Hintz v WorkCover Qld[2006] QSC 158

SUPREME COURT OF QUEENSLAND

Introduction

1. The applicant applies for orders that he be given leave pursuant to s 305 of the now repealed WorkCover Queensland Act 1996 (Qld) (“the Act”) to commence proceedings for damages for injuries the subject of a notice of claim dated 1 September 2005 despite non-compliance with the requirements of s 280 of the Act. He applies also for an order pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) extending the limitation period until 14 June 2006. The application is opposed, but it is common ground that the provisions of the Act in force as at 31 March 1999 apply.

2. On 31 March 1999, when the applicant was secured to the top of a power pole by a safety harness, a fellow employee caused the power pole to sway. It is alleged that the motion of the pole caused the applicant to suffer a back injury. On 17 January 2001 the applicant applied for compensation for a physical injury caused by the accident (“the Accident”). The application was rejected by the respondent and the applicant appealed to the Industrial Magistrates Court.

3. On 19 March 2002 the applicant applied, pursuant to s 305 of the Act, for leave to bring proceedings against his employer despite non-compliance with the requirements of s 280. The application was refused on 4 April 2002.

4. On 18 September 2002 the Industrial Magistrates Court determined in the applicant’s favour that he had sustained a physical “injury” within the meaning of that term in the Act. The applicant’s solicitors later requested an assessment of the March 1999 injury, including an assessment of an alleged psychiatric injury arising from the Accident. The respondent initially rejected the existence of any psychiatric injury.

5. After various dealings between the parties, however, the application was referred to the General Medical Assessment Tribunal. That referral resulted in the issuing to the applicant, on 28 June 2005, of a damages certificate for a chronic adjustment disorder arising on 31 March 1999. The applicant bases his application for an extension of the limitation period on that certificate.

The applicant’s argument

6. For the applicant to pursue a claim for damages for the psychiatric injury sustained by him in consequence of the Accident, he must satisfy the requirements of s 253 of the Act.

7. It was not until 28 June 2005 that the respondent issued a damages certificate in respect of the psychiatric injury pursuant to s 265 of the Act. Only then could the applicant satisfy the requirements of s 253 of the Act and commence proceedings.

8. By 28 June 2005 the three year limitation period under the Limitation of Actions Act had expired.

9. In order to satisfy the first limb of s 31(2) of the Limitation of Actions Act the applicant must establish that “a material fact of a decisive character” was not within his means of knowledge until after 31 March 2001 (two years after the date on which the cause of action arose).

10. The material fact of a decisive character is the knowledge of the applicant that the respondent had provided a damages certificate on 28 June 2005 with respect to his psychological injuries. Prior to the provision of the certificate the applicant could not pursue his claim. The certificate and the information contained in it was “material” as it related to “the occurrence on which the right of action was founded as well as the nature and extent of the personal injuries they caused”.^[1]

The defendant’s contentions

11. The applicant could have made an application for leave to commence proceedings pursuant to s 305 of the Act and for an extension of the limitation period within 12 months of the Industrial Magistrate’s decision. From 18 September 2002, the date of the Industrial Magistrate’s decision, the applicant could have included a claim for psychiatric injury in any proceeding commenced by him. Alternatively, he could have applied to the respondent for a damages certificate pursuant to s 265(2) of the Act. He failed to do so. The respondent was required to give the applicant a certificate if the criteria in s 265(3) were satisfied. If the applicant was “aggrieved” by the decision or did not agree with it, then the decision could be reviewed pursuant to subsections (7), (8) and (9) of s 265.

12. Under s 291 of the Act, where there is non-compliance with a provision of Chapter 5 of the Act, application may be made to the court to ensure compliance. Furthermore, the applicant was entitled to request the respondent to provide him with a conditional damages certificate under s 265(4) of the Act “if there is an urgent need to bring a proceeding for damages and the respondent is not satisfied about the matters in subsection (3)”.

13. The applicant could also have made an application to the court for leave to commence proceedings pursuant to s 305, together with an application to extend time within 12 months of WorkCover’s determination.^[2]

14. The applicant cannot establish that without the damages certificate he would, even with the benefit of appropriate advice, have previously appreciated that he had worthwhile action to pursue and should in his own interests pursue it.

15. The newly discovered fact of the damages certificate cannot be considered in isolation.^[3] By March 2002 and certainly by the time of commencing proceedings on 26 June 2003, the applicant must have appreciated fully that he had a worthwhile action to pursue. It is probable that he had been advised accordingly. The medical reports obtained by him showed that he had a significant back injury which had adversely affected his employability.

