Johnson v Laing O'Rourke (BMC) Pty Ltd
[2009] QDC 10
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- Unreported Judgment
- Johnson v Laing O'Rourke (BMC) Pty Ltd[2009] QDC 10
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Johnson v Laing O'Rourke (BMC) Pty Ltd[2009] QDC 10
Johnson v Laing O'Rourke (BMC) Pty Ltd[2009] QDC 10
DISTRICT COURT OF QUEENSLAND
CITATION: | Johnson v Laing O'Rourke (BMC) Pty Ltd [2009] QDC 10 |
PARTIES: | ERRIN PETER JOHNSON Applicant AND LAING O'ROURKE (BMC) PTY LTD Respondent |
FILE NO/S: | OA 3544/09 |
DIVISION: |
|
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 30 January 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 January 2009 |
JUDGE: | McGill DCJ |
ORDER: | Application dismissed with costs. |
CATCHWORDS: | EMPLOYMENT LAW – Injury of Employee – plaintiff injured out of Australia – claim for damages – whether regulated by Personal Injuries Proceedings Act 2002. NEGLIGENCE – Personal Injuries – plaintiff injured out of Australia in course of employment – claim for damages against employer – regulated by Workers’ Compensation and Rehabilitation Act 2003. Personal Injuries Proceedings Act 2002 s 6(2)(c). Workers’ Compensation and Rehabilitation Act 2003 ss 10, 11, 32, 237. Watkin v GRN International Pty Ltd [2006] QCA 382 – applied. |
COUNSEL: | SM Gordon for the applicant DP De Jersey for the respondent |
SOLICITORS: | Hall Payne Lawyers for the applicant Sparke Helmore Solicitors for the respondent |
- [1]This is an application under s 59(2) of the Personal Injuries Proceedings Act 2002 (“the 2002 Act”) for leave to commence a proceeding after the expiration of the limitation period. It is opposed only on the ground that the 2002 Act does not apply to the proceeding proposed to be commenced by the applicant.
Background
- [2]The respondent company carries on business in Queensland, and elsewhere. The applicant had been employed by the respondent from 12 March 1997, remaining in that position until 2001.[1] In 2003 he returned to employment with the respondent and worked in the Brisbane office for approximately six months. He worked for the respondent in Vietnam from early 2004 until September 2004, during which time he suffered workplace stress and made a claim for compensation on WorkCover.[2] He remained employed by the respondent in Brisbane until 15 August 2005 when he went to work in Indonesia for a period. Nominally the posting was for one year, although there was an expectation that his work there would continue for a period of between five and 10 years; his family was to move to Indonesia to join him in January 2006. He returned on a break to Brisbane from 2 November to 16 November, then returned on 24 December for a Christmas break which was extended as a result of a diagnosis of work‑related anxiety and depression. He returned to Indonesia on 16 March 2006 but came home on 11 August 2006 and has not returned to employment since then.
- [3]Relevantly, the applicant is seeking to claim damages from the respondent for psychiatric injury alleged to have been suffered by him in the course of his employment with the respondent as a result of the negligence of the respondent. It is therefore a claim for damages for personal injury for the purposes of the 2002 Act, and would be covered by that Act, unless it is excluded, as the respondent submits, by s 6(2)(c). That subsection relevantly provides that:
“This Act does not apply to –
- (c)Injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by Chapter5 of that Act … .”
Is the claim excluded?
- [4]Turning to the Workers’ Compensation and Rehabilitation Act 2003 (“the 2003 Act”), the term “injury” is defined in s 32:
“An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.”
- [5]It is clear that the term includes psychiatric or psychological disorder, unless it falls within s 32(5). The applicant alleges that he developed anxiety and stress at work for a variety of reasons set out in paragraph 15 of his affidavit filed 20 January 2009, which are related to his employment with the respondent. That suggests that it is not the applicant’s case that he has suffered an injury within subsection (5), and no argument was advanced to that effect. On the face of it therefore he claims he has suffered a personal injury which arose out of or in the course of his employment to which the employment was a significant contributing factor. So the first requirement of paragraph (c), that the claim is in respect of an injury within the meaning of the 2003 Act, has been satisfied. It was not submitted that the injury suffered by the applicant was not an injury as defined.
