Ireland v Civilcon (Queensland) Pty Ltd
[2000] QDC 8
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- Ireland v Civilcon (Queensland) Pty Ltd[2000] QDC 8
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Ireland v Civilcon (Queensland) Pty Ltd[2000] QDC 8
Ireland v Civilcon (Queensland) Pty Ltd[2000] QDC 8
DISTRICT COURT OF QUEENSLAND
REGISTRY:BRISBANE
NUMBER: 3835 OF 1999
Plaintiff:
SHAWN WARREN IRELAND
AND
Defendant:
CIVILCON (QUEENSLAND) PTY LTD
REASONS FOR JUDGMENT - SAMIOS D.C.J.
Delivered the 14th day of February 2000
By a proceeding commenced in this court on 29 September 1999, the plaintiff claims damages for personal injuries which he alleges he suffered on 17 October 1996 in the course of his employment with the defendant. He alleges at the material time he was drilling a hole in concrete and that as a consequence of the negligence and/or breach of duty of care and/or breach of contract of employment on the part of the defendant, its servants and/or agents, he suffered a ligamentous injury to the right thumb and radial aspect of the right hand.
The defendant filed a conditional Notice of Intention to Defend on 23 November 1999. In this notice the defendant denies the jurisdiction of the court to entertain this proceeding. The defendant alleges the plaintiff is a worker who has not, as at the date of issue of the proceeding, received an offer of lump sum compensation under s. 132 of the Workers= Compensation Act 1990 (the Act) and further had not then received from the Workers= Compensation Board (the Board) a certificate under s. 182D of the Act, either conditionally or otherwise and is therefore not entitled, having regard to s. 182D, to seek damages at law for the alleged injury the subject of this proceeding.
The defendant applies pursuant to r.293 of the Uniform Civil Procedure Rules for an order that the plaintiff=s proceeding against the defendant be struck out on the basis that the plaintiff=s claim does not disclose a cause of action, is vexatious and an abuse of process, or alternatively, that a
point of law be raised for determination short of trial, namely whether the plaintiff=s action is barred for want of compliance with s.182D of the Act.
The defendant=s statutory insurer for the purposes of this proceeding is WorkCover Queensland. WorkCover Queensland was formerly known as the AWorkers= Compensation Board of Queensland@. It will be convenient to refer to the Workers= Compensation Board of Queensland as WorkCover.
The plaintiff made an application for workers= compensation to WorkCover in respect of the injury sustained by him on 17 October 1996. His application signed by him was received by WorkCover and is dated 20 November 1996. As appears from this document, the plaintiff=s alleged injury is to his right hand. Consequently there is consistency between the injury alleged by him in this proceeding and that alleged by him in the application for workers= compensation.
There is no dispute between the parties that the legislation applicable to the plaintiff=s claim is the Workers= Compensation Act 1990 (Queensland) as amended from 1 January 1996 which I have been referring to as the Act.
Mr. Tutt, the solicitor for WorkCover in support of the application swears that at no time, prior to the issue of proceedings in this matter, has WorkCover made or issued:-
- (1)a finding that any injury suffered by the plaintiff on or about 17 October 1996 was a Aserious@ or Acertificate@ injury within the meaning of the Act or at all;
- (2)a lump sum offer in respect of such injury within the meaning of the Act or at all;
- (3)a certificate (conditional or unconditional) within the meaning of the Act or at all, to enable the plaintiff to commence these proceedings.
The evidence before me is that following receipt of the plaintiff=s application for workers= compensation WorkCover wrote to the plaintiff by letter dated 16 May 1997. Omitting formal parts, the text of that letter is as follows:
AI refer to your application for compensation and advise that medical opinion indicates your injury is stable and stationary and you have a permanent impairment. The degree of impairment attributable to the injury has been assessed at:
O.80% being $825.00
WorkCover may make an offer of lump sum compensation if you accept the degree of permanent impairment is the degree assessed by a registered medical practitioner.
As the degree of permanent impairment is less than 20% of the statutory maximum compensation ($103 100) I am required to advise you of the choice between accepting lump sum compensation under the Workers= Compensation Act 1990 and seeking damages at law, and to attach a copy of sections 182A, 182B and 182C of the Act for your information.
