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PB v WorkCover Queensland Pty Ltd[2018] QCAT 138

PB v WorkCover Queensland Pty Ltd[2018] QCAT 138

CITATION:

PB v WorkCover Queensland Pty Ltd [2018] QCAT 138

PARTIES:

PB

(Applicant)

v

Workcover Queensland Pty Ltd

(Respondent)

APPLICATION NUMBER:

OCL045-17

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

30 April 2018 to 1 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

DELIVERED ON:

4 May 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The complaint that WorkCover Queensland Pty Ltd breached information privacy principles 1, 2, 3, 4 and 11 is substantiated.
  2. The complaint that WorkCover Queensland Pty Ltd breached information privacy principles 7, 8, 9 and 10 is not substantiated and is dismissed. 
  3. In the event WorkCover Queensland Pty Ltd has any of the original medical records obtained from the Mackay GP Superclinic and Fenner Family Medicine in its possession, it must return them to the respective practices.
  4. WorkCover Queensland Pty Ltd must pay PB compensation in the amount of $5,000 within 28 days of the date of this order. 
  5. There is no order as to costs.
  6. The Tribunal prohibits the publication of any information that may enable PB to be identified.

CATCHWORDS:

HUMAN RIGHTS – PRIVACY LEGISLATION – where incorrect letter used to obtain medical records – whether payment of compensation should be ordered

Information Privacy Act 2009 (Qld), s 176, s 178, Schedule 3

Public Records Act 2002 (Qld), s 13

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 275, s 279, s 381, s 532C, s 544, s 545, s 586

JL v Queensland Police Service [2014] QCAT 623

JM v Queensland Police Service [2017] QCAT 71

APPEARANCES:

 

APPLICANT:

CB

RESPONDENT:

D van Brunschot of DWF (Australia)

REASONS FOR DECISION

  1. [1]
    On 23 June 2017, a privacy complaint made by PB was referred to the Tribunal under s 176 of the Information Privacy Act 2009 (Qld) (the IPA).  The complaint was made against WorkCover Queensland Pty Ltd (WorkCover).
  2. [2]
    The statements made in the preceding paragraph, as obvious and straightforward as they are, serve to limit the scope of the proceedings in two important respects:
    1. (a)
      The respondent in the proceeding is WorkCover, a body corporate established under s 381 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the WCRA).  In particular, the Regulator (formerly known as Q-Comp) and PB’s employer are not named as respondents.
    2. (b)
      The proceeding before the Tribunal is a referral under the IPA.  It is not an appeal of the rejection of PB’s workers’ compensation claim, noting that PB had a right of appeal to the Queensland Industrial Relations Commission.  The Commission refused an application by PB to extend time on 2 September 2015.  The proceeding is also not an application for unfair dismissal, nor is it a referral to the Tribunal under the Anti-Discrimination Act 1991 (Qld).
  3. [3]
    In the referral lodged with the Tribunal, PB has sought the maximum compensation payable for a breach of privacy along with his costs. 

Factual background

  1. [4]
    It is apparent from the relevant factual background to PB’s privacy complaint that WorkCover made a litany of errors in the course of processing his claim.  Many of these errors were trivial, although some had more serious consequences.
  2. [5]
    On 22 July 2013, PB made a workers’ compensation claim.  The claim was made over the telephone, a procedure authorised under s 586 of the WCRA.  The information recorded by WorkCover contains a number of errors, including:
    1. (a)
      In answer to question 11, PB’s occupation is recorded as “Engine or Boiler Operator”.  PB is in fact a boiler maker.
    2. (b)
      In answer to question 17, the date of injury is listed at 22 July 2012.  This is the date of the application.  PB’s injury occurred over a period of time.  Question 18, which relates to injuries which have happened over a period of time, is unanswered.
    3. (c)
      PB’s injury was recorded in questions 19 and 20 as being “Hand, Other and unspecified dermatitis” arising “from irritant/allergy from substances exposed to at work”.  PB’s medical condition was bilateral contact dermatitis, and at the time he was unsure of the cause.
  3. [6]
    In the course of completing his telephone claim, PB was played the following recording:

In order to process your claim WorkCover Queensland is required to advise you of some important information pertaining to your application.  Please listen to the following statement.

