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  4. Sherlock v WorkCover Queensland - [2002] QDC 294

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Sherlock v WorkCover Queensland[2002] QDC 294

Sherlock v WorkCover Queensland[2002] QDC 294

Sherlock v WorkCover Queensland [2002] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

Sherlock v WorkCover Queensland [2002] QDC 294

PARTIES:

REGINALD ASHLEY SHERLOCK
Applicant

v

WORKCOVER QUEENSLAND
Respondent

FILE NO:

D 4168 of 2002

PROCEEDING:

Application

HEARING DATE:

25 October 2002

DELIVERED ON:

11 November 2002

DELIVERED AT:

Brisbane

JUDGE:

Judge Brabazon QC

ORDER:

Direct that WorkCover Queensland comply with s. 285 of the WorkCover Queensland Act 1996

CATCHWORDS:

WORKERS COMPENSATION – personal injuries – requirements of WorkCover Queensland Act 1996 – where WorkCover refused to issue s 282 notice – whether limitation period will affect compliance – intention of statute – limitation point not relevant for notice – WorkCover should rely on limitation in defence of claim

WorkCover Queensland Act (Qld) 1996

Limitation of Actions Act (Qld) 1974

Green v Suncorp Metway Ltd [2001] 1 Qd R 485

COUNSEL:

Mr P de Plater for the Applicant

Mr B Hoare for the Respondent

SOLICITORS:

Shine Roche McGowan for the Applicant

Gibbs Barker Gosling for the Respondent

The Issue

  1. [1]
    Mr Sherlock says that he is entitled to recover damages for negligence causing several workplace injuries. Effectively, his claims are against WorkCover Queensland.
  1. [2]
    The progress of his claims has reached an impasse. This application involves the mandatory steps to be taken under the provisions of the WorkCover Queensland Act 1996.  (Counsel agree that Reprint No. 4 B applies to this case)  WorkCover says that his Notice of Claim for Damages is non compliant.  His solicitors say that it is.  While they disagree, the action cannot proceed.  

The Facts

  1. [3]
    In December 1996 Mr Sherlock was employed by a company called Merricum Pty Ltd. Between February 1998 and February 2000 he says that he suffered several injuries. In this application, the focus is on an “over period of time” injury, which he says he suffered between 1 December 1996 and 23 February 2000.
  1. [4]
    Because of the apparent impact of the three year limitation period, WorkCover issued a conditional damages certificate on 21 November 2000. Mr Sherlock had not lodged an application for compensation, and WorkCover had the power to issue the conditional certificate under s. 265(4) of the Act. That is, there was an urgent need to bring a proceeding for damages, but WorkCover was uncertain about aspects of his claims. Section 265 said what was to happen:
  1. “265(5)
    If the conditional certificate is given, the person may start a proceeding for damages for the injury, but the proceeding is stayed until WorkCover makes the certificate unconditional and the person complies with Parts 5 and 6 of the Act.
  1. (6)
    WorkCover must make the certificate unconditional when it is satisfied about the matters ...”
  1. [5]
    On 29 January 2001 Mr Sherlock’s solicitors filed a claim and statement of claim in this court. Claims were made about three other injuries, and this over period of time injury.
  1. [6]
    On 4 June 2001 WorkCover issued a notice of assessment.
  1. [7]
    On 16 July 2001 WorkCover issued an unconditional damages certificate. Following that, on the same day, Mr Sherlock’s notice of claim for damages was served on WorkCover. See s. 280 and Regulation 74 which provide for such a notice, giving WorkCover extensive details of a claim.
  1. [8]
    In particular, the notice of claim for damages contained a claim for this over period of time injury.
  1. [9]
    Then followed an exchange of correspondence between WorkCover and Mr Sherlock’s solicitors. In effect, WorkCover insisted in its s. 282 responses, that the notice was non-compliant, because it contained a claim which was partly outside the three year limitation period – that is, arising before 29 January 1998. There were other matters of non-compliance. They were successfully dealt with by Mr Sherlock’s solicitors. Finally, in its letter of 19 April 2002, WorkCover still maintained that part of the over period of time claim was outside the limitation period. As the letter said:

“... as a result this claim remains non-compliant.  Our client will not consider a resolution of that claim, or of all of the claims collectively, until such time as compliance has been achieved.”

