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- Unreported Judgment
Torpy v Qantas Airways Ltd QDC 277
DISTRICT COURT OF QUEENSLAND
Torpy v Qantas Airways Limited  QDC 277
MICHAEL ERNEST TORPY
QANTAS AIRWAYS LIMITED
District Court, Cairns
DELIVERED EXTEMPORE ON:
17 July 2019
17 July 2019
Morzone QC DCJ
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – where leave sought to commence proceeding – where non-compliance with s 275 Workers Compensation and Rehabilitation Act 2003 (Qld)
Limitation of Actions Act 1974 (Qld) s 31
Personal Injury Proceedings Act 2012 (Qld) s 43
Workers Compensation and Rehabilitation Act 2003 (Qld) ss 233, 235, 236, 275, 276, 297, 298, 302
Brittain v Hentys (a firm) & Ors  QSC 40
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd  QCA 233
J Trevino for the applicant
K Holyoak for the respondent
Maurice Blackburn Lawyers for the applicant
BT Lawyers for the respondent
- The applicant applies, pursuant to s 298 of the Workers Compensation and Rehabilitation Act 2003 (Qld) for leave to commence a court proceeding despite non-compliance with section 275 of that Act, which is contested by the respondent.
- The parties have provided detailed outlines of argument and made further oral submissions in respect of the application.
- The applicant was employed by the respondent as a baggage handler at the Cairns Domestic Airport between 2001 and 2018. His work involved performing relatively heavy lifting of baggage without mechanical aid and, on occasion, with such aid. He claims that he injured his right shoulder on 26 July 2018 in the course of his employment with the respondent while unloading a Boeing 737 aeroplane at the Cairns airport. He perceives the injury as being caused by a single event based on having no perception of any previous injury or any similar past symptoms in that shoulder area. He subsequently sought medical attention. He has since been subject of medical examination, investigation, surgical procedure and opinion, including the following. His general practitioner noted a provisional diagnosis, seemingly referred to as a right shoulder injury – bursitis, plus sign rotator cuff tendonitis.
- It is not clear when that was made, it is likely that it was at a time when he was cognisant of later investigation. In any event, he earlier referred the applicant for ultrasound guided injection, and upon receiving results later referred him for review by an orthopaedic surgeon. Pursuant to that referral he was reviewed by Dr Cole, an orthopaedic surgeon, on 23 October 2018. Dr Cole opined that he had suffered an acute SLAP tear and an old ganglion. The acronym SLAP seemingly refers to the condition of a superior, labral, anterior and posterior tear. Whilst Dr Cole considered that the tear was consistent with the reported symptoms, she considered the later condition was unrelated, namely, the ganglion.
- Then, on 13 November 2018, the application was reviewed by another orthopaedic surgeon, Dr Todd, who also provided a report in which he identified multiple pathology, some of long term duration but not being specific as to time. That, of course, would be within the reasonable expectation of human capacity, even in an expert orthopaedic field. In contrast to Dr Cole he found the applicant had pain with overhead use, consistent with rotator cuff problems, and subacromonial, bursitis rather than a superios labum anterior and posterior tear. He said in his report:
“The diagnosis of supraspinatus tendinitis and subacromial bursitis. There is probably a contribution from the acromioclavicular (AC) joint degeneration and inferior osteophytes. Considering Mr Torpy’s superior labrum interior and posterior (SLAP) tear is not a standalone pathology. It is difficult to know the relative contribution of this. I suspect the superior labrum interior and posterior (SLAP) tear is not the main cause or only cause of Mr Torpy’s symptoms.”
- Dr Todd, in the same document, later opines that:
“There are both work related and non-work related factors here. The AC joint degeneration with inferior osteophytes may well have been causing some degree of rotator cuff degeneration, and it should be pointed that this is an age related degeneration as well. The injury in question, however, would also have the potential to injure the structures. Particularly if Mr Torpy was reaching overhead and up to his right to pull a bag off a stack. The bag was heavy and somewhat stuck because of gravity in a confined space.
The current injury is an aggravation of pre-existing rotator cuff tendonitis in the right shoulder. The aggravation is consistent with the described mechanism of injury.
