Hegarty v Queensland Ambulance Service
[2007] QSC 110
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Hegarty v Queensland Ambulance Service[2007] QSC 110
- Add to List
Hegarty v Queensland Ambulance Service[2007] QSC 110
Hegarty v Queensland Ambulance Service[2007] QSC 110
SUPREME COURT OF QUEENSLAND
CITATION: | Hegarty v Queensland Ambulance Service [2007] QSC 110 |
PARTIES: | ROBERT WILLIAM HEGARTY (plaintiff) v QUEENSLAND AMBULANCE SERVICE (defendant) |
FILE NO: | S3353 of 2000 |
DIVISION: | Trial Division |
PROCEEDING: | Application (Costs) |
DELIVERED ON: | 18 May 2007 |
DELIVERED AT: | Supreme Court, Brisbane |
HEARING DATE: | 27 April 2007 Further submissions received 1 May 2007 |
JUDGE: | Wilson J |
ORDER: | That the defendant pay the plaintiff’s costs of and incidental to the proceeding (including reserved costs, if any) to be assessed on the indemnity basis. |
CATCHWORDS: | STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – the plaintiff succeeded in recovering damages against his employer for personal injury sustained in the course of his employment in mid-1996 – the Workers’ Compensation Act 1990 applied at the time the injury was incurred – s 182C of that act provides that if a worker rejects an offer of lump sum compensation a court may only make certain orders as to costs – whether lump sum compensation was ‘payable’ to the plaintiff (in which case he would be deemed to have rejected it) or the plaintiff was ‘entitled’ to lump sum compensation (in which case no relevant ‘offer’ had been made capable of being rejected) PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – FAILURE IN PORTION OF A CASE – the plaintiff made pre-trial offers under the Uniform Civil Procedure Rules – the plaintiff succeeded in obtaining judgment in more favourable terms than his offers – the plaintiff succeeded on some issues at trial but failed on others – whether the circumstances justify departing from the general rule in r 360 which would entitle the plaintiff to indemnity costs of the whole proceeding Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) s 44, s 45 Uniform Civil Procedure Rules 1999 (Qld) r 360, r 361 Workers’ Compensation Act 1990 (Qld) s 88, s 90, s 130, s 132, s 182A, s 182B, s 182C, s 182D WorkCover Queensland Act 1996 (Qld) s 262 Janssen v Commonwealth of Australia [1994] 2 Qd R 596, considered Walsh v Commonwealth of Australia (1998) 155 ALR 182, cited |
COUNSEL: | G W Diehm and A Luchich for the plaintiff D O J North SC and M O'Sullivan for the defendant |
SOLICITORS: | Butler McDermott & Egan for the plaintiff Crown Solicitor for the defendant |
- Wilson J: The plaintiff has succeeded in recovering against his employer damages in the sum of $569,635.31 for personal injury sustained in the course of his employment by mid-1996. The parties have now made written and oral submissions on costs, in particular upon whether s 182C of the Workers’ Compensation Act 1990 (Qld) (“1990 Act”) applies to limit the costs which the plaintiff may recover.[1]
- When the injury was sustained, the 1990 Act was in force, the relevant reprint being Reprint No 4. Despite its subsequent repeal by the WorkCover Queensland Act 1996 (Qld) (“1996 Act”) which came into force on 1 February 1997, its provisions continue to apply to the plaintiff’s injury.[2]
Application for compensation
- On 2 July 1999 the plaintiff applied for compensation. He did so on a form approved for the purposes of the 1996 Act. He described his injury as post traumatic stress disorder, and did not answer the question as to when the injury “happened”.[3] His claim was accepted and compensation was paid from 15 April 1999.[4]
- On 13 April 2000 the plaintiff commenced this proceeding.[5]
- On 11 September 2001 the General Medical Assessment Tribunal – Psychiatric determined under s 439 of the 1996 Act –
“1. There exists in the worker an incapacity for work resulting from the injury for which the application for compensation was made; and
- The incapacity is partial; and
- The incapacity is permanent; and
- The worker has sustained an injury under the table of injuries resulting in permanent impairment –
(a) the nature of the injury is Post Traumatic Stress Disorder and Obsessive Compulsive Disorder.
(b) the degree of impairment is fifteen (15) percent (Code 6001).”[6]
- On 13 September 2001 WorkCover issued a notice of assessment and offered to pay lump sum compensation of $19,185.00 in respect of injury sustained on 14 April 1999, the “WRI”[7] being 15%.[8] Accompanying the notice were copies of several provisions from the 1996 Act and some explanatory material about concepts under that act. The plaintiff was told he could accept the offer, reject the offer or defer the offer,[9] but that if he sought to negotiate a damages settlement with WorkCover or commenced proceedings for damages, he would no longer be able to accept it.
