Durie v Data 3 Business Systems Pty Ltd & Anor [2000] QSC 409

.:.,.·.·,..t••f } il ,__ --- State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION SHEPHERDSON J No 599 of 2000 SALLY ELIZABETH DURIE and REVISED COPfES fSSUEO State Reporting Bureau Date I .J- I e-o Applicant DATA_#3 BUSINESS SYSTEMS PTY LTD First Respondent and DRAKE PERSONNEL LIMITED and WORKCOVER QUEENSLAND BRISBANE .. DATE 31/01/2000 JUDGMENT 11 It J"l,.,.r, Tl1c l.:1w Courts, Cl'llrgc Stred. Hrish:111,:, (). -lllOO Second Respondent Third Respondent 1 Tclc11li1111L·: (07) J2-l7 -U(,() F:1x: (()7) .12-17 c;.:: 12 -- 1 of 10 -- 31012000 Tl/ST8 M/T 6890/2000 (Shepherdson J) HIS HONOUR: In this matter I have decided to give these extempore reasons. The abovenamed applicant has applied for an order pursuant to section 305(1) of the WorkCover Queensland Act 1996 that I give leave for her to bring proceedings against the abovenamed three respondents despite 10 non-compliance with the requirements of section 280 of the same Act. The WorkCover Queensland Act 1996 commenced, I am told, on 1 February 1997. The Act regulates the access which an injured employee has to claim damages from the courts. I do not propose to give a detailed excursion through the Act and will come to parts of the Act later. For the time being I note simply that the applicant herself has not filed any affidavit. I am told she resides in Melbourne and the affidavit material on which Mr Connor for the applicant has relied has been sworn by Barbara Boulton, a solicitor in the employ of the applicant's solicitors. The applicant's projected claim is for damages suffered by her when she was employed by the first and/or second respondent as a receptionist. She commenced that employment in September 1996. She says that in order to perform her employment duties she was required to sit in a chair at a desk and operate a computer provided for her use by the first respondent. 2 JUDGMENT 1 20 IG 30 40 50 60 -- 2 of 10 -- 31012000 Tl/ST8 M/T 6890/2000 (Shepherdson J) In a number of ways it is said these items for her use were unsafe, and as a result she sustained injuries to her arms, shoulders and neck, causing her to cease work on or about 22 August 1997. On 26 August 1997 the applicant signed an application for compensation under the WorkCover Queensland Act 1996. It was there said that she suffered soft tissue injury. On 19 March 1999 WorkCover Queensland assessed the applicant's "permanent impairment from injury" and gave what is called a damages certificate. This document or a photocopy is Exhibit BB2 to Ms Boulton's affidavit. It said: "It has been determined as a result of your recent medical assessment that you have sustained permanent impairment from your injury. The degree of permanent impairment attributable to the injury (code 4999) is: 0.00 per cent. The WRI calculated for the injury is: 0.00 per cent. This certificate allows proceedings for damages for an injury to be commenced. Please note that you must comply with chapter 5 of the WorkCover Queensland Act 1996 to continue proceedings." Chapter 5 of the WorkCover Queensland Act 1996 is headed, "Access to Damages". Part 1 of that chapter deals with "Interpretation and Application" and refers to (inter alia) a "Damages Certificate" which means a certificate under section 262, 265 or 270 given to a claimant by WorkCover that entitles the claimant to seek damages. Part 2 is headed "Entitlement Conditions" and division 1 of that part is headed "Limitations on Persons Entitled to seek Damages". It appears that the present applicant apparently complies with section 253 (1) (a) which is in division 1, in that she 3 JUDGMENT 10 ,,, 1-...• 30 40 50 60 -- 3 of 10 -- 31012000 T2/RK21 M/T 6890/2000 (Shepherdson J) is entitled to seek damages because she suffered an alleged injury sustained by her when she was a worker and she as a worker has received a notice of assessment from WorkCover stating that she has sustained a - I think it is a non- certificate injury - whether it is a certificate or non- 10 certificate injury is not of great concern in the present case. She has not been offered payment of any lump sum compensation and indeed it is apparent from the certificate that there is a serious dispute between the present applicant and WorkCover as to whether or not she sustained a work-related injury. This is not a case where it is necessary to refer to section 262. Instead, I am taken to part 5 of chapter 5, and that part is headed "Pre-Court Procedures". Section 279, which is the commencing section of part 5, reads "The object of this part is to enable WorkCover to enter into early negotiations with claimants to achieve early resolution of claims for damages before the start of Court proceedings". Section 280 is headed "Notice of Claim of Damages". Subsection 1 reads: "Before starting a proceeding in a Court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitations of Actions Act 1974." There are a number of subsections to section 280 and it is unnecessary for me to go to those subsections in any detail. 4 JUDGMENT 30 40 50 60 -- 4 of 10 -- 31012000 T2/RK21 M/T 6890/2000 (Shepherdson J) Suffice it to say that I do note subsection 280, subsection 6, in terms of which "the notice must be accompanied by a genuine offer of settlement or a statement of the reasons why an offer of settlement cannot yet be made". Under subsection 282(1) which applies if a notice of claim is given to WorkCover, WorkCover must within 30 days after receiving the notice give the claimant written notice in accordance with subsection 282(2). I note also that WorkCover is empowered, if it so chooses, to waive compliance or to waive non-compliance with the requirements of section 280, but it is unnecessary to look further at that. What has happened in the present case is that on 20 January 2000 the applicant completed a notice of claim for damages purporting to be under section 280. It did include an offer of settlement but I do not propose to say anything about that other than to comment that from what I can see of the document, it seems to me that for instance in the component for future impairment of earning capacity, there is absolutely nothing to show how the lump-sum figure of $150,000 was arrived at. I might add that the applicant is now aged 33 