Mr Torpy’s AC joint degeneration with inferior osteophytes may well have contributed to some rotator cuff pathology.”
- The applicant underwent right shoulder surgery under Dr Cole later on the 18 December 2018.
- More recently, on 21 May 2019, a third surgeon, Dr Robinson, proffered his opinion to the applicant’s solicitor. According to the solicitor’s file note, like Dr Todd, Dr Robinson opined that the applicant’s right shoulder condition and ongoing symptoms were partially due to pre-existing pathology. This opinion seemed to be based on a review of material in scans. He opined that the tendon inflammation happened as a result of 26 July 2018 event. In a sense, the “straw that broke the camel’s back,” as noted by the solicitor. He also attributed the involvement of large ganglion cysts over three months to work or occupational exposure, and that such cysts may have put pressure on the shoulder tendons to produce symptoms.
- With this landscape of diagnostic and medical opinion, the applicant’s solicitor formed the view that the applicant was symptomatic of an, “over time injury,” which enlivened concern about the applicable limitation period, notwithstanding that the applicant had no recollection of such earlier condition or symptoms. The applicant better appreciated his predicament on receiving Dr Todd’s report on 25 May 2019.
- A notice of claim was given to the respondent on 29 May 2019 including a request to waive compliance with section 275 of the Act on the basis that there was an urgent need to commence proceedings. The parties then engaged in rather detailed and didactic correspondence debating the matter.
- For its part, the respondent declined to waive compliance, whether on condition or at all, on the basis that there was no demonstrated urgency to start proceedings, and the request for waiver was, “completely unnecessary.” The respondent also maintained its position in its solicitor’s correspondence in the response commencing on 31 May and throughout June 2019, to the effect that the cause of action occurred on 26 July 2018 and, therefore, the limitation period within which to commence proceedings did not expire until 26 July 2021. In a letter of 11 June 2019 the defendant’s solicitor made it plain that the respondent:
“Will not change its position and will treat the cause of action as accruing, and the period of limitation as commencing, on the date your client first experienced symptoms.”
- Accordingly, the respondent, through its solicitor, re-affirmed its position and accepted that it:
“would be stopped from later asserting an alternative position.”
- However, that was conditional upon the plaintiff not diverting from the matters set out in the notice of claim, particularly as to the date of first symptoms. More recently, by email of 16 July 2019, the respondent’s solicitors wrote:
We are concerned there may remain some confusion on your part as to the effect of our previous correspondence.
Our client takes the following position in respect of the Claim asserted in your client’s Notice of Claim, which seeks damages for injury sustained over the entire period of his employment with Qantas commencing in 2001, with symptoms first arising on 26 July 2018.
Our client will treat the limitation period as commencing on the date your client first experienced symptoms of the injury to his should.
This means our client will not plead a defence under the Limitation of Actions Act against your client’s claim unless there is evidence your client’s alleged injury was symptomatic more than 3 years prior to your client delivering a compliant notice of claim.
Your client has declared in his Notice of Claim that he had no symptoms prior to 26 July 2018. That is consistent with the application for compensation lodged with our client and the history given to every reporting doctor. There is no evidence of which we are aware of any symptoms prior to that date. Your client has not asserted he ever suffered symptoms prior to that date.
The approach is consistent with what we have said in every communication to you to date.
Our client, having made this representation, is of course estopped from taking a contrary position later and asserting a limitation defence contrary to this representation.
The above approach renders your client’s application unnecessary. Indeed, the approach our client takes is even more favourable to your client, as it does not require your client to seem an extension of the limitation period for the injury your client now asserts was sustained more than 3 years prior to the present date (of which we say there is of course no evidence).
We will be tendering this correspondence to the court tomorrow.”
I must confess it is not clear what is meant by the second last paragraph. That is, some asserting that the application is rendered unnecessary, and further that the approach by the respondent is, “even more favourable,” to the applicant:
“…as it does not require your client to seek (sic) an extension of the limitation period for the injury your client now asserts was sustained more than three years prior to the present dated (of which we say there is, of course, no evidence).”
- The applicant, through his solicitor, is not comforted by the respondent’s position on the limitation period as being an effective remedy to the problem of non-compliance with section 295, being the prerequisite substantive law to starting proceedings.
