Ley v Woolworths Limited[2013] QSC 59

SUPREME COURT OF QUEENSLAND

[1] The applicant applied in the applications jurisdiction for the following declaration:

“A Declaration that the applicant is entitled to seek damages pursuant to s 237(1)(a)(i) of the Workers’ Compensation and Rehabilitation Act 2003 for the neck injury specified in the Notice of Claim for Damages dated 12 December 2012.”[1]

[2] The application is beguiling in its seeming simplicity, yet it leads one into that parallel universe of the mirage like “gateways” that Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) offers to litigants and their legal advisers.  More prosaically the application raises for consideration some of the matters I considered in Muckermann v Skilled Group Limited & Anor.^[2]

[3] The applicant seeks a declaration that refers to s 237(1)(a)(i) of the WCRA.  That specifically targeted provision suggests that the applicant does not contend that he might otherwise be entitled under s 237(1).  In other words in order to obtain a declaration in the terms sought he impliedly submits that the evidence demonstrates that none of the other gateways offered by s 237(1) is  applicable.[3] Section 237(1) of the WCRA provides:[4]

“237General limitation on persons entitled to seek damages

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker—

  (a) the worker, if the worker—

(i)has received a notice of assessment from the insurer for the injury; or

(ii)has not received a notice of assessment for the injury, but—

(A)has received a notice of assessment for any injury resulting from the same event (the assessed injury); and

(B)for the assessed injury, the worker has a WRI of 20% or more or, under section 239, the worker has elected to seek damages; or

(b) the worker, if the worker’s application for compensation was allowed and the injury has not been assessed for permanent impairment; or

(c) the worker, if—

(i) the worker has lodged an application, for compensation for the injury, that is or has been the subject of a review or appeal under chapter 13; and

(ii) the application has not been decided in or following the review or appeal; or

(d) the worker, if the worker has not lodged an application for compensation for the injury; or

(e) a dependant of the deceased worker, if the injury results in the worker’s death.”

[4] Section 237(1) is important in the scheme of the entitlement to damages that the WCRA regulates.[5]  It is authoritatively established in this state that the only workers who are entitled to seek damages from an employer are those described in s 237(1) of the WCRA.[6] 

[5] The applicant worked as a butcher in the respondent’s store in Ayr from 17 December 2008 and last performed duties on or about 1 February 2011. The respondent was the employer of the applicant and is a “self insurer” under the WCRA.[7]  In his affidavit[8] he says that on 4 January 2011 he was carrying out normal duties slicing meat using a steak knife in his right hand and holding the meat with his left hand when, at about 7.30 a.m., he began to feel pins and needles down his left arm and into his left hand.  At the end of his shift he attended a general practitioner at Ayr.[9]  He deposes that he worked on 5 and 6 January 2011 and then went on holidays.  The pins and needles persisted when on holidays but he does not recall experiencing pain. On 31 January 2011 the applicant returned to work and began normal duties.  But on that shift he deposes that in addition to the pins and needles he began to experience pain in the back of his neck which extended down his left arm and behind his left shoulder blade.  He also noted swelling in those areas.  He informed his supervisor.  He says that he worked the following day and finished his shift at 11.00 a.m. By that time (1 February 2011) he says he was in severe pain and could feel a knot in his left shoulder.  He consulted a general practitioner who prescribed Voltarin, issued a medical certificate and referred the applicant for a CT scan.

[6] In his affidavit the applicant[10] swore:

“I performed the following employment duties over a period of time from 17 December 2008 to 2 February 2011 in the course of my employment with the Respondent that I believe resulted in the onset and progression of my cervical spine injury:

(a) carrying boxes of meat weighing up to approximately 25 kilograms often at or above shoulder height from the cold room to the work bench at a distance of approximately 20 steps:

(b) repetitively lifting and manoeuvring the abovementioned boxes of meat in cramped conditions in the confined space of a cold room often at above shoulder height;

(c) pulling the abovementioned boxes of meat off cold room shelves at various heights in cramped conditions;

(d) often I was prevented from using safe lifting practices and using a trolley due to the cramped conditions in the cold room.”

[7] The affidavit was read before me without objection that he might be expressing an expert opinion and notwithstanding the failure to depose to the source of the belief.