The relevant history

16. It is desirable to explain in a little more detail the nature of the applicant’s injuries and symptoms. As appears from the foregoing, the incident which gave rise to the applicant’s injuries is of some antiquity. The injury initially reported was a back injury. On 1 September 2000, the applicant lodged an application for compensation for a “stress” injury alleged to have been sustained “over a period of time”. That application does not appear to have been accompanied by details of either the symptoms or the circumstances in which they were said to have arisen.

17. The applicant was interviewed by Ms Fisher, a psychologist, who stated in a report to the respondent dated September 2000, in effect, that the applicant’s stress-related complaints related to conflict with and concern about the conduct of the employee who caused his accident. Although that employee’s conduct in causing the accident was one of the applicant’s complaints, his stress appears to have been diagnosed as something which arose out of a pattern of conduct by the other employee after the accident. The report states that the applicant “may be experiencing an adjustment disorder related to the confrontational nature of the relationship that has evolved with [the employee]”. In the opinion of Ms Fisher, the applicant “does not appear to have suffered any serious long-term effects from the incident he described …”

18. In a statement dated 16 October 2000 given to Ms Fisher, the applicant said:

“There have been several incidents that have occurred in the work place over the past 24 months or so that have contributed to my current condition. All these incidents are related to working with another linesman at Moranbah… The initial incident occurred two days before Good Friday 1999… I do not have confidence working with [the employee]. I am very anxious when we have to work together. I have concerns for my safety… I have been very angry over these issues.”

19. On 28 November 2000 the respondent accepted the applicant’s claim for a condition described as “stress related problems” caused by interpersonal concerns and problems with work. Acceptance of the claim was founded, in part, on Ms Fisher’s report and the facts narrated in it. The decision was based also on the opinion of a psychiatrist, Dr Rose.

20. In Dr Rose’s report to the respondent of 26 October 2000, the Accident was referred to as one of the incidents involving the employee which gave rise to the applicant’s psychiatric condition. Dr Rose observed:

“[The applicant] has developed an Adjustment Disorder with anxiety and depressed mood, partly as a result of a work related back condition and partly due to his anxieties regarding working with [the employee].”

21. On 17 January 2001 the applicant lodged an application for compensation for physical injury sustained as a result of the Accident. That application was rejected on 30 April 2001.

22. In a report provided after an examination of the applicant on 14 March 2001 Dr Green, a general practitioner, concluded that any psychiatric incapacity suffered by the applicant no longer existed.

23. On 9 April 2001 the applicant advised an employee of CRS Australia, engaged to conduct a workplace assessment report, that he did not consider that he would ever be able to work as an electrician again due to his back condition. He advised also that he did not feel he would be able to return to work whilst the employee responsible for his accident was working there “as his anxiety levels would be too high”.

24. A report of Ms Trevor, psychologist, on 14 May 2001 notes that the uncertainty of the applicant’s claim in respect of his back injury “together with the implications of back injury on his future work options (particularly now he has terminated from Ergon) has been a frequent comment of [the applicant’s]. His stress injury no longer appears to be a significant barrier to alternative employment but his physical limitations may be”.

25. Dr Rose saw the applicant again on 4 July 2001. He concluded in a report of 9 July 2001 that the applicant was no longer suffering from a psychiatric injury.

26. On 25 July 2001, the applicant’s solicitors wrote to the respondent requesting assessment of injuries, including “back”, “anxiety”, and “depression”, allegedly sustained in the 31 March 1999 accident. On 9 August 2001 the respondent advised that the applicant’s claim “was rejected on 1 May 2001 and [the applicant] is therefore not eligible for assessment of any permanent impairment”.

27. On 30 August 2001 the applicant’s solicitors obtained a report from Dr White, an orthopaedic surgeon, in which Dr White gave the opinion that the applicant suffered a 10 per cent whole person permanent impairment as a consequence of the 31 March 1999 incident and was “likely to remain permanently unfit for work involving heavy physical labour, prolonged standing, prolonged sitting, lifting or repetitive bending”.

28. In a notice of assessment dated 19 November 2001, the respondent determined that the applicant had sustained a five per cent permanent impairment as a result of an “anxiety/depression” injury sustained “15.08.00 over a period of time” and offered to pay $6,395 compensation. The offer was not accepted.

