- Unreported Judgment
 QSC 24
SUPREME COURT OF QUEENSLAND
Jacobs v Woolworths  QSC 24
CHRISTINE JOY JACOBS
523 of 2009
3 February 2010
30 October 2009
1. Declare that in relation to the injury which is the subject of the Notice of Claim by the applicant dated 4 September 2009 and received by the respondent on 10 September 2009, the applicant is a worker who has not lodged an application for compensation for injury, within the meaning of s 237(1)(d) of the Worker’s Compensation and Rehabilitation Act 2003 (Qld).
2. Declare that the said Notice of Claim, pursuant to s 278(4) of the Workers’ Compensation and Rehabilitation Act, was deemed a notice compliant with s 275 of such Act upon the expiry of 10 business days after 10 September 2009.
3. Order that the respondent pay the applicant’s costs of and incidental to the application which, if not agreed, are to be assessed on the standard basis.
4. Each party to have liberty to apply on giving to the other party 3 business days notice in respect of further orders.
WORKERS’ COMPENSATION – Alternative rights against employer for damages at common law or by statute – right to proceed for damages – invalid application for compensation lodged – worker entitled to seek damages certificate – Workers Compensation Act (2003) (Qld) – ss 131 and 237(1)
R J Douglas SC for the applicant
G P Long SC for the respondent
Preston Law as town agents for Sciacca’s Lawyers for the applicant
MacDonnells Law for the respondent
- The applicant alleges that she sustained an injury to her right shoulder in the course of her employment with the respondent between December 2006 and March 2009. On 10 September 2009, she served on the respondent a Notice of Claim for Damages in respect of that injury pursuant to s 275 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (hereinafter “the Act”).
- The respondent – a self insurer - refuses to accept that Notice of Claim arguing that she has no entitlement to seek damages because she is not a person mentioned in s 237(1) of the Act. This section restricts the entitlement to claim damages for a work related injury to certain nominated classes of worker.
- By this proceeding, the applicant seeks a declaration that she is entitled to seek damages for her alleged injury. The issue between the parties arises because the applicant had, at an earlier date, lodged with the respondent an application for statutory compensation which the respondent rejected. The respondent did so, on the grounds that the application as lodged out of time under s 131(1) of the Act and it refused to waive that non-compliance.
- The applicant has sought a review of that decision with the Authority pursuant to chapter 13 of the Act, but such review has not been determined, and it remains as a fallback position for the applicant should this application not succeed. The outcome of such review cannot, of course, be predicted.
- 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).
- The term “application for compensation” is not specifically defined. What is necessary to constitute an application for compensation is set out in ss 131 and 132 of the Act. How the application is dealt with is prescribed by s 134. Those sections relevantly provide:-
“131 Time for applying
- An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
- If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer’s liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.
- An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
- An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant’s failure to lodge the application was due to –
- Mistake; or
- The claimant’s absence from the State; or
- A reasonable cause.
132 Applying for compensation
- An application for compensation must be made in the approved form by the claimant.
- The application must be lodged with the insurer.
- The application must be accompanied by –
- a certificate in the approved form of a doctor who attended the claimant; and
- any other evidence or particulars prescribed under a regulation.
- A registered dentist may issue the certificate mentioned in subsection (3)(a) for an oral injury.
- If the claimant can not complete an application because of a physical or mental incapacity, someone else may complete it on the claimant’s behalf.
134 Decision about application for compensation
- A claimant’s application for compensation must be allowed or rejected in the first instance by the insurer.
- The insurer must make a decision on the application within 20 business days after the application is made.
- The insurer must notify the claimant of its decision on the application.
- If the insurer rejects the application, the insurer must also, when giving the claimant notice of its decision, give the claimant written reasons for the decision and the information prescribed under a regulation.
- Subsection (6) applies if the insurer does not make a decision on the application within the time stated in subsection (2).
- The insurer must, within 5 business days after the end of the time stated in subsection (2), notify the claimant of its reasons for not making the decision and that the claimant may have the claimant’s application reviewed under chapter 13.”
