WCRA: sections 237 and 245 – rejected injuries in NOC

Connor v Queensland Rail Ltd [2016] QSC 270

Martin J

The applicant employed by the first respondent when she suffered injuries in 2013. The applicant was using her foot to hold open a rear cab door of a train when the train suddenly moved to take off. The applicant was pushed off the train and dragged along the platform.

The first respondent accepted liability for some injuries but rejected liability for other injuries. The applicant gave a Notice of Claim (NOC) for common law damages relating to both the accepted and rejected injuries. The question in the application was whether the applicant could seek damages for the rejected injuries.

The legislation

The applicant contended that she was entitled to seek common law damages for the rejected injuries as she falls within the ambit of s 237(1)(a)(ii) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) which provides:

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker—

(a) the worker, if the worker—

(i) has received a notice of assessment from the insurer for the injury; or

(ii) has not received a notice of assessment for the injury, but—

(A) has received a notice of assessment for any injury resulting from the same event (the assessed injury); and

(B) for the assessed injury, the worker has a WRI of 20% or more or, under section 239, the worker has elected to seek damages

Section 245 of the Act is relevant where the claimant has more than one injury from an event. Subsections 3 and 4 provide:

(3) However, the claimant may seek damages for the injury only if the insurer decides that the claimant—

(a) was a worker when the injury was sustained; and

(b) has sustained an injury.

(4) The insurer must make a decision for the purpose of subsection (3) within 3 months after—

(a) the claimant gives, or is taken to have given, a complying notice of claim; or

(b) the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275, with or without conditions; or

(c) a court makes a declaration under section 297

The submissions

The applicant submitted that she satisfied s 237(1)(a)(ii) while the first respondent submitted that a decision has already been made and that to make another decision pursuant to s 245(4) would entail a lack of utility, involving duplication, further expense, and delay.

Consideration

After considering statutory interpretation principles stated by the High Court in Project Blue Sky v Australian Broadcasting Authority at [70], Martin J found:

[31] No rational explanation was proffered for reading s 245 as requiring another decision to be made when the same decision-maker had already made a decision on the same materials.

[32] The context of s 237(1)(a)(i) is instructive. It assists to demonstrate that, where decisions have been made on the “worker” and “injury” issues they need not be made again.

[48] In order that s 237(1)(a)(ii) and s 245 be read together in a way which is rational and  consistent with both the context of those provisions and the objects of the Act it is necessary to consider whether s 245 should be read as if it contained some words which confined the operation of s 245(3).

[50] Section 245(3) contains a drafting error. It does not make any sense, and it is inconsistent with the objects and the rest of the Act, to require an insurer to engage in a series of steps which have already been undertaken. The proper construction of the Act would be to read s 245(3) as if, after the word “However”, it contained words to the effect “where the insurer has not already decided the matters in this subsection”. That reading allows for the situation where an application has been made but not decided – but it does not allow an unsuccessful applicant to have a second bite of the cherry.

Martin J dismissed the application, finding that the rejected injuries did not give rise to an entitlement to damages.

David Cormack – Brisbane Barrister & Mediator

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