Higgs v Australia Meat Holdings Pty Ltd
[2006] QSC 70
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- Higgs v Australia Meat Holdings Pty Ltd[2006] QSC 70
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Higgs v Australia Meat Holdings Pty Ltd[2006] QSC 70
Higgs v Australia Meat Holdings Pty Ltd[2006] QSC 70
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 6 April 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 February 2006 |
JUDGE: | Atkinson J |
ORDER: |
|
CATCHWORDS: | WORKERS COMPENSATION –– where respondent self-insured – whether documents directly related to the injury have been disclosed by the respondent – whether there has been proper disclosure under s 283 of the WorkCover Queensland Act 1996. |
COUNSEL: | C Newton for the applicant |
SOLICITORS: | Maurice Blackburn Cashman for the applicant |
[1] This was the hearing of an application by the plaintiff that, pursuant to s 291 of the WorkCover Queensland Act 1996 (“the WorkCover Act”), the court order that the respondent, Australia Meat Holdings Pty Limited (“AMH”), provide the applicant with documents requested in the applicant’s letter of 14 December 2005 pursuant to s 283 of the WorkCover Act. The WorkCover Act, which has since been repealed, applies to this case because the injury is said to have occurred on 7 January 2003 before its repeal.
[2] Section 283 of the WorkCover Act provides:
(1)A claimant and WorkCover must cooperate in relation to a claim, in particular by –
(a)giving each other copies of relevant documents about –
(i)the circumstances of the event resulting in the injury; or
(ii)the worker’s injury; or
(iii)the worker’s prospects of rehabilitation; and
(b) giving information reasonably requested by the other party about –
(i)the circumstances of the event resulting in the injury; and
(ii)the nature of the injury and of any impairment or financial loss resulting from the injury; and
(iii)if applicable – the medical treatment and rehabilitation the worker has sought from, or been provided with, by the worker’s employer or WorkCover; and
(iv) the worker’s medical history, as far as it is relevant to the claim; and
(v) any applications for compensation made by the claimant or worker for any injury resulting from the same event.
(2)Subsection (1)(a) applies to relevant documents that –
(a) are in the possession of the claimant or WorkCover; or
(b) are reasonably required by WorkCover from the worker’s employer under section 284.
(3) WorkCover must –
(a) give the claimant copies of the relevant documents –
(i)within 30 days after the claimant gives WorkCover a notice of claim; or
(ii) if the relevant documents come into WorkCover’s possession later – within 30 days after they come into WorkCover’s possession; and
(b) respond to a request from the claimant under subsection (1)(b) within 30 days after receiving it.
(4) The claimant must respond to a request from WorkCover under subsection (1)(b) within 30 days after receiving it.
(5) This section is subject to section 288.
(6) In this section –
“relevant documents” means reports and other documentary material, including written statements made by the claimant, the worker’s employer, or by witnesses.”
[3] Although the section according to its terms applies only to WorkCover, it also applies to employers who are self-insured. AMH is a self-insurer as defined in Schedule 3 of the WorkCover Act. Section 98 of the WorkCover Act provides that self-insurance allows an employer, who has been granted a licence to do so, to provide its own accident insurance for its workers. Such an employer has all of the liabilities that WorkCover would otherwise have had and as a consequence certain functions and powers of WorkCover are provided to a self-insurer to enable the self-insurer to meet its obligations in providing accident insurance.
[4] Section 119(1) of the WorkCover Act specifies the functions and powers of WorkCover that are reposed in a self-insurer. Those functions and powers include those found in s 283. Section 119(2) provides that a reference to WorkCover in sections such as s 283 is to be taken to be a reference to the self-insurer. Under s 119(7), the self-insurer must perform and exercise the functions and powers reasonably.
[5] As a result, in this instance, s 283 imposes various functions and powers on AMH which it must perform and exercise reasonably. Section 283(1) imposes a duty upon WorkCover to co-operate with a claimant and it follows that it therefore imposes a duty of AMH to co-operate with the applicant, which duty must be performed reasonably.
