Bakhit v Brisbane City Council
[2014] QDC 240
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- Unreported Judgment
- Bakhit v Brisbane City Council[2014] QDC 240
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Bakhit v Brisbane City Council[2014] QDC 240
Bakhit v Brisbane City Council[2014] QDC 240
DISTRICT COURT OF QUEENSLAND
CITATION: | Bakhit v Brisbane City Council [2014] QDC 240 |
PARTIES: | OSMAN BAKHIT (Applicant) and BRISBANE CITY COUNCIL (Respondent) |
FILE NO/S: | Brisbane 2576/14 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 22 October 2014 |
DELIVERED AT: | Townsville |
HEARING DATE: | 16 July 2014 and 20 August 2014 |
JUDGE: | Durward SC DCJ |
ORDERS: |
|
CATCHWORDS: | EMPLOYMENT LAW – WORKERS' COMPENSATION – COMMON LAW PROCEEDING TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – ASSESSMENT OF INJURY – INJURY AND EVENT - Injury to employee – liability of employer – statutory preconditions – whether notice of claim referred to same injury as notice of assessment – cause irrelevant – where focus of notice of assessment is upon injury and not event – concurrent statutory compensation claim – whether conflict exists where statutory appeal is on foot – whether declaratory relief available in that circumstance. |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003 sections 237, 258, 275 and 297 |
CASES: | Andersen v Aged Care Employers Self Insurance [2014] QSC 101; Lincoln v Qantas Airways Limited [2012] QDC 278; Sayers v Hanson t/a All Guard Security Services [2011] QSC 70; Ley v Woolworths Limited [2013] QSC 59; MacDonald v Teys Australia Distribution Pty Ltd [2013] QDC 139; Bell v Australian Meat Holdings Pty Ltd 2003] QCA 209; Muckermann v Skilled Group Limited & Anor [2013] QSC 51; Dowd v Swift Australia Pty Ltd [2008]QCA 228; Berhane v Woolworths Limited [2013] QDC 194; Otto v Mackay Sugar Ltd & Anor [2011] QSC 215; Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421; Edwards v Santos Ltd [2011] 85 ALJR 464; Woolworths Ltd v Rodionov [2011] QDC 169; Lincoln v Qantas Airways Ltd (supra) (No. 2) [2012] QDC 351 |
COUNSEL: | R Morgan of counsel for the Applicant M T O'Sullivan of counsel for the Respondent |
SOLICITORS: | Shine Lawyers for the Applicant Brisbane City Council Legal Practice for the Respondent |
- [1]The Applicant filed an Originating Application on 08 July 2014 (superseded by an Amended Originating Application filed by leave on 16 July 2014, the first date of hearing of the Application) claiming, so far as is relevant:
- “2.A declaration that the Applicant is entitled to seek damages for the injury which is the subject of his Notice of Claim sworn on 25 October 2013, pursuant to s 237(1)(a)(i) of the Workers' Compensation and Rehabilitation Act 2003 (“the Act”).
- 3.A declaration pursuant to s 297 of the Act that the Applicant’s Notice of Claim sworn on 25 October 2013 complies with s 275 of the Act.”
- [2]This is a case that involves, in simple terms, the distinction (if there is one) between an “injury” and an “event”, in the context of the Act.
- [3]The application as amended is opposed by the Respondent.
The Notice of Claim for Damages
- [4]On 25 October 2013 the Applicant made a Notice of Claim for Damages for personal injury (an injury to his lower back) sustained whilst working for the Respondent as a labourer on 13 July 2011, between about 7 a.m. to 7.30 a.m. at Bartleys Hill Reservoir, Ascot, Brisbane. The Respondent disputes the claim.
- [5]The Applicant described the details of the event resulting in the injury, in the Notice of Claim for Damages, as follows:
- “38.Completely describe the details of the event resulting in the injury.
At the time of the event I was at work, removing temporary security fencing.
After unscrewing and stacking barriers, I walked over to a heavy slab of concrete that two of the barriers had been resting on when they were erected.
The concrete slab is approximately 50 cm wide and weight approximately 35 kg to 40 kg.
I squatted to the ground directly in front of the concrete slab, grabbed it on either side and picked it up.
