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  4. Wilkinson v Stevensam Pty Ltd & Ors - [2005] QDC 339

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Wilkinson v Stevensam Pty Ltd & Ors[2005] QDC 339

Wilkinson v Stevensam Pty Ltd & Ors[2005] QDC 339

Wilkinson v Stevensam Pty Ltd & Ors [2005] QDC 339 

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilkinson v Stevensam Pty Ltd & Ors [2005] QDC 339

PARTIES:

PRISCILLA ROBERTA WILKINSON
Plaintiff
v
STEVENSAM PTY LTD
First Defendant
and
SAMANTHA ANN DICK and MARTIN LEONG
Second Defendants

FILE NO:

68 of 2004

PROCEEDING

Application for declarations

DELIVERED ON:

28 October 2005

DELIVERED AT:

Brisbane

HEARING DATES:

28 July and 27 October 2005

JUDGE:

Judge Brabazon QC

ORDER:

Declare District Court proceedings validly commenced.

CATCHWORDS:

WORKERS’ COMPENSATION – STATUTORY CONSTRUCTION – INTERPRETATION – Where the WorkCover Queensland Act 1996 was amended by the WorkCover Queensland Amendment Act 2001 – Where “an injury” or “an event” began prior to July 2001 and ended after July 2001 – Whether two different procedural regimes would apply to the same injury – Whether one injury, or multiple injuries of the same kind would have to be split into two claims.

WORKERS’ COMPENSATION – STATUTORY CONSTRUCTION – INTERPRETATION – Where a conditional damages certificate was issued  - Whether the conditional damages certificate was limited to injuries occurring to 30 June 2001.

WorkCover Queensland Act 1996 ss 262,

WorkCover Queensland Amendment Act 2001 ss 33, 34, 58, 588.

Re Reeves [2000] 2 Qd R 665

Rigney v Littlehales & Ors [2005] 2 QCA 252 

COUNSEL:

Mr J Lee for the plaintiff

Mr M O'Sullivan for the defendants

SOLICITORS:

Keith Scott & Associates for the plaintiff

WorkCover Queensland for the defendants

The Issues

  1. [1]
    This application raises two main issues. First, what is the effect of the amendments to the WorkCover Queensland Act in force on 1 July 2001, on a claim based on events before and after that date?  Secondly, is Mrs Wilkinson faced with an obstacle because the Conditional Damages Certificate does not cover any injury after 1 July 2001?

The Facts

  1. [2]
    On 23 November 2001, Mrs Wilkinson applied to WorkCover Queensland for compensation. Her written application in the usual form said that she worked for the first defendant, Stevensam, from 24 April 2001 to 21 October 2001. She was employed as a chef. She said that the nature of her injury was, “stressed, nervous, unable to sleep”.
  1. [3]
    In answer to an earlier question, about how the injury happened, she replied, “Stress from physical and verbal abuse by Steven Leong”. She described him as being involved in the event that caused her injury, as “Steven Leong (abuser)”. She said that she stopped work because of that injury, on 21 October 2001.
  1. [4]
    She said that she first experienced symptoms in August 2001. She consulted a doctor in October 2001. At the end of the form, when she was asked for any supplementary details, she said this:

“Please note – all personal details e.g. current address and contact numbers must remain confidential for my personal safety.  I have made a police statement re physical abuse and threats. …”

  1. [5]
    On 14 January 2003, Mrs Wilkinson instructed her solicitor, Mr Scott, about what he describes as a “psychiatric injury sustained by her whilst employed by the respondents”. He says he then commenced investigating a common law damages claim for her.
  1. [6]
    On 15 June 2004, he wrote to WorkCover. He referred to her name and claim number, saying:

“We refer to the above matter.  Please provide us with a Conditional Damages Certificates for an injury over a period of time between April 2001 and October 2001, with the major symptoms emerging in August 2001.”

  1. [7]
    WorkCover responded on 15 July 2004. A Conditional Damages Certificate was enclosed with the letter. The letter said this:

“I refer to your request for a Conditional Damages Certificate … (enclosed) … This certificate enables your client to start a proceeding for damages but this proceeding is stayed until:

  1. WorkCover Queensland makes the certificate unconditional, and
  1. Your client complies with (the pre-court procedures and settlement of claims process under the Act).

WorkCover will make the certificate unconditional after your client is assessed for permanent impairment and WorkCover gives your client a notice of assessment …”.

  1. [8]
    The conditional certificate, apart from formal matters, contained these statements:

“Conditional Damages Certificate

This certificate is issued under section 262 of the WorkCover Queensland Act 1996.