[8] The paragraph of the affidavit appears to have been copied from a statutory declaration sworn by the applicant and provided to the respondent in circumstances that will be mentioned hereunder sometime after 4 January 2012.[11]  Further information from the applicant concerning his work and the history of his suffering from symptoms in connection with his duties at work are revealed in a statement dated 3 March 2011 that the applicant provided to an investigator appointed by the respondent.[12]  In the statement the applicant said:

“2.I am providing this statement in relation to a workers’ compensation claim as a result of an injury to my neck which I believe I sustained whilst working as a butcher at Woolworths, Ayr.

…

7. Prior to this injury which I noticed on 4 January 2011, I was working full time with Woolworths in Ayr as a Retail Butcher.  My hours of work are Monday 5 a.m. to 3 p.m., Tuesday, 6 a.m. to 11 a.m. and Wednesdays, Thursdays and Fridays I work 6 a.m. to 3 p.m.  I have an hour for lunch and one 20 minute break in the morning in lieu of two ten minute breaks during the morning and afternoon.  I don’t work weekends.

8. There is no breaking down of beef any more at Woolworths.  The meat comes in cartons already cryovaced in primal cuts.  My duties would include basically unloading the loads of the cartons as they come in and slicing them to tray them up to put on display.

9. I don’t do a lot of heavy work with the unloading of the cartons because of the problems I have had with my back in my past and I tend to look after my back because of this.  I try to avoid unloading the pallets off the trucks as they come in.  However, I still have to carry cartons out of the cold room to process out on the floor.

10. The heaviest carton that I would lift in a day weighs 25 kg.  The dimensions of the cartons are approximately 900mm x 450mm and about 300mm in depth.  Sometimes the older stock is not necessarily put to the front to use and I am a bit of a stickler for checking dates etc, so I will move newer cartons that are on the top to get at the older ones to use them first.  And quite often the cartons are stacked about shoulder height which they are not supposed to be.  There are signs all over the cold room but sometimes it is unavoidable because of the lack of storage in the cold room.  That’s when there is a full load on the floor.

…

14. I was working in the work area of the meat department at Woolworths in Ayr from 6 a.m. on Tuesday 4 January 2011. 

15. The days prior to 4 January 2011, I had no pain or pins and needles.  I was just carrying out my normal duties from day to day.  The weekend prior to 4 January 2011, my wife and I and the kids were just preparing for our pending holidays the following week 10 January 2011.  We were going to go to Agnes Waters in our caravan but because of the floods we didn’t go south.  We ended up coming north to Mission Beach.

16. I don’t recall doing anything out of the ordinary that caused any injury to my neck or shoulder.  As I said, I had no indication that there was anything wrong with me.

17. On Tuesday 4 January 2011, I was working with my normal duties.  I specifically remember slicing meat that day.  It was probably about 7.30 a.m.  I was slicing the meat, and I noticed that I could feel pins and needles run down my left arm and into my hand.

18. I had no pain, just the pins and needles.  I just remembered just flexing my hand to try to relieve the pins and needles sensation.  It didn’t go away.  It was the very first time it happened, so I didn’t think too much of it and kept working.”

[9] In the statement the applicant says, consistently with his affidavit, that he continued to experience symptoms of pins and needles so later that day he made arrangements to have an appointment with a general practitioner.  Those investigations were directed to a possible cardiac complication.  The next day:[13]

“32.I returned to work the following day, Wednesday 5 January 2011.  I still had the pins and needles.  They were no worse or any less than the previous day and had no (sic) subsided at all during the night, but I had no pain.

33.I worked a normal shift that day and on Thursday 6 January 2011, and then I commenced my annual leave a day earlier on Friday 7 January 2011 because we weren’t getting any loads at work because of the floods down south.

34. During my holidays, I had constant pins and needles the whole time.  Never any pain to speak of just the constant pins and needles.  Needless to say, I did not do a heck of a lot of anything on my holidays because I still was quite anxious that I had a heart condition.  So nothing strenuous, just paddling around the pool at the caravan park and lying around resting.  I did no hard exercise or anything like that.  I drove the car to Mission Beach with the caravan but my wife and the kids set the caravan up. 

