Callaghan v WorkCover Queensland [2000] QSC 125

\- SUPREME COURT OF QUEENSLAND REGISTRY: ROCKHAMPTON NUMBER: 71 OF 2000 Applicant: BRIAN MICHAEL CALLAGHAN and Respondent: WORKCOVER QUEENSLAND JUDGMENT - DEMACK J. DELIVERED the 31 st day of March, 2000 CATCHWORDS: Workers Compensation - Worker injuring lower two lumbar discs in three incidents - Each incident occuring under different statutory regime - Whether three injuries can be included in one Notice of Claim WorkCover Queensland Act 1996 ss. 5(4)(b), 280,282,291,304,305 Counsel: Solicitors: Hearing Date: JS Douglas QC & G. Crow DVC McMeekin SC V.A.J. Byrne & Co Swanwick Murray Roche 22 nd March 2000 Applicant Respondent Applicant Respondent -- 1 of 23 -- SUPREME COURT OF QUEENSLAND REGISTRY: ROCKHAMPTON NUMBER: 71 OF 2000 Applicant: BRIAN MICHAEL CALLAGHAN and Respondent: WORKCOVER QUEENSLAND JUDGMENT - DEMACK J. DELIVERED the 31 st day of March 2000 1. This application concerns the effect to be given to s. 5(4)(b) of the WorkCover Queensland Act 1996 ("the Act") which provides:- / "It is intended that the (workers' compensation) scheme (established by the Act) should - (b) ensure that injured workers ..... are treated fairly by WorkCover ..... " 2. Mr Callaghan was one of those workers who keep working without reporting injuries (report of Mr Fergus Wilson to VAJ Byrne & Co of 17 December 1998 (BAJR4 )). While this is not in their long term interests or in conformity with their obligations, it does help to achieve what seems to be a major object of the Act, namely "not to impose too heavy a burden on employers and the community" (s. 5(b)). In Mr Callaghan's case this has meant that the matter is "complex" and "confusing" to Mr Fergus Wilson. He hoped WorkCover might reconsider the matter, "but I think Tony Blue has already certified him", (letter to Dr Donna McClymont of 4 December 1997) -- 2 of 23 -- 3. Mr Callaghan was injured on 12 January 1995, a date before the 1995 amendments to the Workers' Compensation Act 1990 came into effect. It is unclear when he applied for workers' compensation in respect of this injury. The application acquired the number 940 975 758. The certificate issued by WorkCover in respect of payments made under that claim says "Current Claim Paid from 22/04/96 to 24/04/96". As the weekly compensation payments made in respect of that claim were $18,616.68, according to this certificate, the dates cannot be correct. The events appear more clearly from Mr Fergus Wilson, whose report to VAJ Byrne & Co of 17 December 1998 (BJAR4) includes:- "! saw him in March 1995 when he was in significant distress with low back and right leg pain. His practitioner told me that he was not keen on having time off work in his letter of February but by the time I saw him I felt that his moment of truth had arisen and surgery was arranged and at that surgery a large sequestrated piece of disc material arising from the L5 S1 disc was removed. It was about 1.5cm x 1 cm in measurement. This was displacing and pressing upon the first sacral nerve root on the right hand side." 4. This surgery seems to be the only surgery undertaken by Mr Callaghan. However a report from Queensland Diagnostic Imaging dated 26 May 1998 prepared for Mr Fergus Wilson (also in BJAR4) states that there appears to be a laminectomy at the L4/5 disc level. This report is significant when the issue of fairness to Mr Callaghan arises. He can hardly be in position to explain discrepancies in medical reports concerning surgery performed upon him when he was presumably under general anaesthetic. 2 -- 3 of 23 -- 5. The 1995 amendments to the Workers' Compensation Act came into effect on 1 January 1996. Mr Callaghan injured himself again on 3 January 1996. This seems to have involved some jarring of his spine. He commenced proceedings against his employer Capricorn Coal Management by a writ issued on 10 July 1996. That writ, in accordance with the Rules of the Supreme Court, did not specify any particular event or events giving rise to the plaintiff's claim for damages for negligence and/or breach of statutory duty. The writ was served on WorkCover Queensland on 11 July 1997 and an entry of appearance by Swanwick Murray Roche entered an appearance on 16 September 1997. 6. On 24 June 1999, Mr Ross of V.A.J. Byrne & Co wrote to WorkCover requesting the issue of a certificate in respect of the incident on 3 January 1996. He received the following reply (BJAR1):- "Reference: Claim No: 6909483651 - Brian Michael CALLAGHAN I refer to your letter of the 24th June 1999 requesting payment details and the issue of a Certificate in respect of the incident of 03 January 1996. The incident of the 03 rd January 1996 was determined to be re-opening of the original claim of 12th January 1995. Therefore I am unable to issue a Damages Certificate as this was prior to 01 st January 1996 and Section 1828 of the Workers Compensation Act 1990. I attach for your records payment details and a copy of the permanent impairment settlement for your client for the claim of 1ih January 1995. If you have any queries, please do not hesitate to contact me at your earliest convenience." 