29. The decision of the General Medical Assessment Tribunal which lead to the notice of assessment found that the applicant’s condition resulted in permanent partial incapacity.

30. The applicant applied on 19 March 2002, pursuant to s 305 of the Act, for leave to bring proceedings against Ergon Energy Corporation Limited despite non-compliance with the requirements of s 280 of the Act. The application was dismissed on 4 April 2002.

31. The applicant’s solicitors, in a letter dated 14 August 2002:

• Complained of not being informed of a report of Dr Green dated 14 March 2001, in relation to the Accident, which contained the opinion that the applicant suffered “an aggravation of pre-existing degenerative disease of the lumbosacral spine giving rise to a 5 per cent permanent impairment”.

• Referred to the Accident, but did not raise in that regard any question of psychiatric impairment.

• Alleged the existence of an accident on 6 April 1999 in which the applicant suffered extensive back pain and which gave rise to continuing symptoms of back and other pains.

32. On 18 September 2002 an Industrial Magistrate found that the applicant had sustained an injury in the accident. In the course of his reasons, he observed of the applicant:

“He did make a report about the matter but the accepted situation is that he was, at that time, concurrently suffering a psychiatric injury and that may have affected his ability to prepare a report.”

The decision, however, related only to the applicant’s physical injury as the appeal was confined to that injury.

33. On 23 January 2003 the applicant’s solicitors wrote to the respondent requesting that the applicant be assessed “for permanent impairment in relation to an injury to his lumbar spine and in relation to his psychological injury”.

34. The respondent notified the applicant of the rejection of his application for compensation for the alleged psychiatric injury in a letter dated 30 May 2003. The letter referred to the Medical Assessment Tribunal’s assessment of the applicant as having a five per cent permanent impairment on an accepted psychiatric claim, but on the basis, inter alia, of a report of Dr Mathew, a psychiatrist, of 7 April 2003, concluded that the applicant had not developed psychiatric illness as a result of the 31 March 1999 physical injury. The applicant’s claim “for moderate to severe aggravation or acceleration of pre-existing disease in lumbosacral spine” was accepted and the applicant was offered a lump compensation of $6,734.25 on the basis of a five per cent permanent impairment attributable to the injury. The applicant rejected the offer.

35. By a letter dated 28 August 2003 the applicant’s solicitors requested review of the respondent’s decision of 30 May 2003 in respect of the alleged psychiatric injury. Another request for a review was made by the applicant’s solicitors in a letter dated 11 October 2004. The application for review was rejected by a letter from Q-Comp dated 21 October 2004 on the basis of non-compliance with s 491 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The applicant instituted an appeal in the Industrial Magistrates Court against the decision.

36. The appeal did not proceed as Q-Comp discovered that its determination of 21 October 2004 was based on the wrong statutory provisions. The matter was then referred back to the respondent to arrange for a determination by the Medical Assessment Tribunal.

37. On 25 February 2005, the applicant’s solicitors obtained a report from Dr Catton, a psychiatrist. In the report Dr Catton expressed the opinion the applicant had been suffering from an Adjustment Disorder with depressed mood since the accident “caused primarily by his difficulty coping with pain, insomnia, and restriction of physical activity from his back injuries”. In his opinion it was doubtful that the applicant would ever be able to return to work as an electrician. Reference is made in the report to the difficulties experienced by the applicant with his fellow employee but Dr Catton did not link those difficulties with the applicant’s symptoms which in his view “gradually developed”.

38. On 7 June 2005 the Medical Assessment Tribunal issued a psychiatric assessment which concluded that the applicant was “…suffering from a Chronic Adjustment Disorder secondary to the lumbosacral strain which occurred in [the Accident]”. It was found, however, that the applicant had not sustained any degree of permanent impairment. The Tribunal noted that on 16 November 2001 the Tribunal considered that the applicant “was suffering a generalised anxiety disorder complicated by an obsessional personality trait and assessed a permanent impairment of [five per cent]”. Consequent upon the Tribunal’s determination, a damages certificate for the assessed injury was issued on 28 June 2005. It described the applicant’s injury as a Chronic Adjustment Disorder sustained on 31 March 1999. The stated degree of permanent impairment attributable to the injury was “0%” and the stated work-related impairment was “nil”.

