Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QSC
  3. 2022
  4. Sankey v GPC Asia Pacific Pty Ltd - [2022] QSC 213

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Sankey v GPC Asia Pacific Pty Ltd[2022] QSC 213

Reported at (2022) 12 QR 1

Sankey v GPC Asia Pacific Pty Ltd[2022] QSC 213

Reported at (2022) 12 QR 1

SUPREME COURT OF QUEENSLAND

CITATION:

Sankey v GPC Asia Pacific Pty Ltd [2022] QSC 213

PARTIES:

JARROD EDWARD SANKEY

(applicant)

v

GPC ASIA PACIFIC PTY LTD

(defendant)

FILE NO/S:

SC No. 681/2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

5 October 2022, 11 October 2022 (costs orders)

DELIVERED AT:

Rockhampton

HEARING DATE:

18 July 2022

JUDGE:

Crow J

ORDER:

The court declares:

  1. (a)
    the period of time within which the plaintiff was entitled to commence a proceeding claiming damages for personal injury arising from an incident on 1 December 2016 when employed by the defendant, being, pursuant to section 11(1) of the Limitation of Actions Act 1974 (Qld), a period of three years expiring on 1 December 2019, was extended, pursuant to section 1(2)(a) of Schedule 5 of the Workers Compensation and Rehabilitation Act 2003 (Qld), to 22 March 2021.
  1. (b)
    this proceeding is not time-barred pursuant to section 11 of the Limitation of Actions Act 1974 (Qld).

The court orders:

  1. 1.
    The defendant pay the plaintiff’s costs of the application on the standard basis.
  1. 2.
    The fees of both senior and junior counsel are to be regarded as necessary or proper for the attainment of justice.
  1. 3.
    Each party has liberty to apply.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – TIME FOR CLAIM – where the applicant alleges he suffered a lower back injury during his employment with the defendant – where the applicant subsequently suffered a psychiatric injury – where the applicant made an application to WorkCover which was accepted – where, after a period of delay, WorkCover provided the applicant his Notice of Assessment letter and a lump sum offer – where the applicant subsequently began common law court proceedings against the defendant in respect of the injuries sustained – where the defendant claims that the applicant’s claim is time-barred – where the applicant seeks a declaration that the period within which to commence an action for damages for negligence was extended to 22 March 2021 – where the application requires an interpretation of the time limits imposed under schedule 5 section 1(a) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether WorkCover gave the applicant a Notice of Assessment for injury less than 6 months before the end of the general limitation period per sch 5 s 1(1)(b)(i) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether the applicant, prior to the end of the general limitation period, requested WorkCover to have his injuries assessed to determine if his injuries have resulted in a degree of permanent impairment within the meaning of sch 5 s 1(1)(b)(i).

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 235, s 236, s 237, s 239A, s 241, s 242, s 273, s 274, s 275, s 276, s 295, s 297, s 298, s 299, s 302, sch 5 s 1

Limitation of Actions Act 1974 (Qld), s 11

Fox v Percy (2003) 214 CLR 118, cited

Little v McCarthy & Anor [2014] QSC 274, applied

Tanks v WorkCover Queensland [2001] QCA 103, cited

Walter v Durham & anor [2003] QCA 531, cited

COUNSEL:

R J Douglas KC & J Sorbello for the applicant

C Heyworth-Smith KC for the respondent

SOLICITORS:

Payne Butler Lang for the applicant

Cooper Grace Ward for the respondent

  1. [1]
    On 5 January 2022 Mr Sankey filed an application seeking a declaration pursuant to sch 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”) that the period within which to commence an action for damages for negligence arising out of an incident on 1 December 2016 was extended to 22 March 2021.
  2. [2]
    Schedule 5 s 1 of the WCRA provides:

1 Worker who requests or is given notice of assessment

  1. (1)
    This section applies if—
  1. (a)
    less than 6 months before the end of the general limitation period, an insurer gives a worker a notice of assessment for an injury; or
  1. (b)
    before the end of the general limitation period—
  1. (i)
    a worker asks an insurer to have the worker’s injury assessed to decide if the injury has resulted in a DPI; and
  1. (ii)
    the insurer has not given the worker a notice of assessment for the injury.
  1. (2)
    A proceeding for damages for the injury may be brought—
  1. (a)
    within 6 months after the insurer gives the notice of assessment for the injury; or
  1. (b)
    if, before the end of the period mentioned in paragraph (a), the worker advises the insurer that the worker does not agree with the DPI stated in the notice of assessment for the injury—within 6 months after a tribunal decides the DPI.
  1. [3]
    Section 302 of the WCRA provides:

302Alteration of period of limitation

  1. (1)
    A claimant may bring a proceeding for damages for a personal injury—
  1. (a)
    within the period of limitation (the general limitation period) allowed for bringing a proceeding for damages for personal injury under the Limitations of Actions Act 1974; or
  1. (b)
    if schedule 5 provides for a different period for bringing the proceeding—within the period mentioned in schedule 5.
  1. (2)
    A claimant may bring a proceeding for damages for personal injury after the end of the period mentioned in subsection (1) only if—
  1. (a)
    before the end of that period—
  1. (i)
    the claimant gives, or is taken to have given, a complying notice of claim; or
  1. (ii)
    the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or
  1. (iii)
    a court makes a declaration under section 297; or
  1. (iv)
    a court gives leave under section 298; and
  1. (b)
    the claimant complies with section 295.
  1. (3)
    However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.
  1. [4]
    I am informed by Senior Counsel that this application raises a question of law as to the proper interpretation of sch 5 s 1(a) which is not the subject of any prior authority. The application also raises a question of fact to be applied to sch 5 s 1(b)(ii).

