WCRA: deemed compliance when not one of the injuries have been assessed

Brittain v Hentys (a firm) & Ors [2017] QSC 40

In issue was: whether the claimant who did not have an assessed injury for any of his work injuries, had the benefit of “deemed compliance” and the extension of the limitation period under s.302 of Workers’ Compensation and Rehabilitation Act 2003 (WCRA).

Pursuant to r 483(1) of the Uniform Civil Procedure Rules 1999 Justice Flanagan was asked to determine two questions:

  1. As at 30 April 2010, was the applicant (plaintiff in proceeding 510/16) a claimant able to seek damages pursuant to Chapter 5 of theWorkers’ Compensation and Rehabilitation Act 2003.
  2. Was the notice given to WorkCover on 30 April 2010 ever taken to be a complying notice of claim pursuant tos 278(4) of the Workers’ Compensation and Rehabilitation Act 2003?

The agreed facts were:

[5] On 30 April 2010 Mr Brittain sought to give to WorkCover a notice of claim for damages pursuant to section 275 of the Act.[1]

[6] In respect of the alleged injuries, Mr Brittain had previously applied for, and been allowed, statutory compensation under the Act.

[7] As at 30 April 2010 Mr Brittain’s injuries had not been assessed for permanent impairment and he had not been given a notice of assessment under section 185 of the Act. Whilst it is not an agreed fact, it is common ground that Mr Brittain did not receive a notice of assessment until about 15 May 2011.[2]

[8] Attachment B to the Agreed Facts Annexure to the originating application contains correspondence from WorkCover’s solicitors to Mr Brittain’s solicitors for the period 7 May 2010 to 20 October 2010. It is necessary to briefly summarise this correspondence.

[9] By letter dated 7 May 2010 WorkCover acknowledged receipt on 30 April 2010 of Mr Brittain’s notice of claim for damages dated 28 April 2010. The letter relevantly stated:

“I note that your client has not received a Notice of Assessment from WorkCover for any of the injuries claimed in response to question 41. Your client is not entitled to seek damages or give a Notice of Claim until at least one of the injuries claimed has been assessed, pursuant to Sections 237 and 250 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act). Accordingly, I return the Notice of Claim given to WorkCover.

To eliminate any further delays, I suggest your client approach the WorkCover office to determine if the injuries claimed have been sustained and if so to provide a Notice of Assessment or Damages Certificate for those injuries.

If pursuant to the Limitations of Actions [Act] 1974, the period for bringing a proceeding for damages is close to expiry, I draw your attention to Sections 276297 and 298 of the Act.”

[10] The 7 May 2010 letter purportedly enclosed the notice of claim and “List of Areas of noncompliance”. It is common ground that no such enclosures were attached.

[11] On 14 May 2010 Mr Brittain’s solicitors wrote to WorkCover:

“We refer to your letter dated 7 May 2010.

We note that in your aforesaid letter that the Notice of Claim (“Notice”) provided to WorkCover Queensland (“WQ”) is to be returned. We further note that in fact the Notice has not been returned to us and we advise that there is no basis for you to return the Notice, as it is a complying Notice which was on our instructions to expire on 4 May 2010. Furthermore, in our letter to you dated 4 May 2010, we confirm that we would comply with WQ’s reasonable conditions at a later date.

We request that our client’s injury being the subject of these claims, pursuant to Sections 237 and 250 of the Workers Compensation Rehabilitation Act 2003 be assessed for permanent impairment.”

[12] On 27 May 2010 the solicitors for WorkCover wrote to Mr Brittain’s solicitors stating that to date a compliant notice of claim had not been delivered. The letter noted that WorkCover may waive compliance in circumstances where there is an urgent need to commence a claim. As to the 2007 claim, the letter suggested that if the injury occurred on 22 January 2007, then pursuant to the Limitation of Actions Act 1974 the limitation period had expired and at no stage had the limitation period been preserved. The solicitors for WorkCover foreshadowed that WorkCover would maintain a defence on the basis the limitation period had expired.

