Sections 131(1) & 237(1)(d) WCRA – “worker who has not lodged an application for compensation for the injury”

Jacobs v Woolworths [2010] QSC 24

 

The worker sought a declaration that she was entitled to seek damages for an alleged injury. The respondent, which is a self-insurer refused to accept her entitlement on the basis she did not satisfy section 237(1) of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”).  The application for compensation was lodged outside of the 6 month time limit and was rejected by the respondent on this basis. A review with Q-COMP had been lodged, but not determined.

His Honour Jones J noted:

 [5] The question for determination turns on the proper construction of s 131(1) and what is to be understood by the words “worker who has not lodged an application for compensation for the injury” for the purpose of s 237(1)(d).

 

Jones J considered the sections 131, 132, 134, 237(1)(d) of the WCRA and the decisions of:

Thompson v WorkCover Queensland (2002) 1 QdR 461;

Kelly v WorkCover Queensland [2002] 1 QdR 496;

Watkin v GRM International Pty Ltd (2007) 1 QdR 389; and

Charlton v WorkCover Queensland [2007] 2 QdR 421.

In respect of interpreting section 237(1)(d) his Honour determined:

[16] In none of the above cases relied upon by the respondent was there any direct focus on the question of the proper construction of the relevant provisions. Therefore I do regard the cases provide a binding interpretation of what is contemplated by the exception created by the terms of s 237(1)(d). I should therefore return to the terms of the legislation.

To guide in the interpretation of the legislation his Honour referred to:

[18] The subject provisions must be read in the context of the statute read as a whole and “by reference to the language of the instrument viewed as a whole”.9 In Project Blue Sky Inc v Australian Broadcasting Authority,10 the majority (McHugh, Gummow, Kirby and Hayne JJ) said that the process of construction must always begin by examining the context of the provision that is being construed and they cited the remarks of Dixon CJ in Commissioner for Railways (NSW) v Agalianos 11 who said:-

“The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.”

9 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 per

Mason and Wilson JJ at 320

10 [1998] 194 CLR 355

Jones J considered the interaction between sections 132-133A, 135, Parts 5 & 10 of Chapter 3 and Chapter 5 of the Act.  In considering these provisions his Honour noted:

[21] A worker, whose application for compensation has been rejected after this process, has no entitlement to seek damages. A worker who does not apply for compensation but claims damages pursuant to s 237(1)(d) still has to undergo this process of inquiry before the claim can proceed. The process is dictated by the terms of s 258. These should be contrasted with the terms of ss 250 and 254 which apply to workers seeking damages by the alternative gateways provided by s 237(1).

[22] The construction urged by the respondent – that the lodgement of an out of time application would preclude a later claim for damages – would mean that all of the gateways to making a claim for damages would be closed to such a claimant without there having been any inquiry as to the relationship between the worker’s injury and his/her work.

[23] By contrast if, as the applicant contends, the reference to application for compensation is restricted to a valid application, it would initiate the inquiry and assessment contemplated by the statute. On this approach s 237(1) would achieve its full scope.

His Honour concluded in favour of the applicant that she was a worker who had not lodged an application for compensation within the meaning of section 237(1)(d):

[24] A further consideration is the efficacy of allowing the insurer to waive the invalidity of an out of time application for compensation. A claimant, knowing his/her application is out of time, might yet receive the benefit of statutory compensation

whilst the capacity exists for the insurer to waive the out of time status of the application. The claimant would never know the outcome unless the application is in fact lodged. But it would be a huge gamble for a worker to make the application if, in doing so, his/her entitlement to claim damages was lost. This would not necessarily be a matter of negligent advice as Keane JA referred to in passing in Watkin but rather, a denial of the opportunity to test the preparedness of the insurer to waive the status of what would otherwise be an invalid and unenforceable application for compensation.

[25] Having regard to the consequences which flow from these competing constructions of s 237 (1)(d) I regard that proposed by the applicant as being correct.

[26] The first consideration is the language of s 131. By its terms, it conditions the essential validity of the application upon its being lodged within time. Secondly, the encouragement to lodge an application, notwithstanding its invalidity by allowing that to be waived, would be ineffective if accompanied by the penalty of precluding a claim for damages.

[27] The second consideration is the relationship between the application for compensation and the class of workers who constitute the exceptions to the general limitations on claims for damages. The general purpose and policy of the provision and its consistency and fairness would suggest that artificial barriers to an entitlement to claim damages should not be raised where there is in place a rigorous process of inquiry to determine that entitlement. By construing paragraph (d) of s 237(1) as referring only to a valid application for compensation, this allows the process of inquiry underpinning entitlement to claim damages to be consistent and fair for each category of worker contemplated by the section as a whole.

Conclusion

[28] Taking this view of the proper construction of the section, I regard the applicant as being a worker who has not lodged an application for compensation within the meaning of s 237(1)(d) and that she is entitled to a declaration to this effect.

Accordingly, the Notice of Claim, pursuant to s 278(4) of the WCRA, was deemed a notice compliant with s 275 of such Act.

Brisbane Barrister – David Cormack

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