If you don=t accept the degree of permanent impairment is the degree assessed by a registered medical practitioner please telephone me within 10 days of the above date. If you fail to notify me within that period it is taken that you accept the degree of assessment.
I have attached a form (CL2A) which provides further information regarding the assessment and the offer. If you wish to accept the lump sum compensation and not seek damages at law please complete and return this form. Upon receipt of the completed form I will arrange a cheque in payment. Please complete this form only if you accept the degree of permanent impairment.@
The form attached to the letter dated 16 May 1997 is headed AOffer of Lump Sum Compensation@ and refers to a Adate of offer: 16 May 1997@. In the body of this document the following is also stated:
AWorkCover=s offer is the payment of lump sum in the amount of $825.00
...
The offer may be accepted or rejected, or a decision about the offer may be deferred, within 28 days after the date of offer. If you fail to notify WorkCover within that period, it is taken that you have deferred the decision. A worker to or for whom an offer is made is not entitled, after the acceptance, rejection or deferral of the offer, to further compensation or payment of expenses of any description in relation to the injury.
...
NOTICE OF WORKER=S CHOICE
I hereby notify WorkCover of my choice about the offer of lump sum compensation.
- I accept the offer. In accepting I understand that I cannot seek damages at law
- I reject the offer. In rejecting I understand that I am not entitled to lump sum compensation but may seek damages at law.
- I defer the offer. In deferring I understand that I may accept this offer at a later time by written notice to WorkCover. I further understand that if I seek damages at law I cannot accept the offer.
.......................................... ........................... ...............................................
Signature of worker Date Signature of witness@
Attached to this letter was also a Form CL1A which contained the following statement:
AThe Board=s offer is the payment of the lump sum in the amount of: $825.00@.
This letter was responded to by the solicitor for the plaintiff by letter dated 23 May 1997. Omitting formal parts, the text of this letter is as follows:
AWe refer to yours of 16 May 1997 addressed to Mr. Shawn Warren Ireland who has consulted us for advice.
We should wish to notify you that our client disputes the degree of permanent impairment assessed by the Board=s Medical Practitioner.
At this stage also our client wishes to defer your offer whilst we investigate the matter on his behalf with a view to instituting for damages.@
Then followed WorkCover=s response to the plaintiff dated 2 June 1997. Again omitting formal parts the text of that letter is as follows:
AI acknowledge receipt of the completed offer of lump sum compensation form and note that you have deferred WorkCover=s offer. A copy of that form is attached for your records.
WorkCover=s offer having been deferred there is no further entitlement to compensation or payment of expenses of any description in relation to the injury.
Should you accept this offer at a later time you must advise WorkCover in writing. However, if you seek to negotiate a damages settlement with WorkCover or start proceedings at law for damages you will no longer be able to accept the offer.@
WorkCover wrote to the plaintiff by letter dated 20 June 1997 in the following terms:
AI refer to your claim for compensation.
To assist WorkCover in the management of your claim I have arranged an appointment for a medical examination with -
Doctor=s Name: DR PETER MILLROY -ORTHOPEDIC SURGEON
Address: WATKINS MEDICAL CENTRE
225 WICKHAM TERRACE, BRISBANE
Date and Time: THURSDAY 26/06/97 AT 3.00 P.M.
Please take with you any x-rays or other test results (except if you are attending a public hospital for treatment).
If you have returned to work or are unable to keep this appointment through physical incapacity or other reasonable cause please contact me immediately so that alternative arrangements may be made.
IMPORTANT. Refusal to attend the appointment or non-attendance without reasonable cause may result in suspension of benefits. No compensation is payable for any period of suspension. In the event of suspension there is a right of appeal.@
The letter from WorkCover to the plaintiff dated 20 June 1997 was responded to by the solicitor for the plaintiff by letter dated 25 June 1997. Omitting formal parts the text of that letter is as follows:
AWe act on behalf of the abovenamed of 8 Stradella Court, Burpengary. Our client has passed on to us a copy of your letter of 20 June 1997 requiring him to be examined by Dr. Peter Millroy, orthopedic surgeon on Thursday 26 June 1997 at 3.00 p.m.