35. So I had three weeks annual leave from then and returned to work on Monday 31 January 2011.  I went straight into my normal duties and by the Monday afternoon I was now experiencing pain in the back of my neck which extended to my left shoulder behind my shoulder blade.

…

38. I went to work the next day Tuesday 1 February 2011 and by the time I had finished my half day shift at 11 a.m. I was in agony.  The pain scale that day was a 9.  I then told Adam that I would have to go to a Doctor.  When I started work that day, the pain was about a 4 or 5 in the morning and it had not lessened overnight.

39. I can’t remember any one specific incident that made my shoulder and neck sore that day.  It just worsened from when I started at 6 a.m. until I finished at 11 a.m.  Quite a good deal of swelling also developed in my left shoulder behind my shoulder blade.  I didn’t really notice the swelling until I got home and my wife rubbed some Voltarin into my shoulder.  I had that swelling for a good couple of weeks and the physiotherapist even mentioned it to me when I saw her on 7 February 2011.

40. I have not returned to work since that time, 1 February 2011.”

[10] On 16 February 2011 the applicant signed an application for compensation contemplated by s 132 of the WCRA.[14]  In it in response to the question[15]  “What is the nature of your injury?” the answer recorded is “strain of cervical spine”.  In response to the question[16] “What part of your body is injured?” the answer recorded is “Neck, left shoulder, arm, hand”.  In response to the question[17] “When did your injury occur?” the answer recorded is “Tuesday appro 7.30 a.m. 4/1/11”.  In response to the question posed by number 23 concerning when the injury happened there is a cross in the box “during the course of your ordinary work hours”.  He left the box which had words beside it “over a period of time” uncrossed.  In response to the question[18] “If over a period of time, when did you first notice symptoms?” the answer recorded is “n/a”.  With respect to the question[19] “How was the injury sustained?” the answer recorded is “during course of normal duties.”  In response to the box question[20] which asked “activity at time injury was sustained” the answer recorded is “slicing meat.”

[11] On 12 December 2011 Dr Richard Gibberd (orthopaedic surgeon) provided a report to the respondent.[21]  The report notes that he had examined the applicant on 5 December 2011 for the purposes of an assessment of permanent impairment.  I infer that this was a reference for an assessment under s 179(2)(c) of the WCRA.  In the report of 12 December 2011 when addressing “work-related aspects”[22] Dr Gibberd said:

“Mechanism of injury was very minor.  He noted the gradual onset of pins and needles in a glove and stocking fashion on 4 January 2011while slicing meat.  He said that nothing out of the ordinary occurred while he was doing this.  Imaging confirms degeneration. 

It would be my opinion that the act of slicing meat would not have caused any significant forces or pathology in the cervical region.

Imaging confirms the degeneration and it would be my opinion he suffered a mild exacerbation of his pre-existing asymptomatic constitutional degenerative cervical condition.  It is also my opinion this exacerbation ceased.

…

His workplace injury therefore does not contribute to his existing symptoms. 

Mr Ley gave me a history of repetitive lifting of cartons weighing up to 20 kg to 25 kg in awkward places in a cool room – it would be my opinion this has not had any significant contribution to the development of his constitutional degenerative cervical condition.”

[12] On 16 December 2011 the respondent issued a notice of assessment pursuant to s 185 of the WCRA.  A degree of permanent impairment attributed to the injury, consistent with the report of Dr Gibberd, of 0% was assessed.  The injury was described as – “exacerbation of pre-existing degeneration of cervical spine” and the date of the injury was recorded as 4 January 2011.

[13] At this point one might have been forgiven for supposing that the applicant had satisfied s 237(1)(a)(i) thus entitling him to “seek damages” by the “pre-court procedures” provided by Part 5 of Chapter 5 of the WCRA and the procedure for the “settlement of claims” provided by Part 6 of Chapter 5.  But that supposition overlooks the ever present prospect of a controversy over the “injury” that was  assessed.  For, as will be seen, the applicant would have it that the injury assessed was the cervical spine condition that was caused or contributed to by the workplace practices the applicant was exposed to over the years he worked for the respondent.  The respondent would have it that the injury assessed was the discreet injury that occurred on 4 January 2011 when the applicant first noted the symptoms of pins and needles when he was slicing meat.  As to the latter the report by Dr Gibberd of 12 December 2011 confirms an injury was sustained on 4 January 2011.  The sudden onset of pins and needles readily suggests that there was a sudden or identifiable physiological change somewhere within the region of the cervical spine that affected nerve sensations into the left arm and hand.  Such a physiological change is capable of constituting an “injury” within the meaning of provisions such as s 32 of the WCRA.[23]

