Pugin v WorkCover Queensland[2004] QDC 307

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The Applicant, Jennifer Veronica Pugin, commenced work with Steggles Limited in or about September 2000. She carried out tasks of a repetitive nature and which it is alleged resulted in symptoms consistent with an occupation overuse condition. The condition was diagnosed as carpal tunnel syndrome of the right and left hand. She received compensation and thereafter a Notice of Assessment issued pursuant to the WorkCover Queensland Act 1996 (the “Act”).The date nominated on that Notice was 1 December 2000. It has not been the subject of argument on this application that anything turns on that Notice as not reflecting the nature of the injury having occurred over time.

2. [2]
   A Notice of Claim was served on 1 September 2003, just prior to the expiration of the limitation of action period. On 16 September 2003 the solicitors for the employer gave a notice pursuant to s. 282(2)(b) identifying those areas of non-compliance in the Notice of Claim. There was an exchange of information thereafter and by letter of 11 November 2003, a Notice pursuant to s. 285 of the said Act was delivered. It is common ground that that Notice did not comply with s. 282(3)(b) of the said Act, viz. no particulars were given of the non-compliance. For convenience, a chronology is attached to these reasons. It was prepared by the Applicant’s counsel but its accuracy was not challenged.

Issues on the Application

3. [3]
   The application as amended and filed on 2 September 2004 relies on s. 305. In fact the application was heard on the basis that the applicant requires declaratory relief that the Notice of Claim complied as from 16 September 2003 and that relief is available to the applicant under s. 308. The latter section allows an applicant to proceed outside the limitation period if a Notice of Claim is compliant or the applicant is taken to have given a complying notice.

4. [4]
   In pursuing that relief two issues have been argued:

1. Whether the respondent, by failing to comply with s. 282(3)(b) of the Act, has waived compliance with the provisions of s. 280.
2. Whether the respondent by its conduct is estopped from denying the Applicant’s claim for damages by reason of the expiration of the Limitation of Actions Act.

5. [5]
   Some preliminary observations should be made. Firstly, the three year limitation period under the Limitation of Actions Act 1974 probably expired in or about December 2003. The other point is that as the injury occurred prior to 1 July 2001, s. 588 applied. Thus the amendments in July 2003 do not apply. The significant amendment on that occasion which became s. 282(4) provided if the respondent did not give the Notice as required under s. 282(2) then the Notice of Claim would be deemed to be a complying notice. S. 252 of the said Act provides that all of the provisions in Chapter 5 (ss. 250-291) are provisions of substantive law.

The failure of the respondent/ employer to give the requisite notice under s. 282(3)(b) of the Act

6. [6]
   The letter of 16 September 2003^[1] was given pursuant to s. 282(2).  It clearly identified the areas of non-compliance and did not waive the compliance.  Those areas of non-compliance included failing to provide details of financial records, failing to answer questions, failing to provide particulars of the dimensions of items being lifted and also economic loss.  There were other failures of a similar nature.  After that letter, there was correspondence between the parties referring to doctors’ appointments being made and records from Centrelink being obtained by the respondent’s solicitors.  It was made clear in a letter of 22 October, that the provision of a list of documents by WorkCover was neither an admission that the Notice of Claim was compliant nor a waiver of any non-compliance.^[2]

7. [7]
   The letter of 11 November 2003 purported to be a response pursuant to s. 285 of the Act. What was required by 16 October 2003 was a response pursuant to s. 282(3)(b). That requires full particulars of the non-compliance and the claimant’s failure to remedy it. The respondent failed to comply with a substantive law provision of the Act. The respondent submits that nothing follows from that. The question arose In the Matter of an Application by Robinson BC9900103 a decision of Williams J. unreported 29 January 1999. His honour did not have to deal directly with the question as he held that the Notice of Claim was fatally flawed in that no Damages Certificate had issued in respect of psychological injury. Therefore, he held there was no basis for a claim as appeared in the Notice of Claim. The Notice was held to be a nullity. There is no such fatal flaw in the present case.

8. [8]
   The letter of 11 November attempts to state that the delivery of the s. 285 notice should not be regarded as a waiver of the non-compliance. Such a notice under s. 285 can only be given if WorkCover receives a complying notice of claim or waives the claimant’s non-compliance. It attempted to assert the non-compliance in a notice which does not envisage such a process. The failure by WorkCover is a breach of the substantial requirements of the Act. Under the Act, it is the body which must be satisfied that there is a complying notice under s. 280. The following appeared in the judgment of Byrne J. with whom McPherson A.J. agreed in Lau v WorkCover Queensland (2002) QCA 244 paras. 46-47:

“According to WorkCover, a notice of claim for damages is a “complying notice of claim” within the meaning of s. 308(1)(a)(i) only where WorkCover is, to adopt language of s. 282(2), “satisfied that the notice of claim complies with section j280”. If, as in this case, WorkCover is wrong to regard the notice as non-compliant, once the limitation period passes without a declaration of compliance having been made under s. 304, the damages claim is, WorkCover maintains, lost for all injuries sustained in the “event”. No inability to fund proceedings for declaratory relief matters. Exigencies of court lists or delayed judgement are beside the point. If an adverse determination under s. 282 is not judicially reversed by a declaration pronounced before the limitation period ends, it can never be called into question in a court and should WorkCover, for whatever reason, omit to give a s. 282(2)(a) notice expressing its satisfaction, the claimant’s notice, however precisely it may conform with s. 280 and Regulation 74, is not a “complying notice of claim”.