- [6]The applicant is seeking to bring a proceeding against the respondent in Queensland in respect of employment which was at least commenced within Queensland, and in circumstances where the defendant can be sued because it is resident in Queensland. It seems to me that essentially the 2003 Act applies to any claim against an employer for damages for any injury which satisfies the requirement of s 32(1) unless there is some other provision in the Act, such as subsection (5), which excludes the injury from the operation of the Act. No such provision was identified and relied upon before me.
- [7]The next issue therefore is whether an entitlement to seek damages within the meaning of the 2003 Act for the injury is regulated by Chapter 5 of that Act. Damages are defined for the purposes of the 2003 Act by s 10, which provides:
“(1) Damages is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to—
- (a)the worker; or
- (b)if the injury results in the worker’s death – a dependent of the deceased worker.
- (2)A reference in subsection(1) to the liability of an employer does not include the liability against which the employer is required to provide under—
- (a)another Act; or
- (b)a law of another State, the Commonwealth, or of another country. …”[3]
- [8]The applicant is seeking to claim damages for an injury, as I have just explained, from the respondent, his employer, on the basis that the respondent is, independently of the 2003 Act, legally liable to pay him damages. He satisfies the definition of “worker” in s 11 of the 2003 Act, having worked under a contract of service.[4] All the requirements of the definition of damages are satisfied here, so what the applicant is seeking to claim in the proposed proceeding is “damages” within the meaning of the 2003 Act.
- [9]Chapter 5 of the 2003 Act includes s 235, which provides relevantly:
“(1) If a provision of an Act or a rule of law is inconsistent with this chapter, this chapter prevails.
- (2)All of the provisions of this chapter are provisions of substantive law.”
- [10]Section 237 then provides in subsection (1) that the various persons listed there, on the conditions specified, “are the only persons entitled to seek damages for an injury sustained by a worker.” What is sought in the present case is damages for an injury sustained by a worker, for the reasons already given. The applicant was “the worker” for the purposes of s 237, and therefore on the face of it if he has suffered an injury to which the 2003 Act applies, he is only entitled to seek damages for the injury if he can satisfy the conditions in one of the paragraphs (a) to (d). As it happens, he can satisfy paragraph (d), not having lodged an application for compensation for the injury, at least so far as the injury is constituted as that which happened to him while he was in Indonesia.[5]
- [11]The question of whether the entitlement to seek damages for the injury is regulated by Chapter 5 of the Act was illuminated by the decision of the Court of Appeal in Watkin v GRN International Pty Ltd [2006] QCA 382. In that case the applicant was employed by the respondent to work in a place outside Queensland, the Solomon Islands. While there he suffered injury, and applied for worker’s compensation, which claim was rejected. He then sought to claim damages against the respondent and brought a proceeding seeking to establish his entitlement to do so under the 2002 Act. It was held by the Court of Appeal that that Act did not apply. Keane JA said that the provisions of s 237(1) of the 2003 Act exhaustively described those persons who may seek damages in such circumstances, and that s 237(5) denies a person who is not within any of those descriptions any entitlement to seek damages from the employer for the injury in question: [20]. Subsection (5) provides:
“To remove any doubt, it is declared that subsection(1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.”