[14] But the applicant was not concerned to seek damages for an injury so constrained.  On 12 December 2011 (4 days before the notice of assessment) his solicitors served upon the respondent a notice of claim for damages in a circumstance of urgency under s 276 of the WCRA.[24]  The notice was signed by the solicitor for the applicant[25] purporting to act under s 276(3) of the WCRA.  The circumstance of urgency was that by 12 December 2011 (were the applicant’s injury to be causily related to the duties the applicant said that he had to perform from time to time)[26] then in the circumstance that he first commenced duties on 17 December 2008 limitation issues might arise under the Limitations of Actions Act 1974.

[15] In section 41 of the notice the applicant identified the part of the body allegedly injured as “the cervical spine” and the nature of the injury as “musculoligamentous and disc”.[27]  In section 1 of the notice in response to the request for information to assist the consideration of the question of urgency the notice particularised the date of injury as “over a period of time from 17 December 2008 to 2 February 2011.”[28]

[16] The respondent replied to the service of the notice of claim on 12 December 2011 by a letter of 13 December 2011.[29]  In the letter the respondent, through its solicitors, accepted that there was an urgent need to start proceedings for damages.  The respondent then set out the conditions that it thought were appropriate to impose upon the applicant in order to satisfy it to waive compliance under  s 278(2)(b) in accordance with the requirement of s 276(6) of the WCRA.  In the letter the respondent said:[30]

“Entitlement and unassessed injury

Woolworths considers that the claimant is entitled to seek damages pursuant to Section 237(1)(d) of the WCRA in that he has not previously lodged an application for compensation for the alleged injury sustained over a period of time from 17 December 2008 to 2 February 2011.

As such the alleged injuries of musculoligamentous and disc injury to the cervical spine and psychological injury are unassessed injuries.

We note the claimant has previously lodged an application for compensation for a specific date injury occurring on 4 January 2011 that was accepted by Woolworths.  The nature of the allegations in the present NOCD is substantially different and as such the alleged injury in the NOCD will be treated as a different injury for procedural purposes.

Pursuant to Section 258(1) of the WCRA, the claimant may seek damages for the injury only if the insurer:

1. Decides that the claimant was a ‘worker’ when the injury was sustained; and

2. Decides that the claimant has sustained an ‘injury’; and

3. Gives the claimant a Notice of Assessment for the injury

This decision is due within three months after compliance is granted or waived pursuant to Section 258(5).  If the claimant wishes to provide further medical evidence in support of the unassessed injury then this further evidence must be provided to Woolworths prior to the expiry of this three month timeframe.

Woolworths will make arrangements for the claimant to be independently assessed for the purposes of making the above determinations and, if necessary, issuing a notice of Assessment.  Woolworths will contact you further in relation to assessment appointment arrangements in due course.

We put you on notice that in the event this claim resolves by agreement between the parties, then the specific date injury on 4 January 2011 will be required to be included in any Release documentation.

Compliance

Woolworths is not satisfied that the claimant’s Notice of Claim for Damages (NOCOD) complies with Section 275.

Woolworths is willing to waive compliance pursuant to Section 278(2)(b) on the basis that the claimant agrees to satisfy the following conditions:

1.The claimant will deliver a fully compliant NOCD with respect to the work duties alleged to have given rise to the injuries (including a signed authority pursuant to Section 275(7), a genuine offer of settlement pursuant to Section 275(6) and documents required to be disclosed under Section 275(8)) within 28 days of receiving a Notice of Assessment for the alleged injuries.