Background Facts

  1. [5]
    Mr Sankey is currently 24 years of age having been born on 22 January 1998. Mr Sankey was 18 years of age on 1 December 2016, when he was employed by the defendant to assist in removing shop fittings. Mr Sankey alleges that when carrying four or five punch panels from the shop to a skip, he suffered an injury to his lower back in the nature of a disc protrusion at L5/S1. Mr Sankey subsequently suffered from a psychiatric injury.
  2. [6]
    Mr Sankey made an application for WorkCover benefits prior to 29 May 2017 and it was accepted. The respondent’s insurer, WorkCover Queensland, acting via several customer advisers, managed Mr Sankey’s WorkCover claim.
  3. [7]
    One experienced adviser, Stephen Hanna, is recorded in a WorkCover communications report as first having contact with Mr Sankey’s claim on 1 June 2017.[1] Many communication notes in Mr Sankey’s claim were authored by Mr Hanna.
  4. [8]
    After the acceptance of Mr Sankey’s WorkCover claim, he embarked upon conservative rehabilitation, including physiotherapy.[2] That did not succeed and accordingly on 22 August 2017, Dr Peter Lucas, neurosurgeon, performed a left L5/S1 microdiscectomy and rhizolysis upon Mr Sankey. Mr Sankey was certified fit to return to work six months after surgery and attempted to return to work, lasting only two weeks before ceasing work. On 12 February 2018 Mr Sankey’s claim was closed, however, it was reopened on 2 July 2018, after it was shown that Mr Sankey could not return to work.
  5. [9]
    Mr Sankey’s mental health deteriorated. Mr Sankey was admitted to hospital in Maryborough with mental health issues on 24 August 2018. Mr Sankey again consulted Dr Lucas who arranged for an epidural to relieve his back pains on 29 March 2019, however, that did not succeed in relieving Mr Sankey’s back pain. Dr Lucas then advised that further surgery was required, however, Dr Lucas was unable to perform that surgery himself.
  6. [10]
    There was then a considerable delay whilst Mr Sankey tried to obtain alternative specialist medical assistance. Eventually Mr Sankey consulted Dr Martin Wood, neurosurgeon, who recommended further surgery. On 23 February 2020 Dr Wood performed a transforaminal lumbar interbody fusion upon Mr Sankey’s L5/S1 intervertebral joint.
  7. [11]
    During the period of delay between Dr Lucas’ recommendation for further surgery and the first consultation with Dr Wood, Dr Michael Coroneos, neurosurgeon, examined Mr Sankey on 19 July 2019. Contrary to treating surgeon Dr Lucas’ opinion, Dr Coroneos formed the opinion that Mr Sankey was stable and stationary, not in need of any further surgery, and had an 11% whole person impairment.[3]
  8. [12]
    Approximately six months after Mr Sankey’s last surgery and on 31 August 2020, Dr Nicholas Burke examined Mr Sankey for the purposes of providing an opinion as to the degree of permanent impairment (DPI) suffered by Mr Sankey as a result of his work-related injury.[4] Mr Sankey reported to Dr Burke that he had significantly improved since the back fusion surgery performed by Dr Wood, such that his pain was a 3 out of 10 on a good day and a 7 out of 10 on a bad day.
  9. [13]
    Mr Sankey reported to Dr Burke that twisting too much, squatting too much, lifting anything of great significance or driving a manual vehicle provoked his lower back symptoms, that he had a sitting tolerance limited to some 10 minutes and that for long motor vehicle journeys, such as a two-hour journey, he would need to lie in the back of a car. Dr Bourke considered that Mr Sankey was consistent in his presentation and diagnosed an L5/S1 disc protrusion with S1 radiculopathy and spinal fusion resulting in a 22% whole person impairment.
  10. [14]
    Mr Sankey’s case is complicated by the emergence of a psychiatric disorder. Dr Sharon Harding, a psychiatrist, assessed Mr Sankey on 12 November 2018 and 15 October 2019.[5] Following the consultation of 15 October 2019, Dr Harding expressed the opinion that whilst Mr Sankey had an adjustment disorder with depressed mood, he was assessed at 0% permanent impairment for the psychological injury and was stationary and stable. The difficulty, of course, with acceptance of this opinion is that it precedes the lumbar fusion performed on 23 February 2020 and it is difficult to accept that a psychiatric condition could be stable and stationary when the underlying causative physical injury was not stable and stationary.
  11. [15]
    Dr Harding also diagnosed a cannabis-induced psychotic illness with a differential diagnosis of schizophrenia against a background of cannabis use. Mr Sankey’s psychiatric injury was assessed by the Medical Assessment Tribunal (MAT) on 15 January 2020 at a DPI of 1%.[6] On 22 September 2020, WorkCover emailed to Mr Sankey his Notice of Assessment letter with lump sum offers in respect of physical and psychological injuries.[7] Mr Hanna also telephoned Mr Sankey explaining the letter to him.[8]
  12. [16]
    Finally on 2 October 2020, Mr Hanna telephoned Mr Sankey, returning Mr Sankey’s missed call.[9] Mr Sankey advised Mr Hanna that he had accepted the physical lump sum offer and deferred the psychological lump sum offer. After the payment, Mr Hanna advised that Mr Sankey’s statutory claim was now finalised. Mr Sankey thanked Mr Hanna for his assistance throughout the claim and advised him that he was expecting to proceed with a common law claim through his solicitors.
  13. [17]
    On 19 October 2020, Morton & Morton Solicitors, acting on behalf of Mr Sankey served on WorkCover Queensland a Notice of Claim for Damages (NOCD) in respect of the incident.[10] On 23 October 2020, Cooper Grace Ward on behalf of the respondent, utilising s 275 of the WCRA, waived compliance in respect of the NOCD but also raised a defence under the Limitation of Actions Act 1974 (Qld). Although Morton & Morton Solicitors responded to the Limitation of Actions Act issue raised by Cooper Grace Ward, another firm of solicitors, Payne, Butler and Lang, took over the conduct of Mr Sankey’s claim on 17 December 2020. The claim proceeded to an unsuccessful compulsory conference on 3 June 2021.[11]
  14. [18]
    Within 60 days of the compulsory conference, on 16 July 2021, Mr Sankey filed court proceedings in respect to the injuries he sustained on or about 1 December 2016. By its defence of 27 August 2021, the respondent again raised the defence that the applicant’s claim was time-barred by s 11 of the Limitation of Actions Act as the defendant alleged Mr Sankey had not served a compliant Notice of Claim pursuant to ch 5 of the WCRA or commenced his proceedings prior to 1 December 2019.[12]
  15. [19]
    Mr Sankey filed his reply on 18 October 2021, joining issue on the Limitation of Actions Act defence, alleging via paragraph 6 that the limitation period is not time barred on the following grounds:

“(a)The plaintiff’s mother, as an authorised contact for WorkCover Queensland, advised WorkCover Queensland that the plaintiff required a Notice of Assessment for the purpose of progressing his matter;

  1. (b)
    The plaintiff was issued a Notice of Assessment for his injury on 22 September 2020;
  1. (c)
    The plaintiff’s Notice of Assessment was given less than 6 months before the end of his general limitation period;
  1. (d)
    WorkCover waived compliance with section 275 of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) on 23 October 2020.
  1. (e)
    Pursuant to section schedule 5 [sic], Section 1 of the WCRA the plaintiff is entitled to pursue these proceedings.”
  1. [20]
    In terms of s 302 of the WCRA, the parties agree that:
  1. section 302(1)(a) is not engaged as the general limitation period, as defined, concluded on 1 December 2019;
  2. if the provisions of s 302(1)(b) are satisfied, that Mr Sankey has satisfied s 302(2)(a)(ii), that is, the insurer has waived compliance with the requirements of s 275;
  3. as required by s 302(2)(b) Mr Sankey has complied with s 295; and
  4. section 302(3) has been satisfied, that is, the proceeding has been brought within 60 days of the compulsory conference.
  1. [21]
    The parties cannot however agree upon the issue of whether s 302(1)(b) is satisfied, namely, if sch 5 to the WCRA provides for a different period for bringing the proceeding, whether the matters in s 302(2) were satisfied within the period mentioned in sch 5.
  2. [22]
    The determination of this issue raises two questions. The first is the late assessment question, that is whether WorkCover did give the applicant a Notice of Assessment for injury less than 6 months before the end of the general limitation period within the meaning of sch 5 s 1(1)(a). The second question is the assessment request question, namely whether the applicant, prior to 1 December 2019, asked WorkCover to have his injuries assessed to decide if his injuries have resulted in a DPI within the meaning of sch 5 s 1(1)(b)(i).

The Late Assessment Question

  1. [23]
    Section 302(1)(a) of the WCRA defines the phrase “the general limitation period” as the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act. Plainly, pursuant to the Limitation of Actions Act, the end of the general limitation period is three years from the date of the accrual of the cause of action. In this case, as the damage was suffered instantaneously on 1 December 2016, the three-year limitation period ended on 1 December 2019.
  2. [24]
    As set out above, because of the circumstances in the present case, Notices of Assessment were not given to Mr Sankey, a worker, until 22 September 2020. The respondent’s argument is that, utilising the ordinary meaning of the words in sch 5 s 1(1)(a), the relevant period is the period from 1 June 2019 until 1 December 2019, as the end of the general limitation period is 1 December 2019 and the relevant six-month period is the period preceding that date.
  3. [25]
    The applicant’s submission is that if the insurer gives a worker a Notice of Assessment at any point in time after 1 June 2019, it will suffice as that point in time is “less than 6 months before the end of the general limitation period” within the meaning of sch 5 s 1(1)(a).
  4. [26]
    Chapter 5 of the WCRA is entitled “Access to Damages”. Chapter 5 pt 1, entitled “Interpretation and Application”, includes ss 235 and 236 which provide:

235 Requirements of chapter to prevail and are substantive law

  1. (1)
    If a provision of an Act or a rule of law is inconsistent with this chapter, this chapter prevails.
  1. (2)
    All the provisions of this chapter are provisions of substantive law.
  1. (3)
    However, subsection (2) does not affect minor variations in procedure.

[…]

236Period of limitation under Limitation of Actions Act 1974 never affected

  1. (1)
    It is declared that nothing in this Act affects, or has ever affected, the commencement of the period of limitation provided by the Limitation of Actions Act 1974, section 11.
  1. (2)
    To remove any doubt, it is declared that the period of limitation provided by the Limitation of Actions Act 1974, section 11 applicable to an action for damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay the damages for the injury is, and always has been, the same as would have been applicable to that action if this Act had not been enacted.
  1. (3)
    This section is subject to section 302.
  1. [27]
    Section 236 has an interesting history. Its predecessor, s 252A of the Workcover Queensland Act 1996 (Qld),[13] was enacted to confirm the Court of Appeal’s decision in Tanks v WorkCover Queensland,[14] in circumstances where the High Court had granted special leave to appeal the QCA decision.
  2. [28]
    Section 236 emphasises the importance to the legislature of the continuation of the three-year period of limitation for personal injury actions. The three-year limitation period has been in place at least since 1974, yet s 235(1) declares the provisions of ch 5 to prevail over provisions of another Act.
  3. [29]
    Section 237(1) and (5) of the WCRA are important and provide:

237General limitation on persons entitled to seek damages

  1. (1)
    The following are the only persons entitled to seek damages for an injury sustained by a worker—
  1. (a)
    the worker, if the worker—
  1. (i)
    has received a notice of assessment from the insurer for the injury; or
  1. (ii)
    has not received a notice of assessment for the injury, but—
  1. (A)
    has received a notice of assessment for any injury resulting from the same event (the assessed injury); and
  1. (B)
    for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or
  1. (iii)
    has a terminal condition;
  1. (b)
    a dependant of the deceased worker, if the injury results in the worker’s death and—
  1. (i)
    compensation for the worker’s death has been paid to, or for the benefit of, the dependant under chapter 3, part 11; or
  1. (ii)
    a certificate has been issued by the insurer to the dependant under section 132B.