As I understand, your organisation has terminated all compensation payments to our client the threat or implied threat in the last paragraph of your letter is a rather empty one.
Since you have determined that no further compensation is payable to our client could you tell us why you have arranged a medical examination. We await your urgent response and in the meantime would appreciate it if you would defer the examination.
If the examination is in connection with our client=s potential Common Law Claim, we will consent to the examination only on the basis that you provide us with a panel of Doctors from whom we may select one and on the basis that a copy of the report is made available to us within no more than 14 days from the date of examination and that all expenses including our client=s time and travel expenses are met.
We await your urgent response.@
By letter dated 26 June 1997, WorkCover wrote to the solicitors for the plaintiff in the following terms:
AIn response to your letter dated 25 June 1997, as Mr Ireland is disputing the assessed 1% impairment, we have referred Mr Ireland to Dr Millroy for a second opinion on Dr Gilpin=s assessment of 1% Permanent Impairment of the upper limb.
I hope you find this satisfactory. If you have any further enquiries please do not hesitate to contact me on the above telephone number.@
Finally, the solicitor for the plaintiff wrote to WorkCover by letter dated 23 September 1999 in the following terms:
AWe refer to previous correspondence in relation to this matter.
Our client has instructed us to institute proceedings and it is our intention to file the claim and Statement of Claim in the District Court of Brisbane in the next few days.
Unless we hear from you within the next 7 days to the effect that you are prepared to accept service we intend to serve the documents on your insured, Civilcon (Queensland) Pty Ltd ACN 053 686 481.
Photocopies of the documents sealed by the Court will be forwarded to you as soon as they are to hand.@
After hearing the application on 13 December 1999, on 25 January 2000 I gave directions in this proceeding to the effect that both parties file herein any further affidavit confined to the issue of
the return by the plaintiff of what was described as the completed offer of lump sum compensation form in the letter dated 2 June 1997 from WorkCover to the plaintiff with any further submissions on that issue. I did this because after I had reserved my decision on the application I recalled that counsel for both parties told me during the hearing on 13 December 1999 that despite what the letter dated 2 June 1997 appeared to state with respect to the completed offer of lump sum compensation form, in fact that document had not been completed by the plaintiff and returned to WorkCover. I relisted the application on 25 January 2000 for further consideration as my notes did not allow me to confirm what I thought I had been told on this issue.
In response to those further directions, the further evidence before me is that the plaintiff did not complete and return to WorkCover the document described as the offer of lump sum compensation form and referred to in the letter dated 2 June 1997 (see affidavit of Walter Henry Tutt filed 28 January 2000).
The relevant provisions of the Act for the purposes of this application are to be found in Part 6 Division 2, ss. 129 to 135 and Part 11 s. 182A to 182D. Section 130(1) provides that a worker who sustains permanent impairment because of injury is entitled to lump sum compensation for the injury. Section 130(2) provides that the amount of lump sum compensation is the amount worked out having regard to the worker=s degree of permanent impairment, the degree of permanent impairment attributable to the injury, and the table of injuries. Section 130A(1) provides that the Board or a worker may ask that the degree of permanent impairment resulting from the worker=s injury be assessed relevantly for the present proceeding by a registered medical practitioner. Section 130A(3) provides that the Board or worker may accept or reject the assessment of the degree of permanent impairment. Section 130A(4) then provides if the Board and worker cannot agree about the degree of permanent impairment, then the degree of permanent impairment may be decided only by a Medical Assessment Tribunal and the Board must refer the question of degree of impairment to a Tribunal for decision.
Section 132 is headed AOffer and Payment of Compensation After Assessment@. Section 132(1) provides that the Board may make an offer of lump sum compensation to or on account of the worker who has suffered an injury prescribed under the table of injuries that has resulted in the worker sustaining a permanent impairment. The balance of s. 132 provides as follows:
(2) An offer may be made only if -
- (1)the Board and the worker both accept the worker=s degree of permanent impairment is the degree assessed by a registered medical practitioner or under s. 95(9); or
- (b)a Medical Assessment Tribunal has decided on a reference under Part 10 that the worker has sustained a degree of permanent impairment.@
(3) The following information must be stated on the offer -
- (1)the degree of the worker=s permanent impairment
- (2)the degree of the worker=s impairment attributable to the injury;
- (3)the percentage of statutory maximum compensation the worker is entitled to for the injury
- (4)the amount of lump sum compensation payable under s.130 the worker is entitled to for injury.