By lodging your claim you acknowledge it is an offence against the Workers’ Compensation and Rehabilitation Act 2003 to make a statement that is false or misleading.  The information you have provided is true and not misleading.

You will advise WorkCover if your circumstances change or if you become aware of any matter that would make the information provided false or misleading.  In particular, you will advise WorkCover if your employment status changes, whether by working for someone else or yourself and whether paid or unpaid during the course of the claim.

WorkCover undertakes all reasonable measures to protect your privacy by collecting, using, storing and disclosing the personal information we hold about you in accordance with the Queensland Government privacy requirements.  However, WorkCover may be required or authorised by law to release or obtain information or documents to other parties e.g. doctors, health authorities, allied health providers, rehabilitation providers or other insurers.

If your doctor has certified you unfit for work, you are required to provide a completed Tax File Declaration Form to WorkCover Queensland so that we can reimburse you for any loss of wages.

This form is available on our website, and can be submitted online or faxed.  WorkCover recommends that you submit this form as soon as possible to assist with timely payment to you if your claim is accepted.  If a completed Tax File Declaration is not supplied within 7 days of your claim being accepted, you may be taxed at a higher rate.

[emphasis added]

  1. [7]
    PB accepted in cross-examination that the recording had been played to him during the course of completing his telephone claim.
  2. [8]
    The printed claim form which was subsequently generated by WorkCover contains the following statement:

I have read the information provided with this form.  I acknowledge that it is an offence against the Workers’ Compensation and Rehabilitation Act 2003 to make a statement that is false or misleading.  The information I have provided is true and not misleading.

I agree to advise WorkCover if my circumstances change or if I become aware of any matter that would make the above information false or misleading.  In particular, I will advise WorkCover if my employer status changes during the currency of my claim.

I authorise any doctor, health authority, allied health provider, rehabilitation provider or other insurer to disclose to WorkCover Queensland and its agents any information about my medical history relevant to this claim.

I understand that WorkCover may be required or authorised by law to release information or documents to other parties.

  1. [9]
    At the conclusion of this declaration, PB’s name has been typed and the date 22 July 2013 inserted.
  2. [10]
    It is clear that the recording played to PB over the telephone differed materially with the declaration WorkCover subsequently affixed his name to.  In particular, he did not as a consequence of listening to the recording provide a general authority for his healthcare providers to disclose relevant information from his medical history to WorkCover.
  3. [11]
    On the following day, 23 July 2013, PB spoke to William Belither.  At the time, Mr Belither worked as a claims representative for WorkCover.
  4. [12]
    Mr Belither made contemporaneous notes of the conversation he had with PB.  Mr Belither correctly noted PB’s occupation as boiler maker.  He also correctly noted PB’s medical condition as being “bilateral contact dermatitis”, and that PB was “[u]nable to confirm event that cause injury – specialists are unsure of the cause”.
  5. [13]
    However, Mr Belither went on to record that PB had first sought medical attention for the injury on “4/4/2013”.  Mr Belither conceded in his evidence to the Tribunal that this date should have been 4 April 2012.
  6. [14]
    On 19 August 2013, Mr Belither sent an email to PB’s employer stating:

[Dr N], his dermatologist, has confirmed that [PB] is suffering from contact dermatitis as a result of being in contact with Benzocaine in the workplace.  I will have a written reasons for decision typed up and hopefully sent though to you by COB today.

  1. [15]
    The statement appears to have been based on a report provided by Dr N to WorkCover on 12 August 2013, which contained the following statements:

Many thanks for your enquiry regarding [PB].  He was seen by myself on 6 December 2012, with a three-month history of hand dermatitis.  The TRUE test series was reported as showing a positive result for benzocaine but everything else was negative.  I obtained his workplace material data safety sheets.  As it appeared that a number of allergens may not have been covered, I organised a more extensive allergy patch testing series.  Nevertheless, these were all negative.