- The construction issue arises in the context of the legislature’s abolition of an injured workers entitlement to claim compensation damages for a work related injury unless the worker falls within one or other of the particular exceptions identified in s 237(1) as follows:-
“237 General limitation on persons entitled to seek damages
- The following are the only persons entitled to seek damages for an injury sustained by a worker –
- the worker, if the worker –
- has received a notice of assessment from the insurer for the injury; or
- 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 assess injury, the worker has a WRI of 20% or more or, under section 239, the worker has elected to see damages; or
- the worker, if the worker’s application for compensation was allowed and the injury has not been assessed for permanent impairment; or
- the worker, if –
- the worker has lodged an application, for compensation for the injury, that is or has been the subject of a review or appeal under chapter 13; and
- the application has not been decided in or following the review or appeal; or
- the worker, if the worker has not lodged an application for compensation for the injury; and
- a dependant of the deceased worker, if the injury results in the worker’s death.”
- The differing outcomes contended for by the parties depend upon whether the focus of s 131 is upon the physical act of lodging a document which might be regarded as an application for compensation or whether the focus is upon the validity or efficacy of the document as an application.
- The applicant argues that the reference in paragraph (d) of s 237(1) to the “application for compensation” necessarily invites a consideration of the terminology in s 131, particularly the emphasis that the application for compensation is valid and enforceable only if the application is lodged within the stated time. Accepting for present purposes the respondent’s assertion that the application was not within time, it means that the application was never valid and enforceable. Unless its invalidity is waived. its lodgement was a nullity. This argument is supported by the decision of Helman J in Thompson v WorkCover Queensland. His Honour was there dealing with the precursor legislation under the WorkCover Queensland Act 1996 (Qld) (hereinafter “WQA”) which was in relevantly identical terms to the sections under review. For example s 253(1)(c) of WQA is identical to s 237(1)(d). His Honour said (at p 462):-
“Mr Rashleigh’s argument for the applicant was that upon a proper construction of s 253(1)(c) the application for compensation for injury referred to there is a valid and enforceable application for compensation, and that the applicant’s was not valid and enforceable. Mr Rashleigh conceded that an application lodged out of time could be rendered valid and enforceable by WorkCover’s waiving s 158(1), but submitted that until WorkCover does so such an application is not truly an application within the meaning of s 253(1)(c).
I have not been referred to any authority on this subject. This question of construction has not been considered previously. It appears to me, however, that Mr Rashleigh’s argument is correct, that the reference in s 253(1)(c) is to a valid and enforceable application for compensation or to an application for compensation in respect of which WorkCover has waived s 158(1). Until WorkCover waives s 158(1) an application lodged out of time is not in any real sense an application for compensation for injury within the meaning of s 253(1)(c).”
- The respondent contends that the mere physical act of lodging an application for compensation, however flawed or ineffective the application may be, nonetheless results in precluding the worker from later pursuing a claim for damages. The respondent points to a number of decisions which, though not authoritatively determining the proper construction of the relevant sections, at least indicates that the physical act of lodgement is the critical factor.
- The first of these is Kelly v WorkCover Queensland where the Court was dealing with the precursor section in WQA on a review of the decision of the WorkCover Tribunal. Atkinson J stated (at p 498):-
“Accordingly, in my view, when the section says that the only persons who are entitled to seek damages are those set out in cll. (a), (b), (c) and (d), it means precisely what it says and those people covered by subcl. (c) are only those workers who have not lodged an application for compensation for the injury.
It does not matter when or not the application was successful or unsuccessful. For this purpose, the question is merely whether or not such an application was lodged. Such an application was lodged in this case. Accordingly the applicant does not fall within the exception found in s 253(1)(c).”
- In the circumstances of Kelly, the application for statutory compensation was lodged and was considered by WorkCover initially and then by the Review Tribunal. The worker proceeded to deliver a Notice of Claim for Damages which WorkCover rejected on the grounds of the claimant’s lack of eligibility to claim damages because of s 253(1)(c). Before the Court of Appeal, the point was disposed of by expressing the opinion that the reasons given by Atkinson J for rejecting the argument were correct. The distinction with the present circumstances is that there was a consideration of the circumstances of the claim for statutory compensation by WorkCover and by the Tribunal which has not occurred in the present circumstances.