2.In relation to the unassessed injuries referred to above in the ‘Entitlement and unassessed injury’ section the claimant will provide, within 21 days of agreement to these conditions, a Statutory Declaration addressing the following matters:

(a)Describe in detail the types of duties the claimant performed in the course of his employment that have resulted in development of the alleged injuries;

(b) Any specific events the claimant considers contributed to his condition;

(c)  Describe in detail the progression of the claimant’s symptoms from the date of onset to the present time (being sure to include the date of initial onset), and what those symptoms are now providing as much detail as possible;

(d)Provide the names and addresses of all doctors and allied health providers consulted in relation to the unassessed injuries and the dates of consultation;

(e)Whether the claimant has previously experienced any similar symptoms to those related to the unassessed injuries.  If so, detail the cause of those symptoms and when they arose;

(f)Whether the claimant has suffered or presently suffers from any significant medical conditions unrelated to the unassessed injuries.  If so, please detail the nature of those conditions, when they were suffered, their cause and any medical providers consulted in relation to those conductions;

(g)Details of any medications being taken by the claimant at present;

(h)Whether the claimant is experiencing any family, financial or other social difficulties.  If so please provide particulars;

(i)Whether the claimant is undertaking any study at present to obtain further qualifications.  If so please provide particulars.

3.The claim in respect of the claimant’s injuries will be stayed pending satisfaction of the conditions in paragraphs 1 and 2 by the claimant.

4.The time limits for completion of pre-proceedings steps pursuant to Chapter 5 Parts 5 and 6 of the WCRA will commence from the date the claimant satisfies the condition in paragraph 1 as if that date was the date of delivery of the NOCOD to Woolworths pursuant to Section 275.

5.The parties will otherwise comply with Chapter 5 Parts 2, 5 and 6 of the WCRA.

6.Time is of the essence in respect of paragraphs (sic) 1 of these conditions.  The claimant acknowledges that  Woolworths is not required to agree to any extension of time requested by the claimant under any circumstances.

7.In the event the claimant fails to satisfy the requirements of paragraph 1 of these conditions within the time prescribed, this agreement to waive compliance shall be terminated immediately and Woolworths’ waiver of compliance will be void ab initiio without the need for Woolworths to provide further notice of termination t the claimant.”

…”

and the letter went on.

[17] Matters are a little unclear but it would seem that the solicitors for the applicant responded to the letter of 13 January 2012 by letter of 27 February 2012.[31]  That letter relevantly contended:[32]

“Fresh Notice of claim for Damages

We disagree with your position that our client’s OPT injury to his cervical spine remains unassessed.  Our client has received a Notice of Assessment in relation to this injury, dated 16 December 2011.

In accordance with the law as outlined in Anderson v Aged Care Employers Self Insurance [2011] QSC 101, it is artificial to argue about the event causing our client’s cervical spine pain.  The ‘injuries’ for the purpose of the Workers Compensation and Rehabilitation Act (the Act) is our client’s cervical spine and psychological injury.  In relation to the cervical spine injury, we draw your attention to Dalton J in Anderson,

An injury is not the means by which damage is inflicted, but is the effect on the person … [ at 23].

We submit that the law as described in Anderson establishes that our client has an entitlement to pursue damages in relation to the injury to his cervical spine, as he has received a Notice of Assessment in relation to this injury.  Therefore, our client is entitled to claim damages by virtue of Section 237(1)(a)(i) of the Act.

As such, our client is not required to withdraw the fresh Notice of Claim for Damages declared on 16 January 2012.

Unassessed psychological injury

In light of the above, your client is required to make a decision pursuant to Section 258 of the Act in relation to our client’s unassessed psychological injury only.

Assessment

Our client is scheduled to attend a medico legal appointment with Dr Alan Cook, Orthopaedic Surgeon, in May 2012.  This timeframe is appropriate given that our client had surgery in May 2011, and arguably will not be stable for 12 months following this surgery.

Our client has recently attended a medico legal appointment with Dr John Flanagan, Psychiatrist, and we anticipate receiving a copy of the report in the week beginning 27 February 2012.  We will forward a copy of the report to your office as soon as we receive same.

Authorities

As requested, we have forwarded our client’s original authorities to Medicare and Centrelink to your office, under cover of letter dated 22 February 2012.  We trust that your office has received these.  Please advise us if they do not arrive.

Summary

Our client maintains his entitlement to pursue a common law claim for damages in relation to his cervical spine injury.  Therefore, his Notice of claim for Damages declared on 16 January 2012 will not be withdrawn.

Our client awaits the Section 258 response in relation to his unassessed psychological injury.