My plan was to manage him as endogenous dermatitis and commence him on azathioprine.  Nonetheless, his hands settled away from work and this would make the diagnosis an irritant contact dermatitis.

Thus in reply to your question, [PB] has an irritant contact dermatitis related to his work as a boiler maker.

  1. [16]
    Mr Belither conceded in his evidence to the Tribunal that he did not know that benzocaine was a local anaesthetic.  It is not in dispute that benzocaine was not used in PB’s workplace.
  2. [17]
    Mr Belither prepared a written statement of reasons dated 19 August 2013, which accepted PB’s workers’ compensation claim.  The statement of reasons did not refer to benzocaine. 
  3. [18]
    On 30 August 2013, the employer sought a review of the decision to accept PB’s claim by Q-Comp.
  4. [19]
    While the matter was being considered by Q-Comp, WorkCover issued a letter to Dr B of the Mackay GP Superclinic dated 16 September 2013.  That letter stated:

I am writing to you in relation to a Notice of Claim for Damages lodged by [PB] under the Workers’ compensation and Rehabilitation Act 2003 (‘the Act’) for an injury sustained in an event on or around 22 July 2012.

Pursuant to section 279(1)(b)(iv) of the Act [PB] is required to give WorkCover Queensland information reasonably requested in relation to his medical history, as far as it is relevant to the claim.  This includes any medical conditions, illnesses or injuries that are unrelated to the workplace injury as they are relevant in assessing the claimant’s past and future economic losses.

Please find enclosed the claimant’s signed written authority pursuant to section 275(7) of the Act.  This authority authorises you to provide WorkCover Queensland with a complete copy of your medical file in relation to [PB] …

[emphasis in original]

  1. [20]
    The written authority attached to the letter was the printed claim form referred to above.
  2. [21]
    There is not a single sentence in the quoted excerpt of this letter which is accurate.  PB had not lodged a notice of claim for damages.  Accordingly, s 279 of the WCRA did not apply to PB.  As noted above, PB did not provide authority in his claim for WorkCover to obtain information about his medical history, whether pursuant to s 275(7) or otherwise.
  3. [22]
    In compliance with this request, Dr B provided a complete copy of PB’s medical file to WorkCover.
  4. [23]
    Q-Comp made a decision on 3 October 2013, setting aside the decision to accept PB’s workers’ compensation claim and returning it to WorkCover with a series of directions.  These directions relevantly included:
    1. “Obtain medical records from the Mackay GP Superclinic in relation to [PB]’s seeking medical assistance from 04 April 2012 for the injury”; and
    2. “Obtain medical records from Fenner Family Medicine in relation to [PB]’s medical consultation with the clinic from 25 July 2013 in relation to the injury”.
  5. [24]
    Section 545(3) of the WCRA obliged WorkCover to comply with these directions.
  6. [25]
    Accordingly, WorkCover then proceeded to issue a letter to Dr W of Fenner Family Medicine dated 3 October 2013.  This letter is in identical terms to the letter issued to Dr B of the Mackay GP Superclinic discussed above, and is infected by the same errors.
  7. [26]
    Dr W also provided a complete copy of PB’s medical file to WorkCover.
  8. [27]
    On 6 November 2013, WorkCover made a fresh decision to reject PB’s workers’ compensation claim.
  9. [28]
    By 20 December 2013, PB had became aware of the letters sent to his doctors and made a complaint to WorkCover on that date.  Ms Alana Sparks, a customer services manager with WorkCover, responded promptly on 23 December 2013 in the following terms:

We write to advise that the letter that was sent to your doctor requesting medical information was sent in error.  That particular letter relates to Common Law claims, not Statutory matters.  WorkCover Queensland sincerely apologises for this.  Please not that WorkCover has not used any of this information with regard to any decisions or the management of your claim.

