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  • Unreported Judgment

Brittain v Hentys (a firm)

 

[2017] QSC 40

Reported at [2017] 2 Qd R 612

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

CRAIG WILLIAM BRITTAIN

(applicant)

v

HENTYS (A FIRM)

(first respondent)
and
JEFFREY ROLLS
(second respondent)
and
WORKCOVER QUEENSLAND
(third respondent)
and
BRISBANE BEARS – FITZROY FOOTBALL CLUB LIMITED
(fourth respondent)

FILE NO/S:

SC No 9941 of 2016

DIVISION:

Supreme Court – Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2016

JUDGE:

Flanagan J

ORDER:

The answer to question 1 (as amended) is “yes”.
The answer to question 2 is “yes”.
I will hear the parties as to costs.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – TIME FOR CLAIM – where the applicant sought to give WorkCover a notice of claim – where the applicant had not been given a notice of assessment under s 185 of the Workers’ Compensation and Rehabilitation Act 2003 –  where the giving of the notice of claim prior to being given a notice of assessment by the insurer does not comply with s 275 of the Workers’ Compensation and Rehabilitation Act 2003 – where the notice of claim does not comply with s 250 of the Workers’ Compensation and Rehabilitation Act 2003 – where the insurer had not waived the noncompliance of the notice of claim – whether the applicant was a claimant able to seek damages pursuant to Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 – whether a claimant may seek damages for an injury by giving a notice of claim in circumstances where they had not been given a notice of assessment – whether a notice of claim for damages issued prior to a notice of assessment can halt the limitation period in s 302 of the Workers’ Compensation and Rehabilitation Act 2003 – whether a notice of claim given in contravention of s 250 of the of the Workers’ Compensation and Rehabilitation Act 2003 is invalid – whether the notice was taken to be a complying notice of claim pursuant to s 274(4) of the Workers’ Compensation and Rehabilitation Act 2003 - whether WorkCover can waive noncompliance with s 275 of the Workers’ Compensation and Rehabilitation Act 2003

Limitation of Actions Act 1974 (Qld), s 31(2)

Uniform Civil Procedure Rules 1999 (Qld), r 483(1)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 4(2), s 5, s 180, s 183, s 185, s 233, s 236, s 237, s 239, s 245, s 250, s 251, s 258, s 273, s 275, s 276, s 278, s 279, s 281, s 296(a), s 297, s 298, s 302, Schedule 6

Workers’ Compensation and Rehabilitation Regulation 2003 (Qld), s 111

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, distinguished

Brighton Und Refern Plaster Pty Ltd v Boardman (2006) 225 CLR 402; [2006] HCA 33, distinguished 

Charlton v WorkCover Qld [2007] 2 Qd R 421; [2006] QCA 498, cited

Hamling v Australia Meat Holdings Pty Ltd (No. 2) [2007] 1 Qd R 315, distinguished

Handover v Consolidated Meat Group Pty Ltd [2009] 2 Qd R 133, cited

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1, cited

Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130, considered

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited

COUNSEL:

T F Pincus for the Applicant

R J Douglas QC, with J McClymont, for the First Respondent

R A Perry QC for the Second Respondent

R C Morton for the Third and Fourth Respondents

SOLICITORS:

Bartley Cohen for the Applicant

Lander & Rogers for the First Respondent

Carter Newell for the Second Respondent

McInnes Wilson for the Third and Fourth Respondents

  1. The parties, on the basis of agreed facts, seek the separate determination of two questions arising in proceeding 510/16 pursuant to r 483(1) of the Uniform Civil Procedure Rules 1999.  The questions are:
  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 the Workers’ Compensation and Rehabilitation Act 2003.
  1. Was the notice given to WorkCover on 30 April 2010 ever taken to be a complying notice of claim pursuant to s 278(4) of the Workers’ Compensation and Rehabilitation Act 2003?

Background

  1. The applicant, Mr Brittain, was injured in work accidents which occurred in January 2007 and on 14 May 2009.  Brisbane Lions Football Club (“the Club”) was Mr Brittain’s employer on the occasion of each injury.  WorkCover Queensland was the statutory workers’ compensation insurer of the Club.  The first respondent Hentys is the statutory successor to a firm of solicitors engaged by Mr Brittain in respect of a claim for damages pertaining to his injuries.  The second respondent is a barrister who was engaged by the solicitors in respect of Mr Brittain’s claim.
  2. The parties to this application for the determination of separate questions are the parties to the proceedings, WorkCover and the Club.
  3. The relevant legislation is the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”). 

The Agreed Facts

  1. 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] 
  2. In respect of the alleged injuries, Mr Brittain had previously applied for, and been allowed, statutory compensation under the Act.
  3. 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]
  4. 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.
  5. 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 276, 297 and 298 of the Act.”

  1. 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. 
  2. 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.”

  1. 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.
  2. 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.”

  1. 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.”

  1. 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. 
  2. 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.”