7. The claim number is apparently wrong. The claim lodged in respect of the injury of 12 January 1996 was given the number 940 975 758. A claim lodged in respect of a third incident on 13 February 1997 was given the 3 -- 4 of 23 -- number 960 948 351. The papers filed include reference to a claim 960 943 600. None has 10 digits. Apart from that, the reason why a certificate was not required is unclear. This was not an issue argued before me, so it is undesirable to express any concluded opinion. However, s. 182A is concerned with "a worker who suffers an injury other than a serious injury, in circumstances creating, independently of this Act, a legal liability in the worker's employer". In other words it looks both to the injury and the circumstances in which the injury occurred. Both issues cannot be decided by looking only at whether the injury is in the nature of an aggravation of a previous injury. 8. However, as I have said, this was not argued, and there may be some obvious explanation for the attitude the Board took. For present purposes the letter is part of the "complex" and "confusing" picture. 9. On 13 February 1997, Mr Callaghan further injured his back when he fell from a fork lift. Mr Fergus Wilson takes up the story (BJAR4 - letter to VAJ Byrne & Co dated 17 December 1998):- "The subsequent time he had a fall where he landed heavily on his heels causing a significant impact or jarring to his lumbar spine and this caused troubles on his left leg and there was a loss of sensation in the great toe on both the right and left leg. There is no doubt that these mJunes would aggravate prior existing degeneration and in the circumstances I believe that the L4/5 disc was involved on this occasion. With the normal nerve distribution in the legs one would expect pressure upon the fifth lumbar nerve root to give symptoms related to the great toe in the form of pins and needles and pain and perhaps the complaint of weakness. 4 -- 5 of 23 -- In my opinion expressed to Dr McClymont I thought that Workcover would baulk at accepting aggravation of pre- existing degenerative changes. I did feel however that the injuries to his back in this instance was to the L4/5 disc and not the LS S1 disc as in the previous case. I felt that following the surgery to the LS S1 disc that some bridging calcification had taken place and this level had most probably stabilised itself. I reviewed this man again on behalf of Dr McClymont in May and submit a copy of this letter as well as the letter of December. Basically it was my contention that this injury has aggravated degenerative changes at the level above his previous surgery. This had caused the decompensation of the L4/5 disc which was causing pressure on the left LS nerve root with symptoms referable into the great toe of the left leg as well as to some extent the right leg. I felt it was justifiable to allow his claim under the 1996 legislation for aggravation and degeneration in the 4/5 disc with nerve root symptoms so that further investigation could be made. I think that at Callaghan's own expense he has had a MRI performed which shows the degeneration of the L4/5 disc with some bulging of the disc and I believe a compromise of neural structures. I do admit that my reports do not mention the L4/5 disc but you will note from Dr Buchanan's report that I constantly refer to the fifth lumbar nerve root as being involved in his present problems where previously it was the first sacral nerve root which was causing his absent ankle jerk and his sciatic symptoms. At the present time I do consider that this man is incapacitated by the effects of his injury in 1995 and his subsequent injuries which involve the level above. I believe the aggravation of degeneration at the L4/5 level is probably relatively static but his general amenities and his ability to do part time work and enjoy recreation are significantly incapacitated. I believe that surgical decompression of the L4/5 disc with exploration of the fifth lumbar nerve root on the left side is justified. I believe that some of the subsequent opinions of this man's back have been formed without specific knowledge of the operative findings and without complete and followed through investigations." This opinion was given after the report of Queensland Diagnostic Imaging dated 26 May 1998 which refers to the laminectomy at L4/5. 10. Mr Fergus Wilson later in the same letter expressed the following opinion:- 5 -- 6 of 23 -- "I would consider that the effect was perhaps 15% for the 1995 injury and 5% for the 1997 injury. I think the 1997 injury would be classified under Code 4114." 