(4) If the worker is entitled to lump sum compensation under s.130 for an injury, other than a certificate injury, the board must -
- (a)advise the worker about the choice the worker must make under s.182B; and
- (2)give the worker a copy of sections 182A, 182B and 182C.
(5) An offer may be accepted or rejected, or a decision about the offer may be deferred, within 28 days after a written offer is made by the board (the Adecision period@).
(6)If, within the decision period, the worker does not advise the board that the offer is accepted or rejected or that the worker wishes to defer the decision, the worker is taken to have deferred the decision.
(7) If the offer is accepted, the board must pay the lump sum compensation entitlement to or on account of the worker.
Section 135 of the Act provides as follows:
A135. (1) This section applies if an offer of lump sum compensation under section 132 is made.
(2) A worker to or for whom an offer of lump sum compensation is made is not entitled, after the acceptance, rejection or deferral of the offer -
(a) to further compensation in relation to the injury; or
(b) to payment of expenses of any description in relation to the injury.
(3) This section does not limit the worker=s entitlement to payment of the lump sum compensation offered after acceptance of this offer.@
Section 182B relevantly provides:
A(1) A worker to whom lump sum compensation is payable under part 9, division 2 for an injury is not entitled to both -
- (1)lump sum compensation for the injury; and
- (2)damages at law for the injury.
(2) The worker must choose between accepting lump sum compensation offered under this Act and seeking damages at law.
(3) The worker must give the board notice of the worker=s choice in the approved form.
(4) If the worker fails to give the board notice of the worker=s choice before the worker seeks damages at law, the worker is taken to have made a choice to reject lump sum compensation for the injury.
(5) The worker cannot change the worker=s choice after -
- (1)notice of it is given to the board; or
- (2)it is taken to have been made under subsection (4).
(6) The worker is taken to seek damages at law for the injury when the worker -
- (1)seeks to negotiate a damages settlement with the board; or
- (2)starts proceedings at law for damages.@
Finally, s.182D provides:
A182D. (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 the worker a certificate under this section.
(2) The worker must apply in the approved form to the board for a certificate.
(3) The board may only, and must, give the certificate if -
- (a)the board decides the injury is an injury within the meaning of this Act and was suffered after the commencement; and
- (b)the degree of the worker=s permanent impairment resulting from the injury has been assessed in the way mentioned for the injury under section 130A(1).
(4) However, the board may issue the worker with a conditional certificate if -
- (a)the degree of the worker=s permanent impairment is not agreed or has not been decided by a tribunal; or
- (b)there is an urgent need to bring proceedings for damages.
(5) If a conditional certificate is given, the worker may start proceedings at law for damages for the injury, but the proceedings are stayed until the board makes the certificate unconditional.
(6) The board must make the certificate unconditional when it is satisfied about the matters mentioned in subsection (3).
(7) If the board is unable to make a decision about a matter mentioned in subsection (3)(a) or (b), the board must
- (1)refer the matter to a medical assessment tribunal for decision; and
- (2)in an appropriate case, ask the tribunal to assess the worker=s degree of permanent impairment resulting from the injury.
(8) If the board makes a decision under subsection (3)(a), a worker aggrieved by the decision may appeal the decision in the way, and within the time, prescribed under the regulations.
