State of Queensland v Heraud[2011] QSC 96

SUPREME COURT OF QUEENSLAND

1. DALTON J:  Mr Heraud was employed by the State of Queensland acting through the Department of Public Works.  On 5 June 2008 he was working as a security officer protecting works being undertaken on a building site at the Queensland Cultural Centre.  That centre is owned and controlled by the State of Queensland acting through Arts Qld.  Mr Heraud was walking to the onsite safety office to start work.  He says he stepped on a protrusion; his foot rolled, and he suffered an injury to his ankle.  Mr Heraud made a claim to WorkCover Queensland.  He was assessed as having a seven per cent permanent impairment.  He received weekly compensation payments.  He was offered an election between a lump sum payment and the right to bring a claim for damages for his injury.  He chose the former and was paid by the end of July 2009.

2. On 20 December 2008 solicitors acting for Mr Heraud delivered a notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).  The respondent to the PIPA claim was named as, “State of Queensland (Arts Qld)”.  The incident said to give rise to the injury for the purpose of the PIPA proceeding is the same incident in respect of which the claim was made to WorkCover.  The injury claimed in the PIPA proceeding is the same injury as that claimed against WorkCover.  Crown Law took carriage of the PIPA proceedings on behalf of the State.  WorkCover Queensland was handling the claim made to it.

3. The notice of claim under PIPA says that State of Queensland, by Arts Qld, caused the incident because it:

“1.Failed to provide a safe workplace;

  2.Failed to ensure the workplace was free from the risk of injury;

  3.Failed to remove the subject protrusion from the floor;

  4.Failed to erect a barrier around the protrusion;

  5.Failed to take any or any reasonable care for the safety of the claimant;

  6.Failed to comply with and/or ensure the workplace complied with the Workplace Heath and Safety Act 1995 as amended by failing to ensure the claimant’s workplace health and safety while at work.”

The ambiguity in the claim was clarified by a statutory declaration made in the PIPA proceedings on 30 January 2009: Mr Heraud swore that he was bringing the claim against the State of Queensland (Arts Qld) as the occupier and controller of the area where he was injured.  The PIPA claim is not against the State as employer, but as occupier.

4. Mr Heraud wishes to sue the State of Queensland acting through Arts Qld because the premises were at all times under its control.  Thus, although the accident occurred whilst Mr Heraud was on his way to work, there may be difficulties in establishing negligence on the part of his employer which apparently had a limited role on the building site, that of providing security.  In this regard I note that the State of Queensland has issued a notice of contribution to the builder in the PIPA proceedings.  The builder was named as a third party to this originating application; it was not served with the application but was aware of it and was present in the back of the Court, although it did not appear.

5. The State of Queensland seeks to stop the PIPA proceedings.  It seeks a declaration that PIPA does not apply to the injury suffered by the respondent on 5 June 2008.  It relies upon s 6(2)(c) of PIPA:

“6Application of Act

(1)This Act applies in relation to all personal injuries arising out of an incident whether happening before, on or after 18 June 2002.

(2)However, this Act does not apply to –

…

(c)injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by chapter 5 of that Act;

…”

6. The Crown submitted that the injury which Mr Heraud suffered was an injury within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and in relation to which that Act applied.  Thus, it was said the first limb of s 6(2)(c) of PIPA applied to the claim.  That may be accepted.  The argument for the Crown continued that the second limb of s 6(2)(c) also applied in the instant case because, until Mr Heraud elected to take his lump sum payment, he had an entitlement to seek damages which was regulated by chapter 5 of the WCRA.  It was argued that because the State is the legal entity which operates both the Department of Public Works and Arts Qld, s 6(2)(c) of PIPA operated to prevent Mr Heraud suing the State of Queensland under the PIPA, for he had destroyed the entitlement he had to seek damages against the State of Queensland when he elected to take a lump sum payment rather than pursue a claim for common law damages. 

7. The decisions of Devlin v South Molle Island Resort^[1] and Pukeroa v Berkeley Challenge Pty Ltd & Ors^[2] are to the effect that if one accident gives rise to liability both in a plaintiff’s employer and in a separate person who occupies the premises on which the plaintiff is hurt, an action may be brought against the employer under the WCRA and against the occupier under PIPA.  Section 6(2)(c) of PIPA does not prevent the action against the occupier because that action is not based on liability for injury arising out of, or in the course of, employment and is not therefore a claim for damages for injury in circumstances creating a legal liability in the worker’s employer to pay damages – see [20] Pukeroa.  That is, using the words of s 6(2)(c) of PIPA, the entitlement to seek damages against the occupier is not an entitlement to seek damages within the meaning of the WCRA, nor is the entitlement to seek damages against the occupier regulated by chapter 5 of the WCRA.