  1. [10]
    So, WorkCover refuses to give a notice according to s. 282 of the Act, to the effect that the notice of claim for damage is compliant.

The Submissions

  1. [11]
    It is submitted for Mr Sherlock that a potential limitation defence should not be regarded as a compliance issue at all. Because he was able to start his court proceedings according to s. 265 of the Act, he is entitled to proceed without the “compliance” which WorkCover demands. Section 280(1) does not apply to his situation. In due course, WorkCover will be able to plead the statute of limitations in its defence, if it wishes to do so. It may never be pleaded.
  1. [12]
    WorkCover relies on a different submission. It says that Mr Sherlock must comply with Parts 5 and 6 of the Act. They include s. 280(1) of the Act, which provides that:

“Before starting a proceeding in the court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for damages under the Limitation of Actions Act 1974”.

Therefore, it is said, this claim being partly outside the three year period, it does not comply with s. 280(1), and cannot proceed.  If the claim is to proceed, Mr Sherlock must abandon any claim for injury before 29 January 1998 or (successfully) apply to the court for an extension of time to commence proceedings, beyond the limitation period.

The Meaning of the Act

  1. [13]
    The interaction between court proceedings for damages for personal injury, and the various steps now required by the Act, have already given rise to a good deal of difficulty. The operation of the Act is becoming clearer. However, counsel say that there is no decision which deals with the present point.
  1. [14]
    Usually, the steps to be taken under the Act will precede the commencement of court proceedings. When that happens, the three year limitation period is taken into account. That is, under s. 280(1) the notice must be given within the period of limitation. If the claimant gives a complying notice of a claim, before the end of the period of limitation, then later court proceedings may be commenced, to seek damages, even though the limitation period has then expired – see s. 308(1) of the Act.
  1. [15]
    However, that order of events is reversed when court proceedings are commenced before such a notice is given.  That has happened in this case.  As s. 265(5) says, the  court proceeding is stayed until the damages certificate is unconditional, and there is compliance with Parts 5 and 6 of the Act.  The purpose of that requirement is to stop claimants getting around the pre-court procedures, simply by starting court proceedings under s. 265.  See the 1996 Explanatory Notes at p. 823.6. 
  1. [16]
    Therefore, it is not easy to give meaning to all the mandatory provisions of Part 5 and Part 6, when court proceedings have started first. Ordinarily, the claimant may start court proceedings for damages only if the claimant has complied with:
  1. (i)
    The assessment process;
  2. (ii)
    Part 5 (including s. 280);
  3. (iii)
    Part 6;
  4. (iv)
    Section 303;

See s. 202 of the Act.

  1. [17]
    It is apparent that there are tensions between those provisions and the earlier provisions which allow proceedings to be commenced on the strength of a conditional damages certificate. See ss. 262, 265, and 270. That tension led to the decision in Green v Suncorp Metway Ltd [2001] 1 Qd R 485.  Mr Justice Shepherdson noted that all those sections provided for a conditional damages certificate, to enable a claimant to start proceedings for an injury, but decreed a stay of the proceedings until WorkCover granted an unconditional certificate and the claimant complied with Part 5 and Part 6. 
  1. [18]
    In the case before him, the claimant had not given any notice under s. 280. The learned judge went on to say:

“It is clear from the fact that each of ss. 262, 265 and 270 ... compliance by the applicant with s.280 is to occur after a proceeding has begun. Before the proceeding advances beyond commencement there is a statutory stay.