Mr Brittain’s position

  1. Mr Brittain commenced the underlying proceedings against his former solicitors and barrister in the belief and on the understanding that the causes of action against the Club/WorkCover had been permanently lost.  The answer to the preliminary questions will therefore determine whether Mr Brittain’s causes of action against the Club:
  1. are necessarily permanently lost, in which case the underlying proceeding will continue with the existing parties (namely his former solicitors and barrister) on that basis; or
  1. instead, might be revived, in which case attempts will be made to revive them and, if and to the extent those attempts were successful, Mr Brittain would be able to pursue his original causes of action against the Club and would not have any cause of action against his former solicitors and barrister.[3]
  1. The professional negligence alleged against Mr Brittain’s former solicitors and barrister in the underlying proceeding comprises, essentially, failing to take the pre-proceeding steps prescribed by the Act and thereafter commencing proceedings for injuries suffered by the applicant in 2007 and 2009, in the course of his employment with the Club, within:
  1. the time set by the Limitation of Actions Act 1974; or
  1. such extended limitation periods as may have been ordered by the Court pursuant to section 31(2)(b) of the Limitation of Actions Act 1974 or arisen from compliance with section 302 of the Act.[4]
  1. Whilst Mr Brittain has conducted the underlying proceedings on the basis that the causes of action against the Club/WorkCover have been permanently lost, he intends to abide by the Court’s answer to the separate questions.

The Submissions of the First Respondent (Hentys)

  1. The second respondent (Mr Brittain’s former barrister) was separately represented on the application and adopted the written and oral submissions of Hentys.
  2. I deal more fully with Hentys’ submissions and the competing submissions of the third and fourth respondents (“WorkCover”) in considering the relevant provisions of the Act.  In summary, however, Hentys submits:
  1. Mr Brittain as at 30 April 2010 was a worker whose application for compensation had been allowed and the injuries had not been assessed for permanent impairment pursuant to section 237(1)(b).  Thus, by operation of section 237(1) he was a person “entitled to seek damages”;
  1. section 275 which deals with a notice of claim for damages does not preclude the giving of a valid notice of claim in the absence of a notice of assessment.  Mr Brittain at the time of giving the notice of claim on 30 April 2010 had not been issued with a notice of assessment;
  1. a notice of claim pursuant to section 275 is but a step required in order to seek damages.  It does not itself involve the seeking of damages for the purposes of section 250 of the Act;
  1. the notice of claim is in any event taken to be a complying notice of claim because WorkCover failed to respond to the notice of claim within 10 days as required by section 278(2).  This resulted in the notice of claim being “taken to be a complying notice of claim” pursuant to section 278(4) of the Act;
  1. as a consequence of such deemed compliance, section 302 of the Act, which deals with the alteration of the limitation period, was engaged to stop the limitation period running in respect of the causes of action founded upon each injury;
  1. while obtaining a notice of assessment was ultimately necessary in order to complete the Chapter 5 pre-proceeding process under the Act and proceed to claim (and thereby necessarily “seek damages”) in any Court proceeding, such perfecting of the right to claim damages did not (ipso facto) invalidate a given section 275 notice.[5]

Submissions of the Third Respondent (WorkCover)

  1. WorkCover accepts that Mr Brittain was a person entitled to seek damages as he fell within section 237(1)(b) of the Act.  Mr Brittain was therefore a “claimant” within the meaning of the Act.  WorkCover, however, relies on section 250 of the Act which provides that a claimant may seek damages for the injury only if the insurer gives the claimant a notice of assessment.  As Mr Brittain had not been given any such notice, he could not seek damages.
  2. WorkCover further submits:
  1. section 275 does not contain any provision permitting or enabling a claimant to give a notice claiming damages if the claimant is not otherwise entitled to do so.  It simply provides that such a notice must be given before proceedings are commenced.  The entitlement to give the notice must be found elsewhere.  The Act expresses it as an “entitlement to seek damages”;
  1. the requirement to respond under section 278(2) is only engaged if a valid notice of claim is given.  Whilst Mr Brittain may be a “claimant” because he has an “entitlement to seek damages”, at the time the notice of claim was given Mr Brittain was not able to exercise his entitlement as he was not able to “seek damages”;
  1. although Mr Brittain had an “entitlement to seek damages” he could not exercise that entitlement until he received a notice of assessment.  Whether or not the notice of claim was invalid or not, WorkCover was not obliged to respond, and did not suffer the consequences of not responding to a notice of claim that Mr Brittain was prohibited from giving.[6]

Question 1:  As at 30 April 2010, was the applicant a claimant able to seek damages pursuant to chapter 5 of the Act?

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?

  1. Questions 1 and 2 may be considered together as the answer to question 2 follows from the determination of question 1.
  2. Henty’s submits that question 1 should be more accurately rephrased in the following way:

Was Mr Brittain a “claimant” able to serve a notice of claim for damages prior to issue of a notice of assessment?

