Coombs v Queensland Cotton Co Ltd [1999] QSC 314

IN THE SUPREME COURT OF QUEENSLAND No. 5214 of 1999 Brisbane BETWEEN: AND: JOHN FRANCIS COOMBS QUEENSLA1'U) COTTON CORPORATION LTD ACN 010 944 591 REASONS FOR JUDGMENT - HELMAN J. Judgment delivered 14 October 1999 Plaintiff Defendant CATCHWORDS: WORKERS' COMPENSATION - whether an offer oflump sum compensation was made to the plaintiff Counsel: Mr D. H. Tait for the defendant-applicant Mr D. B. Fraser Q.C. for the plaintiff-respondent Solicitors: Bowdens for the defendant-applicant Dan Creevey & Associates for the plaintiff-respondent Hearing Date: 30 August 1999 -- 1 of 13 -- IN THE SUPREME COURT OF QUEENSLAND No. 5214 of 1999 Brisbane BETWEEN: AND: JOHN FRANCIS COOMBS QUEENSLAND COTTON CORPORATION LTD ACN 010 944 591 REASONS FOR JUDGMENT - HELMAN J. Judgment delivered 14 October 1999 Plaintiff Defendant 1 In this action the plaintiff, an unemployed man born on 18 November 1949, claims damages for negligence, breach of contract, and breach of statutory duty. The action arises from an . . incident which occurred on 7 June 1996 when the plaintiff suffered an injury to his right foot at premises at Cecil Plains at which he was employed by the defendant. The defendant applies for an order that the plaintiffs action be struck out 'on the basis that the Plaintiff ... has failed to comply with the provisions of the Workers' Compensation Act 1990 (as amended) and in particular Section 182D thereof' and other relief. The Workers' Compensation Act 1990 was repealed on 1 February 1997 by s. 534 of the WorkCover Queensland Act 1996, but it was common ground that this application is to be detennined under the provisions of the 1990 Act: see s. 551 of the 1996 Act. 2 The plaintiff applied for workers' compensation on or about 11 June 1996 and received it. On 11 June 1998 he received a letter signed by a manager of WorkCover Queensland. (Section 542 of the 1996 Act provided that WorkCover Queensland was the -- 2 of 13 -- 2 successor in law to the defendant's original insurer, the Workers' Compensation Board of Queensland.) The letter was dated the previous day and, formal parts omitted, was as follows: 1 refer to your application for compensation and advise that your injury has been assessed to decide if the injury has resulted in a degree of permanent impairment. A Notice of Assessment of permanent impairment is attached. This notice provides the details of the assessment and the amount of lump sum compensation to which you are entitled for the injury. As the amount of lump sum compensation is less than 20% of the statutory maximum compensation 1 am required to provide a copy of section 182A, 182B and 182C of the Workers' Compensation Act 1990 for your information. . The document "Important Information" is also provided as a guide to help you understand the Notice and the Offer. It is highly recommended that you read this document before making your decision. . Should you require any further information please contact me. Copies of the notice of assessment of degree of permanent impairment and the other documents referred to in the letter are in the schedule to these reasons for judgment. The tick that appears in the box beside the words 'I reject the offer' and the signature of the plaintiff which appears above the words 'Worker's Signature' at the bottom of the notice of assessment on the left-hand side were of course not on the notice when the plaintiff received it. 3 The plaintiff says he does not 'really' understand forms and relied on his solicitors 'in respect of them'. On 7 July 1998 he instructed his solicitor Mr Daniel Creevey of Dan Creevey & Associates, that he did not wish to dispute the degree of permanent impairment assessed, but wished to reject the offer oflump sum compensation which he understood from reading the documents had been made to him. He ticked the box beside the words 'I reject the offer' in the notice, and signed the notice in the place 1 have mentioned. 4 No response was, however, made to the letter of 10 June 1998, and this action was begun on 4 June this year. The writ was served on WorkCover Queensland on 23 June 1999. -- 3 of 13 -- 3 5 In bringing this application the defendant relies on s. ~ of the 1990 Act. That subsection provided that a worker who had not received an offer of lump sum compensation under s. 132 might seek damages at law for an injury suffered after the 'commencement' only ifthe Board had given to the worker a certificate under that section. The 'commencement' referred to was the commencement of that provision: Acts Interpretation Act 1954, s. 32F(2). Section 182D commenced on 1 January 1996. 6 Section 132 of the 1990 Act provided for offers and payment of compensation after assessment. Sectio~b far as it was relevant, provided that the Board might make an ~-_/ offer oflump sum compensation to a worker who had suffered an injury prescribed under the . table of injuries that had resulted in the worker's sustaining a permanent impairment. Section §so far as it was relevant, provided that an offer might be made only if: (a) the Board and the worker both accepted the worker's degree of permanent impairment was the degree assessed by a registered medical practitioner; or . (b) a medical assessment tribunal had decided on a reference under Part 10 that the worker had sustained a degree of permanent impairment. Sectio@ was also relevant: it provided that an offer might be accepted or rejected, or a decision about the offer might be deferred, within twenty-eight days after a written offer was made by the Board (the 'decision period'). Section~ provided that if, within the decision period, the worker did not advise the Board that the offer was accepted or rejected, or that the worker wished to defer the decision, the worker was taken to have deferred the decision. 