Benecke v State of Queensland [1999] QSC 242

( L 37((9 IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: ANNETTE BERYL BENECKE (Respondent) STATE OF QUEENSLAND (Applicant) REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 12 October 1999 No. 3575 of 1999 Plaintiff Defendant CATCHWORDS: PROCEDURE - Application to strike out statement of claim for failing to disclose a cause of action or, alternatively, that there be a separate determination of an issue - plaintiff claimed damages from her employer for the development of a psychiatric disorder resulting from conflict with and humiliation by co-employees - plaintiff was refused statutory benefits on the basis that she had not suffered an "injury" in terms of the Workcover Act 1996 - whether the statement of claim disclosed a cause of action - whether the determination of the separate issue involved the I' resolution of contentious factual issues which also bore on the plaintiffs claim for common law damages. Counsel: Solicitors: Hearing Date: Application that the plaintiff supply further and better particulars - Whether the request advances the case in respect of the issues between the parties. Mr M Grant-Taylor for the applicant/defendant. Mr G. R. Mullins for the respondent/plaintiff. Wonderley & Hall for the applicant/defendant. Shine Roche McGowan for the respondent/plaintiff. 19 May 1999 -- 1 of 8 -- i \ 1 IN THE SUPREME COURT OF QUEENSLAND Brisbane BETWEEN: AND: ANNETTE BERYL BENECKE (Respondent) STATE OF QUEENSLAND (Applicant) REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 12 October 1999 No. 3575 of 1999 Plaintiff Defendant The defendant seeks to have the statement of claim delivered in this action struck out as failing to disclose a cause of action. Alternatively, it seeks the separate determination of an issue which arises on account of the same considerations as those founding the application to strike out. It also seeks an order for particulars. The resolution of the issues raised by the striking out and separate issues application depends on the operation ofs 253 of the WorkCover Queensland Act 1996 (the Act). The issues arise in these circumstances. The plaintiffwas employed by the defendant as a purchasing officer in the Toowoomba District Health Service. She claims that in the course ofthat employment she was SUbjected to stress because of ongoing conflict with and humiliation by co-employees and consequently developed a psychiatric disorder. The plaintiff alleges that the defendant failed to investigate her complaints or to appropriately deal with them. This is alleged to constitute a breach of its obligations as an employer. The statement of claim was amended to allege, and it is the case, that the plaintiff applied to the defendant for statutory benefits in accordance with the Act but was refused on the basis that her absence from work was not the result of "injury" in -- 2 of 8 -- I I \ 3 (, 3 terms of the Act. It is apparent from the reasons given in support of the decision after the plaintiff exercised her entitlement to have it reviewed that the rejection of her application involved an evaluation and resolution of factual issues. Thus it was said that: "extensive investigations at the workplace have failed to show any harassment"; that issues raised by the plaintiff concerning co-employees' behaviour were "investigated" and "addressed"; and that the action taken by management was "reasonable management action taken in a reasonable way". It was concluded that a reasonable person, in the same employment as the plaintiff would not have been expected to sustain the injury of which the plaintiff complains. These considerations reflect the Act's definition of injury to which I now tum. Section 34 of the Act defines injury for the purposes of the Act. It relevantly provides: "(1)An 'injury' is personal injury arising out of, or in the course of, employment if the employment is the major significant factor causing the injury. (2) However, employment need not be the major significant factor causing the injury if section 36(2) or 37(2Y applies. (3) 'Injury' includes the following- (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is the major significant factor causing the disease; (b) an aggravation of a disease if the employment is the major significant factor causing the aggravation; Section 36 (Injury while at a place of employment or another place of employment) or 37 (Other circumstances). -- 3 of 8 -- ( 4 (c) loss of hearing resulting in industrial deafness if the employment is the major significant factor causing the loss of hearing; (d) death from injury arising out of, or in the course of, employment if the employment is the major significant factor causing the InJury; (e) death from a disease mentioned in paragraph (a), or an aggravation of a disease mentioned in paragraph (b), if the employment is the major significant factor causing the disease or aggravation. (4) 'Injury' does not include a personal injury, disease, or aggravation of a disease sustained by a worker if the injury is a psychiatric or psychological disorder arising out of, or int he course of, any of the following circumstances- (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the workers's expectation or perception of reasonable management action being taken against the worker; (c) action by WorkCover or a self-insurer in connection with the worker's application for compensation; (d) circumstances in which a reasonable person, in the same employment as the worker, would not have been expected to sustain the injury. (5) For subsection (4), in deciding in a particular case whether management action was reasonable or whether management action was taken in a reasonable way- (a) regard must be had to what action or way oftaking action would have been reasonable for a worker or ordinary susceptibility to psychiatric or psychological disorder; and (b) regard must not be had to a particular worker's susceptibility to a psychiatric or psychological disorder." Section 253 of the Act imposes limitations on persons entitled to seek damages in the following terms: -- 4 of 8 -- ( ( I \ 4 5 5 "253.