1. Worker’s details

Name  Priscilla Roberta Wilkinson

Statutory

claim number S010264823

2. Statutory claim details

Date of injury  Over a period of time from April 2001 to June 2001

Injury/injuries  Adjustment Disorder with Mixed Anxiety and Depressed mood

Date of issue  15th July 2004

3. Certificate details

I have issued this Conditional Damages Certificate under section 262 of the WorkCover Queensland Act 1996 (the Act) as:

  • you have an urgent need to bring proceedings for damages
  • WorkCover allowed your application for compensation for the injury; and
  • your permanent impairment from the injury has not been assessed under the Act.

This Conditional Damages Certificate enables you to start a proceeding for damages for the injury.  This proceeding is stayed until:

  • WorkCover makes the certificate unconditional; and
  • You comply with parts 5 and 6 of Chapter 5 of the Act.”
  1. [9]
    Mr Scott did not notice that the “date of injury” was said to be the end of June 2001.
  1. [10]
    On 11 August 2004 Mr Scott’s firm filed a claim and statement of claim in this Court. It alleges this:

“As a result of stress from physical and verbal abuse suffered by the plaintiff in her employment from 24 April 2001, the plaintiff suffered psychiatric anxiety and depression with the symptoms emerging in August 2001.”

The  injury alleged, and for which damages are sought, is a psychiatric injury.

  1. [11]
    WorkCover’s letter on 24 November 2004,said this:

“I refer to the Conditional Damages Certificate previously issued to your client.

I recently arranged for assessment of your client’s degree of permanent impairment and issued your client with a notice of assessment.

As you are aware, WorkCover Queensland previously issued your client with a Conditional Damages Certificate due to the urgent need to bring proceedings for damages.  As your client has now been assessed and given a Notice of Assessment, please find enclosed a damages certificate.

Please note that any legal proceedings your client commences in reliance on the Conditional Damages Certificate remain stayed until your client complies with parts 5 and 6 of ch 5 of the WorkCover Queensland Act 1996. …”

  1. [12]
    The enclosed certificate, in referring to the “Claim Details”, set out the same information as in the conditional certificate, above. It went on:

“This is a Damages Certificate … WorkCover has now given you a notice of assessment for the injury and the notice states whether you have a certificate or non-certificate injury …”

  1. [13]
    The notice of assessment is not in evidence in this application. It appears from the correspondence to have been dated 23 November 2004. It nominated an injury described as “adjustment disorder with mixed anxiety and depressed mood (0%).”
  1. [14]
    On 6 December 2004 Mr Scott wrote to WorkCover, enclosing the Notice of Claim for Damages required by section 280 of the Act. In that form, the period of injury was said to be 24 April 2001 to August 2001. The document included an annexure, which was a response to question 38 – “completely describe the details of the event resulting in the injury.”
  1. [15]
    In the annexure, she asserts that from the time she started work, on 24 April 2001, Mr Steven Leong (who appears to have been her boss) had constantly belittled, physically and verbally abused her on the basis of her size, sexual preferences and gender. Some details are given. She says that each working day was filled with stress. She first felt the symptoms of her injuries in or about August 2001, and sought medical advice on 12 October.
  1. [16]
    The first sign of difficulties appeared in WorkCover’s letter of 14 December 2004. It was said that there were several areas of non-compliance in the Notice of Claim. With regard to her claims about a psychiatric injury, and with regard to the Notice of Assessment, the letter went on:

“Please advise if (the claim for a psychiatric injury) correlates to the injury the subject of the Notice of Assessment.  If the injury is different to the one so described on the Notice of Assessment or for a period other than April-June 2001, kindly provide additional details.”

…

“The period nominated is suggestive that your client is claiming for an injury inclusive of 1st July 2001-August 2001.  I note your client was granted by WorkCover with a Conditional Damages Certificate on 15th July 2001 for the period of April-June 2001.  In the event your client is indeed claiming for a period after 1st July 2001, a separate Notice of Claim for Damages pursuant to the 1st July 2001 amendments of the WorkCover Act Queensland will be required, together with the correlating Section 7 declaration.  Presumably, your client has issued proceedings in terms of the Conditional Damages Certificate for the period April-30th June 2001.  Kindly provide a copy of the proceedings by reply.

I put your client on notice that WorkCover reserves its rights to rely on Section 308 of the WorkCover Queensland Act 1999 (as amended) and the provisions of the Limitation of Actions Act 1974.”