- [12]The court referred to various earlier authority, which was applied to the 2003 Act. The court, however, went on to recognise that there was a category of claims for damages against employers which were not regulated by Chapter 5 of the Act, so that injuries which based those claims were not excluded from the operation of the 2002 Act by s 6(2)(b). At [24] Keane JA referred to s 10 of the 2003 Act, quoted earlier, and said at [25] that a claim for damages in respect of a liability which falls within subsection (10)(2) will not be regulated by Chapter 5 of the 2003 Act, so that it would fall to be regulated by the 2002 Act, being not excluded by s 6(2)(b). This was consistent with the fact that such a liability was not one in respect of which employers were obliged to insure by that Act. In the present case, however, it was not submitted that any liability of the respondent for the injury alleged by the applicant was one which fell within s 10(2).[6] Accordingly, it is not one which is not regulated by Chapter 5 of the 2003 Act.
- [13]In Watkin the court went on to conclude that, since the applicant did not fall within any of the categories of person entitled to sue under s 237(1), because of s 237 of the 2003 Act he was not entitled to seek damages from the respondent for the injury in question. It followed that the injury relied on by that applicant fell within s 6(2)(c) of the 2002 Act, so that that Act did not apply.
- [14]In the present case, it was not submitted that s 237(1) meant that the plaintiff had no cause of action, but rather that there was a cause of action available[7] because the applicant had not applied for compensation so that his claim fell within s 237(1)(d), but it was one which was regulated by Chapter 5 so that the 2002 Act did not apply. In that respect, the position was different from Watkin, but what matters for present purposes is that it necessarily follows from the approach adopted in Watkin to the interpretation of paragraph (c) that the present applicant’s entitlement to seek damages within the meaning of the 2003 Act for the injury he alleges is regulated by Chapter 5 of the 2003 Act. It follows that the 2002 Act does not apply to his injury pursuant to s 6(2)(c), so I cannot make an order under s 59 of that Act in respect of the applicant’s claim.
The applicant’s submission
- [15]It was submitted on behalf of the applicant that s 115 of the 2003 Act applied, with the consequence that the 2003 Act did not apply in relation to the applicant’s claim for damages. Section 115 is concerned with the situation where there is some connection with another country, and provides an entitlement to compensation in certain circumstances if an injury is sustained in another country and at the time of the injury the worker’s principle place of employment was in Queensland. It was submitted for the applicant that at the time of his injury his principal place of employment was in Indonesia, with the result that s 115(1) was not satisfied so that compensation was not payable. It was also submitted that subsection (2) was not satisfied.
- [16]Section 115 is concerned with a worker’s access to compensation; it seems to me that it has nothing to do with an entitlement to damages arising “independently of this act”, or the question of whether Chapter 5 regulates that entitlement to damages, or perhaps the enforcement of that entitlement. It may be noted that in Watkin it was common ground that s 115 excluded a right to compensation for the injuries suffered by that applicant. As was pointed out also in Watkin at [8], that was not relevant to the outcome of the proceedings in that matter. It is therefore unnecessary for me to consider whether or not the applicant’s circumstances fell within s 115(1), a matter in issue between the parties, and raising questions of fact difficult to resolve on affidavit.
Conclusion
- [17]It seems to me that it necessary follows from the decision and reasoning of the Court of Appeal in Watkin v GRN International Pty Ltd (supra) that in the present case the 2002 Act does not apply to the applicant’s injury, because it is excluded by s 6(2)(c). Accordingly I cannot make an order under s 59 in respect of any proceeding by which the applicant seeks damages from the respondent employer in respect of that injury. The application cannot succeed, and is dismissed with costs.
Footnotes
[1]This is taken from the affidavit of Applicant filed 20 January 2009, and, in relation to some uncontroversial details, the affidavit of Long filed 21 January 2009.
[2]Affidavit of Long, Exhibit JFL-5.
[3]Subsection (3) goes on to exclude liability to pay damages for loss of consortium, which is not relevant here.
[4]A copy of the contract is Exhibit EPJ-1 to the applicant’s affidavit.
[5]Affidavit of Turner filed 21 January 2009, where it is said that such a claim could still be made.
[6]There was no evidence of any applicable law of Indonesia.
[7]Subject I expect to the operation of the Limitation of Actions Act in terms of enforcement.