Otto v Mackay Sugar Ltd (No 2)
[2011] QSC 305
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- Unreported Judgment
- Otto v Mackay Sugar Ltd (No 2)[2011] QSC 305
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Otto v Mackay Sugar Ltd (No 2)[2011] QSC 305
Otto v Mackay Sugar Ltd (No 2)[2011] QSC 305
SUPREME COURT OF QUEENSLAND
PARTIES: | GARY ALAN OTTO (applicant) v MACKAY SUGAR LIMITED ACN 057463671 (first respondent) and WORKCOVER QUEENSLAND (second respondent) |
FILE NO/S: | |
PROCEEDING: | Application |
DELIVERED ON: | 13 October 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Written submissions of 3 August 2011 and 10 August 2011 |
JUDGE: | Douglas J |
ORDER: | Order the applicant to pay the respondents’ costs of and incidental to the application. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – COSTS – GENERALLY – where application dismissed – where applicant sought reliance on s 316(4) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) in relation to costs – whether the claimant is a worker who has a WRI of less than 20% or no WRI Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 39, 233, 315, 316(4) Edmunds v D. Dunn Industries Pty Ltd (No. 2) [2007] 2 Qd R 128 referred Handover v Consolidated Meat Group Pty Ltd [2009] 2 Qd R 133 referred |
COUNSEL: | R F King-Scott for the applicant J S Miles for the respondents |
SOLICITORS: | Shine Lawyers for the applicant WorkCover Queensland for the respondents |
[1] Douglas J: I dismissed the application in this matter but counsel for the applicant argued his client should not pay his costs of the application because s 316(4) of the Workers’ Compensation and Rehabilitation Act 2003[1] (Qld) (“the Act”) provides that an order about costs for an interlocutory application may be made (under Div 2 of Pt 12 of the Act) only if the court is satisfied that the application has been brought because of unreasonable delay by one of the parties.
[2] It is not asserted for the second respondent that there has been unreasonable delay by the applicant. Rather, it argued in written submissions, that reliance on s 316(4) is misconceived. Its submission was that s 316(4) relates to applications for costs made under Pt 12 Div 2 of the Act because of s 315 which provides that the division applies “if the claimant is a worker who has a WRI of less than 20% or no WRI.” A WRI is a work related impairment.
[3] The second respondent’s argument is that the applicant is neither a claimant as defined in s 233 nor a “worker … who has no WRI.” It says he is not a claimant as he is not entitled to seek damages because of its earlier determination that there was no “injury” as defined in s 32 of the Act and my decision refusing him leave to claim common law damages.
[4] Further, it says that he is not a worker because that word is defined in s 233 as follows:
“Worker for a claim, means the worker in relation to whose injury the claim is made.”
[5] The submission is that “claim” in that section should be understood to mean a claim for damages as distinct from a statutory application for compensation and that the applicant, again as a result of my decision, does not have a claim for damages. That argument is based partly on the appearance of s 233 in ch 5 of the Act dealing with access to damages. The submission then proceeded to point out that the applicant has not suffered an “injury” as referred to in the s 233 definition of “worker” because of the decision to that effect by the second respondent which has not been disturbed.
[6] Finally, the submission is that the applicant is not someone who has a work related impairment (WRI) of “less than 20% or no WRI” but rather is someone who has never had an assessed WRI. That is said to follow from s 39 of the Act which provides:
“39Meaning of work related impairment
(1) A worker’s work related impairment from injury is the worker’s entitlement to lump sum compensation under section 180 expressed as a percentage of maximum statutory compensation calculated under section 183.
(2) To remove any doubt, it is declared that a work related impairment only relates to an injury arising out of, or in the course of, the worker’s employment within the meaning of this division.”
[7] Again, as the determination that the applicant has not suffered an injury stands, the argument is that he does not have an assessed WRI. The expression “no WRI” in s 315 was said to refer to a worker who has sustained an “injury” but who has not suffered a measurable degree of impairment as occurred in Handover v Consolidated Meat Group Pty Ltd [2009] 2 Qd R 133, 135 [4] or, as appears in an example in Div 2 of Pt 4 of Sch 2 of the Workers’ Compensation and Rehabilitation Regulation 2003 under the heading “Lumbosacral spine” where a “mild aggravation of pre-existing degenerative disease in lumbosacral spine with subjective symptoms, but no significant clinical findings other than degenerative changes on x-ray” is said to have a 0% maximum WRI.
[8] Those submissions seem to me to be correct with the result that s 316(4) does not apply. Mr Otto is not a claimant for damages who has suffered an injury for which damages under ch 5 can be claimed. Nor is he a worker with an assessed WRI. The costs regime in Pt 12 Div 2 of the Act does not apply to him.
[9] Mr Miles for the second respondent also made submissions about the effect of s 316(1) in this context as confining s 316(4) to applications in a proceeding for damages of the kind referred to in ch 5 and sought to distinguish a decision of Cullinane J in Edmunds v D. Dunn Industries Pty Ltd (No. 2) [2007] 2 Qd R 128 dealing with whether the application before his Honour was an interlocutory application. As I have concluded that s 316(4) does not apply to this application, I do not need to consider those arguments.
[10] Accordingly, I order the applicant to pay the respondents’ costs of and incidental to the application.
Footnotes
[1] In reprint 3E in force at the relevant times and now reproduced in s 318C.