[6] Subsection 283(1)(a)(i) is the subsection which is particularly relevant to this case. It requires AMH to give to the claimant copies of relevant documents about the circumstances of the event resulting in the injury. “Event” does not have its ordinary meaning but is defined in the WorkCover Act more widely. In s 33, an “event” is defined to mean anything that results in injury. It therefore encompasses all of the circumstances which resulted in the injury of which complaint is made.
[7] The nature of the duty found in s 283(1)(a)(i) is further explained in subsections (2), (3) and (6) of s 283. It can be seen that the substitution of the self-insurer for WorkCover has a certain awkwardness in s 283(2) which distinguishes between the application of subsection (1)(a) to relevant documents which are in the possession of WorkCover (the insurer) and those which are reasonably required by WorkCover from the worker’s employer under s 284. Section 284 does not, however, apply to a self-insurer. In the case of a self-insurer, both entities are the same. Each here refers to AMH. The duty that s 283(2) imposes on AMH is to give copies of all relevant documents in its possession to the claimant and that it must behave reasonably in doing so. It could not avoid this duty by, for example, allowing relevant documents to go out of its possession. Possession is not, as was submitted by the respondent’s counsel, restricted to ownership but relates to physical or electronic possession by the respondent wherever or however it keeps its documentation. Pursuant to s 283(3) the copies must be given to the claimant within 30 days of the claim being made or within 30 days of the documents coming into the self-insurer’s possession. The claim was made on 3 May 2005 and deemed compliant by order of McGill DCJ on 8 November 2005. The matter was subsequently transferred to the Supreme Court.
[8] Subsections 283(5) and 283(6) together set out what are relevant documents for the purposes of subsection 283(1). The definition found in s 283(6) is in wide terms. Although it uses the limiting word “means” the phrase “other relevant documents” is of the widest possible import. It is limited only by s 288 which provides that the self-insurer is not required to disclose information or documents covered by legal professional privilege. However, the employer must disclose investigative reports, medical reports and reports relevant to the worker’s rehabilitation even if they would otherwise be protected by legal professional privilege.
[9] The reasons for this pre-litigation disclosure regime were conveniently set out by Byrne J in James v WorkCover,[1] where his Honour observed:
“[39]The statutory disclosure obligations are designed to enhance the quality and efficiency of the processes of resolving damages claims. Consensus is encouraged through emphasis on pre-litigation negotiation, including a compulsory conference and mediation where other attempts at agreement fail. These steps are to be informed by exchanges of material to facilitate early, fair compromise.
[40]A proper appreciation of the strengths and weaknesses of the respective cases on the issue of liability would usually contribute to the prospects of reaching agreement quickly on just terms.”
[10] If a party fails to comply with its duties under s 283 the court may, pursuant to s 291, order that party to comply with those duties and make any ancillary orders which the court considers to be necessary or desirable in the circumstances.
[11] The applicant, who alleges that he was injured at his place of work whilst in the employ of AMH, complains that AMH has failed to co-operate, in particular by failing to give him copies of relevant documents about the circumstances of the event resulting in the injury as required by s 283(1)(a)(i). He first requested copies of relevant documents pursuant to s 283 on 3 May 2005. On 2 December 2005, the respondent provided a list of documents. On 14 December 2005, the applicant requested copies of some of those documents and made the complaints about the adequacy of the respondent’s disclosure which are the subject of this application, warning that if the deficiencies were not remedied within 30 days, an application would be brought to compel further disclosure. The application was filed on 18 January 2006.
[12] The applicant’s claim is in respect of an injury which he alleges he suffered when he slipped whilst walking on a ramp outside the footwash at the meatworks operated by the respondent at Dinmore. In this application, he says that he has not been provided with all of the documents relating to the state of repair of the floor on which he slipped. Since the applicant alleges he slipped on that surface, the state of the floor is part of the circumstances that resulted in the injury and it is necessary for AMH to disclose all relevant documents as to the state of the floor.