[…]

  1. (5)
    To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.
  1. [30]
    Section 239A of the WCRA provides:

239A Worker with more than 1 injury from an event

  1. (1)
    This section applies to a claimant who is a worker mentioned in section 237(1)(a)(ii).
  1. (2)
    The claimant can not have, and the insurer can not decide to have, the injury assessed under chapter 3, part 10 to decide if the claimant has sustained a DPI.
  1. (3)
    The insurer can not decide the claimant’s notice of claim does not comply with section 275 only because the claimant has not received a notice of assessment for the injury.
  1. (4)
    However, the claimant may seek damages for the injury only if the insurer decides the claimant has sustained an injury.
  1. (5)
    The insurer must make a decision for subsection (4) within 40 business days after—
  1. (a)
    the claimant gives, or is taken to have given, a complying notice of claim; or
  1. (b)
    the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or
  1. (c)
    a court makes a declaration under section 297.
  1. (6)
    The insurer must—
  1. (a)
    notify the claimant of its decision for subsection (4); and
  1. (b)
    if the insurer decides the claimant has not sustained an injury—give the claimant written reasons for the decision; and
  1. (c)
    if the insurer is WorkCover—also give the information mentioned in paragraphs (a) and (b) to the claimant’s employer.
  1. (7)
    If the insurer does not make a decision for subsection (4) within the time stated in subsection (5)—
  1. (a)
    the insurer must, within 5 business days after the end of the time stated in subsection (5), notify the claimant—
  1. (i)
    of its reasons for not making the decision; and
  1. (ii)
    that the claimant may have the insurer’s failure to make the decision reviewed under chapter 13; and
  1. (b)
    the claimant may have the insurer’s failure to make the decision reviewed under chapter 13.
  1. (8)
    A person aggrieved by the insurer’s decision may have the decision reviewed under chapter 13.
  1. [31]
    Chapter 5 pt 2 div 3 of the WCRA is entitled “Urgent Proceedings” and currently includes only ss 241 and 242 which provide:

241 Application of div 3

This division applies to a claimant who is a person mentioned in section 237(1).

242 Need for urgent proceedings

  1. (1)
    This section applies in relation to an urgent need for the claimant to start a proceeding for damages.
  1. (2)
    Section 276 provides a way for the claimant to satisfy section 302(2).
  1. (3)
    Also, the claimant may, under section 298, seek leave to start a proceeding for damages for an injury without complying with section 275.
  1. (4)
    However, if the leave mentioned in subsection (3) is given, a proceeding started by leave is stayed until the claimant complies with section 275.
  1. [32]
    Sections 243 to 252 have been repealed.
  2. [33]
    It is plain that the protections afforded to an injured worker wishing to commence proceedings and facing an expiration of the three-year time limitation period may be assisted by s 242 but only if they have satisfied s 237(1), which requires either any Notice of Assessment to have been issued or alternatively if the worker has a terminal condition.
  3. [34]
    Chapter 5 pt 5 of the WCRA is entitled “Pre-Court Procedures” and importantly includes ss 273, 274 and 276. Sections 295, 297, 298 and 299 under Chapter 5 pt 7 are also important to the legislative scheme concerning the bringing of urgent proceedings. These sections provide:

273Object of pt 5

The object of this part is to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense.

274 Overriding obligations of parties

  1. (1)
    In accordance with the object of this part, this part is to be applied by the parties to avoid undue delay, expense and technicality and to facilitate the object.
  1. (2)
    A party impliedly undertakes to other parties to proceed in an expeditious way.
  1. (3)
    A court may impose appropriate sanctions if a party does not comply with a provision of this part.

[…]

276 Noncompliance with s 275 and urgent proceedings

  1. (1)
    The purpose of this section is to enable a claimant to avoid the need to bring an application under section 298.
  1. (2)
    Without limiting section 297 or 298, if the claimant alleges an urgent need to start a proceeding for damages despite noncompliance with section 275, the claimant must, in the claimant’s notice of claim—
  1. (a)
    state the reasons for the urgency and the need to start the proceeding; and
  1. (b)
    ask the insurer to waive compliance with the requirements of section 275.
  1. (3)
    The claimant’s lawyer may sign the notice of claim on the claimant’s behalf if it is not reasonably practicable for the claimant to do so.
  1. (4)
    The claimant’s notice of claim may be given by fax in the way provided for under a regulation.
  1. (5)
    The insurer must, before the end of 3 business days after receiving the notice of claim, advise the claimant that the insurer agrees or does not agree that there is an urgent need to start a proceeding for damages.
  1. (6)
    If the insurer agrees that there is an urgent need to start a proceeding for damages, the insurer may, in the advice to the claimant under subsection (5), impose the conditions the insurer considers necessary or appropriate to satisfy the insurer to waive compliance under section 278(2)(b).
  1. (7)
    The claimant must comply with the conditions within a reasonable time that is agreed between the insurer and the claimant.
  1. (8)
    The claimant’s agreement to comply with the conditions is taken to satisfy section 302(2)(a)(ii).