The surface of the ground was uneven and there were rocks and pebbles gathered across the ground.
I stood up holding the concrete slab and as I took a step, my left leg slipped underneath me.
I tried to maintain my balance and not drop the concrete slab. My body twisted and I felt sudden, intense pain in my lower back and did have to drop the concrete slab.”
- [6]He claims to have suffered an intervertebral L4/5 disc prolapse with bilateral sciatica. He had previously suffered lower back pain in 2008 due to work-related activity.
The Compensation Application
- [7]The Applicant had made a Compensation Application pursuant to s 132 Workers' Compensation and Rehabilitation Act 2003 (“the Act”) on 09 December 2011 for an injury sustained whilst working as a pipe layer for the Respondent on 01 September 2011 when he was “lifting blocks of concrete (temporary fence panel legs) with another employee (Tuiti Joel) at Bartleys Hill Reservoir, Ascot”.
- [8]It is immediately apparent that there is a gap in time between the dates of the relevant event in the Compensation Application (01 September 2011) and in the Notice of Claim for Damages (13 July 2011); and the date of the Compensation Application (09 December 2011) and the date of the Notice of Claim for Damages for Personal Injury (25 October 2014).
- [9]The Compensation Application was admitted by the Respondent “on the basis of a work induced aggravation of a pre-existing condition”, on the premise that the symptoms were apparent prior to the date of the relevant event, the Applicant having consulted his general practitioner Dr Ibrahim complaining of lower back pains and bilateral sciatica, in July 2011.
- [10]The degree of work related impairment assessed for an injury described as a “prolapsed intervertebral disc in the lumbar spine” on 01 September 2011, was 25 per cent. An offer of compensation in the sum of $71,905 was made pursuant to s 187 of the Act, on 27 June 2013. This offer was accepted by the Applicant.
The claims
- [11]Insofar as the Notice of Claim for Damages for a Personal Injury sustained on 13 July 2011 is concerned, the Respondent asserted that it was non-compliant. The Respondent also assessed that the Applicant had a Notice of Assessment for an injury sustained on 01 September 2011 and that it was the subject of a Compensation Application made on 09 December 2011. Hence the Respondent said that a determination would need to be made pursuant to s 258 of the Act.
- [12]Section 258 of the Act relevantly provides that:
- “258.Access to damages if claimant has not lodged application for compensation
- (1)The claimant may seek damages for an injury only if the insurer –
- (a)decides that the claimant –
- (i)was a worker when the injury was sustained; and
- (ii)has sustained an injury; and
- (b)gives the claimant a notice of assessment for the injury.
- (2)For subsection (1), the insurer must have the degree of permanent impairment assessed under chapter 3, part 10 and give the claimant a notice of assessment.
- (3)Chapter 3, part 10 applies to the assessment, but only for the purpose of assessing the degree of permanent impairment for the purposes of part 12.
- (4)To remove any doubt, it is declared that the assessment does not give the claimant an entitlement to lump sum compensation under chapter 3, part 10, division 3 for the injury.
- (5)The insurer must make a decision or decisions for the purpose of subsection (1) within three months after –
- (a)the complainant gives, or is taken to have given, a complying notice of claim; or
- (b)the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275, with or without conditions; or
- (c)a court makes a declaration under s 297.
- (6)If the insurer is WorkCover, WorkCover must notify the claimant and the claimant’s employer of any decision it makes for the purpose of subsection (1).
- (7)If, for any injury, the insurer decides that the complainant –
- (a)was not a worker when the injury was sustained; or
- (b)has not sustained an injury;
the notification must be include written reasons for the decision.
- (8)If, for any injury, the insurer does not make a decision for the purpose of subsection (1) within the time mentioned in subsection (5), the claimant may have the failure to make a decision reviewed under chapter 13.
- (9)A person aggrieved by a decision made by the insurer for the purpose of subsection (1) may have the decision reviewed under chapter 13.
- (10)For any assessment mentioned in subsection (1) made by the insurer with which the person does not agree, section 186 applies.”
The issues
- [13]The issues in the application are:
- 1.Was the date of “injury” in the Notice of Assessment incorrect?
- 2.What was the correct date of the “injury”?