  1. WorkCover submits that the question is answered by determining whether a person who is a claimant within the meaning of section 237(1)(b) may give a notice of claim pursuant to section 275 that requires a response from the insurer despite the words of section 250 that such a person may seek damages “only if the insurer gives the claimant a notice of assessment”.
  2. Both parties further refined the relevant question as being 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.  Question 1, as refined in these terms, more accurately reflects the dispute between the parties and is the question which, in my view, should be answered.
  3. The question is resolved upon the proper construction of the Act and in particular Chapter 5.  In relation to the January 2007 injury Reprint 2C is applicable.  As to the 14 May 2009 injury Reprint 3C is applicable.  There is no relevant difference between these reprints.  I have used Reprint 3C.
  4. Chapter 1 Part 2 contains the objects of the Act.  Section 4(2) provides that the objects are an aid to the interpretation of the Act.  Section 5(1)(a) provides that the Act establishes a workers’ compensation scheme for Queensland and relevantly providing benefits for workers who sustain injury in their employment.  By section 5(2) the main provisions of the scheme provide, among other matters, regulation of access to damages and procedures for assessment of injuries by appropriately qualified persons or by independent medical assessment tribunals for injuries sustained by workers in their employment.  Section 5(4) states that it is intended that the scheme should maintain a balance between providing fair and appropriate benefits for injured workers and ensuring reasonable cost levels for employers.  Section 5(4)(b) provides that it is intended that the scheme ensure that injured workers are treated fairly by insurers.  This scheme is also intended to provide for the protection of employers’ interest in relation to claims for damages for workers’ injuries.[7]
  5. The Act must be construed as a whole on the basis that its provisions give effect to harmonious goals.[8]  The proper test for determining any issue of validity is to ask whether it was the purpose of the legislation that an act done in breach of a provision should be invalid.[9] 
  6. Chapter 5 of the Act is entitled “Access to damages”.  Section 233 defines a “claimant” for the purposes of Chapter 5 to mean a person entitled to seek damages.  Section 235(2) declares that all the provisions of Chapter 5 are provisions of substantive law.  The provisions of Chapter 5 are ones that therefore determine the rights and obligations of parties as opposed to merely governing the procedure for determining those rights.
  7. Section 236(1) declares that nothing in the Act affects, or has ever affected, the commencement of the period of limitation provided by section 11 of the Limitation of Actions Act 1974.  Section 236 is, however, subject to section 302.[10]  Section 302 permits a claimant to bring a proceeding for personal injury after the end of the period of limitation only if before the end of the period of limitation the claimant gives or is taken to have given a complying notice of claim or the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions or a court makes a declaration under section 297 or a court gives leave under section 298.[11]  The term “complying notice of claim” is defined in Schedule 6 of the Act to mean a notice of claim that complies with section 275. 
  8. Section 237 deals with the general limitations on persons entitled to seek damages.  Six categories of persons are identified in section 237.  The first category under section 237(1)(a)(i) is a worker who has received a notice of assessment from the insurer for the injury.  The term “notice of assessment” is defined in Schedule 6 to the Act to mean a notice of assessment of permanent impairment issued by WorkCover under section 185.  Section 185(1) provides that the insurer must, within 10 business days after receiving the assessment of the worker’s permanent impairment, give the worker a notice of assessment in the approved form.  By section 185(3)(b)(ii) the notice must state the WRI (work related impairment) calculated for the injury.  The term “work related impairment” is defined in section 39 as being the worker’s entitlement to lump sum compensation under section 180 expressed as a percentage of maximum statutory compensation calculated under section 183.
  9. The second category of worker is identified in section 237(1)(a)(ii) as a worker who has not received a notice of assessment for the injury but has received a notice of assessment for any injury resulting from the same event and for that assessed injury has a WRI of 20 per cent or more or, under section 239, the worker has elected to seek damages.  Section 245(2), which applies to a claimant mentioned in section 237(1)(a)(ii), provides that the insurer cannot decide that the claimant’s notice of claim does not comply with section 275 only because the claimant has not received a notice of assessment for the injury.  This is because the worker’s entitlement to seek damages for an injury arises from the fact that he or she has received a notice of assessment for another injury resulting from the same event and has a WRI of 20 per cent or more for the assessed injury or under section 239 has elected to seek damages.  The election under section 239 applies where the worker’s notice of assessment states that the worker’s WRI is less than 20 per cent or the injury does not result in any WRI.  In either respect, a worker under section 237(1)(a)(i) or (ii) is only entitled to seek damages if they have received a notice of assessment for an injury.
  10. The third category of workers entitled to seek damages is that identified in section 237(1)(b).  This is where a worker’s application for compensation has been allowed but the injury has not been assessed for permanent impairment.  Mr Brittain falls within this category.  This category of claimant is dealt with under Chapter 5 Part 2 Division 4.  It is this division that contains section 250 which provides:

Claimant may seek damages only after being assessed

  1. The claimant may seek damages for the injury only if the insurer gives the claimant a notice of assessment.
  1. For subsection (1), the insurer must have the degree of permanent impairment assessed under chapter 3, part 10 and give the claimant a notice of assessment.
  1. Chapter 3, part 10 applies to the assessment.”
  1. Section 250 being a substantive provision[12] and specifically applying to a claimant who falls within section 237(1)(b) has the effect that a claimant cannot seek damages for the injury if the insurer has not given the claimant a notice of assessment.  An issue which falls for determination is whether Mr Brittain as a claimant, in giving a notice of claim for damages under section 275, was seeking damages for the purposes of section 250(1).
  2. The fourth category of worker dealt with by section 237 is where a worker has lodged an application for compensation for the injury that is the subject of a review or appeal under Chapter 13 that has not yet been decided.[13]  In this respect section 254 provides that a claimant, who is a person mentioned in section 237(1)(c), may seek damages for the injury only after any review or appeal under Chapter 3 ends or is decided and the insurer gives the claimant a notice of assessment.  This is similar for the fifth category of worker under section 237(1)(d), namely a worker who has not lodged an application for compensation for the injury.  Section 258 provides that the claimant may seek damages for the injury only if the insurer decides that the claimant was a worker when the injury was sustained, has sustained an injury and gives the claimant a notice of assessment for the injury.
  3. The final category to which section 237 applies is not that of a worker but rather a dependent of a deceased worker if the injury results in the worker’s death.[14]  In those circumstances the provision of a notice of assessment would simply not arise.  The above examination of the relevant provisions as they relate to the categories of worker identified in section 237 clarifies that in each instance any substantive right to seek damages is conditional upon the receipt of a notice of assessment.
  4. Section 237(2) provides that the entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of Chapter 5.  Chapter 5 includes section 250.
  5. A notice of claim for damages is given under section 275.  “Notice of claim” is defined in Schedule 6 of the Act to mean a notice under section 275 that a claimant intends to seek damages for an injury sustained by the claimant.  Section 275 provides:

275 Notice of claim for damages

  1. Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for damages under the Limitations of Actions Act 1974.
  1. The claimant must—
  1. give the notice of claim in the approved form to the insurer at the insurer’s registered office; and
  1. if the worker’s employer is not a self-insurer, give a copy of the notice of claim to the worker’s employer.
  1. The notice must include the particulars prescribed under a regulation.
  1. The claimant must state in the notice—
  1. whether, and to what extent, liability expressed as a percentage is admitted for the injury; or
  1. a statement of the reasons why the claimant can not admit liability.
  1. Any statement made by the claimant in the notice that is in the claimant’s personal knowledge must be verified by statutory declaration.
  1. The notice must be accompanied by a genuine offer of settlement or a statement of the reasons why an offer of settlement can not yet be made.
  1. The notice must be accompanied by the claimant’s written authority allowing the insurer to obtain information, including copies of documents relevant to the claim, and in the possession of—
  1. a hospital; or
  1. the ambulance service of the State or another State; or
  1. a doctor, provider of treatment or rehabilitation services or person qualified to assess cognitive, functional or vocational capacity; or
  1. the employer or a previous employer; or
  1. persons that carry on the business of providing workers’ compensation insurance, compulsory third party insurance, personal accident or illness insurance, insurance against loss of income through disability, superannuation funds or any other type of insurance; or
  1. a department, agency or instrumentality of the Commonwealth or the State; or
  1. a solicitor, other than where giving the information or documents would breach legal professional privilege.
  1. The notice must also be accompanied by copies of all documents supporting the claim including, but not limited to—
  1. hospital, medical and other reports relating to the injury sustained by the worker, other than reports obtained by or on behalf of the insurer; and
  1. income tax returns, group certificates and other documents for the 3 years immediately before the injury supporting the claimant’s claim for lost earnings or diminution of income-earning capacity; and
  1. invoices, accounts, receipts and other documents evidencing the claimant’s claim for out-of-pocket expenses.”
  1. Section 278 deals with the insurer’s response to a notice of claim.  Section 278(2) relevantly provides:

“(2)The insurer must, within 10 business days after receiving the notice, give the claimant written notice –

  1. stating whether the insurer is satisfied that the notice of claim is a complying notice of claim; and
  1. if there is an urgent need to start a proceeding – stating that the insurer is only willing to waive compliance with the requirements if the claimant agrees to satisfy conditions imposed by the insurer under section 276; and
  1. if the insurer is not so satisfied – identifying the noncompliance and stating whether the insurer waives compliance with the requirements; and
  1. if the insurer does not waive compliance with the requirements—allowing the claimant a reasonable period of at least 10 business days either to satisfy the insurer that the claimant has complied with the requirements or to take reasonable action to remedy the noncompliance; and
  1. stating whether the insurer is prepared, without admitting liability on the claim, to meet the cost of the claimant’s reasonable and appropriate rehabilitation.

A complying notice of claim is defined in Schedule 6 to mean a notice of claim that complies with section 275.

  1. Section 278(4) provides:

“(4)If the insurer does not give the written notice mentioned in subsection (2) within 10 business days after receiving the notice of claim, the notice of claim is taken to be a complying notice of claim.”

  1. Part 7 of Chapter 5 is headed “Start of court proceedings”.  Section 295 deals with compliance necessary before starting proceedings.  It relevantly provides that the claimant may start a proceeding in a court for damages only if the claimant has complied with –
  1. the relevant division under Part 2, to the extent the division imposes a requirement on the person; and
  1. Part 5, other than as provided by sections 297 and 298.

The relevant division under Part 2 in respect of Mr Brittain is Division 4.  It contains section 250.  Part 5 contains sections 273 to 287, which includes section 275.

  1. I have already referred to section 302 which is headed “Alteration of period of limitation”.  Section 302(1) provides:

“(1)A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if –

  1. before the end of the period of limitation–
  1. the claimant gives, or is taken to have given, a complying notice of claim; or
  1. the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or
  1. a court makes a declaration under section 297; or
  1. a court gives leave under section 298; and
  1. the claimant complies with section 295.”
  1. Hentys submits that so long as Mr Brittain was a “claimant” as defined as at 30 April 2010, he was at liberty to give a section 275 notice of claim.  This is because a section 275 notice does not entail a claimant actually proceeding to “seek” damages.  Hentys relies on the definition of “notice of claim” in Schedule 6 to the Act, which defines a notice of claim to mean under section 275 that a claimant “intends to seek damages” for an injury sustained by a claimant.[15]
  2. WorkCover submits, however, that the giving of a section 275 notice of claim constitutes the seeking of damages.  Whilst it is accepted that Mr Brittain was a claimant and entitled to seek damages, that entitlement could not be exercised until he received a notice of assessment.  WorkCover was only required to respond to the notice of claim if a notice of assessment had been given to Mr Brittain.  WorkCover submits that it was not obliged to respond and did not suffer the consequences of not responding to a notice of claim that Mr Brittain was prohibited from giving.[16]
  3. Both parties refer to and rely on the decision of the Court of Appeal in Phipps v Australian Leisure and Hospitality Group Ltd.[17]  The decision is of limited assistance in determining whether the notice of claim was effective for the purposes of section 302 in altering the period of limitation.  Phipps was concerned with whether proceedings commenced inconsistently with one or more of the provisions of Chapter 5 of the Act constituted a nullity.  By reference to the judgments of the High Court in Berowra Holdings Pty Ltd v Gordon[18] and Brighton Und Refern Plaster Pty Ltd v Boardman[19] and the Court of Appeal’s application of that reasoning in Hamling v Australia Meat Holdings Pty Ltd (No. 2)[20] the Court determined that the proceedings were not susceptible of being struck out as a nullity.  The issue for determination in the present case is quite different.  The Court did, however, consider the effect of sections 237, 250 and 275.  To properly understand the discussion of these sections, in particular by Keane JA (as his Honour then was) and McMurdo J (as his Honour then was), it is necessary to refer to some of the facts in Phipps.  The appellant in that case lodged a notice of claim with WorkCover in June 2004 without first obtaining a notice of assessment.  It was common ground that the notice of claim given under section 275 was not a complying notice “because it was a step in the seeking of damages which was taken without a notice of assessment”.[21]  In August 2004 the appellant served a claim and statement of claim in her proceedings.  On 27 September 2006 the appellant’s solicitors delivered a notice of claim, limited to the injuries suffered on 14 July 2003.  This was rejected as noncompliant for a number of reasons, one being the absence of a notice of assessment.  The appellant then applied for leave pursuant to section 298 of the Act to bring proceedings in respect of the injuries of 14 July 2003 despite noncompliance with section 275.  The respondents filed a cross-application seeking to strike out parts of the statement of claim which ultimately became an application to strike out the 2004 proceedings in their entirety. 
  4. This brief outline of the facts shows that the Court in Phipps did not have to consider the effect of giving a noncompliant section 275 notice on the operation of section 302.  Keane JA observed in respect of section 237 and section 250 as follows:

“[15] In the present case, the appellant’s non-compliance with s 237(1)(a) and s 250 of the Act meant that, notwithstanding her rights at common law, she was not entitled to seek damages from the respondent. The appellant’s action was commenced contrary to the statutory prohibition on commencing the action in s 275; but, further, the appellant had, and presently has, no entitlement to damages which could be given effect by a judgment on the merits of her claim. In the state of the facts which have occurred at this time, the appellant cannot recover damages by virtue of the operation of s 237 and s 250 of the Act. Ordinarily, that would mean that, because no good purpose can be served by the court allowing the appellant’s action to remain on foot, the action would be struck out on the basis that, her action being bound to fail, it is an abuse of process.

[16] The language of s 237 and s 250 is quite different from the proscription in s 275 of the Act. The difference is between a statutory abolition of the entitlement to seek damages at all, otherwise than in compliance with the conditions of the statute, and a statutory prohibition on commencing an action. That is, I think, a real difference. The Court should not, I think, ignore differences which the legislature has deliberately made. The language of s 275 of the Act, considered in Hamling’s Case, is analogous with the language of s 151C of the Workers Compensation Act 1987 (NSW) which was the subject of consideration by the High Court in Berowra Holdings; but the language in s 237 and s 250 is concerned with the substantive entitlements of the claimant.

[17] In my respectful opinion, s 237 and s 250 go to the substantive entitlement of a claimant to recover damages. I was initially of the tentative view that the difference in statutory language may have been decisive against the appellant in this case because of the emphasis in Berowra Holdings upon the difference between statutory prohibitions which go to substantive rights and those which affect only matters of procedure. Further reflection has, however, led me to conclude that the substance/procedure dichotomy discussed in Berowra Holdings is not decisive of this case. Nevertheless, the reasoning in Berowra Holdings does contain authoritative instruction in relation to the determination of this case notwithstanding my view that s 237 and s 250 go to the appellant’s entitlement to recover damages from the respondent.” (footnotes omitted)

  1. The effect therefore of section 237(1)(b) and section 250 is that in the absence of a notice of assessment Mr Brittain had no substantive right to seek damages.  Hentys submits however, that the giving of a notice of claim under section 275 is merely a “step” in seeking damages rather than seeking damages itself.  In Phipps it was common ground that section 250 was contravened by the commencement of the proceedings by the appellant and that a notice of claim given prior to a notice of assessment was not a complying notice under the Act because it was a step in the seeking of damages in the absence of a notice of assessment.[22] 
  2. The language of sections 237 and 250 is quite different from that used in sections 275, 295, 296, 297 and 298.  Section 237 refers to persons who are “entitled to seek damages”.  Section 250 identifies that a claimant “may seek damages” only if the insurer gives the claimant a notice of assessment.  The language of sections 275 and 295 to 298 is that of a claimant who “may start a proceeding”.  Section 275 falls within Chapter 5 Part 5 which is headed “Pre-court procedures”.  Section 273 identifies the object of Part 5 as being to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense.  A notice of claim under section 275, when read with section 111 of the Workers’ Compensation and Rehabilitation Regulation 2003 (the Regulation), must provide full particulars in respect of a claim including, by section 275(6) of the Act, a genuine offer of settlement or a statement of the reasons why an offer of settlement cannot yet be made.  In respect of pre-court procedures, section 274 imposes certain overriding obligations on the parties, including an obligation to proceed in an expeditious way.  Section 279 requires the parties to cooperate.  Section 281 requires the parties to endeavour to resolve a claim as quickly as possible.  Chapter 5 Part 6 deals with the settlement of claims through compulsory conference.  Sections 295 to 298 fall within Part 7, which is entitled “Start of court proceedings”.  It is, in my view, artificial to categorise the giving of a notice of claim under section 275 as being anything other than a claimant seeking damages. 
  3. The particulars of such a notice, as required by section 111 of the Regulation includes full particulars of the nature and extent of –
  1. all injuries alleged to have been sustained by the claimant because of the event; and
  1. the degree of permanent impairment that the claimant alleges has resulted from the injuries; and
  1. the amount of damages sought under each head of damage claimed by the claimant and the method of calculating each amount; and
  1. how the claimant is presently affected by the injuries.[23]