Offers to settle
- The following offers to settle were made –
- on 10 December 2002, these offers, expressed to be pursuant to s 294 of the 1996 Act –
- the plaintiff offered to settle for $200,000 clear of any refund to WorkCover;[10]
- the defendant offered to settle for $5,000 clear of the WorkCover refund and no costs;[11]
- on 14 September 2006 an offer by the plaintiff pursuant to chapter 9 part 5 of the Uniform Civil Procedure Rules (“UCPR”) to settle for $250,000 (inclusive of statutory refunds but exclusive of the WorkCover refund) plus costs on the standard basis;[12]
- on 8 November 2006 by letter to the defendant’s solicitor the plaintiff offered to settle for $370,000 clear of the WorkCover refund with no allowance for costs.[13]
Section 182C of the 1990 Act
- Sections 182A to 182E were introduced into the 1990 Act by amending legislation[14] which commenced on 1 January 1996. By s 182A –
“Application of ss 182B-182E
182A.(1) Sections 182B to 182E apply to a worker who suffers an injury, other than a serious injury, in circumstances creating, independently of this Act, a legal liability in the worker’s employer in relation to which the worker’s employer is –
(a)indemnified by the board under a policy in relation to the injury; or
(b)…”
The plaintiff’s counsel conceded that this claim did not concern a “serious injury” within the meaning of the 1990 Act, and that it was a claim in relation to which his employer was indemnified by the board under a relevant policy.[15]
- Sections 182B and 182C provide –
“Worker must make a choice about damages at law in certain cases
182B.(1) A worker to whom lump sum compensation is payable under part 9, division 2 for an injury is not entitled to both—
(a) lump sum compensation for the injury; and
(b) damages at law for the injury.
(2)The worker must choose between accepting lump sum compensation offered under this Act and seeking damages at law.
(3)The worker must give the board notice of the worker’s choice in the approved form.
(4)If the worker fails to give the board notice of the worker’s choice before the worker seeks damages at law, the worker is taken to have made a choice to reject lump sum compensation for the injury.
(5)The worker cannot change the worker’s choice after—
(a) notice of it is given to the board; or
(b) it is taken to have been made under subsection (4).
(6)The worker is taken to seek damages at law for the injury when the worker—
(a) seeks to negotiate a damages settlement with the board; or
(b) starts proceedings at law for damages.
Consequences of choosing to seek damages at law
182C.(1) This section applies if the worker is not entitled to, or rejects, lump sum compensation under this Act for an injury and seeks damages at law for the injury.
(2)The worker’s entitlement to compensation under this Act stops and the following rules in relation to costs in the worker’s proceeding for damages apply.
(3)No order as to costs, other than an order allowed under this section, is to be made by the court in the proceeding, unless the board certifies that the worker’s injury is a serious injury.
(4)If a party to the pr oceeding makes an offer of settlement that is refused and the court later awards damages to the worker, the court must, in the following circumstances, make the order about costs provided for—
(a) if the amount of damages awarded is equal to or more than the worker’s final offer—an order that the defendant pay the worker’s party and party costs from the day of the final offer;
(b) if the amount of damages awarded is equal to or less than the defendant’s final offer—an order that the worker pay the defendant’s party and party costs from the day of the final offer.
(5)If the award of damages is less than the worker’s final offer but above the defendant’s final offer, subsection (3) applies.
(6)An order as to costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay on the part of 1 of the parties.
(7)If an entity other than the worker’s employer or the board is joined as a defendant in the proceeding, the court may make an order as to costs in favour of, or against, the entity according to the proportion of liability of the defendants and the justice of the case.
(8)The court may make an order for costs against the worker’s employer or the board under subsection (7) only if—
(a) the order is in favour of the entity; and
(b) the worker’s employer or the board joined the entity as a defendant.”[16]
- The plaintiff’s counsel submitted that he is not a worker to whom s 182C applies because at the time of trial he was “entitled to” lump sum compensation under the 1990 Act for his injury.
- By s 88 an injured worker “is entitled …, subject to this Act, to be paid from the [Workers’ Compensation Fund], compensation in accordance with this Act.” Then s 90 provides –
“Where right to damages exists
90.(1) If in respect of an injury suffered by a worker there is—
(a) an entitlement to compensation under this Act; and
(b) a right of action against the worker’s employer, or other person, to recover damages independently of this Act;
a claim for compensation under this Act may be made and proceedings to recover such damages may be taken but an entitlement to such compensation does not exist at any time, or in respect of any period, after judgment for damages is given, or settlement is agreed, in such proceedings.
(2)Subsection (1) does not limit sections 182B and 182D.”[17]
- The plaintiff’s argument was founded largely on what was submitted to be the operation of s 182B. The argument ran as follows –
- By s 182B(1) the workers who are not entitled to both lump sum compensation and damages are those “to whom lump sum compensation is payable under part 9, division 2”.