Should your client not agree with our client’s entitlement to pursue a claim for damages in relation to his assessed cervical spine injury, our client may be forced to bring an application in relation to this issue.”

[18] Essentially since the exchange of that correspondence there has been a stand-off between the parties.  Predictably there has been further correspondence and manoeuvring and some information has been provided.[33] 

[19] This is not the first time that a dispute between an injured worker and an insurer concerning the identification of the injury which must be assessed  in order for the worker to come within s 237(1) and its relevant sub-provisions[34] has come before the courts.   It may be accepted that in the application for compensation signed by the applicant on 16 February 2011[35] the occurrence of 4 January 2011 was identified as the occasion when he became aware of a possible injury.  Before me the question of who authored the application was not explored, the applicant signed it, but who completed the particular answers in the form remains unknown.  There is no evidence that when the applicant signed the application on 16 February 2011 he knew or understood the potential significance of the questions or information sought in identifying an “event” within s 31 of the WCRA.  It is not clear that when the applicant signed the application he had received medical advice concerning causation of the condition he was suffering from.  The evidence however does show that in March and April 2011 the respondent had received expert orthopaedic opinion that the applicant’s continued symptoms were not attributable solely to the activity of 4 January 2011 when the applicant was slicing meat but might be attributable to a degenerative cervical spine disease.[36]  It is plain that some days before the respondent issued the notice of assessment on 16 December 2011 it understood that the applicant’s contention was that his injury was attributable to occurrences happening before 4 January 2011; the applicant’s solicitor when she authored the notice of claim for damages on 12 December 2011 identified the circumstances giving rise to the injury the subject of the notice as workplace practices occurring over a period of time from 17 December 2008 until 2 February 2011.  The letter from the respondent’s solicitors of 13 December 2011 makes this clear.[37]

[20] In Muckermann v Skilled Group Limited  Anor [38] I said (relevantly):

“The concept of “event” defined by s 31 finds its explicit work in the context of this matter not as a part of any assessment of injury or impairment but in the context of the plaintiff seeking damages.  Section 111 WCRR expressly refers to the “event”.  It requires that the notice of claim for damages which an injured worker must prepare and sign as part of the pre court procedures mandated by Part 5 of Chapter 5 contain an elaboration of the facts and matters relating to the “event”.  It is not surprising that the issue of “event” arises in the context of the claim for damages.  The identification and consideration of an “event” is important in the consideration of matters such as whether a breach of the duty of care has occurred and also of causation of loss and damage.  In other words, in the context of the WCRA the issue of “event” has significance in the context of the pre-court procedures and the requirement of Parts 5 and 6 of Chapter 5 of the Act that the parties attempt to settle claims for damages.  I have not overlooked that an application for compensation requires of an injured worker information demonstrating that the injury arose out of or in the course of employment and that in the consideration of a claim for damages the nature and extent of personal injury will be relevant.  So that while for both “compensation” claims and “damages” claims issues concerning both injury and event may have to be considered in general terms injury is the focus of a compensation claim and event has a much greater significance in the damages claim than it does in a compensation claim.”

(Footnotes omitted)

I have not overlooked that the term “event” is found in s 237(1)(a)(ii)A of the WCRA.  The intention of that provision is that when multiple injuries may have been sustained a worker, having already been assessed for one injury (and a substantial one, see s 237(1)(a)(ii)B) need not undergo assessment of the other injuries in order to seek damages.  That circumstance does not, in my view, detract from the comments I made in Muckermann.

[21] So while it may be that different “events” within the meaning of that term found in s 31 of the WCRA have been expressly or by implication identified when the application for compensation is compared with the notice of claim for damages on the view I take the same “injury” within the meaning of that term used in s 32 of the WCRA is the subject of both the application and the notice of claim.  In the former the applicant identified his injury as “strain of cervical spine” and affecting his “neck, left shoulder, arm, hand”[39] while in the notice of claim the part of the body identified was “cervical spine” and the nature of the injury was specified as “musculoligamentous and disc”.[40] The view I take is I believe consistent with the reasoning of the Court of Appeal in Dowd v Swift Australia Pty Ltd [41] the reasons of Davies JA in Bell v  Australia Meat Holdings Pty Ltd[42] and with the persuasive reasons of Dalton J in Andersen v Aged Care Employers Self Insurance [43].