- 3.Was the “injury” notified in the Notice of Claim for Damages an “injury” within Ch 1 Pt 4 of the Act?
- 4.Was the Applicant precluded from bringing a common law claim under the Act in respect of the 13 July 2011 incident (an intentional use of a neutral term) because of his acceptance of the Notice of Assessment (subject to any decision by the Workers' Compensation Regulator on review) overturning the assessment?
- 5.Was there a “new” injury suffered on 01 September 2011, in respect of which a new claim could be made, as distinct from there being an aggravation of a possible earlier injury on 01 September 2011?
- 6.Does the Act distinguish “injury” from “event”, in the context of the Applicant’s assertions that there was only ever one “event”; that there had been an error in recalling the date of the “injury”; and that there was only one “injury”?
- 7.What, if any, is the relevance of the Applicant’s Application for review by the Workers' Compensation Regulator (of the Notice of Assessment) made on 09 May 2014, which was pending determination by the Workers' Compensation Regulator pursuant to the Act as at the date of the hearing of this application, as a consequence of the Applicant having sought and obtained an extension of time for making the Review Decision until after the hearing and determination of this application?
The Documents
- [14]The Compensation Application was not completed by the Applicant although he did sign the application. In it, it is stated that the injury occurred “approx 01/09/11”. The Applicant has sworn that at the time the forms were completed he was scared and confused and could not understand all of the conversation of all of those present and would mix up the names of months of the year. The interpreter who was present spoke Iraqi-Arabic (the Applicant spoke Sudanese-Arabic and says he is not proficient in the English language) and he has sworn that he could not understand the interpreter.
Medical consultation
- [15]The Applicant’s general practitioner Dr Ibrahim says he was consulted by the Applicant on 16 July 2011, when the injury was reported. The Applicant history was that he suffered the injury three days earlier, on 13 July 2011.
- [16]Hence the relevance, so far as the Respondent is concerned, of the alleged dilemma that I have referred to in paragraph [7], supra.
Submissions
1. Applicant
- [17]The Applicant’s initial submission is that he had only ever suffered a single material “injury”; that the Notice of Claim for Damages is compliant; and that the declarations sought should be granted.
- [18]In a supplementary submission, the Applicant’s counsel submitted that the Notice of Claim for Damages was made for the single injury, irrespective of any error that may have been made about the date of the event giving rise to the injury, the latter being an issue for trial; that the Notice of Claim for Damages was compliant; that the Notice of Assessment having been issued, the Applicant had an ‘accrued right’ to commence proceedings for damages; and that workers compensation had been paid to the Applicant (which would only happen if there was a compensable injury), prior to the Respondent’s decision to deny that the Applicant had suffered a workplace injury.
- [19]It was submitted that the declarations should be made.
2. Respondent
- [20]The Respondent’s initial submission was that declaratory relief was not suitable and was inappropriate, there being a concurrent review of the Notice of Assessment on foot and no urgency otherwise being shown; that there appeared to have been two events giving rise to an injury; and that whether the Applicant’s employment was “a significant contributing factor to the injury” required a consideration of relevant evidence, this not being a case of an “over a period of time” injury, in the context of the Applicant not having made an application for compensation in respect of any alleged injury on 13 July 2011.
- [21]It was submitted that whether an “injury” for the purpose of the Act and whether the employment was a significant contributing factor to the injury, required a hearing of evidence so as to determine whether the injury was the “same” as that referred to as occurring on the dates in the notice of assessment and the notice of claim for damages respectively.
- [22]It was submitted that the injury, a significant disc protrusion warranting a 25% WRI, nevertheless did not prevent the applicant from working in heavy labouring activities.
- [23]In a supplementary submission, the Respondent’s counsel submitted that the Workers' Compensation Regulator had:
- “(i)determined that the Applicant had sustained a personal injury; that the personal injury did not arise out of his employment; that his employment was not a significant contributing factor to his personal injury; and in consequence confirmed the decision of the self‑insurer to reject the Applicant’s Notice of Claim for Damages in accordance with ss 32 and 258 of the Act”
and submitted that the Applicant’s ‘right’ was to appeal that decision to the Queensland Industrial Commission. The Court had no jurisdiction to “act contrary to” that decision; that it was inappropriate to have the same matter determined in this Court by way of a declaratory relief; and that in any event there was an evidentiary problem, namely Dr Boys had opined (in a conference with Mr O'Sullivan and his instructing solicitor) that the disc protrusion was “not the same condition or injury” for which the Applicant consulted Dr Ibrahim on 16 July 2011, because if he had suffered the injury three days prior to the consultation with the general practitioner, he could not have continued to work. However, the Applicant had worked in his job after that date.