- The second case relied upon by the respondent is Watkin v GRM International Pty Ltd. In this case the claimant was injured in the course of his employment and sought to claim common law damages with respect to those injuries. His contract of employment was governed by the laws of Queensland. However, he worked overseas and Queensland was not his principal place of employment. He was therefore not entitled to receive statutory compensation under the Act. By reason of certain provisions under the Personal Injury Proceedings Act 2000 (PIPA) at that time, the claimant’s right to claim damages was subject to the provisions of chapter 5 of the Act which contained the general limitation on persons seeking damages referred to above. On appeal by the insurer against a decision allowing proceedings to be commenced under PIPA, the Court of Appeal considered the application of the subject provisions to the proceedings so framed. Keane JA, (McMurdo P and Cullinane J agreeing) referred to the absolute nature of the limitation imposed by s 237 and the description of the persons excepted from that limitation. He said (at para 20):-
“ It is securely established that the provisions of s 237(1) of the WCRA exhaustively describe those persons who may seek damages, and s 237(5) denies a person who is not within any of those descriptions any entitlement to seek damages from the appellant for the injury in question. That this reflects the scope of s 237 of the WCRA was affirmed by each member of this Court in Hawthorne v Thiess Contractors Pty Ltd.”
More particularly to the argument advanced in this case are his Honour’s remarks at para :-
“Before this Court, there was also some discussion of the effect of s 237(1)(d). That provision, to which I adverted above, permits a worker to seek damages for an injury “if the worker has not lodged an application for compensation for the injury”. The respondent in this case, of course, lodged an application for compensation. That application was unsuccessful. Counsel for the respondent argued vigorously that the legislation could not have intended that a person who, like the respondent, makes an application for compensation which cannot succeed because of the statutory limitation s on the availability of compensation, should be prevented from seeking damages. There is, however, no provision of the WCRA which offers a claimant the prospect of relief from such a mistake. In this respect, the absence of any such provision may be contrasted with other provisions of the WCRA which enable the court to relieve claimants from the consequences of non-compliance with the requirements of the legislation. One is driven to the unhappy conclusion that the legislation has proceeded on the assumption that claims will be made in conformity with s 237. If a claimant is so ill-advised as to make an erroneous application for compensation (and thereby to put himself or herself outside the scope of workers referred to in s 237(1)(d) of the WCRA) and is not able to bring himself or herself within any of the other gateways of s 237(1), then the claimant’s only remedy for the loss of a viable cause of action may be against those responsible for that poor advice.”
- Senior Counsel for the applicant seeks to distinguish this comment on the basis that Watkin did not concern an out of time application and thus its validity was not in question. Being lodged in time the application was considered and was rejected because the claimant was excluded by other provisions from an entitlement to compensation.
- The third case is Charlton v WorkCover Queensland. There the claimant had sought an extension of time pursuant to s 31 of the Limitations of Actions Act to sue two former employees. Both applications were dismissed. On appeal the decision in respect of one of the employees was upheld but the other was reversed. The focus of the case was on the question whether there existed at the time when the damages action ought to have been commenced, a material fact of a decisive character not discovered, having regard to the test identified in Queensland v Stephenson. Related to the existence of that material fact, was the claimant’s eligibility to claim damages having regard to the constraints imposed by s 253, the precursor section to s 237 and, in particular, whether he had lodged an application for statutory compensation such as to preclude a claim for damages. In this regard the claimant had in fact lodged an application for statutory compensation but it had been rejected on the grounds that he did not sustain an injury and that the application was lodged out of time.
WorkCover, in attempting to show the claimant’s awareness of a right to claim at an earlier time, there argued that the claimant had not lodged a valid application because the document was out of time. It did not succeed in this submission. Williams JA made reference to the issue in these terms:-
“ But it was contended both at first instance and on the hearing of the appeal by WorkCover that the appellant had an entitlement under s 253(1)(c) as he had not lodged a valid application for compensation because it was out of time. That of course was then very much in dispute by the appellant and ultimately the appellant’s contention was found to be correct. But further, pursuant to s 265 the appellant’s right to proceed with a claim for damages was conditioned on his obtaining a certificate “only for the purpose of seeking damages”: s 265(2). But that certificate could only be issued if an application for compensation had not been lodged and WorkCover concluded that the appellant had “sustained an injury”: s 265(3)(b). As WorkCover had already determined that the appellant had not sustained an injury it is difficult to see how such a certificate could have been issued.