- Section 298 of the WRCA provides for the Court to give leave to start a proceeding in Court despite non-compliance with the requirements of s 275 in these terms:
“298 Court to have given leave despite noncompliance
- (1)Subject to section 296 , the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 275 .
- (2)The order giving leave to bring the proceeding 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.”
- Section 275 makes it plain – so it makes it a condition precedent to the starting of any Court proceeding that a claimant must give notice of claim for damages in compliance with that section. The provision prescribes the form, the recipient, and contents in these terms:
“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.”
- Section 276 (being the proviso in section 298) provides a mechanism by which an insurer can waive compliance with section 275 to avoid bringing an application under 298 as follows:
“276 Noncompliance with s 275 and urgent proceedings
- (1)The purpose of this section is to enable a claimant to avoid the need to bring an application under section 298.
- (2)Without limiting section 297 or 298, if the claimant alleges an urgent need to start a proceeding for damages despite noncompliance with section 275 , the claimant must, in the claimant’s notice of claim—
- (a)state the reasons for the urgency and the need to start the proceeding; and
- (b)ask the insurer to waive compliance with the requirements of section 275 .
- (3)The claimant’s lawyer may sign the notice of claim on the claimant’s behalf if it is not reasonably practicable for the claimant to do so.
- (4)The claimant’s notice of claim may be given by fax in the way provided for under a regulation.
- (5)The insurer must, before the end of 3 business days after receiving the notice of claim, advise the claimant that the insurer agrees or does not agree that there is an urgent need to start a proceeding for damages.
- (6)If the insurer agrees that there is an urgent need to start a proceeding for damages, the insurer may, in the advice to the claimant under subsection (5), impose the conditions the insurer considers necessary or appropriate to satisfy the insurer to waive compliance under section 278(2)(b).
- (7)The claimant must comply with the conditions within a reasonable time that is agreed between the insurer and the claimant.
- (8)The claimant’s agreement to comply with the conditions is taken to satisfy section 302(2)(a)(ii).”
- Further, s 302 of the WCRA provides for a legislative alteration of the period of limitation in these terms, which includes the operation of the Court’s discretion under s 298, mentioned above. Section 302 is in these terms
“302 Alteration of period of limitation
- (1)A claimant may bring a proceeding for damages for a personal injury—
- (a)within the period of limitation (the "general limitation period") allowed for bringing a proceeding for damages for personal injury under the Limitations of Actions Act 1974; or
- (b)if schedule 5 provides for a different period for bringing the proceeding—within the period mentioned in schedule 5.
- (2)A claimant may bring a proceeding for damages for personal injury after the end of the period mentioned in subsection (1) only if—
- (a)before the end of that period—
- (i)the claimant gives, or is taken to have given, a complying notice of claim; or
- (ii)the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or
- (iii)a court makes a declaration under section 297; or
- (iv)a court gives leave under section 298; and
- (b)the claimant complies with section 295.
- (3)However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”
- The period of limitation referred to in s 302 does include one extended under s 31 of the Limitation of Actions Act 1974 (Qld) whether the application under s 31 is made before or after an application for leave under s 298.
- Clearly enough, the discretion under s 298 must be exercised judicially having regard to the objects and purpose of the discretion in the scheme – of the discretion, having regard to the scheme of the Act. Chapter 5 of the Act provides for a regime of a claimant’s accessed damages, s 233 defines a claimant for those purposes to mean a person entitled to seek damages. Subsection 235(2) declares that all the provisions of chapter 5 are provisions of substantive law, therefore they determine the substantive rights and obligations of the parties as opposed to merely governing procedural rights.
- Subsection 236(1) declares that nothing in the WRCA affects or has ever affected the commencement of the period of limitation provided by section 11 of the Limitations Act, therefor prima facie, an action for personal injuries, is still confined within a three year limitation period. Section 236 however, is subject to s 302, and as I have remarked, that section does permit a claimant to bring a proceeding for personal injury after the end of the period of limitation only if before the end of the period of limitation the complainant gives or is taken to have given a complying notice of claim, or the claimant gives a notice of claim for which the insurer waives compliance with requirements of s 275 with or without conditions, or a Court makes a declaration under s 297, or a Court gives leave, as sought here, under section 298.