7 The argument for the defendant is that because the plaintiff did not communicate his acceptance of the degree of permanent impairment assessed by the registered medical practitio_ner, by operation of s. 132(2) no offer could have been made by WorkCover Queensland. It follows that, on this line of reasoning, the plaintiff could not, and did not, -- 4 of 13 -- 4 receive an offer oflump sum compensation under s. 132 and so, since it is common ground that no certificate under s. 182D has been given, the plaintiffs action must, by operation of s. 182D(1) be struck out. The defendant's argument has the effect of asserting the offer of lump sum compensation in the notice of assessment was not such an offer in spite of its giving every appearance of being one: it was signed by a manager and dated. 8 The determination of this application must depend upon the proper construction to be put on the 1990 Act and the letter and its accompanying documents. The relevant facts are in my view the sending of the letter and its accompanying documents and the plaintiffs failure to respond to them. There is evidence before me of a conversation on 7 July 1998 between Mr Creevey and an employee of WorkCover Queensland at its Dalby office, in which the latter gave Mr Creevey certain advice; but I do not think that that evidence is relevant on the view of this matter to which I have come. In deciding the questions arising on the application I am mindful of the established principle that when two constructions of a Workers' Compensation Act are possible, that which is favourable to the worker should be preferred: Wilson v. Wilson's Tile Works Pty Ltd (1960) 104 C.L.R. 328, at p. 335 per Fullagar 1. One may, consistently with that principle, properly extend it to apply to the construction of documents like the letter and its accompanying documents. 9 It is clear that an assessment of the degree of the plaintiffs permanent impairment was made by a registered medical practitioner and that in notifying the plaintiff of that assessment WorkCover Queensland indicated it accepted the assessment.' Do the facts show that the plaintiff accepted the assessment? In Box B in step 1 in the notice of assessment he was requested to sign in the space provided in that box and return the notice to WorkCov~r Queensland, so one could infer from his failure to respond alone that he did not disagree with the assessment. In Box A in step 1 of the notice of assessment he was requested to sign in -- 5 of 13 -- 5 the space provided, but no mention was made of returning the notice to WorkCover Queensland, as was the case in Box B. An injured worker reading that part of the notice could then reasonably have concluded that failing to respond in step 1 would be taken as acceptance of the assessment. That conclusion would have been reinforced by the hnportant Information document in which the following appeared on the second page: If you agree with the degree of permanent impairment stated in the notice of assessment, please tick the appropriate box on the notice and proceed to the second decision. If you disagree with the degree of permanent impairment stated in the notice of assessment, please tick the appropriate box on the notice and sign and return the notice to WorkCover within the 28 days. The requirement that disagreement be notified within 'the 28 days' is clearly a reference to the twenty-eight day period referred to in the following which appeared at the bottom ofthe first page of the hnportant Information document: Y Oll are required to make two (2) decisions and these decisions must be made within 28 days of the Notice of Assessment. The notice of assessment was, it should be noted, dated 10 June 1998, as was the offer.. 10 There was nothing in the 1990 Act requiring notification of acceptance of the assessment, nor was there anything in the notice of assessment or the hnportant Information document. Furthermore the reference to the twenty-eight day period on the first page ofthe Important Information document indicated that the plaintiff had only so long to accept or not to accept the assessment, so failing to respond within twenty-eight days could be taken as acceptance of the assessment. 11 One then passes to step 2. It is true that the notice said 'You must make an election about the offer of lump sum compensation. Please indicate your election by ticking one of the box~s below, signing and returning the notice to WorkCover', but the 1990 Act provided in s. 132(6) that if the worker failed to respond to the offer in the decision period he or she -- 6 of 13 -- 6 . was taken to have deferred the decision, and the Important Infonnation document notified the plaintiff of the effect of s. 132(6) as follows: You should tick the appropriate box on the notice, sign and retuni the notice to WorkCover. If you do not notify WorkCover of your decision within the 28 days, it is taken that you have deferred your decision. It would thus have been open to an injured worker, once an offer had been made, to refrain from responding to the offer without losing the right to institute an action for damages. 