[13] It is true that the claimant initially thought, apparently wrongly, that the floor had been repainted while he was away over the Christmas break. Disclosure of relevant documents by AMH has shown that in fact the floor was resurfaced both before and after the injury to the worker although not apparently during the Christmas break. On 25 January 2006, after this application was filed, the respondent sent the applicant another list of document disclosing documents described as:
| Description of document | Person who made document | Date (if any) |
1. | Tax Invoices relating to type of epoxy used on floors | Bethell Flooring Pty | 08.05.02 & 28.08.03 |
2. | 6 photos (AMH) | Australia Meat Holdings | Undated |
3. | 23 black and white photos (wcomp) | Australia Meat Holdings | 19.01.06 |
[14] AMH disclosed tax invoice no. 3098 from Bethell Flooring for “epoxy floor repairs” in the amount of $5,816.80. The invoice is addressed to AMH in Toowoomba and is dated 8 May 2002. It shows that the work was performed as instructed by Keith Smith and was performed on 12, 20 and 21 April 2002. It also shows that there was an order no. M051061 from AMH. The remittance advice from AMH, which was disclosed to the applicant on 16 February 2006, shows that this amount was paid on 17 May 2002. The remittance advice also refers to order no. M051061. That order has not been disclosed.
[15] The second invoice from Bethall Flooring disclosed by AMH is dated 28 August 2003. It is invoice no. 3564. This invoice is also addressed to AMH in Toowoomba and is for “diamond grind” and reapplication of “epoxy” and “anti-slip”. It does not disclose when the work was done. It says that the repairs were “as per list supplied”. No such list has been disclosed. It appears that neither invoice was in AMH’s possession until they were faxed to AMH by Bethell Flooring. The facsimile markings show that the first invoice was page 2 of the facsimile transmission and the second invoice was page 6 of the transmission.
[16] On 16 February 2006, AMH also disclosed a remittance advice to Bethell Flooring evidencing payment by AMH of $6,468 in respect of invoice no. 3362 on 10 February 2003. Invoice no. 3362 has not been disclosed. The order by AMH, order no. M053194, for that work has been disclosed which amply demonstrates, contrary to the assertion made, and subsequently withdrawn, by the respondent’s solicitors in their letter of 6 February 2006, that such orders do exist and that all relevant orders should be disclosed.
[17] The solicitors for AMH said in correspondence that AMH obtained those invoices on 18 January 2006. They assert that maintenance records about the floor would be irrelevant and that there are no documents regarding cleaning.
[18] The applicant is entitled to disclosure of all the documents in the respondent’s possession which are relevant to the state of the floor on which he slipped. It seems extremely unlikely that the respondent has no documents other than those it has already provided. For example, there is no obvious reason why the respondent would not itself have the invoices it received for work done to the flooring on which the applicant slipped; certainly no explanation is offered. The respondent has disclosed order no. M053194 but not order no. M051061. It is not obvious why the maintenance records would be irrelevant and it is difficult to accept that the respondent would not have documents relating to the cleaning of the floors at its workplace.
[19] In order for these matters to be properly addressed, I intend to order that on or before 4pm on 21 April 2006 the respondent give to the applicant copies of all documents in its possession relating to the condition of the floor on which the applicant alleges he slipped, including any documents relating to inspection, repair, maintenance or cleaning of the floor in the 12 month period prior to 7 January 2003 and any inspection, repairs or maintenance carried out to the floor in the 12 month period after 7 January 2003. As an ancillary order, I will order that on or before 4pm on 21 April 2006 the respondent file an affidavit setting out any such relevant documents that are in its possession other than those set out on the list attached to the affidavit of Amanda Karpeles filed on 31 January 2006; and if any relevant documents have ceased to exist or passed out of its possession, what those documents are and in what circumstances they ceased to exist or passed out of the possession of the respondent. The ancillary order is necessary to resolve the dispute about what relevant documents are or are not in the respondent’s possession.
[20] The respondent should pay the applicant’s costs of and incidental to the application, excluding reserved costs. I will make no order as to the reserved costs.
Footnotes
[1] [2000] QCA 507 at [39]-[40].