Craig v BHP Coal Pty Ltd [2000] QSC 391

Received: 11/ 1/00 1 :19PM; 079 275463 -> SUPREME COURT LIBRARY Page 1 ·NOV-00 12:41 FROM:SUPREME COURT 079 275463 TO:61732479233 PAGE:01 ifl]03 0~11112000 10:04 FA..'C State ~ Ol+;t Reporting 5C 00 /39 \ Bureau ("--' QueenslandGoveromen1 ~~Dep.an,,,,:.,Lisfl-a"4~Ge.,.a, Transcript of Proceedings Copyright in this tran&cript is vested in the Crown. Copie5 thereof must not be made or sold without the written authority of the Director. State Ri!iporting Bureau. SUPREME COURT c)F QUEENSLAND CIVIL JURISDICTION DUTNE'i' ;;· No .SJ.60 OF 1999 GA.RY JOHN CRA:CG and BH~ COAL PTY LTD MACKAY .. DA.TE '.1.9 /J.0/2000 ORDER 1. REVISED COPll:S 18.sweo 81.818 Reoorlin9 aur-u Oate: 19 / 10 I 00 Applicant(Plaineiff) Reaponden~(Defendant) 4Tn Floor, Tt\e Law cour11:i Comp!~. George Street. Brisban\:! Q. 4000. Telephon ..: (07) 32-47 4360. f~mile: C07) 3247 5532 -- 1 of 7 -- Received: 11/ 1/00 1 :19PM; 079 275463 -> SUPREME COURT LIBRARY Page 2 -NOl.J-00 12:42 FROM:SUPREME COURT 02/1,1/2000 10: 04 FAX 079 275463 TO:61732479233 PAGE:02 @Jo.a 1.9l02000 T3/'AL M/T MKY36'.l/2000 (Dut:ney ,T) MIS HONOUR: This is an appJ.1cat:.1on by t:.he pla.inciff in action SlGO of 1999 in the Mackay Reg·.istry brought pursuant.. to rule$! and/or 375 or 376 of the Unifo:r.--m Cj_vi.l J?;r;ocedure R\.lJ.es co amend the statement of cl.aim to incl.ude a claim fo:c:· psychiatric injury. The action com.menced is one for personal injuries which aro9e ouc. of a work re.lated incide:r1.t in December 1.996. The applicant originally commenced p:cocE!!~dil·19s by action SJ.04 of 1999 pursuant to a damages cercificate issued by Workcover on 13 November l998. That: certificate j_dent if:i.ed t·he injury as, "neck - cervical spine'' . It identified the date of injury as 1 January 1.997. 'The f.act that the injury was identified a.s being one suffered on 1 ,Jc'ln1J.ary 199? was subsequentl.y brought to the ac.ter1t.ion of the solicitor acting for Mr Craig who appreciat:ed that. it was :not strictly in accordar1ce with hi.s instructions which were that. the :Lncident occurred i.n 1.ate December of the previous year. Accord:i.ngJ.y he asked for a conditional dama.gee certificate in. order to commen.ce fresh proceedings w:i th r..he co:r.:r-12.ct. date of injury. Prior to seeking the conditional damages certificate, the plaintiff had been assessed .by Mr. Lou:i s Salzman, clinica.1 neuropsychologist, who delivered a :i:·eport: dated 28 October 1999 expressil'l.9' 1:.he opinion that the applicant suffered from a somatoform pain disorder an.d dysthymia related co the relevant incident_ 2 ORDER 10 30 -- 2 of 7 -- Received: 11/ 1/00 1 :19PM; 079 275463 -> SUPREME COURT LIBRARY Page 3 NOV-00 12:42 FROM:SUPREME COURT 02./lJ/.2000 10:04 FAX 079 275463 T0:61732479233 PAGE:03 ~05 l.9J_02000 T3/AL M/T M.KY361/2000 (Dut:ney J) On 5 October 2000 the solicitor also ha.d a tel.ephone conve:r:·eat.ion with Dr Varghese, a consultant psychiatrist, who advised that in his view the applicant had suffered from a major depressive disorde-c- which wa.s t:.b.en in. remission and r.;.hat the plaint:.iff suffered from dysthymia. Dr Varghese subsequently :reported by a document dat.,d 9 October 2000 received by facsimile by the applicant's solic~tors on 13 October 2000- That report was in fact obcained on behalf of che respondent's solicitors. The letter ~eeking the conditional damages certificate did not identify the fact that there was a possible furcher claim for a psychiatric inj1.1ry, The respondenc had Dr Varghese's report. The conditional cei:-t.ifi.cate, when it was provided, co1.