12 A possible analysis of the facts is then that in failing to return the notice of assessment within the twenty-eight days referred to in the Important Infonnation document the plaintiff first indicated that he accepted the assessment of the degree of pennanent impainnent and then deferred his decision on the offer, which should be taken to have been made on 10 June 1998 and to have been effective from then. 13 The difficulty with that analysis is, however, that clearly enough a two-step process was contemplated by the 1990 Act: first, a requirement of s. 132(2) must have been satisfied, and only then, an offer might validly be made. That consideration could lead to the conclusion that the offer dated 10 June 1998 was 'provisional' or 'qualified' only, to have effect and be an offer permitted to be made under s. 132 only if the plaintiff were to accept the assessment of the degree of his permanent impairment by the registered medical practitioner: see Wylie D.C.J's analysis in Herrmann v. Buzza (plaint no. 4561 of 1997, unreported, 12 June 1998). If that analysis were to be applied to this case the offer could not have ceased to be provisional or qualified, and thereby have become effective, until after 11 June 1998, when the plaintiff received the letter and other documents. It would follow that the twenty-eight day decision period provided for in s. 132(5) could not have begun to run until there was acceptance by WorkCover Queensland and plaintiff pursuant to s. 132(2)(a)- if there were such acceptance. Since there was the requirement that the plaintiff make his -- 7 of 13 -- 7 decision as to acceptance or not within twenty-eight days of 10 June 1998, and since in my view he signified his acceptance by failing to return the notice within twenty-eight days of '10 June 1998, the offer ceased to be provisional or qualified when that twenty-eight day period expired. In spite of the instruction in the Important Information document, the effect of s. 132(5) would have been to allow to the plaintiff another twenty-eight days to decide whether to accept or reject the offer, or to defer his decision about the offer. 14 On both analyses, however, the plaintiff received an offer oflump sum compensation before he began his action. 15 My conclusion is that, upon a proper construction of the documents received by the plaintiff considered in the context of the relevant provisions of the 1990 Act, the plaintiff was not required to respond to the notice of assessment of the degree of permanent impairment, , although of course he had the option of responding. It follows from that construction both . analyses of the facts to which I have referred are open. If, however, a construction that may ... be put upon the documents is that he was required to respond, at best for the defendant two constructions of the documents are possible. If that is so then the construction which is favourable to the plaintiff should be preferred. 16 The application will be dismissed. 17 I shall invite submissions on costs. -- 8 of 13 -- ':;:A~ 55 11: 52 61 7 3221 5545 p.3 .:.y' .:/ .; ,-.. Notice. of Assessment - 'Vorker's Name: John Francis COQ , Date of h:jury: 7 June 1996 Injury: Fracture Right Foot Permanent Impairment from Injury It has been determined as a result of your medical assessment that you have sustained penn anent impainnent from your injury. The degree of penn anent impainnent is: 4.00%. The degree of impainnent attributable to the injury (code 2999) is: 4.00 %. The percentage of statutory maximum compensation is: 3.00 %. The anlouot oflump sum compensation to which you art: entitled is: $3315.00. This is a NOD-C~ifica.te injury. Step 1. You must make a decision about the degree of permanent impairment. Please Indicate your decision by ticking either Box A or Box B. (Onl)!..!lll.e..J:an..b.e...1icke.d) , BoxA o BoxB o 1 agree with the degrcc.of pennancnt impainnent. Please sign in the space provided below and continue on tp Step 2. I disagree with the degree of penn anent impairment. Please sign in the space provided below and return the notice to WorkCover. Do_no.t..prQcccd to Step 2 \Vorker's Signature -'-'- Date Worker's Signature _'_1-Date Step 2. Offer of Lump Sum Compensation o WorkCover offers payment of lump sum compensation ih the. amount ofS3315.00 . I, I You must make an election about the offer oflump sum compensation. Please indicate your election by ticking one of the boxes below, signing and returning the notice to WorkCover. I accept the offer. I reject tbe offer. I defer the offer. (Do not complete the election if you have ticked Box B in Step 1) In accepting I understand that 1 cannot seek damages at law for the injury. In rejecting I understand that I am not entitled to lump sum compensation but may seek damages at law for the injury. In deferring I understand that I may accept this offer at a later time by written notice to WorkCover. J further understand that if I seek to negotiate a damages settlement or commence proceedings for damages. I can no longer accept the offer. ~1w~. --'--'-- Worker's Signuturc Date Witness Signature A copy of the completed notice 'will be provided to you for your records. 