[13] As to the alleged second in time incident of 14 May 2009, the letter stated:

“as there is no pending limitation period, there is no urgent need to commence proceedings, and thus there is no need for our client to consider compliance being waived. A NOC should be delivered after a Notice of Assessment has been issued.”

[14] In a letter dated 9 June 2010 the solicitors for WorkCover stated:

“Once again, we refer you to our correspondence of 27 May 2010 and note the Notices of Claim have been issued prematurely, there is currently no entitlement and your client does not to date have an assessed injury.”

[15] By letter dated 22 September 2010 the solicitors for Mr Brittain confirmed that the 2007 injury may have occurred on or about 22 January 2007 and that Mr Brittain would rely on a material fact of a decisive character pursuant to section 31(2) of the Limitation of Actions Act 1974 seeking an extension of the limitation period.

[16] In a letter dated 20 October 2010 from the solicitors for WorkCover to the solicitors for Mr Brittain it was observed:

“We note you have previously requested that your client’s injuries be referred for assessment for permanent impairment. We have recently been advised by our client that the statutory claim is ongoing as well as treatment. We request you advise by return as to whether treatment has ceased and if your client is confirming there is no further surgery pending and his condition is stable and stationary. Upon receipt of your response, we will refer same to our client for consideration of assessment.

As previously noted, the Notices of Claim have been returned as there is no entitlement until any injury has been assessed, or alternatively a request for waiver of compliance if there is an urgent need for proceedings to be commenced.”

In answering the questions, Flanagan J placed reliance on WorkCover’s concessions:

[52] The Act does not make it clear whether the giving of a notice of claim in breach of section 250 constitutes noncompliance with the requirements of section 275. Hentys submits that it does.[24] WorkCover concedes that in the context of section 276, the ability of an insurer to waive compliance with the requirements of section 275 is wide enough to allow waiver of the obligation to give the notice of claim at all or waiver of the fact that the claimant had no entitlement to give the notice of claim.[25]WorkCover also accepts that where a claimant does not have a notice of assessment the claimant may seek the Court’s leave under section 298 to commence proceedings despite noncompliance with section 275. This accords with the observation of McMurdo J in Phipps:

“As is now accepted, the appellant could have sought the court’s leave for the commencement of proceedings notwithstanding the absence of a notice of assessment and a complying notice of claim, and the non-occurrence of the compulsory conference.”[26]

His Honour, in making this observation, specifically referred to sections 251, 298 and 302.

Flanagan J found there was no dispute that WorkCover’s compliance response did not satisfy section 278(2) of the WCRA and hence, the Notice of Claim for Damages was deemed to be compliant, despite not one of the injuries having been assessed:

[68] WorkCover submits that if it was forced to undertake such steps in the absence of a notice of assessment, the construction submitted by Hentys is inconsistent with achieving the objects of the Act. I do not accept this submission. As I have already observed there are a number of provisions, including section 251, which contemplate the giving of a notice of claim in circumstances where a notice of assessment has not been given. There was no urgency in the present case as the time limit for the first injury had expired (subject to an application for extension of the period of limitation) and there was a further two years before the limitation period expired for the 14 May 2009 injury. Pursuant to section 278(2)(c), if WorkCover was not satisfied that the notice of claim was a complying notice of claim, it was required to identify the noncompliance and state whether it waived compliance with the requirement. WorkCover, rather than purporting to return the notice of claim on the basis that Mr Brittain was not entitled to give such a notice, could have informed him that the notice was a noncomplying notice because no notice of assessment had been given. WorkCover was required in those circumstances to state whether it waived compliance with that requirement. If it was not prepared to waive compliance then, in accordance with section 278(2)(d), it had to allow Mr Brittain a reasonable period of at least 10 business days either to satisfy WorkCover that he had complied with the requirement, or to take reasonable action to remedy noncompliance. Nothing in section 278 would necessarily compel WorkCover to waive the requirement for a notice of assessment. If the claimant does not take reasonable action to remedy noncompliance WorkCover, pursuant to section 278(3)(b), may give the claimant written notice stating that WorkCover is not satisfied that the claimant has taken reasonable action to remedy the noncompliance.

