 July 2000. On 22 August, his solicitors sought to be advised whether the notice was compliant. On 6 September, WorkCover’s solicitors advised that “only one Notice of Claim can be lodged with respect to multiple injuries”. The applicant then brought this application for a declaration that the notice of 19 July is compliant. [13] On the hearing of the application, it was said on the applicant’s behalf that he did -- 3 of 5 -- 4 not seek to institute proceedings prematurely, but rather to “clear the obstacles in Chapter 5 Part 2 in relation to ‘injuries’ as quickly as possible”. Reference was made to the fact that there was seven months between the application for an assessment of his shoulder injury claim. It was conceded, in purport of reliance on Anagnostou v Woolworths Limited & Anor [2000] QSC 160 (Unreported, Williams J, 7 June 2000) that proceedings based on the notice dated 23 November 1999 accepted as compliant on 30 June 2000 were “stayed until there was an assessment of ‘injuries’.” It should be noted that “injury” is defined by s 24 but for present purposes nothing appears to turn on the definition. [14] Finally it was submitted that the application turned on whether more than one notice of claim pursuant to s 280 could be given; for reasons which will emerge, I suspect that that characterisation rather misapprehends the situation which arises here. [15] A notice of claim under s 280 must comply with s 74(1)(c) of the Regulation. I have set out the terms of those provisions earlier. Section 74(1)(c)(i) of the Regulation requires full particulars of the nature and extent of all injuries alleged to have been sustained because of the “event”. Section 33 of the Act relevantly provides: “(1) An event is anything that results in injury . . to a worker. (2) An event includes continuous of repeated exposure to substantially the same conditions that result in an injury to a worker. (3) A worker may sustain 1 or multiple injuries as the 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.” [16] On the evidence, the applicant is to be taken as having intended to pursue a claim for damages for injuries in addition to the shoulder injury, the subject of the notice of 23 November 1999, at the time of the giving of the notice, if not earlier. That the notice did not comply with, at least, s 74(1)(c)(i) and (iv) was made manifest by the notice of 19 July 2000. [17] The effect of a compliant notice of claim for damages is to engage the provision of Chapter 5 Parts 5 and 6 for endeavours to resolve a claim, the disclosure of information and for the claimant to undergo medical examinations before a compulsory settlement conference. There is then an obligation to make final offers at the conference in the event that the claim is not settled. The consequence of this regime is that a claimant may only start court proceedings, in the circumstances of this case, in the event of a declaration of compliance pursuant to ss 303 and 304. [18] In my view the Act does not permit a claim for damages to be fragmented as has been done in respect of the claim here: see s 203(2) of the Act, s 74 of the Regulation; cf. Steley v Harbrew Pty Ltd (Queensland Supreme Court, Demack J, 22 December 1999). Subject to exceptions of no relevance here, for example, psychological injury, the Act requires the consequences of an event to be disposed of together. -- 4 of 5 -- 5 [19] If the applicant wishes to pursue a claim for damages in respect of the injuries suffered in the event of 29 April 1998, he must lodge a notice of claim that complies with s 280 including s 74 of the Regulation. If he seeks to pursue, as he does, such a claim in respect of injuries to his shoulder, back, elbows, head or any other injuries, then neither the notice of 23 November 1999 nor that of 19 July 2000 is compliant, although the non-compliance of the former notice was made apparent by the latter. [20] The considerations being those I have canvassed, the application must be dismissed. Having regard to the ongoing difficulties associated with the operation of the Act, it is tempting to conclude that WorkCover should bear the costs of this application, but in the circumstances each party should bear their own costs. -- 5 of 5 --