26/08 '99 11: 56 P.003 • -- 9 of 13 -- 61 7 3221 5545 p.4 .,.Ig SS 11: 53 p.004 -- 10 of 13 -- 61 7 3221 5545 p.5 ..Ig 55 11: 56 _ • _ _ .,., '" .". t:. t:. 1'X"/RX NO.5319 P.OOS -- 11 of 13 -- 61 7 3221 554::1 ..J~ SS 12:01 -h.~orkCover~6 U E ENS LAN D ______E_x_tra_c_t_fr_o_m_th_e_W_o_rk_er_s_'_C_o_m_p:!-e_n_s_at_i_o_n_A_c_t...:.l...:.9-=9-..:...0 ApplicatiOll OfSS 182B-182E I82A (I) Sections 182B to 182E apply to 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 relation to which the worker's employer is - (a) indemnified by the board under a policy in relation to the injury; or (b) required by this Act to be so indemnified. (2) In subsection (1) - "injury" does not include an injury in relation to which the employer is required to provide against the employer's legal liability by - (a) another Act; or (b) a law of another State, the Commonwealth or another country. "serious injury" of a worker means n certificate injury or an injury resulting in the worker's death. Worker must make a cltoice about damages at law in certain cases 182B (1) A worker to whom Jump sum compensation is payable under part 9, division 2 for an injury is not entitled to both - law, (a) lump sum compensation for the injury:; and (b) damages at law for the injury. (2) The worker must choose between accepting lump sum compensation offered under this Aet and seeking damages at law. (3) The worker must give the board notice of the worker's choice in the approved fonn. (4) [fthe worker fails to give the board notice of the ~orker's choice before the worker seeks damages at (5) (6) "I the worker is taken to have made a choice to reject lump sum compensation for the injury. The worker cannot change the worker·s choice after - (a) notice of it is given to·the board; or (b) it is taken to have been made under subsection (4). The worker is taken to seek drunagcs allaw for the injury when the worker - (a) seeks to negotiate a damages settlement with the board; or (b) starts proceedings at law for damages. Consequences ofclloosing to seek damages at law lsze (1) This section applies if the worker is not entitled to, or rejects. lump slim compensation under this Act for an injury and seeks damages at law for the injury. (2) The worker's entitlement to compensation under this Act stops and the following rules in relation to costs in the worker's proceeding for damages apply. . (3) No order as to costs, other than nn order allowed under this section. is to be made by the court in the Effective Date: 111196 lof2 FM.CM.extract<JO 26/08 '99 11: 56 TX/RX NO.5319 p.006 -- 12 of 13 -- 61 7 3221 5545 p.? ......... \: .J.C!r: 55 12: 02 ~WorkCover~Q lJ E ENS LA N D _______E_xtr __a_c_t_fr_o_m __th_e_W_o_r_k_e_r_s_7_C_o_m~p_e_n_s_a_t_io_n_A_c~t...:.J._9_9_0 proceeding, unless the board certifies that the worker's injury is a serious injury. (4) If a party to the proceeding makes an offer of settlement that is refused and the court later awards d4mages to the worker, the court must, in the following circumstances, make the order about costs provided for - . (a) if the amount of damages aw::p-ded is equal to or more than the worker's tinal offer - an offer that the defendant pay the worker's party and party costs from the day of the final offer; (b) if the amount of damages awarded is equal to or less than the defendant's final offer- an order that the worker pay the defendant's party and party costs from the day of the final offer. (5) If the award of damages is less than the worker's final offer but above the defendant's final offer, subsection (3) applies. (6) An order as to costs-for an interlocutory application may be made only if the court is satisfied that the application has been brought because ofunreasonabJe delay on the part of I of the parties. (7) Ifan entity other than the worker's employer or the board isjoined as a defendant ill the proceeding. the court may make an order as to costs in favour of. or against, the entity according to the proportion of liability of the defendants and the justice of the case. {S) Thc court may make an order for costs against the worker's employer or (he board under subsection (7) only if- (a) the order is in favour of.the entity; and (b) the worker's employe~ or the bollrdjoillcd the entity as a defendant. Meaning of ~~certificate injllry" 6A (1) A "certificate injury" for a worker means - I • , (a) a psychiatric or psychological injury entitling the worker, in the board's opinion, to lump sum compensation of at least 20% of statutory maximum compensation; or (b) another injury entitling the worker. in the board's opinion, to lump sum compensation of at least 20% of statutory maximum compensation. (2) A "certificate injury" docs not include an injury entitling the worker, in the board's opinion, to lump sum compensation of at least 20% of stattltory maximum compensation if the entitlement arises only by combining the worker's entitlement to lump sum compensation for both - (a) a psychiatric or psychological injury; and (b) another injury. Effective Date: 111196 lor2 FM.CM.cxtraet90 - -. ...... ,..,. IT'U ,nv ~TI'\ c'l1 n p.007 -- 13 of 13 --