Piscitelli v Eveready Concrete Contractors Pty Ltd
[2005] QSC 47
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- Unreported Judgment
- Piscitelli v Eveready Concrete Contractors Pty Ltd[2005] QSC 47
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Piscitelli v Eveready Concrete Contractors Pty Ltd[2005] QSC 47
Reported at [2006] 1 Qd R 179
Piscitelli v Eveready Concrete Contractors Pty Ltd[2005] QSC 47
Reported at [2006] 1 Qd R 179
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 17 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 February 2005 |
JUDGE: | Holmes J |
ORDER: | The application for a declaration is dismissed. |
CATCHWORDS: | LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTION – OTHER CASES - where the WorkCover Queensland Act 1996 (Qld), s 308(1)(a)(i) permits a claimant to bring a proceeding for damages outside the limitation period if the claimant has given a complying notice of claim before the limitation period expires – where limitation period expired - whether the applicant’s notice of claim was compliant with WorkCover Queensland Act 1996 (Qld), s 280 - whether the notice of claim set out and explained all periods during which the applicant was receiving no income – whether there was a genuine offer of settlement by the claimant WorkCover Queensland Act 1996 (Qld), s 279, s 280(1), s 280(2), S 280(3), S 280(6), s 285(4)(c), s 304, s 308(i)(a)(i), s 315, s 318, s 532 WorkCover Queensland Regulation 1997 (Qld) s 74(1)(j)(vi) Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 603 Barrass v BHP Coal Pty Ltd [2003] 2 Qd R 17 Griffiths v Kerkemeyer (1977) 139 CLR 161 Kelly v Croft Sheetmetal Manufacturing Pty Ltd & WorkCover [2002] CSC 412 Scott v K&S Freighters (Unreported, Supreme Court of Queensland, Douglas J, 22 November 1999) |
COUNSEL: | R. Lynch for the applicant R.A. Myers for the second respondent |
SOLICITORS: | Robert Bax & Associates for the applicant Thynne & Macartney for the second respondents |
[1] The applicant wishes to commence a proceeding in respect of injuries he says he sustained in a workplace accident on 30 August 2000. On 15 July 2003, he served the respondents with his notice of claim for damages under s 280 of the WorkCover Queensland Act 1996. (That Act, although now repealed, continues to apply to his claim, since it was in force when his injury was sustained.[1]) On 12 August 2003 the solicitors for the respondents raised issues that they identified as non-compliance with s 280, (which requires the giving of the notice and in broad terms deals with its contents and what must accompany it), and s 74(1) of the WorkCover Queensland Regulation 1997 (which prescribes particulars which must be included in the notice). Those had not been attended to by 30 August 2003 when, of course, the limitation period expired.
[2] Section 308(1)(a)(i) of the WorkCover Queensland Act permits a claimant to bring a proceeding for damages for a personal injury after the end of the limitation period if before the end of the limitation period the claimant has given a complying notice of claim. The question, then, is whether the applicant’s notice of claim as given on 15 July 2003 was compliant with the legislative requirements. The applicant seeks a declaration to the effect that it was. The respondents, however, assert that the notice of claim was non-complying in that it did not set out and explain all periods during which the applicant was receiving no income, and it was not accompanied by a genuine offer of settlement.
The requirements of a notice of claim
[3] Those parts of s 280 relevant for present purposes are as follows:
“(1)Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974.
(2)The claimant must give—
(a)WorkCover or, if the worker’s employer is a self-insurer, the self-insurer a notice of claim in the approved form; and
(b)a copy of the notice of claim to the worker’s employer if the employer is not a self-insurer.
(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)The notice 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 WorkCover to obtain information….”
[4] Section 74(1) of the WorkCover Queensland Regulation 1997 requires that a notice of claim be “made in the approved form” and include particulars of employment. It specifies the following details:
“(j)if the claimant claims damages for diminished income earning capacity – particulars of the claimant’s employment during the 3 years immediately before and since the event including –
- the name and address of each of the claimant’s employers; and
- the period of employment by each employer; and
- the capacity in which the claimant was employed by each employer; and
- the claimant’s gross and net (after tax) earnings for each period of employment; and
- the periods during which the claimant was in receipt of payments from the Department of Social Security (Cwlth); and
- the periods during which the claimant received no income, and the reasons why the claimant was not receiving any income.”