11. On 7 September 1998, WorkCover issued a notice of assessment in respect of the injury sustained on 13 February 1997. It assessed the degree of permanent impairment attributable to the injury at 2.5%, referring to Code 4999. I have searched the WorkCover Queensland Regulation 1997 ("the Regulation") for code 4999, but cannot find it. Mr Fergus Wilson referred to Code 4114 which is "moderate to severe aggravation or acceleration of pre-existing disease in lumbrosacral spine with subjective symptoms, but no significant clinical findings other than degenerative changes on x-ray". One might have thought that the pins and needles in the great toe could be classified as significant clinical findings, but then again, they may only be subjective symptoms. How is this to be approached fairly? 12. On 11 November 1999, Mr Ross wrote to Capricorn Coal Management Pty Ltd seeking wages and other information and material. No reply was received. On the same day he wrote to Swanwick Murray Roche, Solicitors on the record of the writ issued on 10 July 1996, in the following terms (BJAR6):- "We enclose a copy of correspondence which we have forwarded to the Paymaster, Capricorn Coal Management Pty Ltd. Should you have any objection to our approaching the Defendant for the purpose and in the manner indicated, you might countermand any response being prepared. 6 -- 7 of 23 -- We would appreciate your assistance in obtaining a response. You will appreciate that injury occasioned on 12 January 1995 was under the Workers Compensation Act prior to the amendments of the 1 January 1996. Brian suffered an exacerbation of injury on 03 January 1996 and he will allege further injury on 13 February 1997. We are preparing a Notice of Claim in respect of the subsequent injury. We propose to prosecute such claim together with the claim entitled "Supreme Court Rockhampton Writ of Summons No. 104 of 1996."" 13. No response was received from Swanwick Murray Roche. 14.On 10 December 1999, a notice of claim was forwarded to both WorkCover and Capricorn Coal Management Pty Ltd. On 14 December 1999, Mr Ross wrote to Swanwick Murray Roche in the following terms (BJAR7):- "We write to advise that on 10 December 1999, we effected service of a Notice of Claim for Damages upon Capricorn Coal Management Pty Ltd and WorkCover Queensland. The Notice of Claim for Damages, as with all such Notices we expect, is voluminous. Your firm was retained by WorkCover Queensland in respect of injury of 12 January 1995. Mr. Callaghan suffered exacerbation and/or other injury on 3 January 1996 and 13 February 1997. The implications are that each of the incidents, namely 12 January 1995, 13 January 1996 and 13 February 1997 was occasioned under the operation of a different Act. We expect WorkCover and or Capricorn Coal Management Pty Ltd will be in touch with you." 15. On 12 January 2000, Mr Ross wrote to WorkCover in the following terms:- 7 -- 8 of 23 -- "re: Brian Michael Callaghan Date of Birth: 12 October 1943 We refer to our correspondence of 10 December 1999, under cover of which we served upon WorkCover Queensland a Notice of Claim for Damages. We confirm that upon that date we effected service by post of a Notice of Claim for Damages upon the employer. We note injury by the Plaintiff on 12 January 1995 in respect of which action has commenced. We note WorkCover has treated the incident involving lower back injury suffered by the Plaintiff during the course of his employment with the same employer on 3 January 1996 as an exacerbation. Our client suffered injury during the course of his employment with the same employer on 13 February 1997. Messrs Swanwick Murray Roche are the Solicitors appointed to act on behalf of the Defendant by WorkCover Queensland in respect of the action commenced relative to the injury of 12 January 1995. We advised such Solicitors by way of courtesy that we effected service of the Notice of Claim upon WorkCover Queensland and upon the employer for whom they act. We have a serious concern, and one which requires WorkCover's urgent attention, about the expiration of the three year time limitation in respect of the injury of 13 February 1997 on 13 February 2000. Approximately one month only, hence. Please give the written notice required by Section 282 of the WorkCover Queensland Act. We note WorkCover has not given any relevant information which WorkCover has about the worker within 30 days pursuant to Section 282. We make you aware that we consider no response within the time limit contemplated by Section 282 to be an unsatisfactory response. Please note we do not intend this correspondence to be confrontationist. We have a very high and strict duty to protect our client's interests in the face of the pending expiration of the time limitations. May we please have your response within seven days of the date hereof." 8 -- 9 of 23 -- 16. No acknowledgment having been received within seven days, Mr Ross caused an application to be filed in the Rockhampton Registry seeking orders under ss. 304 and 291 of the Act. I was absent from Rockhampton on circuit in Mackay, and, rather than transferring the application to Brisbane, a return date on 17 March 2000 was given. 