[69] It is WorkCover’s failure to comply with the requirements of section 278(2) that enlivens the deeming provision in section 278(4). It is this deeming provision which permits the notice of claim to be taken as a complying notice of claim that enables a claimant to take advantage of the moratorium on the limitation period because of section 302(1)(a)(i). The point is that the noncomplying notice of claim is only deemed to be a complying notice of claim if the insurer does not give the written notice mentioned in section 278(2) within 10 business days after receiving the notice of claim. The taking of those steps does not necessarily require waiver of noncompliance.

[70] The obligation of an insurer to respond to a notice of claim as required by section 278(2) arises, in accordance with section 278(1), “if a notice of claim is given to an insurer”. The obligation is not limited to the situation where there is an urgent need to commence proceedings as contemplated by, for example, section 251. A written notice under section 278(2) must comply with the conjunctive requirements of section 278(2)(a) to (e). The requirement in section 278(2)(b) is one that arises specifically where there is an urgent need to start a proceeding. As observed by Margaret Wilson J in Handover v Consolidated Meat Group Pty Ltd[33] section 278(2)(b) can apply only where, under section 276(6), the insurer has imposed conditions which it would require to be fulfilled before waiving compliance. The obligation of an insurer to respond to a notice of claim is not however limited to a situation where there is an urgent need to start a proceeding. All that is required is the giving of a notice of claim to the insurer. Mr Brittain did give WorkCover a notice of claim on 30 April 2010. Accepting that the giving of the notice of claim constituted Mr Brittain seeking damages, the giving of the notice contravened section 250 as Mr Brittain had not, at that date, been given a notice of assessment. The notice of claim was therefore a noncomplying notice but still a notice of claim. Section 278 was therefore engaged.

[71] There is no dispute that WorkCover has not complied with the requirements of section 278(2). WorkCover’s letter of 7 May 2010 simply informed Mr Brittain that he was not entitled to seek damages or give a notice of claim until at least one of his injuries had been assessed. The letter did not:

(a) identify the ways in which the notice of claim was noncompliant;

(b) state whether WorkCover was prepared to waive compliance with the requirements of section 275;

(c) allow Mr Brittain a reasonable period of at least 10 business days either to satisfy WorkCover that he had complied with the requirements or to take reasonable action to remedy the noncompliance; or

(d) state whether WorkCover was prepared, without admitting liability, to meet the cost of reasonable and appropriate rehabilitation.

In such circumstances, section 278(4) operated to deem the notice of claim given on 30 April 2010 to be a complying notice of claim.

[72] To take advantage of the limitation moratorium in section 302(1)(a)(i), Mr Brittain must be taken to have given a complying notice of claim before the end of the period of limitation. This presents no difficulties in relation to the injury which occurred 14 May 2009. In relation to the January 2007 injury for which the limitation period had expired prior to the giving of the notice of claim on 30 April 2010, there is authority that the term “period of limitation” in the precursor to section 302 includes one extended under section 31 of the Limitation of Actions Act 1974, whether the order under section 31 was made before or after an application for leave under the precursor to section 298 of the Act.[34] Whether Mr Brittain may take advantage of the moratorium on the limitation period in respect of the January 2007 injury depends on the outcome of any application to extend time pursuant to section 31 of the Limitation of Actions Act 1974.

Conclusion

[73] The answer to question 1 as amended, namely “whether Mr Brittain, in giving a notice of claim, in circumstances where he had not been given a notice of assessment, may nonetheless secure a halt to the running of the limitation period (section 302) by relying on section 278(4) of the Act?” is “yes”. The answer to question 2, “was the notice given to WorkCover on 30 April 2010 ever taken to be a complying notice of claim pursuant to section 278(4) of the Act?” is also “yes”.

David Cormack – Brisbane Barrister & Mediator

 

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