[…]

295 Compliance necessary before starting proceeding

The claimant may start a proceeding in a court for damages only if the claimant has complied with—

  1. (a)
    the relevant division under part 2, to the extent the division imposes a requirement on the person; and
  1. (b)
    part 5, other than as provided by sections 297 and 298; and
  1. (c)
    part 6; and
  1. (d)
    section 296.

[…]

297 Court to have made declaration about noncompliance

  1. (1)
    Subject to section 296, the claimant may start the proceeding if the court, on application by the claimant dissatisfied with the insurer’s response under section 278 to a notice of claim, declares that—
  1. (a)
    notice of claim has been given under section 275; or
  1. (b)
    the claimant is taken to have remedied noncompliance with the requirements of section 275.
  1. (2)
    A declaration that a claimant is taken to have remedied noncompliance with section 275 may be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of section 275.

298 Court to have given leave despite noncompliance

  1. (1)
    Subject to section 296, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 275.
  1. (2)
    The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of section 275.

299 Other provision for urgent proceedings

Part 2, division 3 provides for the urgent starting of proceedings by persons mentioned in section 237(1), and for the staying of those proceedings.

  1. [35]
    The final pieces in this complex legislative scheme are s 302 and sch 5 s 1 as set out above.
  2. [36]
    On behalf of Mr Sankey, it is argued that sch 5 s 1(1)(a) ought to be construed in an expansive manner as it is remedial legislation intended to facilitate access to common law damages by an injured worker. The applicant relies on the object of ch 5 pt 5 as set out in s 273, facilitating a just and expeditious resolution of the real issues in a claim for damages at a minimum expense and s 274(1), to avoid undue delay, expense and technicality.
  3. [37]
    The applicant argues that the narrow interpretation of sch 5 s 1(1)(a) intended by the respondent will frustrate the object of ch 5 as:
    1. (a)
      The Chapter 5 pre-court procedures must be complied with in order to commence proceedings;
    2. (b)
      Workers who have sustained injuries that are not yet considered stable and stationary prior to the general limitation period will not be issued with a Notice of Assessment;
    3. (c)
      Those workers would be put to undue expense of having to seek leave from the court pursuant to s 298 of the WCRA, to bring proceedings despite non-compliance with the requirements of s 275 and so, Schedule 5 is directed at remediating that outcome.
  4. [38]
    Prior to 1 January 1996, an injured worker could protect a time limitation period by simply issuing a writ of summons out of the Supreme Court. That was a simple process which could be undertaken at minimum expense. On 1 January 1996, the Workers’ Compensation Amendment Act (No 2) 1995 (Qld) came into effect requiring assessments of permanent impairment, lump sum offers to be made, and regulating access to court proceedings in respect of an injured worker. Practical difficulties and delays, particularly with psychiatric injuries, were recognised in the early stages.[15]
  5. [39]
    As may be observed from the numerous amendments to the WCRA and its two predecessors the Workers Compensation Act 1990 and the WorkCover Queensland Act 1996 various legislative schemes have been introduced by Parliament in an attempt to meet the object currently set out in s 273 of facilitating a just and expeditious resolution of real issues in a claim for damages at a limited expense.
  6. [40]
    Perusal of the current sections of the WCRA set out above show the difficulties faced by claimants interested in preserving their right to bring a common law claim as an injured worker. As the facts of the applicant’s case show, this is particularly difficult where serious injuries are suffered with the consequence of successive surgeries over a period of time which unfortunately result in an injured worker being unable to return to work, with the common consequence of the suffering of a further injury in the nature of a psychiatric injury.
  7. [41]
    In the present case, although Mr Sankey was assessed as having a serious injury, that is, an injury with a DPI of 20% or more, he was not assessed within the 3-year period of limitation so as to engage s 237(1)(a)(ii). If Mr Sankey had been so assessed, then he could have utilised s 239A or s 242, or, if he had lodged a Notice of Claim, then s 297 or s 298.
  8. [42]
    The broad interpretation urged by the applicant meets many of the concerns which may be facing an injured worker with a late assessment of permanent impairment by providing the simple mechanism of allowing a worker six months from the time of receipt of the Notice of Assessment to bring a proceeding for damages. Statutory support for such an interpretation can be gleaned from s 274(1) in applying the part without undue delay, expense or technicality and to facilitate the object identified in s 273 of a just and expeditious resolution of real issues in a claim for damages at minimum expense.
  9. [43]
    Section 302(2) of the WCRA makes reference to “after the end of the period mentioned in subsection (1) only if – (a) before the end of that period…”. Attention is then focussed on the period mentioned in sub-s (1) which may be any of three periods. The first period is the ordinary three-year time limitation period referred to in s 11 of the Limitation of Actions Act, the second is any extension granted to that limitation period under s 31 of the Limitation of Actions Act and the third is a different period provided for by sch 5 of the WCRA.
  10. [44]
    Section 302(1) makes one reference to “within the period of limitation” and one reference to “within the period mentioned in Schedule 5”. The reference to the period mentioned in sch 5 can only be a reference to the periods referred to in sch 5 s 1(2)(a) or (b). That is, within six months after the insurer gives the Notice of Assessment or within six months after a tribunal decides the DPI. In order to engage the extended period of up to six months provided for in sch 5 s 1(2), then either sch 5 s 1(1)(a) or (b) needs to be satisfied. It seems to me when sch 5 sub-ss 1(1) and (2) are read together, the focus is the time at which “an insurer gives a worker a Notice of Assessment for an injury” as it is that point in time that starts the six-month period of limitation as set out in sch 5 s 1(2)(a) or (b).
  11. [45]
    The further circumstance acknowledged in sch 5 s 1(2)(b), namely, if in fact a Notice of Assessment is given by the insurer and the worker does not agree with the DPI stated on the Notice of Assessment, the worker will still have six months after a tribunal decides the DPI. The comity of the six-month period as referred to in sch 5 ss 1(1)(a) and 1(2)(a) ought to be read together with the object of facilitating a just and expeditious resolution of the real issues at a minimum expense as required by s 273 and the objects of s 274; undue delay, expense and technicality. Subject to the disagreement with the DPI on a Notice of Assessment, the scheme of the WCRA appears to me to be to give an injured worker six months to act after a Notice of Assessment has been received.
  12. [46]
    Schedule 5, s 1(1)(b) caters for the circumstance where the insurer has not provided a Notice of Assessment. In that circumstance, all that an injured worker needs to do is at any time before the end of the general limitation period “ask an insurer to have the worker’s injury assessed to decide if the injury has resulted in a DPI”.
  13. [47]
    In interpreting sch 5 s 1(1)(a), the phrase “the end of a general limitation period” is certain, in this case 1 December 2019. In my view, the words “less than six months before” ought to be given their ordinary natural meaning and, in this case, that is the six months from 1 June 2019 to 1 December 2019 The consistent six-month period as set out in sch 5 ss 1(1)(a) and 1(2)(a) favours the narrow interpretation, meets the object of ss 273 and 274 and is consistent with s 236.
  14. [48]
    The remedy available to an injured worker who has not received a Notice of Assessment when the time limitation period is approaching is simply to act under sch 5 s 1(b)(i) by asking the insurer to have the worker’s injury assessed to decide if the injury resulted in a DPI and, in those circumstances, the six month limitation period commences after the insurer gives the Notice of Assessment (or alternatively under sub-s 2(b), if the DPI is disputed within six months after the tribunal decides the DPI).
  15. [49]
    When construed in this manner, the difficulties which face an injured worker such as Mr Sankey are quite minimal, as it is easier to orally ask or write a letter or email[16] to WorkCover requesting an assessment “to decide if the injury has resulted in a DPI” than to issue a writ of summons. The broader interpretation urged by the applicant is contrary to s 236 of the WCRA insofar as a broader interpretation would impose a new general limitation upon the bringing of a personal injury claim by an injured worker to be a period six months after a Notice of Assessment is issued for those in cases, for example, where a Notice of Assessment was not issued for several years after an accident.
  16. [50]
    I therefore conclude the late assessment question in the respondent’s favour and conclude on the facts in the present case that WorkCover did not give the applicant worker a Notice of Assessment less than 6 months before the end of the general limitation period so as to satisfy sch 5 s 1(1)(a).