We will destroy this information immediately.

  1. [29]
    It is not in dispute that the information was not destroyed.  Ms Sparks conceded in her evidence to the Tribunal that she did not follow up on any instructions she gave for the information to be destroyed.
  2. [30]
    WorkCover was required under s 544(1)(a)(i) of the WCRA to provide “all relevant information and documents in relation to the application that is in the decision-maker’s possession” [emphasis added] to Q-Comp.  Having not destroyed the information, and rather than undertake assessment of relevance, WorkCover simply provided all of the information received from Dr B and Dr W to Q-Comp.
  3. [31]
    On 10 March 2014, Q-Comp confirmed the decision of WorkCover to reject PB’s workers’ compensation claim.  It is unnecessary for me to delve into the merits of PB’s workers’ compensation claim, save to mention that Q-Comp made reference in its reasons to the records obtained from Dr B and Dr W.
  4. [32]
    I note in passing that the medical records of 4 April 2014 recorded a history of “2yrs palm eczema”.  PB provided records that these notes were amended by Dr M on 10 October 2014, to reflect that “this history given by the patient on this day stated 2 MONTHS (not 2 years) history of rash on his left palm.  This is a typing error by the doctor and this fact was confirmed by documentation from the specialists.”  Nothing turns on this in the present proceedings.
  5. [33]
    As noted above, the Queensland Industrial Relations Commission refused an application by PB to extend time to appeal the Q-Comp decision on 2 September 2015. 

Breaches of privacy

  1. [34]
    WorkCover has conceded that it breached the following information privacy principles (IPPs) set out in Schedule 3 of the IPA:
    1. IPP 1 requires that “[a]n agency must not collect personal information in a way that is unfair or unlawful”.  WorkCover conceded that the information collected from Dr B and Dr W was done in a way which was unfair.
    2. IPP 3 requires that “[t]he agency must take all reasonable steps to ensure that … the personal information collected is … relevant to the purpose for which it is collected”.  WorkCover conceded that it did not take reasonable steps to ensure that the information collected from Dr B and Dr W was relevant to the purpose for which it was collected.
    3. IPP 11 requires that “[a]n agency having control of a document containing an individual’s personal information must not disclose the personal information to an entity … unless … the disclosure is authorised or required under a law”.  WorkCover conceded that s 544 of the WCRA required it to provide relevant information to Q-Comp, and insofar as it provided irrelevant information that information was not required by law.
  2. [35]
    To this, I would add that there have also been breaches of IPPs 2 and 4.
  3. [36]
    IPP 2 relevantly provides:
  1. (1)
    This section applies to the collection by an agency of personal information for inclusion in a document or generally available publication.

  1. (2)
    The agency must take all reasonable steps to ensure that the individual is generally aware of—
  1. (a)
    the purpose of the collection; and
  1. (b)
    if the collection of the personal information is authorised or required under a law—
  1. (i)
    the fact that the collection of the information is authorised or required under a law; and
  1. (ii)
    the law authorising or requiring the collection; and
  1. (c)
    if it is the agency’s usual practice to disclose personal information of the type collected to any entity (the first entity)—the identity of the first entity; and

  1. (4)
    The agency must take the reasonable steps required under subsection (3)—
  1. (a)
    if practicable—before the personal information is collected; or
  1. (b)
    otherwise—as soon as practicable after the personal information is collected.
  1. [37]
    The recording played to PB on 22 July 2013 did not explain the purpose for which his personal information was being collected, nor the legislative authorisation for the collection of that personal information.  It also did not disclose that WorkCover’s usual practices included disclosure of personal information to employers and the Regulator.
  2. [38]
    In this regard, I note that WorkCover has updated its recording played to telephone claimants such that it now addresses these issues:

WorkCover is collecting your personal information in accordance with the Workers’ Compensation and Rehabilitation Act 2003 in order to assess your entitlement to compensation and manage your return to work.  Some of this information may be given to your employer, the workers’ compensation regulator and service providers for the purpose of payments, treatment, rehabilitation and return to work.  Your information will not be given to any other person unless you have given your consent or we are authorised or required by law.  For more information on privacy visit our website at www.workcoverqld.com.au.