- [24]It was submitted that the application for a declaration should be dismissed.
Adjournment of hearing
- [25]On the first day of the hearing I adjourned the application pending the decision of the Workers' Compensation Regulator. That decision was subsequently made on 04 August 2014. The Regulator affirmed the decision of the Respondent.
The Decision of the Workers' Compensation Regulator
- [26]The review was to determine whether the applicant sustained an “injury” within the meaning of s 32 of the Act. The regulator considered the he should determine whether it was more probable than not that the applicant sustained a personal injury; whether the personal injury arose out of or in the course of his employment; and whether the employment was a significant contributing factor to the injury.
- [27]The regulator was satisfied that the applicant sustained a personal injury in the form of an L4/5 disc protrusion. The regulator reviewed the medical evidence but did not consider the certificate (issued by Dr Ibrahim) and medical records were sufficient in establishing that the applicant sustained an injury to his lower back on 13 July 2011 as a result of the work duties he performed that day. The regulator continued in his reasons for decision:
“The evidence before me establishes throughout the course of his statutory claim, Mr Bakhit reported a different date of injury to medical practitioners and to City WorkCover consisting of September 2011, October 2011, November 2011 as well as a gradual increase in symptoms over time. It was not until two years after he lodged the claim did Mr Bakhit report the injury occurred on 13 July 2011.
I recognise Shine Lawyers submit ‘Mr Bakhit’s English was poor and you regularly confused months and dates’. However, I consider there is a lack of medical evidence to confirm a relationship between Mr Bakhit’s injury and his work duties on 13 July 2011.
I also recognise the timesheets Shine Lawyers provided established Mr Bakhit worked on 13 July 2011, however they do not provide any evidence to indicate that Mr Bakhit sustained an injury as a result of his work duties that day.
Moreover, I note in the statutory declaration Mr Bakhit reports he attended upon Dr Ibrahim to ask when he first presented for a back injury after seeking legal advice on 8 July 2013. Whilst he states Dr Ibrahim told him it was 16 July 2011 and then he instructed his solicitors that the injury occurred on 13 July 2011, Mr Bakhit has not provided an explanation as to why he determined the injury occurred on 13 July 2011.
The onus of proof remains on Mr Bakhit during the review process. The required level of proof on these matters is on the balance of probabilities, not on the balance of possibilities, being that it must be more probable than not that the injury arose out of the course of his work duties performed on 13 July 2011 and that his employment was a significant contributing factor to his injury.
On review of the available evidence, whilst I acknowledge Mr Bakhit attended Dr Ibrahim and reported lumbar pain on 16 July 2011, there is no evidence before me to indicate during this appointment Mr Bakhit reported he injured his back as a result of his work duties on 13 July 2011. Mr Bakhit has also been inconsistent in his reporting of the date of injury to City WorkCover and medical practitioners and there is no contemporaneous evidence before me to establish Mr Bakhit sustained the injury as a result of his work duties on 13 July 2011.
After careful review of the available medical and factual evidence, I am not satisfied, on the balance of probabilities, Mr Bakhit’s personal injury arose out of his employment or that his employment was a significant contributing factor to his personal injury.”
- [28]The applicant filed an appeal against that Decision, to the Queensland Industrial Commission on 01 September, 2014.
Legislation
- [29]The further relevant statutory provisions are sections 237, 275 and 297 of the Act.
- “237.General limitation on persons entitled to seek damages
- (1)The following are the only persons entitled to seek damages for an injury sustained by a worker—
- (a)the worker, if the worker—
- (i)has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than 5%; or
- (ii)has a terminal condition;
- (b)a dependant of the deceased worker, if the injury results in the worker’s death.
- (2)The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.