·receed the date on r.he. o;i;-i.gj_r,i.a.l csrtifica.te but: did not specify any injury. Mr Land, for t.he re~pondent, submits that the a.ction which hae been commenced j_9 void foT ti.on-c;:ompliance with section 182D o:i: che Workers• Compensat.5_on Act of 1.990 and consequently I should not give leave to ameTI,d t"he statement a-f claim_ Mr Land submits ~hac compliance with section 182D of ~he Workers' Compensation Act is mandatory and he ha.s sound authorit.y for t.ha·t. submission. Z.QQQ QCA 342. 3 ORDER 10 -- 3 of 7 -- Received: 11/ 1/00 1 :19PM; 079 275463 -> SUPREME COURT LIBRARY Page 4 -NOV-00 12:42 FROM:SUPREME COURT 0.2/ll.'2000 10:39 FAX 079 275463 19102000 T3/AI., M/'r MKY36l/2000 (Dutn.ey J) T0:61732479233 His submission is based on two alleged deficiencies. 1·he first is that the applicant did not apply for a ce~tificate in che approved form and t:.he second is that the c:ondit io:tJ.al certificate does not identify a psychiatric injury and having regard to ths surrounding circumst.ances, being in this case the original cer.ti ficate and r;.he letc.er request :i. ng- the condicional certificate. I should co11.strue t.he conditional certificate as referrable only to the physical injuries. See MeehaJ'.)...~v Eagle Enaineeq;:i.n53 (Oerringt:.on J, unreported J. 7 ..Tune 1999) _ As to the firsr. point"., it seems to me that che obl.igatlon under section 182D (2) of the Workers' Compen.satton. .!\ct ~-0 apply for. ~ certificate in the app:r:oved form :c-elates only to a cert:.ifii::ate and not: to a conditi.onal certificate t.tnder subsect:.ion. 4. While an action may be commenced pursuant to a c::ondit:ional certificate, it is se.ayed until a certificate is issued. It may well be that the applica.nt must subsequently apply in the approved form for a certif.i c;;i,te before the action can be progressed but:. it:. does not in t'.hese circumetance.s seem to me to be fa.ta.l to the action commenced pursuant t:o t:he conditional certificate that t:.ha application may not have been in an approved :fo:t."ltl. As to the second point raised by Mr land, namely that the conditional ce1:tificate mu;11t iden·t::i.fy the injury or the.re must: be sufticienc in the surrounding circ:umst:ances 1:0 ideut.,j, fy the PAGE:04 ~02 10 ORDER -- 4 of 7 -- Received: 11/ 1/00 1:20PM; 079 275463 -> SUPREME COURT LIBRARY ~age o NOlJ-00 12:42 FROM:SUPREME COURT 079 275463 TO:61732479233 02/lJ-'2000 10: 2/J FA.'{. }910~000 T3/AL M/T MKY361/2000 (Dut.ney J) injury, he submir.:.s tha.t. th.is ariaee £:r:om cor.1.slderat:.i.on of section 182D(4) (a} wb..ich gives c.he Board power to issue a. conditional certi.ficat'.e if t.he degree of the worker• s per·rna1"J.e1'lt. impairmen.t is no-c. agreed o:r ha!:i not be.en decided by a Tribunal. l'his wording is compared with section 182D (3) whi_ch. requires an assessment: of the impaixment resulting· fror11 the injury before a certificate can be issued. It is submit:t.:.ed t:.ha:c t:h.e impairment:. in su.bsect:i.on 4 (a) and the j_mpa.:5 rmen:t :i.n s,.1.bsecr..ion 3 Cb) must. necessarily be the same and therefo-.::-e there is a. need to jdentify the specific injury. This submission, in my view, overlooks the additional provision :i:n e1.1.bsect. i. on 4 (b) which entit:les t;.he Board t:o ies'-1e a conditional certi fi..cat:e if t:.he-re is an. urgent n.eed to bring proceedings for da.mages. 