years. Although subsection 280(1) says "That before starting a proceeding in a Court for damages, a claimant must" - I emphasise "must" - "give a notice under that section", the 5 JUDGMENT 10 '2b 30 40 50 60 -- 5 of 10 -- 31012000 T2/RK21 M/T 6890/2000 (Shepherdson J) Act in later provisions turns out to be not as harsh as it might at first glance seem. Before I go to the section under which the applicant comes before this Court, I should mention that the thrust of part 5, "Pre-Court procedures", is to enable the parties to attempt to resolve the claim made by the applicant. The legislature in part 5 has made a number of provisions to which it is unnecessary to refer. I do note, however, that under section 291 which is in part 5, "If a party fails to comply with a provision of this chapter a Court may order the party to comply with the provision and may make consequential or ancillary orders that may be necessary or desirable in the circumstances of the case." Part 6 is headed, "Settlement of Claims". Part 7 is headed, "Start of Court proceedings", and division 1 reads, "When claimant can start Court proceedings". Section 301 which is the commencing section in part 7 reads, "This division states the conditions that must be satisfied before a claimant can start a Court proceeding". Section 303 relevantly says: "The claimant may start the proceeding if any of the 10 '20 30 40 following have happened - 50 (a) At least six months ... have elapsed after - (i) the claimant has given a complying notice of claim; or (ii) WorkCover has waived the claimant's non-compliance with the requirements of section 280; or 6 JUDGMENT 60 -- 6 of 10 -- 31012000 T3-5/ST8 M/T 6890/2000 (Shepherdson J) (iii) the Court has made an order under section 304 or 305 ... " Section 305 reads: "305 (1) Subject to 303 the claimant may start the proceeding if the Court, on application by the claimant, gives leave to bring the proceeding despite non-compliance with the requirements of 10 section 280. (2) The order giving leave to bring the proceeding may be made on conditions the Court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant's failure to comply with the requirements of section 280." As I have said, the notice of claim for damages was signed by the applicant on 20 January and it is said from the Bar table and not really disputed by the applicant's counsel that the notice of claim for damages was not received by WorkCover until 24 January 2000; that is, seven days ago. Quite obviously, the time limitation for response by WorkCover as provided in part 5, "Pre-Court Procedures'', has not expired. Ms Lythall who has appeared for all the respondents including WorkCover has told me that WorkCover neither consents nor opposes the present application. I informed her during argument that in the circumstances of this case I proposed to give leave pursuant to section 305, but to impose a condition the effect of which will be to stay the action until after the provisions of part 5 have been complied with. It seems to me that----- MS LYTHALL: Excuse me, Your Honour. Sorry. If I could interrupt, I would ask that you also put in part 5 and part 6 which deals with the compulsory conference. 7 JUDGMENT 20 ,,,, ''J 30 40 50 60 -- 7 of 10 -- 31012000 T3-5/ST8 M/T 6890/2000 (Shepherdson J) HIS HONOUR: Part 6, the compulsory conference. Just tell me what section that is again. MS LYTHALL: Sorry, Your Honour. That's section 293. HIS HONOUR: 293. All right. MS LYTHALL: Thank you, Your Honour. HIS HONOUR: Well, that justified interjection by Ms Lythall will have been recorded. You don't oppose my doing that, do you, Mr Connor? MR CONNOR: No, Your Honour. HIS HONOUR: All right. Very well. Thank you. It seems to me that WorkCover Queensland Act 1996 and its having come into effect has introduced, if I can use the vernacular, a whole new ball game for solicitors who are engaged in personal injury work where claims are made by servants against masters. A number of barriers have been erected by the statute before a person can properly and validly commence a claim for damages for personal injuries. It is important that the profession keeps itself abreast of exactly what these requirements are. It is apparent to me that in view of the order I propose to give the claim will be limited from a limitation point of view from a date beginning probably on or about 31 January 1997. I should, I think, add that the discretion given to 10 \ 20 in 30 40 )u ! the Court under section 305 is a discretion which is to be 50 exercised judicially. It is my view that where as here there has been a considerable delay between the granting of the certificate and the giving of the notice of claim for damages some explanation should be given for that delay. 8 JUDGMENT 60 -- 8 of 10 -- 31012000 T3-5/ST8 M/T 6890/2000 (Shepherdson J) I have not given the delay any great weight or any real weight at all in the present application, and I have done that simply because of the following. First, Ms Lythall neither concedes nor opposes the order 10 being granted; secondly, it seems to me reasonably clear that the issue of causation will be a matter of prime importance at the trial and in the circumstances although the notice of claim for damages appears not to have been as fulsome as the statute requires - particularly in relation to the making of a "genuine offer of settlement'', I see no reason to penalise the applicant. I would stress, however, that in my view practitioners must provide particulars of a genuine offer which can be properly understood by WorkCover. At the end of the day the order I make is this: I give Sally Elizabeth Durie leave to commence proceeding against Data #3 Business Systems Pty Ltd, Drake Personnel Limited and WorkCover Queensland in respect of a claim for damages for personal injuries suffered on about 31 January 1997 and up to and including 22 August 1997 on condition that those proceedings are stayed until the applicant and the defendants have used their best endeavours to comply with parts 5 and 6 of WorkCover Queensland Act 1996. 9 JUDGMENT 30 40 50 60 -- 9 of 10 -- 31012000 T3-5/ST8 M/T 6890/2000 (Shepherdson J) HIS HONOUR: I order that the costs of and incidental to this application be reserved to the trial Judge. 10 JUDGMENT 10 i 20 (I 30 40 50 60 -- 10 of 10 --