I authorise any doctor or medical practice, health authority, allied health or rehabilitation provider, or other insurer to disclose to WorkCover and its agents any information about my medical history relevant to this claim.  I understand that my authority takes immediate effect and cannot be revoked for the duration of the claim.

  1. [39]
    IPP 4 provides:
  1. (1)
    An agency having control of a document containing personal information must ensure that—
  1. (a)
    the document is protected against—
  1. (i)
    loss; and
  1. (ii)
    unauthorised access, use, modification or disclosure; and
  1. (iii)
    any other misuse; and
  1. (b)
    if it is necessary for the document to be given to a person in connection with the provision of a service to the agency, the agency takes all reasonable steps to prevent unauthorised use or disclosure of the personal information by the person.
  1. (2)
    Protection under subsection (1) must include the security safeguards adequate to provide the level of protection that can reasonably be expected to be provided.
  1. [40]
    I am unable to conclude that WorkCover complied with the requirement to protect PB’s personal information in circumstances where it undertook to destroy the personal information obtained from Dr B and Dr W but did not do so.  Ms Sparks’ evidence was that she simply failed to follow up on her instructions.  I note in passing that it may well be that the more appropriate course would have been for WorkCover to return the original records obtained from Dr B and Dr W to the respective doctors, and to then commence an alternative process (such as that contained in s 532C of the WCRA) to obtain relevant information from those doctors.  I return to this issue below.
  2. [41]
    PB has also claimed breaches of IPPs 7, 8, 9 and 10.
  3. [42]
    I am not satisfied that there has been a breach of IPP 7.  IPP 7 requires that an agency take all reasonable steps to ensure that personal information held is accurate.  While WorkCover made some errors in recording PB’s details in completing his telephone claim on 22 July 2013, the accurate information was obtained during a further telephone by Mr Belither on the following day.  While Mr Belither incorrectly recorded the date upon which PB first sought medical attention as being in 2013 rather than 2012, this appears to be no more than a commonly made typographical error.  Correct references to 4 April 2012 appear in subsequent documents.
  4. [43]
    I am not satisfied that there has been a breach of IPP 8.  IPP 8 requires that an agency take all reasonable steps to ensure that personal information is accurate before it is used.  I refer to the reasons set out in the preceding paragraph.  Further, I note that while Mr Belither made reference to exposure to benzocaine in the workplace in his email to the employer of 19 August 2013, his interpretation of Dr N’s report, while erroneous, was not unreasonable in the circumstances.  This erroneous interpretation was not repeated in his statement of reasons.  I note that allegations were made that inaccurate information was used by Q-Comp in its decision, however this is beyond the scope of PB’s complaint against WorkCover.
  5. [44]
    I am not satisfied that there has been a breach of IPP 9.  IPP 9 requires that an agency must only use the parts of the personal information that are directly relevant to fulfilling the particular purpose for which the personal information is held.  There is no evidence that WorkCover used parts of the personal information that were not relevant to determining PB’s workers’ compensation claim.  Again, allegations that Q-Comp used irrelevant information are beyond the scope of PB’s complaint against WorkCover.
  6. [45]
    I am not satisfied that there has been a breach of IPP 10.  IPP 10 prohibits an agency from using personal information obtained for a particular purpose for another purpose, subject to certain exceptions.  There is no evidence that WorkCover has used the personal information for any purpose other than determining PB’s workers’ compensation claim.