- (3)If a worker—
- (a)is required under section 239 to make an election to seek damages for an injury; and
- (b)has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;
the worker is not entitled to seek damages.
- (4)However, subsection (3) does not prevent a worker from seeking damages under section 266.
- (5)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.”
- “275.Notice of claim for damages
- (1)Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period mentioned in section 302(1).
- (2)The claimant must—
- (a)give the notice of claim in the approved form to the insurer at the insurer’s registered office; and
- (b)if the worker’s employer is not a self-insurer, give a copy of the notice of claim to the worker’s employer.
- (3)The notice must include the particulars prescribed under a regulation.
- (4)The claimant must state in the notice—
- (a)whether, and to what extent, liability expressed as a percentage is admitted for the injury; or
- (b)a statement of the reasons why the claimant can not admit liability.
- (5)Any statement made by the claimant in the notice that is in the claimant’s personal knowledge must be verified by statutory declaration.
- (6)The notice must be accompanied by a genuine offer of settlement or a statement of the reasons why an offer of settlement can not yet be made.
- (7)The notice must be accompanied by the claimant’s written authority allowing the insurer to obtain information, including copies of documents relevant to the claim, and in the possession of—
- (a)a hospital; or
- (b)the ambulance service of the State or another State; or
- (c)a doctor, provider of treatment or rehabilitation services or person qualified to assess cognitive, functional or vocational capacity; or
- (d)the employer or a previous employer; or
- (e)persons that carry on the business of providing workers’ compensation insurance, compulsory third party insurance, personal accident or illness insurance, insurance against loss of income through disability, superannuation funds or any other type of insurance; or
- (f)a department, agency or instrumentality of the Commonwealth or the State; or
- (g)a solicitor, other than where giving the information or documents would breach legal professional privilege.
- (8)The notice must also be accompanied by copies of all documents supporting the claim including, but not limited to—
- (a)hospital, medical and other reports relating to the injury sustained by the worker, other than reports obtained by or on behalf of the insurer; and
- (b)income tax returns, group certificates and other documents for the 3 years immediately before the injury supporting the claimant’s claim for lost earnings or diminution of income-earning capacity; and
- (c)invoices, accounts, receipts and other documents evidencing the claimant’s claim for out-of-pocket expenses; and
- (d)for a claimant other than a worker with a terminal condition or a dependant—the notice of assessment for
the injury sustained by the worker.”
- “297.Court to have made declaration about noncompliance
- (1)Subject to section 296, the claimant may start the proceeding if the court, on application by the claimant dissatisfied with the insurer’s response under section 278 to a notice of claim, declares that—
- (a)notice of claim has been given under section 275; or
- (b)the claimant is taken to have remedied noncompliance with the requirements of section 275.
- (2)A declaration that a claimant is taken to have remedied noncompliance with section 275 may be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of section 275.”
The evidence about the timing of the event
- [30]The applicant had consulted a number of medical practitioners over time about the event in which the injury occurred. Various dates were described by him, namely: 09 October 2011, 10 November 2011, October 2011, 06 July 2011, 01 September 2011 (to Dr Boys on 13 July 2012); and 13 July 2013 (to Dr Campbell on 30 October 2013).
- [31]A note in the applicant’s records of a consultation in December 2011 at the Princess Alexandra Hospital reported “12 m. of lower back pain radiating down the left side of his left leg. He has had no injury that brought this on and it has gradually built up over time.” Dr Ibrahim records various consultations about aches and pain and recorded a complaint by the applicant, of lower back pain on 06 December 2008. These matters are not determinative about the date of any relevant injury in my view. They are matters that customarily would be the subject of evidence at a trial. There is nothing remarkable about that type of history where there may be some inconsistency, in the retelling or recollecting, of the precise timing of the event. The applicant seems to have been able to continue to work through the latter periods, but was on his account impeded after the latest relevant event described by him and could not work as he had done before.
Authorities
- [32]In Andersen v Aged Care Employers Self Insurance [2014] QSC 101 there was an application about two injuries, one on 22 August 2007 and the other on 23 August 2007. It transpired that the applicant had not worked on the 22 August 2007. He accepted that he had been mistaken and that the date must have been 20 or 21 August 2007. Compensation was paid for lower back injury having been sustained on 23 August 2007, on the basis of exacerbation of symptoms from pre-existing degeneration. However, the insurer alleged that because of the reference to the date 22 August 2007 in the notice of claim for damages as the date of the injury, and the date in the notice of assessment being 23 August 2007, the notice for claim for damages was not compliant.