(1) The following are the only persons entitled to seek damages for an injury sustained by a worker- (a) the worker, if the worker has received a notice of assessment from WorkCover stating that- (1) the worker has sustained a certificate injury; or (ii) the worker has sustained a non-certificate injury; or (b) the worker, if the worker's application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment; or (c) the worker, if the worker has not lodged an application for compensation for the injury; or (d) a dependent of the deceased worker, if the injury sustained by the worker results in the worker's death. (2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter. (3) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker." It is submitted that the plaintiff does not satisfy any of these categories. A claimant may start proceedings in a court for damages if s 302 has been complied with but it is accepted that the plaintiff has not done so. It seems to me that relevantly for present purposes the amended statement adequately pleads a duty of care, its breach and consequent damage. It also pleads to the rejection of her claim for benefits under the Act on the basis that she had not suffered an injury in terms of the Act. The plaintiff was thereby deprived of recourse to the Act; that notwithstanding the defendant also seeks effectively to deprive her of her common law rights. In my view, the statement of claim pleads a cause of action. If the defendant wishes to -- 5 of 8 -- 6 ( ( 7 6 contend that her damage is consequent upon an injury in terms of s 34 ofthe Act so as to engage the operation of s 253 and prevent her pursuing her action, it can plead and seek to prove that case. As is evident from the reasons for WorkCover's rejection of the plaintiffs claim for benefits under the Act the determination of the issues so raised involves the resolution of contentious factual issues which also bear on the plaintiffs claim for common law damages. It IS therefore inappropriate to separately resolve these Issues. The position is different from that which arose in Coote v Gas Corporation of Queensland Limited (unreported McGill DCJ, 22 April 1998, 429 of 1998) a case on which the defendant placed considerable reliance. That was a case where a certificate was in effect a condition precedent to the commencement of proceedings and it was concluded that what was relied on did not constitute a certificate complying with the statutory requirements. As will be apparent from what I have already said in this case, there is an issue as to whether the plaintiff has suffered an injury in terms of the Act so as to engage the operation of s 253. I turn to the question of particulars. The request for particulars contains 41 numbered paragraphs, a number of which have sub-paragraphs themselves constituting requests and a C number of requests for particulars potentially involve multiple answers. The request is 8 reminiscent of the form of interrogatories which led to the changes in the procedure affecting interrogatories now manifest in the Uniform Civil Procedure Rules. The plaintiff has answered many of the requests for particulars responsively including some which it might well have refused to answer, for example, in respect ofthe demand that it provide further particulars "as to each and every respect in which the defendant failed to provide a safe system of work", it contended that it was not obliged to do so but referred to particulars otherwise supplied. -- 6 of 8 -- 9 ( ( :( 7 Against that background, the plaintiff has refused to provide the further and better particulars requested by paras 34-41 of the defendants request. I don't propose to canvass those requests in any particular detail but some examples may illustrate the position. Paragraph 6( c) of the statement of claim alleges that the defendant was negligent in not taking any: "Sufficient steps to prevent or minimise the humiliation and harassment suffered by the plaintiff .. when it knew or ought to have known that such continued humiliation and harassment was likely to cause psychiatric harm". The plaintiff is then asked to: "34. As to paragraph 6( c) of the statement of claim under the subheading Particulars of Negligence, the following particulars are requested: (a) Identify each and every one of those steps which the defendant ought to have taken, though did not take, to prevent or minimize the humiliation and harassment suffered by the plaintiff. (b) Identify each and every one of those steps to prevent or minimize the humiliation and harassment suffered by the plaintiff which the defendant took, though which was nonetheless insufficient. (c) State the facts, matters and circumstances giving rise to the allegation that the defendant knew that such humiliation and harassment was likely to cause risk of psychiatric harm to the plaintiff. (d) State the facts, matters and circumstances giving rise to the allegation that the defendant ought to have known that such humiliation and harassment was likely to cause risk of psychiatric harm to the plaintiff." Paragraph 6( e) of the statement of claim alleges as a particular of negligence that the defendant failed to provide: "Effective communication between the plaintiff and her superior officers when it knew or ought to have known that the plaintiff was undergoing humiliation and harassment with consequent stress during the course of her said employment." Among the particulars sought of this allegation is that the plaintiff: "Describe with partiCUlarity the communication between the plaintiff and her superior officers which the defendant ought to have provided though did not provide." -- 7 of 8 -- (I 10 11 8 Paragraph 6(f) ofthe statement of claim is to the effect that the defendant failed to "mediate or sufficiently mediate the dispute". Requests for particulars 37 require the plaintiff to describe "with particularity" the mediation which the defendant ought to put in place and did not and the mediation which was put in place but which was insufficient. In the context of the same allegation the plaintiff is required to state the "facts, matters and circumstances giving rise to the allegation that the defendant knew that there was a situation of conflict between the plaintiff' and her co- employees. The fonnulation of the requests for particulars are such that, for example, the plaintiff could responsively answer that the co-employees complained of" .. no longer fail to include the plaintiff in social functions as she is no longer an employee of the defendant". This example of a response illustrates the unsatisfactory nature of the request for particulars as it does not advance the case in tenns of the issues between the parties. Put shortly the outstanding requests, taken in the context ofthe whole ofthe particulars and the plaintiffs response, go beyond what is appropriate to the extent that I am not prepared to order the plaintiff to answer them. I dismiss the application. -- 8 of 8 --