Before the limitation period expires, some steps can be taken to cope with the absence of a response, or with an unsatisfactory response, to a notice given pursuant to s. 280. Section 304 may be called in aid to obtain a declaration of compliance. There is also s. 305(1), by which “…the claimant may start the proceedings if the court…gives leave to bring the proceedings despite non-compliance with the requirements of section 280”, allowing a claimant who gets no s. 282 response to seek the favourable exercise of a judicial discretion permitting the institution of damages proceedings nonetheless. But taking advantage of these possibilities inevitably involves trouble and expense. Despite them as means of ameliorating hardship, from a practical perspective, substantial inhibitions remain on an injured employee’s capacity to prosecute a damages claim if WorkCover is correct about the effect of s. 308(1)(a)(i). Even in this Act, which besets the path of work-related damage claims with more than one complication, the consequences of WorkCover’s interpretation are so unattractive, and therefore so unlikely to have been intended, that clear and unambiguous language would be needed to sustain it.”

9. [9]
   One might add to the list of contingencies and include the delay or ineptitude of a solicitor acting for the applicant. That conduct has been held not to be a ground for refusing to exercise discretion under other provisions: Perdis v. Nominal Defendant^[3]; Hardwick v. Vanderfield Holdings Pty. Ltd^[4].

10. [10]
    In Lau’s case, Byrne J. was able to find that the Notice of Claim satisfied the requirements of s. 280. No such finding is available in the present case absent a deeming compliance because of the failure of the respondent to comply with s. 282(3)(b). If the amendment made in July 2001 to add s. 282(4) applied one would have no difficulty in so finding. The amendment could be seen to have met a gap in the Act. Although the respondent did not comply with the Act it continued to assert that it did not waive non-compliance.

11. [11]
    The respondent’s solicitors gave notice of non-compliance in September 2003. An application to the court could have been made before the limitation period expired. Alternatively, the non-compliance aspects could have been rectified. Neither approach was adopted. As far as the Act is concerned, absent a deeming provision, there is no authority cited to me which had held that in those circumstances the non-compliance is waived. In those circumstances, the application for relief under s. 308(1)(a)(ii) fails as there was no complying notice given nor was there a waiver of the need for a complying notice of claim prior to the expiration of the limitation period.

Estoppel

12. [12]
    The applicant relies on the doctrine of estoppel: Walton Stores (Interstate) Ltd. v Maher^[5] .  It is also reflected in s.342 of the Act.  S. 342(4) provides:

“However, a person is not entitled to assume a matter mentioned in subsection (3) if-

1. (a)
   the person has actual knowledge that the assumption would be incorrect; or
2. (b)
   Because of the person’s connection or relationship with WorkCover, the person ought to know that the assumption would be incorrect.”

13. [13]
    In the present case, counsel for the respondent has argued that the estoppel does not arise so as to deny the respondent from relying on the Limitations of Actions Act. Estoppel only arises where the party to whom a statement was made had acted or omitted to act in reliance on it in circumstances where it would be unconscionable to permit departure from it: Till v Nominal Defendant^[6].  In the present case there is no direct evidence from the solicitor for the applicant that any statement as to the date of the injury relating to the limitation period has been relied on by the applicant or that they omitted to do an act because of the erroneous statement of the year as 2001 rather than 2000. 

14. [14]
    WorkCover had made reference to the date of 7 September 2001 in its second Notice of Assessment and an accompanying letter. It was argued that a file review by the applicant’s solicitors picked up the wrong date. The applicant and her solicitors could not, I find, have relied upon that date as the alternative date was referred to in other documents signed by the applicant. This was not a case of having the means of knowing the true position. The applicant’s material reflected the true position: 

3. The affidavit of Mr. Weeratne , solicitor for the applicant, contained the sentence ”I am advised by the applicant and verily believe that on or around September 2000 the applicant commenced employment with Steggles Limited”. (paragraph 3)
4. The applicant suffered pins and  needles as from September 2000 and so  2001 was an unlikely date  (op.cit.Para 7).
5. Exhibit SW5 to Mr. Weeratne’s affidavit being the Notice of Claim for Damages refers to the symptoms occurring in October 2000.  The document was executed on 20 August 2003.
6. Both before and after the file review on 20.12.02, the applicant and her solicitor were aware that the correct date was 2000 not 2001.
7. In Exhibit SW2 being a letter to WorkCover dated 27 September 2001, the solicitors advise the respondent that “…the date of the injury stated on the above Notice of Assessment as 1 December 2001 seems incorrect.  We further refer you to your Reasons for Decision dated 13 August 2001 in which the date of injury is mentioned as 18 October 2000…”
8. In a declaration signed by the applicant and contained in Exhibit A to the affidavit of Mr. van Brunschodt, the date of the injury is given as 1.12.2000.

15. [15]
    I am not satisfied that there was a reliance on any mistake in dates inserted by WorkCover from time to time. The absence of sworn material to support any reliance speaks for itself. Any inferences which can be drawn from the material are one way viz. that the applicant and her solicitors knew that the 2001 date was incorrect. The argument in relation to estoppel fails.

16. [16]
    The respondent seeks costs pursuant to s. 325(4) of the said Act. If the application has been brought about because of unreasonable delay, then an order for costs can be made on an interlocutory application. The chronology speaks for itself. I am of the view that there has been unreasonable delay from time to time by the applicant and moreover her solicitors.

Orders

1. The amended originating application is dismissed.

2. It is ordered that the applicant pay the costs of and incidental to this application on a standard basis of the respondent to be assessed.