17.On 28 February 2000, Swanwick Murray Roche sent the following letter to Mr Ross by fascimile transmission (JLS1 ):- "We refer to the application which is returnable for 17 March 2000. We note that the application is made pursuant to Section 291 requesting WorkCover to give the Claimant any information it has about him. Is this the information envisaged in Section 283(1) or is it to respond to the Notice of Claim pursuant to Section 282(1). In relation to the Notice of Claim we are not satisfied that it is compliant for the following reasons:- 1. The Notice of Claim encompasses the three incidents. It seems to us it should refer only to the13 February 1997 incident. 2. If this is correct then Item 77 will need to be amended. 3. We require a better explanation in relation to Item 67. It states that he returned to work on 16 January 1995, but does not state whether the work performed was different because of the event nor clearly how the work was different. 4. Schedule B - Liability. The Workplace Health and Safety Act 1989 does not apply to this coal mine. If it is to be argued it applies that it should be the WorkPlace Health and Safety Act 1995. It would seem to us to be desirable to have these issues resolved before the return date of the application and look forward to your response." 9 -- 10 of 23 -- 18. Mr Ross's lengthy reply explained that the three incidents were included in the one claim because "we anticipated that settlement of any claim of the claimant against the employer which attempts to isolate damages to the event of 13 February 1997 was less likely". As s. 280(6) of the Act requires the notice of claim to be accompanied by a genuine offer of settlement or a statement of the reasons why an offer of settlement cannot be made, this approach by Mr Ross is not only encouraged by the Act, but is, eminently sensible. The first question is, can it be done? 19. Mr J.S. Douglas Q.C., who appeared with Mr Crow for the applicant, did not argue that the three incidents could be joined. Mr McMeekin S.C., who appeared for WorkCover submitted that the pre - 1 February 1997 injuries could not be included under a s. 280 notice of claim. It seems to me that because of the usual rule of construction of statutes that singular includes plural (Acts Interpretation Act 1954, s.32C), there is no reason why more than one event giving rise to injury should not be included in a notice of claim. S 280(1) beings "before starting a proceeding in a court for damages". A proceeding may include more than one cause of action against the same employer. That is seen often enough. When companies change their names, or premises at which work is carried out change owners, there may even be more than one defendant. Consequently, the opening words of s. 280 do not 10 -- 11 of 23 -- compel a view that the notice required in such circumstances must relate to only one event. 20. S. 74 of the WorkCover Queensland Regulation 1997 lists the information that must be included in a s. 280 notice of claim. Again, there is no obvious reason in s. 74(1 )(b) why "the event" should be confined to one event. Commonsense would suggest that more than one event can be joined in one notice of claim if the same employer or premises are involved in the events. Moreover, the same insurance company need not be involved. WorkCover may be liable in respect of injuries sustained in one event and the employer may be self insured in respect of a second event. 21. The dominant purpose behind the notice of claim is to facilitate settlement of claims. It is hard to argue with Mr Ross's proposition that when a worker has sustained injuries to adjacent discs of his lumbar spine in three events and where doctors disagree as to the effect of the individual events upon the individual discs, the most sensible approach is to combine the three events in one notice of claim. Fairness to the worker commends this approach. The fact that the legislative scheme has changed does not alter the fact that the three events involved the same employer. 22. If I am wrong in this, it is then necessary to look in more detail at the notice of claim to see if, as Mr Douglas submits, the claim can fairly 11 -- 12 of 23 -- be limited to the injuries flowing from the event which occurred on 13 February 1997. Such additional detail is needed in any case because the four point objection to the notice of claim given on 28 February 2000, grew to the following proportions on 10 March 2000:- "We refer to our facsimile to you of 28 February 2000. In that facsimile we pointed out that the Notice of Claim was not compliant, primarily because the Notice of Claim encompassed the three incidents, two of which are not relevant to a Notice of Claim. As a consequence a number of items are effected and in particular the following:- ltem 77 Item 49 Item 56-58 Item 65,66 Item 67 Schedules 8,81 A genuine offer of settlement in relation to 13 February 1997 incident. Full particulars of the event and facts surrounding the event. The particulars provided are not "full" particulars of the event. Full particulars of the nature and extent of "all" injuries alleged to have been