The Assessment Request Question

  1. [51]
    The assessment request question is a question of fact as to whether the applicant has, within the meaning of sch 5 s 1(1)(b)(i) of the WCRA asked “an insurer to have the worker’s injury assessed to decide if the injury has resulted in a DPI”. The applicant’s mother, Yvonne Louise Sankey, had been authorised by the applicant to act on behalf of the applicant in his dealings with the insurer, WorkCover Queensland.
  2. [52]
    Mrs Sankey deposes at paragraph 23 of her affidavit to having a telephone conversation in late 2019 with WorkCover officer Mr Hanna relating to the request for assessment. Mrs Sankey deposes “I have a clear recollection of asking for Jarrod to be issued with a “Notice of Assessment” because I felt very awkward in doing so. I am not a confrontational person and I knew that asking for a “Notice of Assessment” indicated to Stephen that Jarrod was going to the “next level” and that made me feel awkward.”[17]
  3. [53]
    Mrs Sankey then deposes at paragraph 24, “I was very careful to make sure that I requested a “Notice of Assessment” because I believed that Jarrod just being assessed was not enough to protect his entitlement to claim damages.”[18]
  4. [54]
    The respondent argues that such a request was not made, and if it was, it was made in terms which were insufficient to factually satisfy sch 5 s 1(1)(b)(i).
  5. [55]
    As discussed above, sch 5 s 1(1)(b) is an important remedial provision providing an easy and inexpensive means for a worker to protect their common law right to bring proceedings for personal injury against their employer. An unrealistic technical approach of requiring a worker to use specific words, including a request to decide if an “injury assessment resulted in a DPI”, does not accord with ss 273 and 274(1) nor the purpose of the remedy provided in sch 5 s 1(1)(b). I conclude that if the request is made in terms of, or similar to, those contained in paragraphs 23 and 24 of Mrs Sankey’s affidavit, then sch 5 s 1(1)(b)(i) has been satisfied.
  6. [56]
    As to the factual issue, there is a contest between the evidence of Mrs Sankey and the evidence of Mr Hanna. Whilst it is true there is not a direct contest between the evidence of Mrs Sankey and Mr Hanna in that Mrs Sankey deposes to an actual recollection of the conversation and Mr Hanna has no independent recollection of the conversation (indeed no memory at all of the conversation beyond that contained in the WorkCover communication report), the issue of credit in terms of honesty and reliability looms large.
  7. [57]
    As has been said in other cases,[19] I am conscious that not too much weight can be given to demeanour:[20]

“…As Atkin LJ observed in Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) [1924] 20 LI L Rep 140 at 152 “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”.[21] But Mr Little seemed fundamentally honest. Any assessment of him is not helped in that he was neither sophisticated nor articulate.”