Resolution of complaint

  1. [46]
    In circumstances where a complaint, or part of a complaint, has been substantiated, the Tribunal may make one or more of the orders set out in s 178(a) of the IPA:
  1. (i)
    that an act or practice of the respondent is an interference with the privacy of the complainant for the complaint and that the respondent must not repeat or continue the act or practice;
  1. (ii)
    that the respondent must engage in a stated reasonable act or practice to compensate for loss or damage suffered by the complainant;
  1. (iii)
    that the respondent must apologise to the complainant for the interference with the privacy of the complainant;
  1. (iv)
    that the respondent must make stated amendments of documents it holds;
  1. (v)
    that the complainant is entitled to a stated amount, of not more than $100,000, to compensate the complainant for loss or damage suffered by the complainant because of the act or practice complained of, including for any injury to the complainant’s feelings or humiliation suffered by the complainant;…
  1. [47]
    Section 178(d) also permits the Tribunal to order that the complainant be reimbursed for expenses reasonably incurred in connection with making the complaint.
  2. [48]
    As noted above, WorkCover made a timely apology to PB.  That apology was subsequently repeated to PB on 30 April 2014.    WorkCover also made appropriate concessions in the conduct of the proceeding before the Tribunal.   It also offered PB three counselling sessions, of which he availed himself.
  3. [49]
    WorkCover advised that it has removed the template for the letters sent to Dr B and Dr W from its case management system, so as to prevent such a letter from being inadvertently sent in the future.  As noted above, WorkCover has also changed the privacy information contained in the recording played to telephone claimants.  The recording now includes an authorisation to obtain information about their medical information relevant to the claim.  In these circumstances, I am satisfied that WorkCover has taken all reasonable steps to prevent the breaches from being repeated in the future.
  4. [50]
    I have considered PB’s request that I order the destruction of the medical records obtained by WorkCover from the Mackay GP Superclinic and Fenner Family Medicine.  It appears to me that the destruction of the records would require the consent of the State archivist pursuant to s 13 of the Public Records Act 2002 (Qld).  However, for the reasons set out by Senior Member O'Callaghan in JL v Queensland Police Force,[1] I am prepared to order that the original records obtained from those practices be returned.  I do not make any orders with respect to any copies of the records held by WorkCover.
  5. [51]
    I have also considered PB’s request that I order WorkCover to make corrections to his workers’ compensation file.  As noted above, I have not accepted the claimed breaches of IPPs 7 and 8.  For the reasons set out there, I am not satisfied that there are outstanding matters requiring correction by WorkCover.  Corrections by Q-Comp are beyond the scope this complaint.
  6. [52]
    WorkCover have submitted that PB suffered no loss or damage as a result of the privacy breaches.  Their reasoning is as follows:
  1. only relevant information was relied upon in deciding PB's workers' compensation claim;
  2. WorkCover was bound by a direction from Q-Comp to obtain the relevant information from Dr B and Dr W;
  3. WorkCover could have obtained the relevant information without PB's consent by using its powers under s 532C of the WRCA.
  1. [53]
    I note that PB conceded under cross-examination that the information dated 4 April 2012 from the Mackay GP Superclinic, insofar as that information related to his hands, was relevant information.
  2. [54]
    I find WorkCover’s submission to be compelling insofar as it relates to loss or damage arising from the rejection of the workers' compensation claim.  In any event, PB had appeal rights in relation to the decision by Q-Comp to reject his workers' compensation claim, which he did not exercise within the prescribed time limits.  It is not for the Tribunal in this proceeding to remedy PB's failure to exercise his appeal rights.
  3. [55]
    PB has provided the Tribunal with a copy of a report Silvia Kennett, a psychologist, dated 11 February 2018.  Ms Kennett commented:

[PB] reported that he used to work as a qualified boilermaker but was forced to leave his trade due to a health condition, which caused his hands to crack, flake and peel caused by years of exposure to physically intensive labour such as grinding, drilling and welding combined with exposure to environmental and chemical irritants.  This condition was diagnosed as Chronic Irritant Dermatitis.  He reported that his previous employer […], laid him off and Q Comp denied his claim for a work related injury.  [PB] reported that WorkCover disclosed his private information without his written consent and this further exacerbated his distress.