- [33]Dalton J at [23] wrote:
“An injury is not the means by which damage is inflicted, but is the effect on the person of the worker of an event … . The injury in the application for compensation was described as an L5/S1 prolapsed disc. This was accepted. The applicant was complaining only in respect of one injury and one set of symptoms. Hence there was one injury assessed for an event which may have occurred on the 22nd or 23rd of the relevant month.”
- [34]Her Honour said at [28] that the task of the employer in issuing a notice of assessment was “to assess injury and impairment, not to make findings about what events caused the injury or the date those events might have occurred.”
- [35]Her Honour held that the injury in the notice of assessment was the same injury as described in the notice of claim for damages and made a declaration that the applicant was entitled to seek damages for the injury in the notice of claim pursuant to section 237(1)(a)(i) of the Act.
- [36]See also Lincoln v Qantas Airways Limited [2012] QDC 278 per Samios DCJ, where there was one injury (a disc prolapse) but eight claims for compensation made over time. Hence the injury was an “over a period of time” injury covering approximately six years. His Honour said that the date of injury in the notice of assessment was not conclusive. His Honour referred to Sayers v Hanson t/a All Guard Security Services [2011] QSC 70; and to Andersen (supra).
- [37]The thrust of all of those cases is that, so far as is relevant, the issuing of a notice of assessment was to assess injury and impairment, not to make findings about what events caused the injury or the date those events might have occurred.
- [38]In Ley v Woolworths Limited [2013] QSC 59 there was a compensation application in which the applicant did not recall any specific incident but nominated 04 January 2011 as the date upon which the injury occurred. There was a medical report that referred to “gradual onset of pins and needles”. The notice of assessment referred to the date of 04 January 2011 and “exacerbation of pre-existing degeneration of the cervical spine”. The self-insured employer denied compliance. However, North J made a declaration of compliance on the basis that there was the same injury referred to in the application for compensation and in the notice of claim for damages.
- [39]In MacDonald v Teys Australia Distribution Pty Ltd [2013] QDC 139 the applicant sought a Declaration the he was entitled to seek damages. There were two incidents. The injuries were described differently by medical practitioners, but all referred to the thoracic/lumbar spine injuries. Samios DCJ followed North J in Ley v Woolworths (supra) in respect of there being no suggestion that there had been more than one injury. His Honour said that arguments about the nature, extent and cause of injury were more appropriately dealt with at trial. He declared that the applicant was entitled to seek damages in accordance with s 237(1)(a)(i) of the Act.
- [40]This decision also reflects the role of the notice of assessment process: that is, whether the injury has been assessed, not the event which caused it. A similar approach was taken in Bell v Australian Meat Holdings Pty Ltd [2003] QCA 209; Muckermann v Skilled Group Limited & Anor [2013] QSC 51; Dowd v Swift Australia Pty Ltd [2008] QCA 228; and Berhane v Woolworths Limited [2013] QDC 194.
- [41]In Otto v Mackay Sugar Ltd & Anor [2011] QSC 215 a declaration would have been made by Douglas J, but for the fact that the factual basis was not made out. His Honour found that there was no specific time or date of injury even though in an application for review of a statutory decision, a time and date was referred to in respect of the timing of the relevant event, but may not have been made by the applicant himself. The evidence was that the medical issue had developed over a period of time rather than having been discretely caused in a specific incident at a specific time.
- [42]Otto is distinguishable from circumstances that I am required to resolve here. His Honour relevantly wrote, at [17]:
“In other words, to decide that ‘the injury’ referred to in the workers’ compensation claim was not the same as the one sought to be litigated in the common law damages claim merely because the application for workers’ compensation, which may not have been the applicant’s own document, mistakenly nominated a specific date as the date of injury would lead to an artificial result but ignore the true facts.”