[5] A form was approved by the chief executive officer, under s 532 of the Act. It includes the following section dealing with employment and income
“Section 3 – Income statement by worker
49. Provide details of employment, including self-employment and income details, for the three years before, and for the period since, the event resulting in injury. Any periods during which the claimant was in receipt of payments from the Department of Social Security or Centrelink must be shown. If there are periods of no income, state the periods and provide reason/s why no income was received.”
It then sets out columns in which the information is to be inserted, under these headings:
Name and address of income source (eg employer) | Period of employment/ | Capacity in which employed (include self-employment or benefit details) | Gross and net (after tax) earnings for each period of employment |
The applicant’s notice of claim and offer to settle
[6] In this case, the applicant forwarded to WorkCover a notice of claim for damages, using the approved form; a schedule of employment and income details; an offer of settlement; a signed authority to obtain information; and some supporting documents. The last consisted of medical reports and taxation records: income tax returns and notices of assessment for the financial years from 1997/1998 to 2001/2002, and two group certificates, one for the 1998/1999 year and the other for the 1999/2000 year.
[7] The applicant provided the schedule of employment and income details in response to question 49 of the approved notice of claim form. The headings in the approved form, as set out above, are used in the schedule, and details are provided under each of them for the financial years from 1997/1998 to 2001/2002. What is not provided is any detail of periods during which no income was received, nor the reasons for that; although it is evident from the face of the form that not all periods are accounted for. That was, the respondents said, a fatal non-compliance.
[8] The offer of settlement accompanying the notice of claim sets out heads of damage - “general damages”, “past economic loss” and so on - with amounts ascribed to each. The specified amounts are then totalled to give a gross settlement amount. After deduction of a Commonwealth Rehabilitation Service repayment, a net settlement amount appears at the end of the page. The offer of settlement includes heads of damage not claimable under the Act: Griffiths v Kerkemeyer[2] damages (which by virtue of s 315 are unavailable) and interest on general damages (which s 318 does not permit). Again, on the respondents’ submission, this was a fundamental deficiency.
The offer to settle
[9] Mr Myers, for the respondent, argued that the offer was not capable of acceptance and that it could not, therefore, be regarded as a genuine one. In this regard, he relied on the decision of Mullins J in Barrass v BHP Coal Pty Ltd.[3] In that case, the offer of settlement included a claim for costs which were not available to the claimant, a worker with a non-certificate injury. Mullins J accepted that the offer to settle was genuine in a subjective sense, looked at from the claimant’s standpoint. But, she said, the requirement that there be a genuine offer to settle was to be construed in the light of the objective of the pre-court procedures, that is, enabling WorkCover “...to enter into early negotiations with claimants to achieve early resolution of claims for damages before the start of court proceedings.”[4] She said this:
“In order to be a genuine offer to settle, the offer must be made in the light of the constraints on the claim provided for in the Act, such as those in respect of costs. There must be an element of objectivity about whether an offer is genuine in view of the purpose of the offer and the procedures provided for by the Act”.[5]
Because the offer included a claim for an item for which WorkCover was not liable, it was not a genuine offer to settle.
[10] Mr Lynch, for the applicant, sought to distinguish Barrass. He argued that it was the notice of claim which had to be compliant; the offer of settlement was merely to accompany it. This point, he said, was not taken in Barrass. But it does not seem to me that the decision in Barrass turned on whether the offer of settlement was “compliant”; the issue was whether it was genuine, as required by s 280(6) of the Act. Determination of that question did not turn on whether the offer accompanied, or was incorporated in, the notice of claim. Secondly, Mr Lynch argued that an inclusion of costs was different from the inclusion of a head of damage: the former, he said, imposed a condition on the offer which could not be met, whereas the inclusion of a head of damage was capable of being ignored if WorkCover otherwise agreed with the proposed total sum. Again I think the point is, with respect, uncompelling. WorkCover could not, as it seems to me, properly accept an offer of settlement which patently included non-claimable amounts.
[11] But I am not entirely convinced that the inclusion of extraneous items necessarily renders an offer of settlement not genuine, nor that an offer which is not immediately capable of acceptance is, by definition, not a genuine one. In this case, for example, I do not think that the offer in this form presented any real impediment to settlement. The different heads of damage were clearly specified and the amounts involved clearly stated. It was a simple matter to exclude those not claimable and, if WorkCover wished, make a counter-offer in respect of the balance, as s 285(4)(c) permitted it to do. I think there is a good deal to be said for regarding the offer here as a genuine offer of settlement, such as to facilitate early resolution; but as will emerge, it is not necessary for me to decide the point.