  1. [58]
    The comments of McMeekin J in describing Mr Little as a witness are apt to describe the evidence provided by Mrs Sankey. That is, she seemed fundamentally honest, did not appear to be overly sophisticated and did at points have difficulty articulating her evidence.
  2. [59]
    As it was plain upon the affidavit material filed that credit was an important issue, I made careful observation of both Mrs Sankey and Mr Hanna. I consider both witnesses to be fundamentally honest. Indeed they had some similarities in both being quietly spoken persons.
  3. [60]
    Mrs Sankey was rigorously cross-examined by Senior Counsel[22] and, although all important aspects of her evidence were tested, Mrs Sankey was plain and convincing in her repetitive assertion that she asked Mr Hanna to have her son issued with a Notice of Assessment.  As Mrs Sankey said on at least one occasion, and it appeared to me on several other occasions, she appeared to become lost in the question and suffer what she described as a “blank”.[23] The “blank” or “blanks” were not feigned nor a device to buy time to fabricate any answer, but rather a natural response by an unsophisticated witness to sophisticated questions.
  4. [61]
    I conclude that by her demeanour, Mrs Sankey presented as a person of credit, a person whose honesty and reliability may be accepted. Quite apart from the demeanour assessment, there are several reasons that lead to the objective likelihood of the honesty and accuracy of Mrs Sankey’s evidence.
  5. [62]
    The first is the chronological narrative which made it important for Mrs Sankey to request the Notice of Assessment for her son, the plaintiff, towards the end of the 2019. Mrs Sankey observed that her son had suffered a serious back injury at work and was having difficulty dealing with the WorkCover process. As a consequence, Mrs Sankey became highly involved in the WorkCover process. Mrs Sankey, whose occupation is as a cleaner, did attempt to keep some records of what occurred. She deposed to keeping a collection of papers in a pile and grabbing that collection of papers when speaking to Mr Hanna about Jarrod’s claim.
  6. [63]
    Mrs Sankey deposed, and I accept, that she had a habit of making notes of important conversations and made a note of her conversations with Mr Hanna in late 2019. I accept Mrs Sankey wrote the words “Notice of Assessment” on the piece of paper after the conversation which she placed with “the pile of papers in respect of Jarrod’s claim”.[24] Mrs Sankey deposed of her meeting with Mr Adrian Land, Solicitor of Morton and Morton Solicitors, in July 2019. Mrs Sankey deposes to specifically discussing with Mr Land “the issue of the time limit to bring proceedings.”[25] Mrs Sankey then deposes “I recall that Mr Land said that before a claim could be made, WorkCover had to issue Notices of Assessment for the injuries”.[26] It is plain therefore that Mrs Sankey knew that she needed to obtain a Notice of Assessment from WorkCover, that she needed to do so within three years and that she had been advised by Mr Land to return to see him when Notices of Assessment had been received.
  7. [64]
    Mr Land was accredited as a specialist in personal injury law in 1999 and has in excess of 30 years’ experience as a solicitor. The majority of Mr Land’s practice is in personal injury law. Mr Land swore an affidavit verifying the advice that he provided to Mrs Sankey on 9 July 2019 in terms similar to that deposed to by Mrs Sankey.[27] The independent verification by Mr Land of Mrs Sankey’s recollection of the advice provided in the meeting of 9 July 2019 is important in my assessment of Mrs Sankey as being a credible witness, both in terms of accuracy and reliability.
  8. [65]
    Mr Land’s letter of 12 July 2019 confirms the essential matters that Mrs Sankey deposed to, namely that a common law claim must be made by 22 December 2019, being three years from the date provided by Jarrod Sankey, “otherwise your cause of action is lost” and the need for a Notice of Assessment to be obtained from WorkCover so that a Notice of Claim could be prepared and lodged with WorkCover.[28]
  9. [66]
    The accuracy and reliability of Mrs Sankey’s testimony is furthered by paragraph 18 of her affidavit in which she deposes to being unable to locate a copy of the letter from Morton and Morton Solicitors of 12 July 2019.[29] Mrs Sankey was unable to locate the original of that letter, which is consistent with her lack of filing procedures. That is, she kept the documents in respect of her son’s claim in a pile and, at some point, threw out a number of documents and/or lost documents. It is unremarkable that Mrs Sankey did not think to keep her note of the conversation with Mr Hanna at the end of 2019. Legal practitioners and other prudent professionals would be expected to keep all notes of important conversations. In my view, the same exacting standards cannot be expected of Mrs Sankey in view of her own personal circumstances. Without in any way wishing to be disrespectful to Mrs Sankey, she presented as a simple, straightforward, unsophisticated witness. In my view, such a witness would not think to keep all notes of conversations, particularly where her son’s claim had been in progress for almost 3 years by the end of 2019 and, with reference to the WorkCover communications report, it may be observed that there was likely hundreds of conversations and likely many documents provided during the course of the WorkCover claim process.
  10. [67]
    I am conscious of the alternative proposition, namely because of the likely hundreds of conversations, it may be argued that it would be unusual for Mrs Sankey to recall the particular conversation that she did have with Mr Hanna in late 2019. The answer, however, appears to be in the personality type and nature of Mrs Sankey as quietly spoken and a non-confrontational type of person. Mrs Sankey, by late 2019, knew that her son had been quite seriously injured and despite one lumbar spine operation, had not recovered. Her son’s mental health was not in good order.
  11. [68]
    Attendance upon Mr Land and the advice given by Mr Land did, I conclude, make it important for Mrs Sankey to request the Notice of Assessment from WorkCover prior to the end of 2019. I accept Mrs Sankey’s evidence that she focussed upon the words “Notice of Assessment” and that she “thought I had to be specific about using the words “Notice of Assessment””.[30]
  12. [69]
    I accept Mrs Sankey’s evidence that she felt awkward in asking Mr Hanna for the Notice of Assessment and that she was careful to request a “Notice of Assessment” because of what Mr Land had told her, she believed it was not enough for her son to be simply assessed. Mrs Sankey further deposes, and I accept, that at the end of the conversation with Mr Hanna, she did, having requested a Notice of Assessment be arranged, conclude that Mr Hanna would be arranging for a Notice of Assessment to be issued.
  13. [70]
    Mr Hanna is an experienced WorkCover officer. Mr Hanna has been employed by WorkCover for over 18 years, originally as a field officer and then as a customer advisor. Mr Hanna usually managed 30 to 40 claims. Mr Hanna has no independent recollection of the conversations at all and had to rely entirely upon the communication report in respect of Mr Sankey’s claim. Mr Hanna’s ordinary hours of work as a customer advisor were often from 8am to 4pm, sometimes starting a little later and sometimes finishing a little later, such as 5pm.[31]
  14. [71]
    The communications report contains Mr Hanna’s typewritten notes of a conversation that he had with Mrs Sankey which commenced at 4:39pm on 5 November 2019.[32] On the left-hand side of the communications report is a timing of 4:48pm which appears to be, on Mr Hanna’s evidence, a time stamp automatically included in the communications report by the communications system. Mr Hanna did not know whether the 4:48pm time stamp was the time at which his entry was completed or commenced. Mr Hanna confesses to being a slow typist and having a process of immediately typing in short notes only but, for longer discussions, handwriting notes which he would later type into the communications report.[33] The conversation time commencing at 4:39pm and the several lines of notes covering numerous issues suggests to me that it is likely that Mr Hanna adopted his practice for longer discussions, that is handwriting the discussion on a notebook and then, after the conclusion of the consultation, typing information into the communications report.
  15. [72]
    The relevant entry that is time stamped 4:48pm on 5 November 2019 is the largest entry relating to any discussion between Mrs Sankey and Mr Hanna in the November or December of 2019 and, accordingly, it is likely to be the conversation that Mrs Sankey alleges she requested Mr Hanna to arrange for a Notice of Assessment to be issued in respect of her son’s injuries.
  16. [73]
    In respect of the relevant entry, Mr Hanna deposes in paragraphs 23, 24, 25 of his affidavit as follows:[34]