(9) A decision of a medical assessment tribunal on a reference under this section is final and cannot be questioned in any proceedings whatever before a tribunal or a court.@
On the hearing of the application I was referred to the decision of Mr. Justice Shepherdson in Mears v. Coles Myer Limited unreported, Queensland Supreme Court, 99/99, 18 August 1999 in which His Honour decided that the terms of s. 182D(1) are mandatory and legal proceedings cannot be commenced where the Board has not given the plaintiff a certificate under s. 182D(1). On the facts of the case before His Honour, he was of the opinion that had the plaintiff in that case sought a conditional certificate before the date the plaintiff issued the Writ of Summons, the plaintiff could have lawfully sought damages at law. However, His Honour noted that the plaintiff had not done so and therefore in the absence of the Board giving the plaintiff either an unconditional certificate or a conditional certificate pursuant to s. 182D, the plaintiff=s writ could not be lawfully issued and therefore there could be no doubt that the action begun therefore had to fail. In Mears it was common ground that as at the date of issue of the writ, no lump sum offer had been made by the Board to the plaintiff.
Further, His Honour noted in Mears that the matter of estoppel had not been raised in argument. He said that it was not open because estoppel Acannot be invoked to negative the operation of a statute@ and cited relevant authorities in support of that proposition.
I was referred to other decisions in which s. 182D of the Act has been considered. In one of those decisions His Honour Judge Wylie Q.C. in Hermann v. Buzza Plaint 4561/97, delivered 12 June 1998, held that s. 132(2) provides a condition precedent to the Board=s power to make an offer to an injured worker and before an offer could be made, there had to be mutual acceptance of the medical practitioner=s assessment of the worker=s degree of permanent impairment or, where there was no such agreement, there had been a reference to a Medical Assessment Tribunal with respect to that question and the decision of such tribunal with respect to the degree of permanent impairment. Further, that only after such agreement or decision could an offer of lump sum compensation be made by the Board. In that case, with respect to the documents relevant to the issue before His Honour, the plaintiff had ticked a box B indicating his disagreement with the assessment of the degree of permanent disability. Although the box B also advised the plaintiff not to complete the Aworker=s election@ section of the form, His Honour found that unfortunately the plaintiff did, by ticking the AI reject the offer@ box. His Honour was satisfied the plaintiff was not saying Ayes@ to anything. Further, that WorkCover was not in any doubt as to the plaintiff=s intent. That was because on 27 October 1997, WorkCover acknowledged receipt of the completed form and noted that the plaintiff disagreed with the assessment and stated therefore:
AThe offer of lump sum compensation has been withdrawn. Your claim will now be referred to the Medical Assessment Tribunal for decision.@
In that case, the plaintiff submitted that nonetheless he had received Aan offer of lump sum compensation@ and therefore the provisions of s. 182D of the Act did not apply. His Honour concluded as a matter of law that the sending of that form did not constitute the making of Aan offer of lump sum compensation@ within the meaning of s. 132 and s. 182D of that Act. In the present proceeding it has been submitted by the defendant that this decision is on all fours with the present proceeding and for that reason I ought to dismiss the plaintiff=s proceeding.
His Honour Judge Wylie=s view that an offer could be treated as a provisional or qualified one was referred to by Justice Demack in Hibberd v. South Blackwater Coal Limited, unreported, Queensland Supreme Court, 28 August 1998 in another decision in which it was contended that s. 182D barred the plaintiff=s action. Justice Demack said in Hibberd that he did not see anything in the Act or in the documents sent to the plaintiff in Hibberd that required such an approach as adopted by His Honour Judge Wylie. On the evidence in Hibberd, Justice Demack found that the plaintiff=s actions were such that he accepted, for the purposes of the lump sum offer, the assessment of permanent disability. That is, once he completed the form, the statutory requirement that there be an agreement between the worker and the Board about the degree of permanent impairment had been met. Further, the amount of the offer was determined by the degree of disability so that there was nothing additional for the Board to consider once it knew the plaintiff had accepted the assessment of the degree of permanent disability. His Honour said there was nothing in the Act to suggest that the offer could not accompany a letter which explained the procedure the worker had to follow to respond to the assessment of permanent disability and to the offer that was a consequence of that assessment. Therefore, in his opinion, the offer made was a valid one.
