Stanley v NQEA Australia Pty Ltd
[2000] QDC 336
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- Unreported Judgment
- Stanley v NQEA Australia Pty Ltd[2000] QDC 336
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Stanley v NQEA Australia Pty Ltd[2000] QDC 336
Stanley v NQEA Australia Pty Ltd[2000] QDC 336
DISTRICT COURT OF QUEENSLAND
CITATION: | Stanley v NQEA Australia Pty Ltd & Mossman Central Mill Company Limited [2000] QDC 336 |
PARTIES: | ALEXANDER JAMES STANLEY (Plaintiff) v NQEA AUSTRALIA PTY LTD. (First Defendant) MOSSMAN CENTRAL MILL COMPANY LIMITED (Second Defendant) |
FILE NO/S: | Plaint No 33 of 1999 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Cairns |
DELIVERED ON: | 8 December, 2000 |
DELIVERED AT: | Cairns |
HEARING DATE: | 9 June, 2000 and 8 September, 2000. |
JUDGE: | Bradley DCJ |
ORDER: | Action against first defendant struck out. Application for summary judgment dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – RIGHT TO PROCEED FOR DAMAGES – s 189D Workers Compensation Act 1996 requirement to apply in “approved form” for certificate before instituting common law proceedings – whether “approved form” existed – whether “approved form” applied to plaintiff Workers’ Compensation Act 1990 s 182D, s 206A WorkCover Queensland Act 1996 s 532, s 551, s 558 Mears v Coles Myer Ltd [2000] QCA 342 Neuss v Roche Bros Pty Ltd [2000] QCA 130 Coombes v Qld Cotton [2000] QCA 476 |
COUNSEL: | K. Priestly for the applicant C. Jensen for the respondent |
SOLICITORS: | Gayler Cleland Towne for the applicant Drake Walker Leahy for the respondent |
- [1]The respondent alleges that he suffered a lower back injury in the course of his employment on 29 May, 1996. On 15 July, 1996 he made an application for Workers’ Compensation and was paid weekly benefits between 14 August, 1996 and 5 January, 1997.
- [2]The scheme for payment of Workers’ Compensation at the relevant times was that prescribed by the Workers’ Compensation Act 1990 (“the 1990 Act”). On 1 February, 1997 the 1990 Act was repealed by the WorkCover Queensland Act 1996. (“the 1996 Act”)
- [3]On 16 February, 1999 the respondent commenced an action for personal injuries against the applicants in this Court.
- [4]The applicants argue that the respondent is precluded from bringing an action for damages because of his failure to comply with the requirements of s 182D of the 1990 Act.
- [5]Section 182D of the 1990 Act relevantly provides that –
“(1) A worker who has not received an offer of lump sum compensation under section 132 may seek damages at law for an injury suffered after the commencement only if the board gives to the worker a certificate under this section.
(2) The worker must apply in the approved form to the board for a certificate.”
- [6]The respondent did not receive an offer of lump sum compensation, did not apply to the Workers’ Compensation Board of Queensland for a certificate and was not given a certificate by that Board prior to the commencement of his action for damages.
- [7]In correspondence from WorkCover Queensland to his solicitor following the commencement of court action, the respondent was advised of the requirement to obtain a damages certificate, and following an assessment by WorkCover Queensland of the permanent impairment sustained by the respondent from his injury, he was issued a “Conditional Damages Certificate”. This certificate purported to allow common law proceedings to be commenced but provided that such proceedings were stayed until the certificate was made unconditional.
- [8]When s 182D came into effect on 1 January 1996 no application form had been approved. When the 1996 Act came into effect on 1 February 1997, still no application form had been approved. Under the 1990 Act the Workers’ Compensation Board of Queensland had the power to approve forms for use under that Act.[1] The 1996 Act authorises the Chief Executive Officer to approve forms for use under that Act [2]. It is clear that the application of s 551 and s 558 of the 1996 Act authorises the chief executive officer to approve forms for use under the 1990 Act [3].