The giving of the notice of claim leads to either the settlement of the claim under Part 6 or the commencement of court proceedings under Part 7.  Section 275 itself is entitled “Notice of claim for damages”.  The type of information that both section 275 and section 111 of the Regulation require a notice of claim to include is such as to enable an early resolution of the claim for damages.  The notice of claim is the initiating document in this process.  It is a process that is required to be followed before a claimant may start a proceeding in a court for damages.  The phrase in section 250(1) is “the claimant may seek damages.”  Section 250 does not expressly limit this phrase to a claimant seeking damages in court proceedings.  A claimant may equally seek damages in pre-court proceedings including attempting to resolve the claim under section 281.  The giving of a notice of claim is therefore, in my view, a claimant seeking damages.  A claimant is prohibited from doing so by section 250 unless the insurer has given the claimant a notice of assessment.  The central question however is what is the status of a notice of claim given in contravention of section 250?  I have concluded that the better view is that such a notice is not invalid and of no effect. Rather, it constitutes a notice of claim that does not comply with section 275.  It remains a notice of claim requiring a response by an insurer pursuant to section 278.

  1. 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. 

  1. The Act appears to draw a distinction between a claimant’s notice of claim which “does not comply with section 275” which is the language used in section 245(2) and compliance with “the requirements of section 275” which is the term used in sections 276(2)(b), 296(a)(ii), 297(1)(b), 297(2), 298 and 302(1)(a)(ii).  The Act also uses the defined term “complying notice of claim” (which means a notice of claim that complies with section 275), in various sections, including sections 245(4)(a), 278(2)(a), 278(4) and 296(a)(i).  As a matter of construction it is not readily apparent how the giving of a notice of claim absent a notice of assessment constitutes noncompliance with a “requirement” of section 275.  The requirements of section 275 are found in the section itself.  The primary requirement is found in section 275(1), namely that before starting a proceeding in a court for damages a claimant must give a notice of claim.  The other requirements are outlined in subsections 275(2) to 275(8).  Section 275 does not expressly state as a requirement that a claimant who falls within section 237(1)(b) must have been given a notice of assessment prior to giving a notice of claim.  Whilst it may be accepted that a claimant may seek damages (by giving a notice of claim for damages) only if the insurer gives the claimant a notice of assessment, this is not an express requirement of section 275.
  2. The relevant noncompliance with section 275 arising from the present case is the giving of a notice of claim prior to the claimant being given a notice of assessment by the insurer.  This is a noncompliance with section 275 that arises when section 275 is read with the prohibition in section 250.  It is the type of noncompliance contemplated in the language of section 245(2) which refers to a claimant mentioned in section 237(1)(a)(ii) (that is a claimant who has not received a notice of assessment for the injury but has received a notice of assessment for a different injury resulting from the same event).  It is in those specific circumstances that section 245(2) provides:

“The insurer can not decide that the claimant’s notice of claim does not comply with section 275 only because the claimant has not received a notice of assessment for the injury.”

Section 245(2) in my view, constituting as it does an exception, means that ordinarily if a notice of claim is given before the giving of a notice of assessment, such a notice of claim does not comply with section 275.  Apart from the exception identified in section 245(2), a notice of claim given prior to a claimant being given a notice of assessment would not constitute a “complying notice of claim” as that term is defined.  The operation of section 245(2) also means that an insurer cannot pursuant to section 278(2)(a), give a written notice to a claimant falling within section 237(1)(a)(ii), that the notice of claim is not a complying notice of claim because the claimant has not been given a notice of assessment for the injury.  This is because a notice of assessment would have been given for another injury resulting from the same event.  For a claimant falling within section 237(1)(b) however, such as Mr Brittain, the insurer could in terms of section 278(2)(a) decide that it is not satisfied that the notice of claim is a complying notice of claim.