  1. [17]
    In a further letter dated 28 January 2005, WorkCover made some remarks to much the same effect:

“… A Conditional Damages Certificate was issued on 15th July 2004 and it became unconditional on 24th November 2004.  The certificate covered the period of April 2001-June 2001.  Accordingly your client is statute-barred … failing a successful application to extend the time to April-June 2001 I consider your client’s claim is fatally flawed. …”

  1. [18]
    Mr Scott replied, in a letter of 17 February 2005. He pointed out that his firm had never sought a certificate finalising on 30 June 2004. He referred to a telephone conversation with WorkCover’s officer, to the effect that the reason for the date of 30 June 2001 was WorkCover’s belief that it was not able to issue a conditional damages certificate after that date.
  1. [19]
    In later correspondence, WorkCover confirmed that approach. It is said that the 2001 amendments to the WorkCover Queensland Act removed applications for conditional damages certificates from 1 July 2001.  It is asserted that WorkCover had complied with the solicitor’s request in so far as it was permitted to do so by the amendments.  WorkCover denied being instrumental in contributing to any error on the solicitor’s part.
  1. [20]
    On 28 January 2005 WorkCover wrote and pointed out that the Notice of Assessment was for the period of April-June 2001. It also pointed out that the certificates covered the same period. In that case it was said, their client was statute barred.
  1. [21]
    Mr Scott replied, on 17 February 2005, to the effect that no one in his office realised that the conditional damages certificate was limited to the period ending 30 June 2001. He mentioned that a claim had been filed in the District Court on 11 August 2004. That well within three years of the significant dates, such as Mrs Wilkinson’s stopping work.
  1. [22]
    In a letter dated 17 February 2005, WorkCover confirmed some telephone advice to Mr Scott, to the effect that it had no power to issue a Damages Certificate after 30 June 2001. After that the correspondence shows disagreement between the parties, as to the effect of the certificates, referring only to injuries up to the end of June 2001.

The Amendments

  1. [23]
    The WorkCover Queensland Act 1996 was amended by the WorkCover Queensland Amendment Act 2001.  The amendments came into force on 1July 2001. They made many changes to the 1996 legislation. In particular, the conditional damages certificate provisions were repealed. Different steps were introduced, where there was urgency because of an approaching time limitation.
  1. [24]
    In this case, WorkCover asserts that it had no power to issue a conditional damages certificate after 1 July 2001, as those provisions were at an end.
  1. [25]
    Attention has to be paid to the transitional provision with regard to the 2001 Amending Act.  Section 58 of that Act says that s 588 will be inserted into the 1996 Act:

“Injury before 1 July 2001

“The provisions of this Act, as in force immediately before 1 July 2001, continued to apply in relation to an injury resulting to a worker from an event happening before 1 July 2001 as if the Amending Act had not been in acted.”

  1. [26]
    It is notable that the previous transitional provisions applied to the date of an injury. The focus is now on “an event”. The meanings of “event” and “injury” are to be found in sections 33 and 34 of the 1996 Act:

33.(1) An event is anything that results in injury, including a latent onset injury, to a worker.

  1. (2)
    An event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker.
  1. (3)
    A worker may sustain one or multiple injuries as a result of an event where the injuries happened immediately or over a period.
  1. (4)
    If multiple injuries result from an event, that taken to be happened in one event.
  1. (5)
    In this section “latent onset injury” means an insidious disease.
  1. [27]
    The explanatory notes say that the definition of “event” replaces the previous term, “incident”: “Event is a more recognised term in the insurance industry than incident; an event includes continuous or repetitive exposure to substantially the same conditions that result in an injury (e.g. industrial deafness) or a latent onset injury (e.g. asbestosis). It can also result in injuries to a number of persons such as in a catastrophe.”
  1. [28]
    There is a definition of “injury”:
  1. (1)
    “Injury” is personal injury arising out of or in the course of employment if the employment is a significant contributing factor to the injury.
  1. (2)
    ….
  1. [29]
    It can be seen that the transitional provision concentrate on an event. An event is important if it results in injury. The definition of “event” includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker. If there are multiple injuries, they are taken to have happened in one event.
  1. [30]
    Section 588 refers to an event happening before 1 July 2001. As an event may extend over a period of time, that expression could mean an event that starts and finishes before 1 July 2001. If it does not include all of an event which starts to happen before 1 July 2001, but finishes after that date, then that would have the consequence that two different procedural regimes would apply to the same injury – one before 1July 2001, and the other after 1 July 2001. One injury, or multiple injuries of the same kind, would have to be split into two claims. Each would be started in a different way. The first would require a conditional damages certificate. The second would require a notice under s 280A. Each would be subject to a separate assessment. (There has already been a separate assessment here, up to 30 June 2001.)
  1. [31]
    Parliament cannot have intended such an unworkable result. If an event starts to happen before 1 July 2001, then the transitional provision applies to it, even though it may finish after 1 July 2001. The amending act will not apply.