sustained because of the 13 February 1997 incident. It is alleged that the 15% impairment is a result of all three injuries or two or 13 February 1997. Full particulars of the nature and extent of how he is presently affected by the injuries from the incident. Particulars of his employment both for the period of three years immediately preceding the incident in question and since. He has not answered whether or not he has returned to work since the incident. Full particulars of negligence alleged against the employer is required. The particulars are too vague in that:- (a) There is no reference to the way in which the plant and equipment is not safe. 12 -- 13 of 23 -- (b) It is not said how the system of work was not reasonably safe or what the system of work was that is complained of. (c) There are no particulars as to the instructions or warnings that should have been given. (d) If there be complaint about the access to the forklift other than in relation to the provision of non-skid access then that is not particulared." 23. Item 77 sets out the details of how Mr Callaghan's offer to settle for a nett figure of $574,827.24 is derived. If WorkCover is correct, and only the damages flowing from the 13 February 1997 event should be included, the quantum of the claim can readily be extracted from the figures disclosed in item 77. The various items of special damages can be found in the WorkCover certificates and other information attached to the claim, the income statement attached to the claim shows what income was earned between 13 January 1995 and 13 February 1997, so that the loss of wages following upon the latter event is clearly ascertained and the apportionment of general damages can be made by reference to Mr Fergus Wilson's opinion. Item 77 does not stand alone, but is part of a very bulky document. Fairness to the worker requires the examination of the whole document. 24. The objection taken to item 49 involves a misreading of s. 74( 1)(b) of the Regulation, which provides:- 13 -- 14 of 23 -- "74.(1) A notice of claim must be made in the approved form and include the following particulars - (b) full particulars of the event, including - (i) the date, time and place of the event; and (ii) a description of the facts, as the claimant understands or recalls them to be, of the circumstances surrounding the event; and (iii) names and addresses of all witnesses to the event, and the relationship, if any, to the worker; and (iv) name and address of any person on behalf of the claimant's employer to whom the claimant reported the event and their employment details; and (v) full particulars of the negligence alleged against the claimant's employer and any other party on which the claim is based; and (vi) whether, and to what extent, liability expressed as a percentage is admitted for the injury and, if another party is involved, the liability expressed as a percentage that the claimant holds the other party responsible; and (vii) if another party is involved - details of the notice given to the party;" 25. With the exception of s. 41 (1 )(b )(v), full particulars are given by providing the information sought. There is no obligation to provide "full particulars" of each of the other items. Further, the claim must be in the approved form and the form contains various items, the answers in which meet the obligations ins. 41(1)(b). So items 44, 46, 47 and 48 provide answers to s. 41 (1)(b)(i). Item 49, as answered by Mr Callaghan, provided:- "49. What was the worker doing when the injury was sustained? (Completely describe the details of the event resulting in the injury) 14 -- 15 of 23 -- (1) OPERATING SHEARER ON LONGWALL 205 BLOCK IN A STOOPED POSITION, WHILE STEPPING OVER A RELAY BAR ONTO SOME LOOSECOALONTHEGROUND (2) SLIPPING OFF FORKLIFT TOP STEP ON LEFT HAND SIDE (3) SLIPPING OFF FORKLIFT TOP STEP ON RIGHT HAND SIDE" The phrase "description of the facts of the circumstances surrounding the event" (s. 41 (1 )(b)(ii)) does not encourage precision, but, in my opinion, the answers given adequately describe the facts. Whether they also "completely describe the details of the event", as the form prescribed encourages, is not so readily answered, but the primary obligation is found in the Regulation, and that has been met. 26. Items 56 to 58 were answered thus:- "56. Nature of all injuries, be specific, e.g. fracture, strain, cut (list all injuries in order of severity stating the most severe first) 57. Part of the body injured, e.g. right index finger, lower back (list all injuries in order as question 56) example: fracture right arm (1) L5/S1 sequestrated disc injury - lower back (2) Post operative aggravation of LS SI sequestrated disc injury or in the alternative injury to my lower back or in the alternative injury to the L4/L5 disc (3) L4/L5 disc injury lower back 58. What is the degree of permanent impairment alleged to have resulted from the injury/ies? If more than one permanent impairment, please list all injuries, and the degree of permanent impairment for each. (1) 15% (2) 15% (3) 15%" 15 -- 16 of 23 -- 27. The various reports of Mr Fergus Wilson were attached to the notice of claim. I have quoted sufficient of that very experienced orthopaedic surgeon's observations and opinions to make it clear that the interrelationship between the three events and the injuries sustained by the two discs is extremely complex. The fact that the assessment of the injury arising from the event of 13 February 1997 appears to have been made by WorkCover by using a non-existent code reinforces this. In my opinion, the answer given is the best a layman can do in the circumstances, and fairness compels its acceptance. 