[PB] completed the DASS 21 to ascertain his current level of functioning when he began counselling sessions with the writer.  He endorsed items which suggest that he is experiencing extremely severe levels of Depression (Dep=19), Anxiety (Anx=10) and Stress (Str=17) due to the way he was treated by WorkCover, the shame of having personal sensitive information disclosed without his consent, and his inability to engage in meaningful activities due to his hands’ condition.

[PB] was also diagnosed in 2015 with a Severe Specific Learning Disorder in Reading and Writing (Dyslexia) by Psychologist Jocelyn Medland.  This condition makes it very difficult for [PB] to feel that he can engage with the world meaningfully as he is only able to read or write like a grate 2 – 4 student.  His low literacy also hinders the possibility of undertaking further retraining, which impacts on his low mood and anxiety.  [PB] is experiencing little quality of life at present.

  1. [56]
    The report does not delineate with any precision the levels of psychological distress resulting from the privacy breaches, his dermatitis and his dyslexia.  There is therefore no evidence before the Tribunal that PB suffers from psychological condition as a result of the privacy breaches independently of his other issues.
  2. [57]
    I am nevertheless prepared to accept that PB has suffered injury to his feelings and experienced humiliation as a result of irrelevant information having been obtained by WorkCover.  Some of the irrelevant information relates to a particularly sensitive health complaint.  PB described his feelings in his statement of 27 March 2018 in this way:

I feel that I was rape and the violation of my basic human rights of privacy falls in the same category.  A person who have been raped will never be able to have their life restore to what it was before the act; in the same way, my life will never be able to be restored to a point where I trust doctors the way I had before. [sic]

[emphasis in original]

  1. [58]
    In JL v Queensland Police Service,[2] the Tribunal set out the principles applicable to compensation awards under s 178(a)(v) of the IPA as follows:

a)  Where a complaint is substantiated and a loss or damage is suffered, the legislation contemplates some form of redress in the ordinary course;

b)  Awards should be restrained but not minimal;

c)  In measuring compensation the principles applied in tort law will assist, although the ultimately (sic) guide is the words of the statute;

d)  In an appropriate case, aggravated damages may be awarded;

e)  Compensation should be assessed having regard to the complainants reaction and not to the perceived reaction of the majority of the community or of a reasonable person in similar circumstances.

  1. [59]
    In RM v Queensland Police Service,[3] the Tribunal characterised the breach in that case as having been "careless rather than malicious".  It ordered compensation in the sum of $5,000.
  2. [60]
    In the present case, WorkCover's breaches are also readily characterised as careless rather than malicious.  I am not satisfied that there are any features in WorkCover's conduct which should lead to a higher award of compensation.  Accordingly, I consider that payment by WorkCover of the amount of $5,000 is an appropriate compensation to PB.
  3. [61]
    In relation to s 178(d), I am not prepared to order WorkCover to reimburse PB for his expenses.  The manner in which the proceeding has been run before the Tribunal has stemmed in large measure from the extravagant and exorbitant compensation claim made by PB.  PB initially claimed compensation in the vicinity of $4 million, notwithstanding the statutory maximum of $100,000 clearly set out in s 178(a)(v).  Had PB applied an element of sobriety to his claim, or at least claimed compensation within the statutory limit, it is likely that he and WorkCover would have been spared considerable expense in the conduct of the proceeding.
  4. [62]
    For the same reasons, I would make no order as to costs having regard to s 100 and s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Footnotes

[1] [2014] QCAT 623, [199]-[203].

[2] Ibid, [213].

[3] [2017] QCAT 71, [171].

Close

Editorial Notes

  • Published Case Name:

    PB v WorkCover Queensland Pty Ltd

  • Shortened Case Name:

    PB v WorkCover Queensland Pty Ltd

  • MNC:

    [2018] QCAT 138

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    04 May 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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