WCRA: parallel universe of the mirage like “gateways” – assessed injury

Ley v Woolworths Limited [2013] QSC 59

Further to my earlier post and the decision by North J in Muckermann v Skilled Group Limited & Anor [2013] QSC 51, His Honour has restated the rationale for determining the assessed injury enlivening entitlement, this time in claim involving an assessed injury for a specific date as opposed to an over period of time.

North J:

[20] In Muckermann v Skilled Group Limited Anor [38] I said (relevantly):

“The concept of “event” defined by s 31 finds its explicit work in the context of this matter not as a part of any assessment of injury or impairment but in the context of the plaintiff seeking damages. Section 111 WCRR expressly refers to the “event”. It requires that the notice of claim for damages which an injured worker must prepare and sign as part of the pre court procedures mandated by Part 5 of Chapter 5 contain an elaboration of the facts and matters relating to the “event”. It is not surprising that the issue of “event” arises in the context of the claim for damages. The identification and consideration of an “event” is important in the consideration of matters such as whether a breach of the duty of care has occurred and also of causation of loss and damage. In other words, in the context of the WCRA the issue of “event” has significance in the context of the pre-court procedures and the requirement of Parts 5 and 6 of Chapter 5 of the Act that the parties attempt to settle claims for damages. I have not overlooked that an application for compensation requires of an injured worker information demonstrating that the injury arose out of or in the course of employment and that in the consideration of a claim for damages the nature and extent of personal injury will be relevant. So that while for both “compensation” claims and “damages” claims issues concerning both injury and event may have to be considered in general terms injury is the focus of a compensation claim and event has a much greater significance in the damages claim than it does in a compensation claim.”

(Footnotes omitted)

I have not overlooked that the term “event” is found in s 237(1)(a)(ii)A of the WCRA. The intention of that provision is that when multiple injuries may have been sustained a worker, having already been assessed for one injury (and a substantial one, see s 237(1)(a)(ii)B) need not undergo assessment of the other injuries in order to seek damages. That circumstance does not, in my view, detract from the comments I made in Muckermann.

[21] So while it may be that different “events” within the meaning of that term found in s 31 of the WCRA have been expressly or by implication identified when the application for compensation is compared with the notice of claim for damages on the view I take the same “injury” within the meaning of that term used in s 32 of the WCRA is the subject of both the application and the notice of claim. In the former the applicant identified his injury as “strain of cervical spine” and affecting his “neck, left shoulder, arm, hand”[39] while in the notice of claim the part of the body identified was “cervical spine” and the nature of the injury was specified as “musculoligamentous and disc”.[40] The view I take is I believe consistent with the reasoning of the Court of Appeal in Dowd v Swift Australia Pty Ltd [41] the reasons of Davies JA in Bell v Australia Meat Holdings Pty Ltd[42] and with the persuasive reasons of Dalton J in Andersen v Aged Care Employers Self Insurance [43].

[22] The injury referred to in the application for compensation should be regarded as the same injury the subject of the notice of claim for damages. To the extent that Dr Gibberd in his report of 12 December 2011 assessed a discreet injury by way of exacerbation to the cervical spine on 4 January 2011 and disagreed with the notion that the applicant had suffered any injury over a period of time because of workplace practices the doctor was expressing a medical opinion not a conclusion involving the mixed question of law in fact that the question of the meaning of the term “injury” poses.

[23] The consequence is that the injury assessed in the notice of assessment dated 16 December 2011[44] should be regarded for the purposes of the WCRA and the applicant’s notice of claim for damages of 12 December 2011 as the same injury.

[24] In expressing this view it should not be thought that by implication I disagree with the reasons of the Chief Justice in Sayers v Hanson t/as Allguard Security Services[45]. The circumstances that the Chief Justice was considering are distinguishable for the reasons I gave in Muckermann v Skilled Group Limited & Anor.[46] The conclusion of the Chief Justice was in accordance with the WCRA, particularly s 295, because the “event” the plaintiff in that case sought, for the first time, to set up in his statement of claim was one that had never been identified by him in either his application for compensation, his notice of claim for damages or at any time as he took the steps necessary to come within s 295 of the WCRA.[47]

[25] Consistently with the reasons I gave in Muckermann v Skilled Group Limited & Anor[48] any dispute as to whether the injury the applicant first became aware of when he began to experience symptoms on 4 January 2011 was caused or contributed to by the workplace practices he identifies over the years he worked as a butcher is properly a matter for resolution in the context of the “seeking of damages” or if needs be determination at a trial where liability, “independently of the Act” is determined.

[26] I commenced by mentioning a parallel universe. The stark evidence of that can be found in the reliance the respondent placed upon a report from Dr Brett Halliday (orthopaedic surgeon) of 1 May 2012[49]. The respondent purported to refer to Dr Halliday the questions posed by s 258(1)(a)(ii) and if needs be s 258(3) on the grounds that concerning the claim for injury occurring over a period of time the applicant had not lodged an application for compensation for that injury.[50] Dr Halliday concluded that the applicant’s condition and injury was caused by the effects of a degenerative disease in his cervical spine and that the condition had not been caused or contributed to to any extent by the workplace practices described. On that basis the respondent concluded that the applicant had not sustained an injury within s 32 of the WCRA by reason of the workplace practices and accordingly, there being no injury to assess, he was precluded from seeking damages for such an injury unless he could successfully challenge the respondent’s decision based on Dr Halliday’s report under Chapter 13 of the WCRA.[51]

[27] In argument before me counsel for the respondent sought to resist the application for a declaration relying upon the reasons of Douglas J in Otto v Mackay Sugar Ltd & Anor[52]. In that case his Honour recognised the jurisdiction to make a declaration in an appropriate case if the facts upon which the declaration depended were sufficiently clear.

[28] In Otto the facts were unclear and contentious and there was a doubt upon the evidence whether any work related injury had occurred. On that basis the employer had declined an application for compensation on the grounds that a work related injury had not been sustained. The worker had taken steps to have that decision reviewed but had withdrawn the proceedings. But in this matter the medical evidence is unanimous that a work related injury has been sustained. Otto is distinguishable.

[29] The respondent would have it that the applicant may only seek damages for whatever injury he sustained on 4 January 2011, in all likelihood on the evidence before me a minor exacerbation of an underlying degenerative disease, and that any contribution arising from the asserted workplace practices to the cervical spine condition must be disregarded.[53] For the reasons I have given this contention should be rejected. The applicant’s neck injury has been assessed. The nature, extent and cause of it and how it might sound at damages should be explored under Parts 5 and 6 of Chapter 5 of the WCRA and if it must be at a trial.

[30] The conclusions I have reached do not determine the issues that may be disputed between the parties at a potential trial, or those that might be debated between the parties when they engage in the process mandated by Parts 5 and 6 of Chapter 5 of the WCRA.[54]

Brisbane Barrister – David Cormack

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