The Conditional Certificates

  1. [32]
    In this case, there is not yet formal evidence before the court as to exactly what happened to Mrs Wilkinson. The court has to act on the information in her written claims, on the assumption that those claims are valid. None of the medical reports are before the court at the present time. The nature of the claim which she asserts is that Mr Leong’s continuous behaviour before and after 1 July caused the injury which showed symptoms from August 2001.
  1. [33]
    It is submitted for WorkCover that this application should be decided only after a trial, to establish definitively the time and extent of any injury. That submission can be considered in the light of the fact that WorkCover has had an opportunity to lead further evidence in response to this application, but has not done so. For example, no medical reports have been tendered.
  1. [34]
    No doubt there are many applications at a similar stage, where the true facts are unclear. It is obviously impossible to always be certain about the facts, when the preliminary procedures are underway. There is nothing in the legislation to suggest otherwise. Claims are made and if there is an issue about the facts then it can be resolved at the trial of the court proceedings. Giving a conditional damages certificate does not prejudice WorkCover’s position. (This case is not like Rigney v Littlehales & Ors [2005] QCA 252, where a declaration finally decided a factual issue which should have been left for the trial).
  1. [35]
    It follows that her claim, for present purposes, has to be dealt with under the provision of the WorkCover Act, as they were before 1 July 2001. WorkCover was mistaken, in thinking that the injury had to be restricted to 30 June 2001.
  1. [36]
    Mistake or not, it was submitted for WorkCover that the conditional damages certificate was limited to an injury up to 30 June 2001. However, the surrounding facts do not support that construction of the document. It has to be read with the shared knowledge that her claim for compensation relied entirely on symptoms arising after 1 July 2001, that the compensation had been paid, and that her solicitors had asked for a conditional certificate up to August 2001. When responding, WorkCover Queensland made no effort to explain that, in its view, it had power to issue a certificate only up to 30 June. That would have been the sensible and courteous thing to do, and would have alerted any reader of the certificate to the significance of “June 2001”.
  1. [37]
    WorkCover’s conditional certificate refers to the “statutory claim details” of Mrs Wilkinson’s compensation application. Those claim details included an allegation that she stopped work because of the injury on 21 October 2001. WorkCover had no power to unilaterally alter those dates. Even if there had to be an assessment up to 30 June 2001, there was no justification for misstating the actual extent of her claim.
  1. [38]
    The certificate then goes on to describe the injury as an “adjustment disorder with mixed anxiety and depressed mood”. That can only be a reference to psychiatric difficulties that arose after August 2001, when she noticed the first symptoms. No part of her claim indicated any injury before 30 June. Before that date, there was nothing to be assessed.
  1. [39]
    To somebody familiar with the facts (especially Mrs Wilkinson and her solicitors), the certificate appropriately refers to the injury for which she was seeking compensation, and then adds a mistaken reference to a detail about the date of the injury. It is not surprising that Mr Scott did not realise the significance which WorkCover Queensland attached to it.
  1. [40]
    In truth, the certificate is not limited to an injury happening up to 30 June 2001. It is appropriate to cover the psychiatric injury referred to in her claim for compensation. The “certificate details” on the form indicates no such limitation.
  1. [41]
    It follows that no attack can be made upon the validity of the present proceedings. There is no limitation point affecting those things which happened after 11 August 2001. The proceedings were filed on 11 August 2004.
  1. [42]
    A declaration should be made, as requested in paragraph one of the application. Declare that the Toowoomba District Court proceedings 68/2004 have been readily commenced.
  1. [43]
    There is the question of costs. Ordinarily, they would follow the event. However, section 325 of the Act says:
  1. “(1)
    No order about costs, other than an order allowed under this section, is to be made by the court in the claimant’s proceedings.

….

  1. (4)
    An order about costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by one of the parties”

Re Reeves [2000] 2 Qd R 665 was mentioned as it was a case about delay, to which section 325(4) is directed. Here, the declaration is an interlocutory step in the proceedings, required because it was said that the proceedings were void. Curiously, costs cannot be recovered. There is no order about costs.

Close

Editorial Notes

  • Published Case Name:

    Wilkinson v Stevensam Pty Ltd & Ors

  • Shortened Case Name:

    Wilkinson v Stevensam Pty Ltd & Ors

  • MNC:

    [2005] QDC 339

  • Court:

    QDC

  • Judge(s):

    Judge Brabazon QC

  • Date:

    28 Oct 2005

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
Re Reeves [2000] 2 Qd R 665
2 citations
Jump To
Cite 1 - [2000] 2 Qd R 665
Cite 2 - [2000] 2 Qd R 665
Rigney v Littlehales [2005] QCA 252
2 citations
Jump To
Cite 1 - [2005] QCA 252
Cite 2 - [2005] QCA 252

Cases Citing

Case NameFull CitationFrequency
Wilkinson v Stevensam Pty Ltd [2006] QCA 88 13 citations
1

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