- The relevant provisions of part 9 division 2 are ss 129, 130, 130A, 132 and 135.
- Under s 130(1) –
“Compensation for injury resulting in permanent impairment
130.(1)A worker who sustains permanent impairment because of injury is entitled to lump sum compensation under this section for the injury.”
(d) Under s 132 the board may make an offer of lump sum compensation in certain circumstances and by subsection (7) –
“(7)If the offer is accepted, the board must pay the lump sum compensation entitlement to or on account of the worker.”
- Lump sum compensation becomes payable in the event of an offer of lump sum compensation under s 132. This is reflected in s 182B(2) which provides –
“(2)The worker must choose between accepting lump sum compensation offered under this Act and seeking damages at law.”
Then subsections (3) and (4) concern the worker giving the board notice of his or her choice: there would be nothing of which to give the board notice if no offer had been made.
- The offer of lump sum compensation was made to the plaintiff more than a year after he had commenced proceedings. It was an offer under the 1996 Act and not under part 9 division 2 of the 1990 Act. No offer in compliance with s 132 of the 1990 Act was ever made.
- Thus the plaintiff is a person who had an entitlement to lump sum compensation under the 1990 Act, and he had not rejected lump sum compensation under the 1990 Act. It follows that s 182C does not apply.
- Counsel for the defendant submitted that the plaintiff is a “worker to whom lump sum compensation is payable” within the meaning of s 182B(1). Although he did not make an application for compensation under the 1990 Act, such compensation was payable on compliance with the procedural steps identified in part 9 division 2. The argument ran as follows –
- The plaintiff was “entitled” to compensation under s 88.
- Although the Act required him to make a “claim” for it,[18] and that a “permanent impairment” be assessed on the way to the assessment of “lump sum compensation”,[19] at all times the lump sum compensation was “payable” to him. Reliance was placed on Janssen v Commonwealth of Australia,[20] to which I shall turn shortly.
- The plaintiff was required to choose between accepting lump sum compensation which might be “offered” and “seeking damages at law”.[21]
- The plaintiff did not give WorkCover notice of his choice before seeking damages, but by commencing the proceeding he is taken to have rejected lump sum compensation.[22]
- Thus he “rejected” such compensation as contemplated by s 182C(1).
- In Janssen v Commonwealth of Australia[23] the respondent plaintiff filed a plaint in the District Court seeking damages for personal injuries suffered in the course of her employment by the appellant defendant (the Commonwealth of Australia). She had not made any claim for compensation under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth), and no determination in her favour had been made under that Act. The appellant applied unsuccessfully to have the plaint dismissed on the basis that under s 44 of that Act, read with s 45, she had no cause of action.
- Sections 44 and 45 of that Act relevantly provided –
“44.(1)Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth or Commonwealth authority would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
…
45. (1)Where:
(a) compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and
(b) the Commonwealth, a Commonwealth authority or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;
the employee may, at any time before an amount of compensation is paid to the employee under section 24 , 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority or other employee for damages for that non-economic loss.
(2)Where an employee makes an election:
(a) subsection 44 (1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority or the other employee for damages for the non-economic loss to which the election relates; and
(b) compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.
(3)An election is irrevocable.”
The Court of Appeal concluded that “payable” in s 45(1) referred to liability subject to compliance with the procedural requirements, including making a claim.[24]
- As Mason P observed in Walsh v Commonwealth of Australia,[25] having demonstrated that the word “payable” was used in various parts of the Act, and that the Act was not uniform in the meanings it assigned to it, Fitzgerald P and Pincus JA saw no particular significance in the fact that s 45(1)(a) said “compensation is payable” rather than “there is a liability to pay compensation”. Sometimes it meant “immediately payable under a determination”, and sometimes it did not. They then turned to the purpose of the legislation, the presumption against denying citizens access to the courts, and the unreasonable consequences of the appellant’s position.[26]
- Unlike the legislation considered in Janssen, s 182C of the 1990 Act does not purport to set up a threshold which must be passed before an injured worker may sue. Rather it is concerned with the consequences of workers whose injuries were not “serious” choosing to seek damages at law.
- The amending legislation which inserted ss 182A – 182E into the 1990 Act contained what the minister described in her Second Reading Speech as “a reform package designed to ensure fair, affordable workers’ compensation for Queensland workers and employers into the next century.”[27] She said –
“The package will deliver Queensland workers, their families and employers sound, affordable insurance and compensation for workplace disease and injury by: improving statutory weekly, lump sum and death benefits; maintaining workers’ rights to proceed to common law, but requiring workers with less serious injuries to choose between improved statutory benefits and suing their employers; requiring injured workers with less serious injuries who choose to proceed to common law to meet their own costs; increasing the average premium rate from 1.7 per cent to 1.96 per cent plus a 10 per cent surcharge on premiums for five years; and introducing a requirement for employers to pay the first five days of compensation, including the day of injury. In addition, a comprehensive review program will be undertaken next year.”[28]
- I am satisfied that s 182C must be read with s 182B, which in turn refers to the provisions of part 9 division 2. I accept the construction contended for by counsel for the plaintiff, and conclude that the Court’s power to award costs in the plaintiff’s favour is not affected by s 182C.