'l'his ct.dditional :re.qu.irement .ie not c1;i.mu.1.at;.i.ve on slJbeect:.ion 4 (a) but:. is an alternat.i.ve .so that c.he Board can issue a conditional certificate either if the degree of permanent impai:r:m~nl:: has not been a.greed or decided or quite separately, if: there i.s a need to bring proceedings for damages. Thj.s suggests t:he latter is not necessarily connected ~o the preci~e injury su£fered. Mr Morgan, for t:he applicant:., s;a.id from the Bar t:a.ble without object:ian that such certificates a.re frequently issued as a resnlt of a telephone conversat:ion ....,hen there is a perceived danger of limitation periods expir.ing and at times when. the er,le na.tu.ra o:f 1:.he injuries ha.ve not been identified. s ORDER PAGE:05 ~01 10 20 -- 5 of 7 -- ~eceived: 11/ 1/00 1 :20PM; 079 275463 -> SUPREME COURT LIBRARY Page 6 -NOV-00 12:42 FROM:SUPREME COURT 079 275463 TO:61732479233 02/U/2000 l.0:39 FAX 19l02000 '1'3/AL M/'1' MKY:361./2000 (Dutney ,:J) This seems to me ·t.o be permissible. under subsection 4 {b) when the pu:rpnee oft.he certificate is s:imply t:o permit th.e commencement. 0£ subsequent.ly stayed proceedings_ It i.s also consistent: with the form of the co1tdit:.ional cert:i.f.ir.ate which does not. seek to identi:Ey any particular injury. Such cert1ficace.c.; mere.1y pre5erve each party's righ~s unt~l the claim is considered. In the r-ircumst.a.rtces I am persuaded that the action commenced pursuant to the conditiona1 certif.ica.te is one which can include all injuries which the a.pplica.nt cJ.aims are. refe:r.r.a.ble to the specifi~ event identified. :rf subsequ.ent:.'ly the Board does noc accept the alleged psychiatric conditions then it may bei tha·t t',he i;iict,:.ian in relat.ion to the psyc.hj atric condit:ion oa,nn.at proceed.. At the moment: I think the applicant is entitled to issue che proceedings. Since, in my v;i.ew, the certificate s1"lticles che issue of the proceedings, I can see no valid ,:-ea.son for not. permj_tting· the .:3mendment-. of the statemer1t of claim eo include the refe:r.'ence to the psychia.t:;i;-ic injury in the particulars. There doe5 not aeem ta me to be a lim~tacion problem ~$aaciated with that, firstly because there is an existing claim, being action S160 of 1999, jn respect of which the amendments seek only to add by way of :particulars further aequelae. of the pa:t:ticular incident giving rise t.o the claim fox· damages. PAGE:06 lilJ 01 10 20 6 ORDER -- 6 of 7 -- Received: 11/ 1/00 1 :20PM; 079 275463 -> SUPREME COURT LIBRARY Page 7 -NOV-00 12: 42 FROM:SUPREME COURT 079 275463 TO:61732479233 02-'ll/20(10 10:31 FA.'t. J.9102000 T3/AL M/T MKY361/2000 (:Outney ,T) .A..lternat::Lvely it eeemF.i to me that t:,here is no limitac.ion problero because no action can be comme.nr.ed under sec:r.i.on 182D of the workers• Compensation Act. until a cerc.tf.icate or.· a conditional certificate has been ie~~ed. It seems t.o me t:herefore. t:.hat t.he c:ertif.icate is itsel.f an essent.:i.al element of the cause of action and sin.ce t:he cause of .a.ctj_on is no,;. complete until at least:. t.he issue of t:.h.a conditional cert.i:ficate, the limitation per:i.od would not begin to run befo:r:e then and in that regard I agree with the conclusion arrivad at by ,:rust.ice C1,lllin.ane last. week i .. n Tanks v WorkCOY""r the result:. of whi.ch in my view is plainly correct. For r-he above reasons I propose to allow the application and give c.he applicant leave. l:..o a.mend the sr..atef1\e:nt of claim in t.erms of the draft annexed to t:.he affidavit of Jc,hn Cooper Taylor filed on 13 October 2000. There will be no order as co costs en Che applica~ion. 7 ORDER PAGE:07 ~01 10 20 -- 7 of 7 --