- [43]In Otto his Honour wrote, in reference to the jurisdictional matter,
- “[18].… I was not directed to any section purporting to limit the right to grant declaratory relief in this Court, although the existence of a statutory alternative remedy is certainly relevant to the issue whether I should exercise my discretion to grant such relief.”
His Honour footnoted in respect of the latter statement, Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421; and Edwards v Santos Ltd [2011] HCA 8 at [36]-[39].
- [44]In Forster v Jododex the High Court considered the issue of declaratory relief in the context of a separate statutory proceedings being conducted by a Mining Warden. Walsh J wrote, at p 427:
In my opinion, when a special tribunal is appointed to it by statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which depended entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.”
and Gibbs J, at pp 435-436, wrote:
“The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, ‘under O. XXV, r 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion … however, the jurisdiction may be ousted by statute, although the right to a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words … in the present case it was submitted that the act reveals an intention that the decision of a warden to grant or refuse an authority to enter should not be subject to review in proceedings for a declaration under s. 10 of the Equity Act.
With all respect, I find it difficult to see any reason why the Court should have lacked jurisdiction to declare that Jododex held the right which it claimed, mainly the right of the holder or an expiration licence validly renewed.”
- [45]In Edwards v Santos Ltd (2011) 85 ALJR 464, Heydon J discussed the jurisdiction to grant declaratory relief, at [36] – [39]. His Honour dealt with, inter alia, the consequences of declaratory relief not being granted and although the circumstances he was considering were different factually and contextually, there is nevertheless a consequence of significance that the applicant potentially faces if the declaration is not made here, where the respondent has issued a notice of assessment in respect of the one injury claimed by the applicant.
Discussion
- [46]The respondent submitted that this court cannot “overturn” or “review” a decision by the workers’ compensation regulator. Be that as it may, there are specific differences in these two jurisdictions.
- [47]The statutory review process was conducted on the papers by an officer of the Workers’ Compensation Regulator. Conflicts in factual matters and medical opinion were not the subject of testamentary evidence that was subject to testing by cross-examination. The parties were entitled to and did write submissions for consideration by the regulator, or at least the applicant’s solicitors did.
- [48]The view of the workers’ compensation regulator is expressed in respect of a statutory compensation scheme. A notice of claim for damages is made pursuant to common law. Different considerations apply. A decision in this court, based on the notice of assessment that was issued, does not have the character of and is not an appeal from the Workers’ Compensation Regulator.
- [49]True it is that on the first day of the hearing I expressed concern that the impending decision of the workers’ compensation registrar in the review instituted by the applicant might lead to conflicting decisions. The hearing of the application was adjourned for that reason.
- [50]However, I have had an opportunity to reflect on that concern and it seems to me that there is no issue of conflict.
- [51]I note that Douglas J in Otto referred to an inability to review the decision made under s 540 of the Act because Q-Comp had no authority to review a decision that a person was not entitled to seek damages, the applicant having previously lodged an application for compensation for the injury. With respect, the context of that statement is not entirely clear but there is a potentially broader and more exhaustive enquiry in this court than that conducted by the workers’ compensation regulator.
- [52]The making of declarations in this court, as sought by the applicant, allows the claim to proceed to trial. At trial the evidence is given by way of witness testimony, subject to testing by cross-examination; and by relevant documents tendered to the court upon which there may be cross-examination. There are pleadings filed that define the issues. The lawyers of course make submissions, written and/or oral, to the court on those issues about the evidence and the pleadings.
- [53]The respondent relied on observations of Dr Boys, made in the course of a telephone conversation with Mr O'Sullivan and his instructing solicitor on 16 July 2014. Dr Boys had assessed the records of general practitioner Dr Ibrahim, on the basis of assumptions and without knowing what the applicant would have said specifically about his having continued to work after the relevant date, on his account, of the injury. Dr Boys also expressed doubt that Dr Ibrahim’s diagnosis of sciatica in July 2007 was in fact correct.
- [54]The applicant, in an affidavit sworn on 20 August 2014, said that he had attended Dr Ibrahim on 16 July 2011 for the pain he was suffering after lifting a concrete block at work. He was prescribed medication and continued to work for about two months. The pain became worse and he saw Dr Ibrahim again and was sent for scans. The applicant says that every day that he worked after the injury, he was in pain and the pain was getting worse. He tried not to do as much work as he did before the injury. He was afraid to tell his supervisor about the injury because he believed this would make his job uncertain and because Dr Ibrahim had not told him to stop working. It was after the scans were completed that he was told that he did have a serious problem with his back.
