Schmidt v Australian Meat Holdings Pty Ltd
[2004] QDC 473
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- Unreported Judgment
- Schmidt v Australian Meat Holdings Pty Ltd[2004] QDC 473
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Schmidt v Australian Meat Holdings Pty Ltd[2004] QDC 473
Schmidt v Australian Meat Holdings Pty Ltd[2004] QDC 473
DISTRICT COURT OF QUEENSLAND
CITATION: | Schmidt v. Australian Meat Holdings Pty Ltd [2004] QDC 473 |
PARTIES: | Benjamin Lee Schmidt (Applicant) v Australian Meat Holdings Pty Ltd (ACN 011 062 338) (Respondent) |
FILE NO/S: | 2674 of 2004 |
DIVISION: | Civil |
PROCEEDING: | Chamber Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 1 December 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 August 2004 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | Application – personal injury – claim for common law damages – “scarring” resulting from laceration – whether Notice of Claim a complying notice under s. 280 of Workcover Qld Act 1996. Workcover Queensland Act 1996 ss. 197, 203, 253, 278, 279, 280, 282(2) and 291. Barrass v. BHP Coal Pty Ltd [2002] QSC 364. Lau v. WorkCover Queensland [2002] QCA 244. |
COUNSEL: | Mr F H Dawson for the applicant. Mr G J Cross for the respondent. |
SOLICITORS: | Jonathan C Whiting & Associates for the applicant. Abbott Tout Lawyers for the respondent. |
- [1]By leave, at the hearing of the original application, the applicant filed an amended application seeking various orders including the following:
- A declaration that the applicant’s Notice of Claim dated 28 May 2004 to the respondent under s. 280 of the WorkCover Queensland Act 1996 (“the Act”) is a complying Notice of Claim under that section;
- That the respondent comply with its obligations under s. 282(2) of the Act and thereafter otherwise comply with the provisions of Chapter 5 of the Act;
- A declaration that the applicant has been assessed in relation to his scarring pursuant to s. 197 of the Act; and
3A. That the respondent give the applicant a Notice of Assessment in relation to his scarring pursuant to s. 203 of the Act.
- [2]The court’s power to deal with a party’s failure to comply with Chapter 5 of the Act entitled “Access to Damages” is pursuant to s. 291 of the Act.
- [3]The respondent is a self-insurer under Chapter 2 Part 5 of the Act.
History of Claim
- [4]The applicant, was a meat slicer employed by the respondent and sustained a laceration to his left upper forearm (“the injury”) during the course of his employment on 2 December 2002.
- [5]He claimed workers’ compensation for the injury under the Act and his claim was accepted by the respondent.
- [6]He now wishes to pursue a claim for common law damages in respect of the injury.
- [7]Before a “worker” as defined under the Act is entitled to claim damages at common law for an injury sustained during the course of his employment he must comply with a number of requirements set out in Chapter 5 of the Act, and to be eligible in the first instance must bring himself within one of the provisions of s.253 of the Act.
- [8]In this instance the applicant received a Notice of Assessment dated 2 December 2003 for his “injury” pursuant to s.203 of the Act and this Notice was forwarded to the applicant by the respondent under cover of its letter of 2 December 2003.[1]
- [9]The “injury description” is stated as “Laceration to left upper forearm” and the applicant’s work related impairment (WRI) was assessed as “nil”.
- [10]This Notice of Assessment enabled the applicant to lodge his Notice of Claim[2] with the respondent being the first step in the pre-court procedures under Chapter 5 of the Act for any claimant for damages, and he did this under cover of letter dated 2 June 2004[3] from his solicitors. Accompanying the Notice of Claim were a number of other documents relevant to the claim in response to various information requested in the Notice.
- [11]The applicant answered Item 41 of the Notice which seeks “Particulars of all injuries alleged to have been sustained because of the event” in the following manner:
“Left forearm – laceration to left upper forearm | – 0%” |
Scarring resulting from laceration | – 10%” |
- [12]The respondent replied to the applicant’s Notice by its letter of 7 June 2004[4] stating among other things:
“At this stage we are not in a position to respond to your client’s Notice of Claim as the Notice of Claim has stated at Question 41 that your client has received a Notice of Assessment for scarring.”