39. One of the psychiatric reports before the Tribunal was that of Dr Matthew dated 7 April 2003. In it Dr Mathew referred to the generalised anxiety disorder resulting from workplace harassment, which had already been accepted by the Tribunal. He rejected the contention that the applicant was suffering from a mental illness as a result of “the psychological sequelae of his back injury”. In the course of the applicant’s examination by Dr Mathew, the applicant reported symptoms of ongoing pain, inability to work, resultant financial difficulties, loss of sexual functioning and restriction in some activities around the home. Dr Mathews observed that, “given the ongoing back pain and disability that he reports and the sustained anger which he reports with regard to the previous situation at work, his longer term prognosis remains guarded”.

40. Also before the Tribunal was a report of Dr Madden expressing the view that “Mr Hintz has a significant disability from his pain, which at the present time would prevent him from engaging in paid employment”. The Tribunal also heard representations from Dr Catton on behalf of the applicant.

Analysis of the applicant’s contentions

41. The applicant relies on the issuing of the 28 June 2005 certificate and also on its content as showing “the nature and extent of the personal injuries” sustained by him in the Accident. But the certificate, based on the determination of the Medical Assessment Tribunal, denied the existence of permanent impairment or an inability to work as a result of the accepted condition of Chronic Adjustment Disorder.

42. The view of the Tribunal, reflected in the certificate, was thus far less favourable to the applicant than his long asserted claim, based on a number of psychiatric and psychological reports, that the Accident had caused psychiatric injury. The latest of such reports was Dr Catton’s of 25 February 2005. By the date of that report, at the latest, the applicant was aware, not only of the existence of long-standing symptoms, but also of the existence of an expert’s report which supported a claim for extensive damages for psychiatric injuries arising out of the accident. On the other hand, the certificate provided no information which could have lead the applicant to conclude that his claim was either more likely to succeed or to be greater in amount than he had previously thought.

43. Consequently, for the applicant to succeed, the mere fact that the damages certificate issued in relation to the psychiatric injuries must constitute a “material fact of a decisive character”.

44. By virtue of s 30(1)(b) of the Limitation of Actions Act, material facts are of a decisive character:

“only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –

(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii)that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action…”

45. Before obtaining the certificate the applicant was aware of the existence of a cause of action for damages for physical injuries sustained in the accident. There was no impediment to his commencing and prosecuting proceedings in respect of that cause of action after the determination of the Industrial Magistrates Court. The applicant’s claim was potentially quite substantial, having regard to the evidence of permanent physical injury and continuing pain likely to adversely affect the applicant’s employability. Moreover, there was no impediment to the applicant’s including in any proceedings commenced by him a claim for psychiatric injury in accordance with the Tribunal’s certification. There was an obvious area of overlap between that psychiatric injury and the one now asserted. It was accepted by the Medical Assessment Tribunal that the Accident contributed to the former condition. That conclusion accorded with the views of Dr Rose and Ms Fisher.

46. The evidence does not suggest that the advent of the certificate would have engendered in the mind of the applicant the belief that an action not previously justified by reference to a reasonable assessment of prospects of success or the likely quantum of any award had become worth bringing.

47. In his submissions, counsel for the respondent placed reliance on the following observations of Macrossan J, as he then was, in Moriarty v Sunbeam Corporation Limited:^[4]

“In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.

He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his interests pursue it. This is what the application of the test of decisiveness under s 30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland ([1983] Qd R 19, 23, 24) and Do Carmo v Ford Excavations Pty Ltd ((1984) 154 CLR 234, 251 per Deane J).”

48. Connelly J, with whose reasons Shepherdson J agreed, took a similar approach to the construction of the legislation in Sugden v Crawford.^[5] His Honour said:

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action. This is the proposition which was approved by Andrews SPJ, as he then was, with the  concurrence of Macrossan J in Taggart v Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23, modified as suggested at 24.”

49. The evidence does not support the conclusion that a reasonable person, appropriately advised, would not have brought an action on the facts in the applicant’s possession prior to the issuing of the certificate. Nor has it been shown that a reasonable person, knowing of the issuing of the certificate and having taken appropriate advice, would regard the certificate as showing that an action on the applicant’s right of action “would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action”. That is because such a person would have been so minded before the issuing of the certificate. Furthermore, the issuing of the certificate cannot be viewed without regard to the other avenues which the applicant could have pursued under the Act in order to be in a position to commence proceedings in respect of the subject psychiatric injury.

Conclusion

50. For the above reasons the application to extend the limitation period must fail. It follows that leave should not be granted under s 305 of the Act. The application will be dismissed with costs.