- [55]Dr Boys stated in the telephone conversation that the fact that the applicant continued to work in July and August and into September “without restriction” was such that if he had suffered an acute disc protrusion in July, he could not have been able to work. He said it would not be possible to be asymptomatic as a labourer for three months. He said that an acute protrusion in July with no symptoms or disability or minimal symptoms or disability until September when it became worse, was not possible. The CT examination in October 2011 demonstrated an acute disc derangement rather than a chronic disc.
- [56]On the other hand, Dr Campbell, in the course of a telephone conversation with the applicant’s lawyer on 20 August 2014, said – according to the lawyer’s notes of the conversation - that “someone can work with a disc prolapse for months after sustaining this injury. People often work with symptoms of pain and just battle on.” He said that pain medication and avoidance of work that exacerbated pain levels, “was consistent with what happens to many people especially as there is often, as there was in this case, a delay in diagnosis". The applicant had told him that he had left sciatica at the time of the injury which was consistent with a disc prolapse occurring at this time.
- [57]It seems to me that Dr Boys was placed in an unenviable position in being asked to comment on documentary material without having seen the applicant (at least more recently), taken a specific history from him relevant to the issue discussed with the lawyers and assessed the condition in a more broad and comprehensive way. I accept that it is open to say the same about Dr Campbell, although he was given the applicant’s account of how he coped post-injury.
- [58]However, that the respondent relies substantially, as it seems to me to be the case, upon the telephone conversation with Dr Boys on such an important matter seems to me to be totally inadequate. I cannot accept his opinion on that basis, particularly when one considers the opinion of another orthopaedic Specialist, Dr Campbell. The only way in which the opinion of Dr Boys could be properly resolved is by evidence at a trial.
- [59]In the circumstances of this case, a notice of assessment there having been issued, and then the respondent having attempted to retract that assessment by reason of purported confusion over dates of the event and uncertainty about the time of the occurrence of the injury, expressed by a man who says that he had at that time difficulty with the English language (even allowing for the recollection of Dr Boys about that matter), was afraid that reporting an injury would have an adverse affect on his continuing employment and his apparent stoicism in doing the best he could to continue working albeit at a reduced rate for a short period after the consultation with Dr Ibrahim, makes it inappropriate to deal with any evidence on this application.
- [60]The proper occasion for evidence about these matters is at a trial and the applicant is entitled to a trial given the issue of the notice of assessment by the respondent and the commencement of payments of compensation by the respondent in respect of the one injury that the applicant has consistently identified.
Conclusion
- [61]The issues identified in the judgment have been dealt with in the course of the discussion above. The authorities cited support the findings that I have made. I find that there was one injury suffered by the applicant. Any debate about the date of the relevant event and about causation is a matter for trial. For the reasons referred to above, the application should be granted and the declarations made.
Costs
- [62]Whilst there are limitations imposed on the award of costs in section 318C of the Act, nevertheless costs on this Originating Application should follow the event: see Woolworths Ltd v Rodionov [2011] QDC 169; and Lincoln v Qantas Airways Ltd (supra) (No. 2) [2012] QDC 351.
- [63]The applicant has sought costs on the indemnity basis. I do not consider it appropriate in the circumstances of this case where the issue to be resolved on the application was not necessarily identical to the similar issues litigated in previous case authorities. The respondent raised an issue of importance. Therefore the applicant will have his costs on the standard basis.
ORDERS
- 1.Application granted.
- 2.Declared that the applicant is entitled to seek damages pursuant to s 237 (1) (b) (i) of the Workers' Compensation and Rehabilitation Act 2003 for the lower back injury specified in the notice of claim for damages sworn on 25 October 2013.
- 3.Declared that pursuant to s 297 of the Workers' Compensation and Rehabilitation Act 2003 the applicant’s notice of claim for damages sworn on 25 October 2013 complies with s 275 of the Act.
- 4.The respondent to pay to the plaintiff his costs of the application on the standard basis.