- Subsection 276(2) provides a mechanism to request waiver of compliance from the insurers but “Without limiting section 297 or 298” being provisions involving Court intervention. Here, section 298 is sought to be invoked. And it seems to me those words in the subsection support the exercise of the discretion under s 298 is not conditioned on being an “Urgent need.” Further, such an application must be distinguished from the more onerous considerations involved in an application to extend the limitation period under s 31 of the Limitations Act. Guidance as to the exercise of the discretion in an application of this type can be gleaned from consideration of the analogous discretion under s 43 of the Personal Injury Proceedings Act 2012 (Qld) which was considered by the High Court in Davidson v State of Queensland (2006) 226 CLR 234. The decision as a whole is a significant one and I was taken to particular provisions including paragraphs 16, 18, 20, 29, 30, 33, 38, 51, 54, and 55. In particular, the Court affirms the remarks of the majority judgment below to the effect that the grant of leave would not be pointless or futile.
- The applicant brings this application to preserve a potential claim for an occupational exposure injury occurring over a period of time. The limitation period for such an injury is not determined by the date he first became symptomatic, but rather when the damage was caused. The applicant is concerned that the limitation period has now partially expired unless reliance is placed upon a material fact of a decisive character to extend the limitation period pursuant to s 31 of the Limitations Act. The earliest potential fact is the date that the applicant’s shoulder became symptomatic, being 26 July 2018. It is further asserted that in the circumstances motivating this application would be the requirement that an application made pursuant to s 31 must be made before 26 July 2019.
- Here, the applicant was alerted to his pre-existing shoulder condition as a result of experiencing symptoms at work on 26 July 2018, and he came to better appreciate his predicament and the complexity of his condition after considering orthopaedic opinion on 25 May 2019. These facts may well found a basis for an application for an extension of the limitation period under s 31 as being decisive in their character, however, it is not for this court to second guess the prospects of any prospective application.
- The evidence demonstrates that he has performed the same work since his employment with the respondent since 2001. His claim of injury and symptoms of 26 July 2018 have been attributed to injury to structures and otherwise an aggravation of a pre-existing condition. As to the pre-existing condition, no medical expert has been able to discern the time of any long-term related factors, except some remarks attributed to Dr Robinson in relation to ganglion masses. That can be contrasted to Dr Cole, who had excluded such masses from work related matters. After various examinations and investigations there remains diverse medical opinion about the nature and extent of the applicant’s condition and causation, except that there is a mixture of work related and non-work related factors. There is, according to Dr Todd, age related degeneration “as well” contributing to his pre-existing disposition. I read that statement as an additional contributor to other factors.
- It seems to me that the state of the evidence is not such to render pointless or futile the need to stop time running when some or all of the potential claim is already partially out of time, and there may well be a need to make a necessary application to extend time under s 31 of the Limitations Act if desirous. The effect is that, by this application being allowed, time will be stopped enabling pursuit of a cause of action arising three years prior to this date. If the applicant seeks to hark back to an earlier period then that is a matter for him to apply under s 31 of the Limitations Act.
- For these reasons, I will allow the application and I will order that:
- Pursuant to s 298 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) the applicant has leave to start a Court proceeding despite non-compliance with s 275 of the Act, in respect of an alleged injury occurring on 26 July 2018;
- Unless either party applies or the parties otherwise agree on a different costs order within 14 days of this decision, the costs of the application will be the parties’ respective costs in the proceeding;
- Each party has liberty to apply for further or other directions upon each party giving the other at least three business days’ notice.
- I am deliberately broad using the term “in respect of” in the sense that in respect of that injury - it could be an aggravating injury; it could have been the injury that is the last of a point in time, the straw that broke the camel’s back, therefore involving an earlier three year period of some work related, if that be materialised, impact. In that way, I mean to encompass an injury the mechanism being something that occurred on 26 July 2018, but also an over-time injury.
Judge D P Morzone QC
- Published Case Name:
Michael Ernest Torpy v Qantas Airways Ltd
- Shortened Case Name:
Torpy v Qantas Airways Ltd
 QDC 277
17 Jul 2019