  1. By reference to Phipps Hentys submits that if noncompliance with section 250 does not invalidate Court proceedings, there is no reason to conclude that it invalidates a notice of claim given by a claimant.  This, however, is not the issue.  The issue is whether a claimant may seek damages for the injury by giving a notice of claim in circumstances where the claimant has not been given a notice of assessment.  Section 250 precludes the giving of a notice of claim under section 275 because it takes away the substantive right of the claimant to seek damages.  There is in that sense a statutory abolition of the entitlement to seek damages at all.[27] What was being considered in Phipps was whether a proceeding commenced in breach of certain provisions of Chapter 5 constituted an abuse of process.  Phipps was therefore concerned with the Court’s power to deal with its own processes. 
  2. Hentys refers to other sections of the Act in support of its submission that a notice of claim given in contravention of section 250 still constitutes a notice of claim requiring a response under section 278.
  3. Hentys submits that if WorkCover’s construction of section 250 were correct, section 251 would be redundant.  Section 251 provides:

251Need for urgent proceedings

  1. This section applies in relation to an urgent need for the claimant to start a proceeding for damages.
  1. Section 276 provides a way for the claimant to satisfy section 302(1)(a)(ii).
  1. Also, the claimant may, under section 298, seek leave to start a proceeding for damages for an injury without complying with section 295.
  1. However, if the leave mentioned in subsection (3) is given, the proceeding started by leave is stayed until–
  1. the insurer gives the claimant a notice of assessment; and
  1. the claimant–
  1. elects to seek damages for the injury; and
  1. complies with section 295.”
  1. Section 251 contemplates a claimant giving a notice of claim where a notice of assessment has not been given.  Section 251 applies to a situation where the limitation period is soon to expire and proceedings have not been commenced.  Pursuant to section 251(2) a claimant could take advantage of section 276 and state in the notice of claim the reasons for the urgency and the need to start proceedings and request the insurer waive compliance with “the requirements of section 275” with or without conditions.  If a claimant takes the steps identified in section 276(2) before the end of the limitation period a way opens for the claimant to satisfy section 302(1)(a)(ii).  This section provides that a claimant may bring a proceeding for damages for personal injury after the expiry of the limitation period, if before the end of the limitation period, the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275, with or without conditions.
  2. Section 251(3) provides that where there is a need for urgent proceedings a claimant may still gain the benefit of the alteration of the limitation period in section 302 by seeking the Court’s leave to commence proceedings pursuant to section 298.  Section 298(1), which is subject to section 296, permits the claimant to start the proceeding if the Court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 275.  If a claimant therefore has not received a notice of assessment and there has been no waiver by the insurer for this noncompliance, the claimant may still obtain the benefit of the alteration of the limitation period in section 302 by the grant of leave by the Court under section 298.[28]  In those circumstances, however, by operation of section 251(4) any proceedings started by leave are stayed until the insurer gives the claimant a notice of assessment and the claimant makes the necessary election to seek damages for the injury and otherwise complies with section 295.  There is no suggestion in the present case that Mr Brittain brought an application for leave pursuant to section 298.  Nor did he apply to the Court for a declaration concerning his notice of claim not complying with section 275.  Such an application could have been made by him pursuant to section 297.  Hentys submits however that Mr Brittain may rely on WorkCover’s failure to respond to his notice of claim under section 278(2) with the result that the notice of claim is taken to be a complying notice of claim.  The alteration to the limitation period may therefore apply because of the operation of section 302(1)(a)(i).
  3. Hentys submits that if WorkCover’s construction of section 250 were correct, section 251 would have no operation because a claimant, bereft of a notice of assessment, would never be able to invoke the procedure in section 276 by giving “a notice of claim” that “stated the reasons for the urgency” and “asked the insurer to waive compliance with the requirements of section 275”.[29]  In light of WorkCover’s concession recorded in [52] above, this submission cannot be accepted.  WorkCover accepts that the giving of a notice of claim prior to receipt of a notice of assessment constitutes noncompliance with section 275 that may be waived.  If the insurer waives such noncompliance a claimant may fall within section 302(1)(a)(ii).  If the insurer does not waive such noncompliance the claimant may seek the leave of the court pursuant to section 298, which if granted would preserve the limitation period.[30]  WorkCover further concedes that the phraseology in section 298 of “despite noncompliance with the requirements of section 275” is wide enough to encompass a situation where no notice at all is given because there is no power to give it.  One of the requirements of section 275 is the giving of a notice (compliant or otherwise).  These are important concessions.  By these concessions WorkCover appears to accept that a notice of claim given prior to a notice of assessment is a notice of claim that does not comply with section 275 but that such noncompliance may be waived by WorkCover.  This does not mean that section 251 is redundant.  Section 251 contemplates that where there is a need for urgent proceedings a notice of claim may be given absent a notice of assessment.  Section 251 identifies that where there is an urgent need to commence proceedings the procedures under sections 276 and 298 are available.  The provisions of section 251 do not however support WorkCover’s submission that a notice of claim given prior to a claimant being given a notice of assessment is of no effect.
  4. Nowhere in the Act does it provide that a claimant requires a notice of assessment in order to give a notice of claim.  Such a requirement is not found in the express language of either sections 237, 250 or 275.  In Phipps Keane JA to similar effect but in a different context observed:

“The first point to be made here is that neither s 237 nor s 250 of the Act purports to prohibit the Court from continuing to entertain a claim brought contrary to those provisions.  What those provisions do is ensure that an action brought in disconformity with those provisions cannot succeed because the fact of the disconformity means that no liability can be established in the action against the defendant.  While the disconformity exists, the defendant can be under no liability in damages to the plaintiff.”[31]