8. Does it make any difference that the State of Queensland was the legal entity which operated both the Department of Public Works and Arts Queensland?  It does not.  Section 30 of the WCRA has an extended definition of employer which includes a “government entity” as a person who may employ another.  The dictionary schedule to the WCRA defines government entity to have the same meaning as that given by the Public Service Act 2008 (Qld), s 24.  That section provides that an entity is a government entity if it is a department or part of a department.  A department, or part of a department, is something so declared by the Governor in Council by a gazette notice – s 14 Public Service Act 2008.  The Department of Administrative Services was brought into being on 7 December, 1989 by a gazette notice.^[3]  It was renamed Department of Public Works and Housing^[4] then, Department of Public Works on 29 June 1998.^[5]  It survived the reduction in the number of government departments of 26 March 2009 unchanged.^[6]  It is therefore a department and a government entity within the meaning of s 14 and s 24 of the Public Service Act 2008.  It may therefore be an employer within the meaning of the WCRA notwithstanding it is not a legal entity.

9. Here it was said for Mr Heraud that his employer was Department of Public Works – QBuild. Both the name Department of Public Works and the word QBuild appear on the pay advice delivered to Mr Heraud for the fortnight in which he was injured. QBuild however is not a department or part of a department declared by gazette notice. Having regard to that, and to s 30 of the WCRA, I find the Department of Public Works was Mr Heraud’s employer.

10. It was said for Mr Heraud that s 6(2)(c) of PIPA does not prohibit him from proceeding against the State of Queensland because the proceedings against it are not for damages within the meaning of the WCRA.  Section 10 of the WCRA defines damages as being, “damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay damages to … the worker”.  The PIPA claim does not allege liability in Mr Heraud’s employer.  In the PIPA proceedings Mr Heraud asserts an entitlement to damages against the State of Queensland for what Arts Qld did or did not do as occupier of the Cultural Centre.  That is not an entitlement to damages within the meaning of the WCRA and is not an entitlement which is regulated by chapter 5 of the WCRA.

11. The Crown submitted that when Mr Heraud accepted the lump sum payment under the WCRA he extinguished his entitlement to seek damages against the State and cannot re-enliven that entitlement by pursuing the State under the PIPA regime.  The submission is cast too widely.  The acceptance of the lump sum payment meant that Mr Heraud could no longer seek “damages for the injury” – s 239(2)(b) of the WCRA.  In that phrase, “damages” must mean damages as defined by s 10 of the WCRA, that is, damages for an injury sustained by a worker in circumstances creating a legal liability in the worker’s employer to pay damages.  The State was not Mr Heraud’s employer and the PIPA claim he makes against it is not made against it qua employer.  Cases such as Glenco Manufacturing Pty Ltd v Ferrari,^[7] Hawthorne v Thiess Contractors Pty Ltd ^[8] and Watkins v GRM International Pty Ltd,^[9] are factually distinct.

12. For completeness I note that there was correspondence between Crown Law and solicitors acting for Mr Heraud before July 2009. Crown Law was aware that Mr Heraud had been receiving weekly compensation payments under the WCRA.  Crown Law enquired as to the status of the workers’ compensation claim.  It was told by Mr Heraud’s solicitors that Mr Heraud was not going to make a common law claim for damages against his employer as, in the view of those solicitors, the employer was not negligent in causing or contributing to the injury.  On 16 January 2009 solicitors acting for Mr Heraud told Crown Law that Mr Heraud’s WorkCover claim was “closed”.  In April 2009 they said this meant: “the Workers’ compensation claim has been finalised and [Mr Heraud] is no longer entitled to statutory benefits or payment or treatment by WorkCover Queensland. WorkCover would have now closed its file.  Our client does not intend making a common law claim for damages against his employer.”  This was not the full story.  Those solicitors were involved in the assessment of Mr Heraud’s impairment for the purposes of his making a lump sum payment claim.  Crown Law did not become aware of this before the election by Mr Heraud to accept a lump sum payment rather than common law damages.  In any event, during the course of this application nothing was sought to be made of the misinformation provided by Mr Heraud’s solicitors.

13. The application is dismissed. I will hear the parties as to costs.