- [13]The letter went on to point out to the solicitors that the applicant had “… not received a Notice of Assessment for scarring … and … that scarring is not an injury it is a consequence of the injury.” The letter further stated that if the respondent received “… a fresh Notice of Claim removing reference to scarring as an injury we will be in a position to consider a response pursuant to s. 282 of the WorkCover Queensland Act 1996.”
- [14]The claim then stalled with the current application before this court having been filed on 28 July 2004.
The Issues
- [15]The question of whether a claimant has lodged a complying Notice of Claim under s. 280 of the Act has been a feasting ground for lawyers since its inception, frequently in respect of issues which by the exercise of a little commonsense could be quickly resolved. With due respect to all parties concerned I would place the current application in this category.
- [16]It is specifically enshrined in the Act under s. 279 that the purpose of introducing the pre-court procedures in respect of common law claims was to expedite the resolution of such claims without their being unnecessarily delayed by cumbersome court processes (as used to be the case) thereby enabling claimants to receive their just entitlements expeditiously.
- [17]It seems to me that some who practise in this area of the law strive to achieve the opposite effect.
- [18]On my reading of recent authorities[5], the fact that a claimant may have included additional information in a Notice of Claim, which may contain the minimum (though sufficient) information prescribed by the Act and Regulations, does not preclude the Notice of Claim from being compliant provided that there has been a Notice of Assessment issued for the “injury” the subject of the claim.
Conclusion
- [19]Translating that principle to the current application I am of the opinion that the applicant’s Notice of Claim in this matter is a complying Notice of Claim insofar as Item 41 of the Notice is concerned as the only valid criticism which can be made of the applicant’s answer to this item is that it contains superfluous information to the core information required by that item. In view of this conclusion it is therefore not necessary for me to determine whether “scarring” is or is not an “injury” before the applicant may proceed with his claim.
- [20]While those who drafted the Act have yet again made what should be a simple matter complicated, where a claimant wishes to pursue a common law claim after having suffered a laceration injury resulting in scarring, by not clearly including the scarring as part of the injury, I am of the opinion that as the relevant sections presently read a worker is entitled to accept his “prescribed disfigurement” amount (based upon his scarring assessment) and still pursue his common law claim for damages even though his WRI for the “injury” is a “non-certificate injury” as defined in the Act. Ultimately his assessment of damages would necessarily include any cosmetic deficit he has suffered because of the prescribed disfigurement and any prior lump-sum payment he received would have to be refunded by him as a first charge on his recoverable damages pursuant to s. 278 of the Act.
- [21]I therefore make the following orders:
- It is declared that in respect of the applicant’s injuries set out in Item 41 of his Notice of Claim for damages dated 28 May 2004 the inclusion of the reference to “scarring” resulting from laceration did not preclude the Notice of Claim from complying with s. 280 of the Workcover Queensland Act 1996;
- That the respondent comply with its obligations under s. 282(2) of the Act within 14 days of the date of this order and thereafter otherwise comply with Chapter 5 of the Act;
- That the respondent pay the applicant’s costs of and incidental to this application as agreed or assessed on the standard basis under the District Court Scale.
Footnotes
[1] Affidavit of Jonathan Carl Whiting filed 28 July 2004.
[2] Exhibit “JCW1” to affidavit of Jonathan Carl Whiting filed 28 July 2004.
[3] Exhibit “JCW2” to Affidavit of Jonathan Carl Whiting filed 28 July 2004.
[4] Exhibit “JCW3” to Affidavit of Jonathan Carl Whiting filed 28 July 2004.
[5] Lau v. WorkCover Queensland (Court of Appeal decision, 19 July 2002); Barrass v. BHP Coal Pty Ltd (decision of Mullins J, 8 November 2002)