In Hibberd, as in the present proceeding, the correspondence contained the expression that if the plaintiff failed to notify the claims officer of WorkCover within the 10 day period of non-acceptance of the degree of permanent impairment, it would be taken that the plaintiff accepted the degree of assessment, and the expression - APlease complete this form only if you accept the degree of permanent impairment@. In Hibberd, the plaintiff did not notify the claims officer of non-acceptance of the degree of permanent impairment and the plaintiff placed a cross against AI defer the offer@, signed and dated it and had it witnessed. Therefore, Justice Demack found that as the plaintiff was to be taken as having accepted the degree of permanent impairment by not notifying the claims officer of non-acceptance of the degree of permanent impairment and having completed the form a valid offer had been made. Justice Demack said though he did not see anything in the Act or in the documents sent to the plaintiff in that case that required an approach to treat the offer as provisional or qualified as decided by His Honour Judge Wylie.
In my opinion Hibberd can be distinguished from Hermann and the present proceeding because in Hermann the plaintiff expressed disagreement with the assessment of the degree of impairment as has the plaintiff in the present proceeding. In my opinion, Justice Demack did not decide as a matter of law an offer could not be provisional or qualified. Nevertheless, in my opinion, Justice Demack=s views in this regard ought to be seen in the context of the evidence before His Honour. Namely, that in Hibberd the plaintiff did accept the degree of permanent impairment by making no response to the claims officer and by completing the form.
Mr. Justice Helman also concluded on the evidence before him that the plaintiff was not barred by the provisions of s. 132 and s. 182D of the Act in Coombs v. Queensland Cotton Corp Limited, unreported, 5214/99, 14 October 1999. That was because His Honour concluded on the evidence before him that the plaintiff had received an offer of lump sum compensation before he began his proceeding.
Finally, I was referred to Short v. Michaliczac, unreported, Queensland District Court, McMurdo DCJ, 22 May 1998, Sheward v. Toowoomba City Council, unreported, Queensland District Court, McGill DCJ, 15 December 1998, and Neuss v. Roache Bros Pty Ltd, unreported, Queensland District Court, Forde DCJ, 24 September 1999. In my opinion, these decisions do not contradict the principles established and applied in the decisions I have already referred to. However, the decision of His Honour Judge Forde in Neuss demonstrates that depending upon the circumstances, the application of s. 182D may be held to have been waived by WorkCover.
In the present proceeding the plaintiff submits that an offer has been made by WorkCover and the plaintiff has refused that offer. In the alternative, the plaintiff submits WorkCover is estopped from claiming to the contrary. Finally, the plaintiff submits I ought not to entertain giving judgment for the defendant as there are matters of fact to be decided by a trial of the plaintiff=s proceeding.
The further directions I gave on 25 January 2000 were intended to ensure evidence was placed before me on the issue of the so called completed offer of lump sum compensation form. The plaintiff did not submit on the hearing on 25 January 2000 there was further evidence on other matters the plaintiff wished to put before me. Nothing specific was identified by counsel for the plaintiff that ought to lead me to the conclusion there were questions of fact I could only decide after a trial. In my opinion I have all the evidence before me to allow me to proceed with the hearing of this application. Further, I have considered the evidence before me and in my opinion there are no questions of fact I could only decide after a trial.
The evidence before me shows, and which I accept, within the 10 day period the plaintiff by his solicitor notified the claims officer of WorkCover that the plaintiff disputed the degree of permanent impairment. I am satisfied on the balance of probabilities and I find the plaintiff did not accept the degree of permanent impairment. The letter dated 16 May 1997 to the plaintiff from WorkCover notified the plaintiff that the form containing the offer of lump sum compensation was not to be completed except if the plaintiff accepted the degree of permanent impairment. The letter also notified the plaintiff of WorkCover=s statutory position, which was that WorkCover might make an offer of lump sum compensation if the plaintiff accepted the degree of permanent impairment was the degree assessed by a registered medical practitioner. That was consistent with s. 132(2) of the Act. Although the letter dated 16 May 1997 was accompanied by what was described as an offer of lump sum compensation, in my opinion, as the plaintiff did not accept the degree of permanent impairment the document accompanying the letter was not an offer within the meaning of s. 132 and s.182D of the Act. Further, the evidence before me shows, and which I accept, the offer of lump sum compensation form was not endorsed by the plaintiff that he deferred the offer and he did not return it to WorkCover. Had the plaintiff accepted the degree of permanent impairment then the document accompanying the letter could then have been dealt with as an offer within the meaning of s. 132 and s.182D of the Act. In my opinion, for the plaintiff to have stated in the letter dated 23 May 1997 that he deferred Athe offer@ without accepting the degree of permanent impairment was to do nothing effective in terms of the provisions of the Act. Therefore, I accept the submissions of Senior Counsel for WorkCover and I find that on the evidence in the present proceeding no lump sum offer of compensation within the meaning of s. 132 and s. 182D of the Act was made by WorkCover. In this regard I consider the present proceeding is on all fours with His Honour Judge Wylie=s decision in Hermann. I accept as correct his Honour=s interpretation of the relevant statutory provisions in Hermann.