28. Items 65 and 66 were answered thus:- "65. What symptoms (if any) does the worker now have as a result of the injury? (If no symptoms write 'NIL') (1 ), (2) and (3) Pain discomfort and disability in the lower back with referred pain down the back of the right leg to the region of the knee Paraesthesia in the right big toe Pain referred into the left leg intermittently as far as my foot Paraesthesia in the left big toe 66. Describe how the injury now affects the worker, if at all, at work and away from work. (If worker not affected write 'NIL') (1), (2) and (3) Pain discomfort and disability in the lower back with referred pain down the back of the right leg to the region of the knee Paraesthesia in the right big toe Pain referred into the left leg intermittently as far as my foot Paraesthesia in the left big toe I have lost the full free and unrestricted use of my back. I have some form of pain and discomfort all of the time 16 -- 17 of 23 -- I am unemployable on an open and competitive labour market having regard to my age education aptitude experience skills gender and incident related disability My physical, recreational and social amenities of life have been seriously effected permanently" 29. Some of these complaints, particularly relating to the great toe, need to be considered in the light of Mr Fergus Wilson's report. From there it can be determined which complaints relate only to the 13 February 1997 event. Others are common to all three events. Mr Callaghan's unemployability arises from the last event, as the income statement in Schedule A shows. 30. Item 67 has only been answered by reference to the event on 12 January 1995, so it is said Mr Callaghan returned to work on 16 January 1995. However, the income statement in Schedule A contains full details from 12 January 1992 to 30 June 1992. His notice of assessment for that period has been attached to the notice of claim. That Schedule A should be read along with the answers given in the various items is clearly accepted by WorkCover. The objection to item 67 refers to particulars of employment, which are required in the schedule but not in item 67. 31. The particulars to which objection is taken read:- "lnjury of the 13 February 1997 Failing to privide safe plant and equipment Failing to provide adequate access to and from the operating cabin of the forklift on both sides thereof which I was required to operate during the course of my employment 17 -- 18 of 23 -- Failing to provide a non skid access to and from the operating cabin of the forklift which I was required to operate during the course of my employment on both sides thereof Failing to provide adequate access to and from the operating cabin of the forklift which I was required to operate during the course of my employment despite reasonable request therefore Failing to provide a reasonably safe system of work Failing to instruct me in the safe manner in which I should perform my duties Failing to warn me of the dangers associated with my tasks Failing to supervise me in the performance of my duties Particulars of breach of statutory duty:- ln breach of Section 9 of The Workplace Health and Safety Act 1989:- (a) failing to ensure the health and safety at work of its employees in that it failed so far as was practicable: (i) to provide and maintain a system of work that was safe and without risks to the health and safety of the claimant (ii) to make arrangements for ensuring safety and absence of risks to health and safety in connection with the handling of plant and substances. (iii) To provide such information, instruction, training and supervision to the claimant as was necessary to enable him to perform his work in a manner that was safe and without risks to his health and safety" 32. Particulars framed this way have been used in the courts for decades. The general allegation about safe plant and safe system is made, and what follows gives the detail of that. It is plain beyond argument that the essential complaint is a failure to provide non skid access despite reasonable requests. It is a little precious to complain that if something else is alleged it is not particularised. 18 -- 19 of 23 -- 33. The issue raised in the letter of 28 February 2000 about which Workplace Health and Safety Act applied was not pressed. It could hardly cause confusion. 