  1. In the present case the giving of a notice of claim prior to a claimant being given a notice of assessment simply means that the notice of claim does not comply with section 275.  Neither sections 237 nor 250 purport to prohibit a claimant giving a noncomplying notice of claim.  Further there are numerous provisions in the Act which contemplate the giving of a notice of claim in circumstances where no notice of assessment has been given in respect to the injury, such as sections 245 and 258.  Section 258, for example, applies to a claimant mentioned in section 237(1)(d), that is, a worker who has not lodged an application for compensation for the injury.  Section 258(1) provides that the claimant may seek damages for the injury only if the insurer –
    1. decides that the claimant –
      1. was a worker when the injury was sustained; and
      2. has sustained an injury; and
  1. gives the claimant a notice of assessment for the injury.
  1. Section 258(5) provides that the insurer must make a decision or decisions for the purposes of section 258(1) within three months after the claimant gives, or is taken to have given, a complying notice of claim or the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275, with or without conditions.  What is therefore contemplated is the giving of a notice of claim prior to the claimant being entitled to seek damages.
  2. Where there is a need for urgent proceedings a number of provisions also contemplate the giving of a notice of claim prior to the giving of a notice of assessment.  I have already mentioned section 251.  To similar effect are sections 255 and 259.
  3. There are also provisions such as sections 276 and 278 which permit such noncompliance to be waived by the insurer.  Alternatively, where such waiver has not been given by the insurer a claimant may seek a declaration from the court pursuant to section 297 that the claimant is taken to have remedied noncompliance with section 275.  A claimant may also seek leave of the court pursuant to section 298 to start proceedings despite noncompliance with section 275.
  4. When one has reference to these provisions as well as the objects of the Act as set out in Chapter 1 Part 2 it is difficult to discern that the giving of a notice of claim by a claimant in Mr Brittain’s position, prior to being given a notice of assessment, means that the notice of claim is of no effect.  A notice of claim may be given in such circumstances but will constitute a notice of claim that does not comply with section 275.
  5. WorkCover submits that in circumstances where a notice of assessment has not been given a claimant mentioned in section 237(1)(b) cannot give a notice of claim requiring any response from WorkCover under section 278.  The steps that WorkCover may be forced to undertake in response to such a notice of claim were identified in oral submissions as follows:

“They can force WorkCover to respond to it, to grant or complain about compliance.  They can then force WorkCover to investigate the claim … which involves … spending money working out whether … how he got injured.  WorkCover will have to get medical records: hospital records, GP records.  WorkCover will usually have the employer medically examined which may involve a number of specialties. They can then force WorkCover to go to a compulsory conference and to make a mandatory final offer. … WorkCover can be made to do all those things and there may never be a notice of assessment.”[32]

  1. 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.
  2. 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. 
  3. 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.
  4. 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:
  1. identify the ways in which the notice of claim was noncompliant;
  1. state whether WorkCover was prepared to waive compliance with the requirements of section 275;
  1. 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
  1. 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.

  1. 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

  1. 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”.

Footnotes

[1] The Notice of Claim for Damages is attachment A to the Agreed Facts Annexure to the originating application.

[2] Outline of Submissions by the Third Respondent and Fourth Respondent, [2].

[3] Applicant’s Written Submissions, [6].

[4] Applicant’s Written Submissions, [7].

[5] Amended Submissions of the First Respondent, [7] and [90].

[6] Submissions by the Third and Fourth Respondents, [10] – [12].

[7] Section 5(4)(c).

[8] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] – [70]; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at [42]; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at [31].

[9] Project Blue Sky, ibid at [93].

[10] Section 236(3).

[11] Section 302(1)(a)(i) to (iv).

[12] Section 235(2).

[13] Section 237(1)(c).

[14] Section 237(1)(e).

[15] Amended Submissions of the First Respondent, [35A] – [36C].

[16] Outline of Submissions by the Third and Fourth Respondent, [10] – [12].

[17] [2007] 2 Qd R 555; [2007] QCA 130.

[18] (2006) 225 CLR 364; [2006] HCA 32.

[19] (2006) 225 CLR 402; [2006] HCA 33.

[20] [2007] 1 Qd R 315.

[21] Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130, per McMurdo J at [54].

[22] Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130, per McMurdo J at [54] and [63].

[23] Workers’ Compensation and Rehabilitation Regulation 2003, s 111(1)(c)(i) to (iv).

[24] Amended Submissions of the First Respondent, [46].

[25] Outline of Submissions by the Third Respondent and the Fourth Respondent, [40].

[26] Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130, per McMurdo J at [70].

[27] See Keane JA in Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130 at [16].

[28] Section 302(1)(a)(iv).

[29] Amended Submissions of the First Respondent, [49].

[30] Section 302(1)(iv); Outline of Submissions for Third and Fourth Respondents, [38] – [44].

[31] Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130, [18].

[32] Transcript of proceedings, 25 November 2016, 1-27, lines 25-38.

[33] [2009] 2 Qd R 133 at 141.

[34] See Charlton v WorkCover Qld [2007] 2 Qd R 421; [2006] QCA 498.

Close

Editorial Notes

  • Published Case Name:

    Brittain v Hentys (a firm) & Ors

  • Shortened Case Name:

    Brittain v Hentys (a firm)

  • Reported Citation:

    [2017] 2 Qd R 612

  • MNC:

    [2017] QSC 40

  • Court:

    QSC

  • Judge(s):

    Flanagan J

  • Date:

    22 Mar 2017

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2017] QSC 40 [2017] 2 Qd R 61222 Mar 2017-

Appeal Status

No Status
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