As His Honour Mr. Justice Helman noted in Coombs, there is a two-step process contemplated by the Act. The first step is the requirement of s. 132(2) namely that the Board and the worker both accept the worker=s degree of permanent impairment is the degree assessed by the registered medical practitioner. Only then may an offer be made. Although the plaintiff in the present proceeding could have elected not to have responded at all as he was not required to respond, the plaintiff in fact did and in doing so disputed the degree of permanent impairment. Having done so, in my opinion, he cannot then claim that an offer had been made to him upon a proper construction of the correspondence and the actions of the plaintiff considered in the context of the relevant provisions of the Act. Counsel for the plaintiff submitted I was bound by Coombs. Further, because I was bound by Coombs I ought to conclude an offer was made by WorkCover to the plaintiff. In my opinion, Coombs is distinguishable from the present proceeding because in Coombs Mr. Justice Helman found on the evidence before him the plaintiff had accepted the degree of permanent impairment.
In my opinion, the decisions of their Honours Mr. Justice Shepherdson, Justice Demack and Mr. Justice Helman in Mears, Hibberd and Coombs respectively do not require me to approach this application in a different manner or to reach a different conclusion subject to the issue of estoppel.
However as I have said, it remains to be considered whether WorkCover is estopped from relying upon s. 182D of the Act. I am mindful that Mr. Justice Shepherdson in Mears was of the view that estoppel was not open in that case because estoppel Acannot be invoked to negative the operation of a statue@. Of course, as Mr. Justice Shepherdson said in Mears, the issue of estoppel was not argued. Further, as Senior Counsel for the defendant submitted, His Honour Judge Forde in Neuss considered the doctrine of waiver in the context of the facts in that case and found that WorkCover had waived reliance upon s.182D of the Act. I agree with Senior Counsel for the defendant that Neuss can be readily distinguished from the facts in the present proceeding and I do so. In Neuss, His Honour Judge Forde found in the context of the ongoing litigation WorkCover could have, but did not, plead reliance upon s. 182D. His Honour held the effect was that WorkCover should be taken to have waived reliance upon s. 182D. I find in the present proceeding WorkCover have not acted in any way that could be taken as a waiver of its entitlement to rely upon s. 182D of the Act.
Estoppel is constituted by an unequivocal representation, by words or conduct, by one party to another, upon which the latter party acts to his, her or its detriment. If made out, a court will adjust the rights of the parties as is just and equitable, either by precluding the first party from departing from the representation, or by awarding compensation sufficient to meet the detriment: (Walton Stores (Interstate) Limited v. Maher (1988) 164 CLR 387, 404, 406, 413, 420, 428-429, 445; Commonwealth v. Verwayen (1990) 170 CLR 394, 412, 422, 431, 440-442, 444-446, 487, 499-500).
The relevant evidence on the issue of estoppel in the present proceeding, in my opinion, can be summarised as follows:
- (a)WorkCover stated in the letter dated 2 June 1997 that the plaintiff had returned to WorkCover a completed offer of lump sum compensation in which the plaintiff had indicated his desire to defer the offer;
- (b)WorkCover arranged to have the plaintiff examined by another registered medical practitioner for a second opinion regarding the degree of permanent impairment;
- (c)WorkCover stopped payment of workers= compensation payments to the plaintiff.