 But despite that, there was evidence that WorkCover would have issued such a certificate. Many objective observers might well conclude that that displayed cynicism in circumstances such as this. Assuming such a certificate would have been issued, it would have been subject to the other provisions of s 265, s 266 and s 267. Further, it would have necessitated the appellant effectively abandoning his valuable right to statutory compensation because the procedure followed was predicated on there being no application for compensation. The entitlement to compensation was not dependent on proof of negligence. Also such a certificate would, at least, have been of doubtful validity once it was established that in law a timely application for compensation had been lodged. (cf. Reat v University of Queensland  QSC 35).”
His Honour then went on to determine the question whether the relevant material fact was within the claimant’s means of knowledge. It is clear from the judgment as a whole that the Court was not focussed on the validity of an application for statutory compensation lodged out of time. Rather, it was concerned with the effect of the decision of the Industrial Magistrate that the application was made within time thereby providing a different gateway for the claimant to seek damages.
- 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.
- The requirements for an application for statutory compensation are set out in ss 131 and 132 of the Act and this must be accepted as being relevant to the purposes of s 237(1). The emphatic words in s 131, by which validity of the application is achieved “only if” the application is lodged within the prescribed time, suggests that an application lodged otherwise has no validity. It is not within the power of a court or tribunal to extend the time for lodgement. The insurer, in limited circumstances, may waive such invalidity for a “particular application”. The insurer’s power to waive is entirely discretionary. The Authority may, under chapter 13 of the Act review a decision “to waive or not to waive”, though it is difficult to see who would be interested in reviewing a decision to waive compliance. At the same time a review of a failure by WorkCover or an insurer to make a decision at all is available only where the application for compensation is within time. This, to my mind, again places emphasis upon validity of the application rather than the act of lodgement. Such a waiver read in conjunction with s 134 does not reduce the force of the suggestion of invalidity inherent in s 131. There appears to be no capacity to review the failure by an self-insurer to comply with s 134 of the application for compensation is out of time.
- 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”. In Project Blue Sky Inc v Australian Broadcasting Authority, 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 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.” (my emphasis)
- Consequently, it is necessary to have some appreciation of the complex processes to which this legislation has given rise. An application for compensation must be accompanied by certain specified evidence and it requires the completion of a report by the employer. Sections 132-133A. It triggers for the insurer a right to make further inquiry. Section 135. This forms the basis upon the insurer will allow or reject the application and make the assessment of permanent impairment under Parts 5 and 10 of Chapter 3 of the Act.
- The right to claim damages is conditioned by this inquiry and assessment and by the outcome of any review by the Authority. Hence the interaction between chapter 3 and chapter 5 of the Act.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- I declare that in relation to the injury which is the subject of the Notice of Claim by the applicant dated 4 September 2009 and received by the respondent on 10 September 2009, the applicant is a worker who has not lodged an application for compensation for injury, within the meaning of s 237(1)(d) of the Worker’s Compensation and Rehabilitation Act 2003 (Qld).
- I declare that the said Notice of Claim, pursuant to s 278(4) of the workers’ Compensation and Rehabilitation Act, was deemed a notice compliant with s 275 of such Act upon the expiry of 10 business days after 10 September 2009.
- Order that the respondent pay the applicant’s costs of and incidental to the application which, if not agreed, are to be assessed on the standard basis.
- I give to each party liberty to apply on giving to the other party 3 business days notice in respect of further orders.
 (2002) 1 QdR 461
  1 QdR 496
  QCA 263
 (2007) 1 QdR 389
  2 QdR 421
 (2006) 226 CLR 197
 [see s 540(1)(a)(vii) and (1)(b)(i)]
 See s 540(1)(c)(i)
 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 per Mason and Wilson JJ at 320
  194 CLR 355
 (1995) 92 CLR 390 at 397
- Published Case Name:
Jacobs v Woolworths
- Shortened Case Name:
Jacobs v Woolworths
- Reported Citation:
 QSC 24
03 Feb 2010
|Event||Citation or File||Date||Notes|
|Primary Judgment|| 2 Qd R 400||03 Feb 2010||-|