- [9]Sometime between 16 June 1997 and 8 July 1997 the chief executive officer of WorkCover approved a form for an Application for Damages Certificate. A copy of the Application form is Annexure 1 to these reasons. The proper approval of the application form is not challenged by the respondent.
- [10]Section 182D of the 1990 Act has been the subject of much judicial consideration in recent times and whilst other points were argued before me initially, in the light of recently decided cases, the parties have agreed that the narrow point which must be decided in this application is whether or not the Application for Damages Certificate form approved by WorkCover in June/July 1997 is “the approved form” for the purposes of s 182D(2). It is clear that if that Application is not an approved form pursuant to that section of the 1990 Act and no other appropriate form has been approved by WorkCover, then the applicants cannot rely on the respondent’s failure to obtain a certificate under s 182D(1) in support of their application to obtain summary judgment[4].
- [11]The respondent argues that it is clear on the face of the form relied upon by the applicants that it does not apply to him. Whilst the form is headed APPLICATION FOR DAMAGES CERTIFICATE, directly below that heading is the following – THIS FORM IS TO BE COMPLETED BY PERSONS CONSIDERING SEEKING DAMAGES WHO HAVE NOT PREVIOUSLY LODGED AN APPLICATION FOR COMPENSATION. The respondent did apply for and was in fact paid weekly compensation. It should be noted that there is nothing on the face of the form, apart from the heading, to indicate that it is to be used for the purpose of s 182D. The declaration which an applicant must complete at the end of the form contains an acknowledgment that “it is an offence to make a statement that is false or misleading” and the applicant warrants the truth of the statements of fact made in answers given to the questions sought by the form.
- [12]Whilst the decision of Mears v Coles Myer Ltd [5] considered the application form in annexure 1 hereto to be an approved form for the purposes of s 182D(2), it was not argued in that case that there were deficiencies in the form. The issue to be decided in this application therefore is simply whether the printed statement below the heading of the form results in the application form being inapplicable to the respondent. If that is the case, and as it is not submitted that any other form exists which would apply to the respondent’s circumstances, then in his case there would be no approved form in existence to which s 182D(2) could apply and it would therefore be impossible for the respondent to apply for a Damages Certificate in the approved form. Consequently, the respondent’s failure to obtain a certificate under s 182D could not constitute an impediment to his claim for damages at common law[6].
- [13]Since the application of s 182D is to limit a worker’s right to take action for damages at common law, it’s interpretation must be construed strictly and the presumption against an interpretation taking away access to the courts applied.
- [14]The difficulties encountered by ordinary people dealing with forms such as that in annexure 1 hereto was referred to by Thomas JA in Coombes v Qld Cotton [7]. The respondent contends that an ordinary person in the position of the respondent perusing the application form may well conclude that, given the statement immediately below the heading, the form did not apply to him and indeed that should he complete the form, given the wording of the declaration, he may well be committing an offence.
- [15]Interestingly, in an affidavit filed on behalf of the applicants, Denise Hamblin, the Manager, Damages Claims Group, WorkCover Queensland, deposes at paragraph 14 that “Since July 1997 WorkCover has used the form which is exhibit “B” hereto [annexure 1 to these reasons] for persons who apply for Damages Certificates where they have not previously made an application for compensation whether they are applying in respect of incidents which occurred prior to 1 February 1997 or after that date” (emphasis added).
- [16]Having regard to the presumption against denial of a person’s right to access the courts, where doubt exists as to whether or not a form has been approved for the purposes of s 182D(2), then the worker should be given the benefit of that doubt. The statement below the heading of the approved form casts doubt on its applicability to a worker in the position of the respondent and therefore, effectively, there was at the relevant time no approved form which would enable the respondent to make an application for a certificate. Accordingly, the respondent was entitled to bring his action for damages in this court and the applicant’s objection to his claim on the basis of non-compliance with s 182D of the Act, cannot be sustained.
- [17]It was conceded on behalf of the respondent that his action against the first defendant (the first applicant) should be struck out.
- [18]Accordingly, the action against the first applicant (the first defendant) is struck out and the application for summary judgment is dismissed.