The income and employment details in the notice of claim
[12] Mr Myers submitted that the specification of reasons for the non-receipt of income was a mandatory requirement. Mr Lynch, in suggesting that the section and regulation were not to be read so strictly, alluded to this passage from the explanatory memorandum to the WorkCover Queensland Bill 1996:
“The notice is designed to give sufficient information to WorkCover or self-insurer to enable it to investigate the allegations of negligence and extent of damages with a view to resolving the claim as soon as possible.” [6]
The purpose of provision of particulars was, Mr Lynch said, to allow WorkCover to respond to a claim for lost earning. The information given here was adequate for that purpose. It was evident from the schedule and the income tax returns that there were periods during which the applicant was not employed and was not earning any income. The inference was open that he received no income because he was not working; and that in itself was sufficient explanation for the absence of income. Mr Lynch pointed out, too, that the form of the schedule in question 49 of the approved notice of claim form did not provide for setting out of periods when income was not received.
[13] Mr Lynch suggested that assistance was to be gained from single judge decisions in Scott v K&S Freighters[7] and Kelly v Croft Sheetmetal Manufacturing Pty Ltd & Workcover[8]. I do not think that either of those cases advances his argument. In Scott the question was as to whether information provided by the applicant met the requirement of s 74 of the WorkCover Queensland Regulation 1997 that “full particulars of the negligence alleged against the claimant’s employer” be given. The applicant seems to have been injured using a crane. In his notice of claim he had set out a number of problems with the crane, his own lack of training from his employer and the lack of any reporting system about problems with machinery. Not surprisingly, the learned judge hearing the application accepted that the particulars were adequately given for the purposes of the claim form, observing that they did not have to be set out as in a court document. The conclusion in that case was unsurprising, but it concerns the form of particulars given, rather than their absence. I think it has little in it to assist the applicant’s case.
[14] In Kelly the claimant had not provided a date for his injury, nor a period of time over which it had occurred. There was some difficulty in his doing so without access to medical reports. The court made a declaration that he was to be taken to have remedied the non-compliance but, significantly, required as a condition of the declaration that he provide a further declaration identifying when he experienced symptoms and disability. Section 304(2) makes it possible to give such a declaration on conditions appropriate “to minimise prejudice to WorkCover from the claimant’s failure to comply with the requirements of section 280”. That is a different situation from the present one, in which there is no opportunity to deem compliance on a promised meeting of requirements.
[15] Section 74(1)(j)(vi) of the Regulation sets out the particulars required where “the claimant claims damages for diminished income earning capacity.” The emphasis, obviously enough, is on capacity to earn income; it is clearly relevant to know why there was a period during which income was not earned. Even if one were able to draw the inference that those periods not dealt with specifically were periods during which the claimant received no income (as opposed to inferring that he had omitted to state any income for those periods) one is still left to conjecture why he was not receiving any income. While it might be sufficient to answer that the claimant was not working, it is necessary that at least that express answer be given. It cannot be inferred: it does not automatically follow that a claimant has received no income because he was not working; one might receive no income while occupying a full-time volunteer position.
[16] I should say that I do not think that the approved form is materially misleading. Although the headings and columns are not well designed for inclusion of periods of non-employment, the instructions make it clear, nonetheless, that periods of non-income must be stated and the reasons provided. The purpose of s 74(1)(j)(vi), with which the instructions in the form accord, is to give the insurer the information needed to assess the claimant’s working capacity; here the necessary information was not given.
[17] For the reasons I have given, I conclude that the notice of claim given on 15 July 2003 was not a complying notice of claim. Accordingly, I decline to make the declaration sought and I dismiss the application.
Footnotes
[1] By virtue of s 603 of the Workers’ Compensation and Rehabilitation Act 2003.
[2] (1977) 139 CLR 161.
[3] [2003] 2 Qd R 17.
[4] WorkCover Queensland Act 1996 s 279.
[5] [2003] 2 Qd R 17 at 23, para 39.
[6] Explanatory Memorandum, WorkCover Queensland Bill 1996, at 111.
[7] (Unreported, Supreme Court of Queensland, Douglas J, 22 November 1999).
[8] [2002] QSC 412.