In the case now before me, compliance with s.280 will occur after the present applicant starts proceedings against the respondents … I do no see that compliance with ss.302, 303 or 305 is needed before the applicant can begin proceedings relying on her conditional certificate. … If the applicant, before bringing proceedings in reliance on the conditional damages certificate, were required to obtain the leave of the court under s.305, then the value of having an earlier issued conditional certificate entitling her to begin proceedings is set at nought and costs will be unnecessarily incurred by both sides.”

  1. [19]
    So, in this case the further issue is this – when court proceedings are started first, how much of s. 280(1) will apply to the giving of the notice? The introductory words do not apply, as proceedings have already been started. Must the notice be given within the period of limitation?
  1. [20]
    It will be remembered that the whole purpose of s. 265 (and its analogues) is an urgent need to bring proceedings for damages. An urgent need includes the imminent expiry of the limitation period (Explanatory Notes at p. 823). The assumption is that the starting of court proceedings will stop the limitation period running, in the usual way. Otherwise, there would be no urgent need to bring the proceedings.
  1. [21]
    Either the start of court proceedings, or the giving of a notice of claim for damages, can be significant with regard to the limitation period. Sections 280(1) and 308 deal with the situation where court proceedings follow the notice of claim. The Act does not literally say anything about the position where a notice of claim follows the court proceedings. It will often happen that some time will pass between the start of the court proceedings and the giving of the notice of claim. The limitation period will no longer be running against the claimant. Suppose the court proceedings were started at the end of the limitation period, with the notice being given some weeks later. It will not be given within the period of limitation, but that will be unimportant.
  1. [22]
    The intention of parliament must be that s. 280(1) plays no role at all when court proceedings are started first. The claimant is directed to s. 280(2), and following, about giving the appropriate notice. (WorkCover apparently “deemed” this notice to be given on the date the court proceedings were started. That is an ineffective and unjustified attempt to preserve the effect of s. 280(1) in this situation.)
  1. [23]
    WorkCover would suffer no detriment because of that conclusion. It can deny liability for any injury suffered, or partly suffered, before 29 January 1998. If settlement is not possible, and it has to defend the court proceedings, then it can rely on the statute of limitations in its defence. In raising that defence, it would be to WorkCover’s advantage to show that the injury was suffered outside the limitation period. It will be helpful to WorkCover to have details of all the plaintiff’s injuries, said to have been suffered at work.
  1. [24]
    If different interpretations of a statute are open, then the one which best advances the declared purposes of the statute is to be preferred. One aim here is to “enable WorkCover to enter into early negotiations with the claimants to achieve early resolution of claims for damages before the start of court proceedings”. See s. 279 of the Act. That objective will not be achieved if claimants are to be forced into applications asking for an extension of the limitation period, before the merits of their claims can be put forward.

Conclusion

  1. [25]
    Green’s case can be taken a step further – when court proceedings are started according to s. 265 (5), s. 280(1) will not apply.
  1. [26]
    In this dispute, WorkCover’s position is untenable. The claim should proceed to the next stage. There should be an order under s. 291.
  1. [27]
    1. (a)
      It is declared that the applicant’s Notice of Claim dated 16 July 2001 is a complying notice;
    2. (b)
      Direct that WorkCover comply with the requirements of s. 285 of the Act, within 14 days
    3. (c)
      Order that the respondent pay the applicant’s costs of the application, to be assessed on the standard basis.
Close

Editorial Notes

  • Published Case Name:

    Sherlock v WorkCover Queensland

  • Shortened Case Name:

    Sherlock v WorkCover Queensland

  • MNC:

    [2002] QDC 294

  • Court:

    QDC

  • Judge(s):

    Brabazon DCJ

  • Date:

    11 Nov 2002

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Green v Suncorp Metway Ltd[2001] 1 Qd R 485; [2000] QSC 12
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 485
Cite 2 - [2001] 1 Qd R 485

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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