- For completeness, I record that at my request counsel submitted supplementary submissions on whether s 96 of the 1990 Act which is headed “Time from which compensation payable” has any bearing on the outcome. They concurred in submitting that it does not.
Costs order
- The plaintiff obtained a judgment more favourable than his offer made under the UCPR on 14 September 2006. The defendant did not accept that offer and I am satisfied that the plaintiff was at all times willing and able to carry out what was proposed in the offer. Pursuant to r 360(1) he is entitled to costs on the indemnity basis unless the defendant shows that another order for costs is appropriate in the circumstances.
- Counsel for the defendant submitted that the plaintiff should recover only half of his costs because –
- he was successful only in respect of that part of his case which was based on paragraphs 8A to 8G of the Further Further Amended Statement of Claim (allegations which were raised by amendment of the pleading in April 2006), and
- had the issues on which he failed not been pursued, the trial would have taken only half the time and costs relating to expert witnesses would not have been incurred.
- Rule 360 is clearly designed to encourage compromise, and it evinces a clear policy choice that in the case of an offer by a plaintiff, if the preconditions are made out, indemnity costs from the inception of the proceeding should be allowed. This is in contrast to the position of a defendant who makes a successful offer: costs are to be awarded on the standard basis and there is a cut off point of the making of the offer.[29]
- The plaintiff’s case was hard fought at every turn. In all the circumstances I am not persuaded that because he did not succeed on all issues, it would be appropriate to depart from the general rule.
- I order the defendant to pay the plaintiff’s costs of and incidental to the proceeding (including reserved costs, if any) to be assessed on the indemnity basis.
Footnotes
[1] Outline of submissions on final orders on behalf of the plaintiff; Further written submissions on costs on behalf of the plaintiff; Outline of submissions concerning orders and costs on behalf of the defendant; Further written submissions on costs on behalf of the defendant; Transcript of the proceeding (27 April 2007).
[2] 1996 Act s 551; Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 603.
[3] Affidavit of Peter Gerard Boyce filed 27 April 2007, [5], exhibit PGB–5.
[4] Affidavit of Peter Gerard Boyce filed 27 April 2007, exhibit PGB-6 (p 12 of exhibits).
[5] WorkCover had issued a conditional damages certificate: 1990 Act s 182D; 1996 Act s 262(3).
[6] Affidavit of Peter Gerard Boyce filed 27 April 2007, exhibit PGB-6 (p 15 of exhibits).
[7] a concept under the 1996 Act.
[8] Affidavit of Peter Gerard Boyce filed 27 April 2007, exhibit PGB-7.
[9] 1996 Act s 207.
[10] Affidavit of Peter Gerard Boyce filed 27 April 2007, exhibit PGB-1.
[11] Affidavit of Peter Gerard Boyce filed 27 April 2007, exhibit PGB-2.
[12] Affidavit of Peter Gerard Boyce filed 27 April 2007, exhibit PGB-3.
[13] Affidavit of Peter Gerard Boyce filed 27 April 2007, exhibit PGB-4.
[14] Workers’ Compensation Amendment Act (No 2) 1995 (Qld).
[15] Outline of submissions on final orders on behalf of the plaintiff, [7]. See also Outline of submissions concerning orders and costs on behalf of the defendant, [8].
[16] Cross-reference removed.
[17] Emphasis added.
[18] 1990 Act s 99.
[19] 1990 Act s 130.
[20] [1994] 2 Qd R 596.
[21] 1990 Act s 182B(2).
[22] 1990 Act s 182B(4) and (6)(b).
[23] [1994] 2 Qd R 596.
[24] [1994] 2 Qd R 596, 603 (Fitzgerald P and Pincus JA); McPherson JA agreed at 603-604.
[25] (1998) 155 ALR 182.
[26] Janssen v Commonwealth of Australia [1994] 2 Qd R 596, 600 (Fitzgerald P and Pincus JA); Walsh v Commonwealth of Australia (1998) 155 ALR 182, 189 (Mason P).
[27] Queensland, Parliamentary Debates, Legislative Assembly, 2 November 1995, 942 (W M Edmond, Minister for Employment and Training and Minister Assisting the Premier on Public Service Matters).
[28] Queensland, Parliamentary Debates, Legislative Assembly, 2 November 1995, 943 (W M Edmond, Minister for Employment and Training and Minister Assisting the Premier on Public Service Matters).
[29] UCPR r 361.