34. In my opinion, either it was proper to join all of the claims arising from the three events in one notice of claim, or, if that is not so, the notice of claim and its accompanying documents fairly distinguish between the several injuries and their consequences, given the fact that two adjacent discs in the lumbar spine were involved. I am satisfied that the notice of claim given on 10 December 1999 was a notice of claim which complied with the Act. 35. In Broderick v. South Burnett Meatworks Co-operative Association Limited (Administrator Appointed) (no. 33 of 2000, Rockhampton unreported judgment of 31 January 2000), I considered the combined effects of ss. 280, 282, 304 and 305 of the Act in a case where a notice of claim had been lodged, but not processed by WorkCover. In the course of my reasons I referred to s. 308 and said:- "The other section which seems to me to be significant is section 308 which provides that a claimant may bring a proceeding for damages for personal injuries after the end of the period of limitation only if before the end of the period of limitation one of four things has occurred. The four things that need to have occurred are: (1) The claimant gives a notice of claim that is a complying notice of claim, or 19 -- 20 of 23 -- (2) That the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280, or (3) A Court makes a declaration under section 304,or (4) A Court gives leave under section 305. Those four circumstances seem to be an exhaustive catalogue of the circumstances in which a claimant may bring proceedings after the expiration of the period of limitation. It seems to me that those four circumstances reflect the matters that I have already referred to, namely that a claim is treated as being in compliance with section 280 only when it is so treated by WorkCover under section 282. 36. Mr McMeekin relied on these observations and submitted that as the period of limitation has expired, s. 308 prevents Mr Callaghan from suing his employer. It cannot be said that my remarks were anything other than tentative. I said later that the situation is by no means clear. 37. Section 308 provides:- "Alteration of period of limitation 308.(1) A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if- (a) before the end of the period of limitation - (i) the claimant gives a notice of claim that is a complying notice of claim; or (ii) the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280; or (iii) a court makes a declaration under section 304; or (iv) a court gives leave under section 305; and (b) the claimant complies with section 302. 20 -- 21 of 23 -- (2) However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held." 38. Schedule 3 of the Act includes the following definition:- ""complying notice of claim" see section 282" This must be a reference to the following part of s. 282:- "282.(1) This section applies if a notice of claim is given to WorkCover. (2) WorkCover must, within 30 days after receiving the notice, give the claimant written notice - (a) stating whether WorkCover is satisfied that the notice of claim complies with section 280; 39. The point in issue in Broderick was whether leave can be given under s. 305 of the Act "despite noncompliance with the requirements of s. 280" in circumstances where WorkCover had not had time to consider a notice of claim. I held that in those circumstances as WorkCover had not issued a notice of compliance there had been noncompliance with s. 280. Here WorkCover had all of the time the Act gives under s. 282 and did nothing. Does this mean that a Court, which forms the opinion that the notice which has been ignored is a complying notice, is unable to so declare? That would mean that WorkCover's inactivity denied a worker of the rights that the Act gave. This does not seem to be fair. 40. In my opinion, a Court should be slow to interfere with the responsibility given to WorkCover under s. 282, but where WorkCover does not respond to a notice of claim within 30 days 21 -- 22 of 23 -- and ignores a letter from a worker's solicitor pointing to the fact the period of limitation is about to expire, a Court must, in the interests of justice, make the appropriate declaration. To do otherwise would shift a potential burden on WorkCover's funds onto the worker's solicitor's insurers. WorkCover by its inactivity should not be able to achieve such a result. Such an order must be made under s. 291 which gives the Court power to enforce compliance with Chapter 5. To exercise it under s. 304 would not prevent the expiration of the limitation period having its effect because of s. 308. S. 308(1 )(a)(iii) requires the making of a declaration under s. 304 before the end of the period of limitation. 41. I declare that the notice of claim for damages given by the applicant to WorkCover and to Capricorn Coal Management Pty Ltd on 10 December 1999 is a complying notice of claim. In the circumstances where WorkCover has caused unexplained delay, I order that the respondent pay the applicant's costs assessed on the standard basis. 22 -- 23 of 23 --