In the present proceeding, in my opinion, the essential requirement for an estoppel would be that the plaintiff has acted to his detriment on the basis of a basic assumption in relation to which WorkCover has played such a part in the adoption of the assumption that it would be unfair or unjust if WorkCover were left free to ignore it. Equity could come to the relief of the plaintiff on the footing that it would be unconscionable conduct on the part of WorkCover to ignore the assumption.
On the evidence I am satisfied on the balance of probabilities that WorkCover did not make a representation to the plaintiff, upon which the plaintiff acted to his detriment. That is because as the plaintiff did not accept the degree of permanent impairment and did not return the form, in my opinion, the plaintiff cannot claim that WorkCover represented to him that an offer was made to him by WorkCover. That is so, in my opinion, even though the stopping of the compensation payments is consistent with the acceptance, rejection or deferral of an offer (s. 135(2)). In my opinion, the plaintiff should be taken to know no offer was made to him because of the wording of the correspondence and his actions by notifying WorkCover he did not accept the degree of permanent impairment and further or in the alternative, because of the effect of the statutory provisions that provide that an offer may only be made if WorkCover and the worker both accept the worker=s degree of permanent impairment is the degree assessed by a registered medical practitioner (s. 132(2)). Although WorkCover were not authorised to stop the payment of compensation payments to the plaintiff, the plaintiff could have had that decision reviewed (Chapter 9). The attempt to arrange a second opinion could not, in my opinion, be taken as a representation that an offer was made by WorkCover.
Further, there is no evidence before me from which I could be satisfied on the balance of probabilities the plaintiff acted to his detriment. Neither the plaintiff nor his solicitor has sworn to the doing of anything differently because of those matters I have identified in paragraphs (a), (b) and (c) above. I do not consider I can infer the plaintiff or his solicitor did not seek a certificate (conditional or unconditional) because of the matters I have identified in paragraphs (a), (b) and (c) above before the letter dated 23 September 1999 was sent by the plaintiff=s solicitor to WorkCover and before this proceeding was commenced.
I am satisfied on the balance of probabilities on the evidence it would not be unfair or unjust or unconscionable to allow WorkCover to rely upon s. 182D of the Act.
If an estoppel could arise on the evidence (which I find it does not) I accept the submissions of Senior Counsel for WorkCover that an estoppel would Anullify@ s. 182D of the Act. The nature of the obligation imposed by s. 182D of the Act is that before proceedings are commenced, the claimant worker must be in receipt of a lump sum offer or certificate. To allow an estoppel to operate against s. 182D would mean, in my opinion, that the provisions of the Act that require a lump sum offer to be made or a certificate obtained before proceedings are commenced would be given no effect. In my opinion, upon the proper construction of the provisions of the Act such a result was not intended by the legislature: (Maritime Electric Co v. General Dairies Ltd (1937) AC 610 at 620; Day Ford Pty Ltd v. Sciacca (1990) 2 Qd.R. 209 at 216-217; Salamon Nominees Pty Ltd v. Moneywood Pty Ltd (unreported, Queensland. CA, 22 December 1998).
I therefore follow Mears and conclude the plaintiff is barred by reason of s. 182D of the Act from commencing this proceeding. I therefore order the proceeding to be struck out.
I will hear the parties on the question of costs.
DISTRICT COURT OF QUEENSLAND
REGISTRY: BRISBANE
NUMBER: 3835 OF 1999
Plaintiff:
SHAWN WARREN IRELAND
AND
Defendant:
CIVILCON (QUEENSLAND) PTY LTD
JUDGMENT - SAMIOS D.C.J.
Judgment Delivered: | 14 February 2000 |
Catchwords: | MASTER AND SERVANT – application to strike out action – s. 182D Workers= Compensation Act 1990 – whether offer of lump sum compensation made before w0orker sought damages – whether WorkCover estopped from claiming offer of lump sum compensation not made to worker before worker sought damages |
Counsel for the plaintiff: | Mr. M. Taylor |
Counsel for the defendant: | Mr. R. Douglas S.C. |
Solicitors for the plaintiff: | Paul Everingham & Co |
Solicitors for the defendant: | Tutt & Quinlan |
Solicitors for the defendant: | Tutt & Quinlan |
Hearing Dates: | 13 December 1999, 25 January 2000 |