[22] The injury referred to in the application for compensation should be regarded as the same injury the subject of the notice of claim for damages.  To the extent that Dr Gibberd in his report of 12 December 2011 assessed a discreet injury by way of exacerbation to the cervical spine on 4 January 2011 and disagreed with the notion that the applicant had suffered any injury over a period of time because of workplace practices the doctor was expressing a medical opinion not a conclusion involving the mixed question of law in fact that the question of the meaning of the term “injury” poses. 

[23] The consequence is that the injury assessed in the notice of assessment dated 16 December 2011[44] should be regarded for the purposes of the WCRA and the applicant’s notice of claim for damages of 12 December 2011 as the same injury. 

[24] In expressing this view it should not be thought that by implication I disagree with the reasons of the Chief Justice in Sayers v Hanson t/as Allguard Security Services.[45]  The circumstances that the Chief Justice was considering are distinguishable for the reasons I gave in Muckermann v Skilled Group Limited & Anor.[46] The conclusion of the Chief Justice was in accordance with the WCRA, particularly s 295, because the “event” the plaintiff in that case sought, for the first time, to set up in his statement of claim was one that had never been identified by him in either his application for compensation, his notice of claim for damages or at any time as he took the steps necessary to come within s 295 of the WCRA.[47]

[25] Consistently with the reasons I gave in Muckermann v Skilled Group Limited & Anor[48] any dispute as to whether the injury the applicant first became aware of when he began to experience symptoms on 4 January 2011 was caused or contributed to by the workplace practices he identifies over the years he worked as a butcher is properly a matter for resolution in the context of the “seeking of damages” or if needs be determination at a trial where liability, “independently of the Act” is determined.  

[26] I commenced by mentioning a parallel universe.  The stark evidence of that can be found in the reliance the respondent placed upon a report from Dr Brett Halliday (orthopaedic surgeon) of 1 May 2012[49].  The respondent purported to refer to Dr Halliday the questions posed by s 258(1)(a)(ii) and if needs be s 258(3) on the grounds that concerning the claim for injury occurring over a period of time the applicant had not lodged an application for compensation for that injury.[50] Dr Halliday concluded that the applicant’s condition and injury was caused by the effects of a degenerative disease in his cervical spine and that the condition had not been caused or contributed to to any extent by the workplace practices described. On that basis the respondent concluded that the applicant had not sustained an injury within s 32 of the WCRA by reason of the workplace practices and accordingly, there being no injury to assess, he was precluded from seeking damages for such an injury unless he could successfully challenge the respondent’s decision based on Dr Halliday’s report under Chapter 13 of the WCRA.[51]

[27] In argument before me counsel for the respondent sought to resist the application for a declaration relying upon the reasons of Douglas J in Otto v Mackay Sugar Ltd & Anor.[52]  In that case his Honour recognised the jurisdiction to make a declaration in an appropriate case if the facts upon which the declaration depended were sufficiently clear. 

[28] In Otto the facts were unclear and contentious and there was a doubt upon the evidence whether any work related injury had occurred.  On that basis the employer had declined an application for compensation on the grounds that a work related injury had not been sustained.  The worker had taken steps to have that decision reviewed but had withdrawn the proceedings.  But in this matter the medical evidence is unanimous that a work related injury has been sustained. Otto is distinguishable. 

[29] The respondent would have it that the applicant may only seek damages for whatever injury he sustained on 4 January 2011, in all likelihood on the evidence before me a minor exacerbation of an underlying degenerative disease, and that any contribution arising from the asserted workplace practices to the cervical spine condition must be disregarded.[53]  For the reasons I have given this contention should be rejected.  The applicant’s neck injury has been assessed.  The nature, extent and cause of it and how it might sound at damages should be explored under Parts 5 and 6 of Chapter 5 of the WCRA and if it must be at a trial.

[30] The conclusions I have reached do not determine the issues that may be disputed between the parties at a potential trial, or those that might be debated between the parties when they engage in the process mandated by Parts 5 and 6 of Chapter 5 of the WCRA.[54]

[31] I propose to make the declaration sought and invite submissions as to costs.