“23.If Ms Sankey had said words to the effect that her son required a notice of assessment to progress the matter, I would have known that this was not possible because his physical injury was not stable and stationery [sic].

  1. 24.
    If a worker asked for something that was not possible, or there was some reason why I could not do as they asked, it was my usual practice to explain the situation. If Ms Sankey had said words to the effect that her son required a notice of assessment to progress the matter, I would have:
  1. (a)
    recorded what she said or paraphrased what she said;
  1. (b)
    explained that a notice of assessment could not be issued as her son’s physical injury was not yet stable and stationary;
  1. (c)
    recorded my explanation to her in the words I said or by paraphrasing what I said.
  1. 25.
    I have reviewed Exhibit SH-1 and note I did not record that she said words to the effect that her son required a notice of assessment to progress the matter, and I did not record explaining to her that a notice of assessment could not issue until her son’s physical injury was stable and stationery [sic].”
  1. [74]
    As Mr Hanna had no recollection at all of the conversation of 5 November 2019, the respondent relies upon Mr Hanna’s usual practice of explaining why the course of action was not possible. The respondent relies on Mr Hanna’s absence of such a notation and submit it should be concluded that a request for a Notice of Assessment was not made by Mrs Sankey.
  2. [75]
    There are a number of difficulties in the acceptance of this argument. The first is that acceptance of such an argument requires the rejection of Mrs Sankey’s evidence that she did request the Notice of Assessment. As Mrs Sankey has been adamant in this regard, then the acceptance of the respondent’s argument leads to the conclusion that Mrs Sankey is not a credible witness. I find Mrs Sankey to be a credible witness.
  3. [76]
    The second is that the note of 4:48pm and also the note of 1 November 2019[35] is directed at having Mr Sankey’s DPI assessed, both for the physical injury and the psychological injury, with the psychological injury being assessed by the MAT psychiatric, and the physical injury, being the lumbar spine injury, being assessed by an appropriate specialist.
  4. [77]
    It is further demonstrated by the preceding note of 25 October 2019,[36] where Mr Hanna discussed with the plaintiff, Jarrod Sankey, that he needed to arrange an independent medical examination (IME) for his physical injury otherwise Mr Hanna, as customer advisor, would be able to make a claims decision, that is setting the DPI for the lumbar injury based on the IME opinion received by Mr Hanna from Dr Coroneos.
  5. [78]
    The background to Dr Coroneos’ opinion and assessment is discussed above, namely Dr Coroneos had formed the opinion that Mr Sankey was stable and stationary, suffering from 11% permanent impairment, whereas the prior treating surgeon, Dr Lucas, considered Mr Sankey was not stable and stationary and required a further operation. Mr Hanna therefore was being appropriately careful and caring in his delay of making a decision on the DPI for the physical injury until another specialist had determined whether or not Mr Sankey required further surgery. That specialist was Dr  Wood.
  6. [79]
    Mr Hanna was correct in concluding that the Notice of Assessment could not issue as it was a necessary step for the MAT to assess the psychiatric injury and it was proper for a further independent specialist to provide an opinion on permanent impairment for the physical injury. The fact that a Notice of Assessment could not issue in November 2019 does not, in my view, support the conclusion that Mrs Sankey did not ask for a Notice of Assessment. Furthermore, as the obtaining of the opinions of permanent impairment from the MAT and a further specialist were necessary steps in the obtaining of an assessment of the DPI, there was nothing illogical about Mr Hanna not including in his note any explanation as to why the Notice of Assessment could not then issue. As Mr Hanna knew the Notice of Assessment could not issue he had no reason to keep a note of that.
  7. [80]
    In short, by Mrs Sankey having asked for a Notice of Assessment for her son’s injuries, Mr Hanna had put into train a mechanism to allow that to occur. Mr Hanna referred the psychiatric injury to the MAT, and he referred the physical injury to the specialist Dr Wood for assessment. Towards the end of a working day, Mr Hanna can be forgiven for not being perfect in recording directly or indirectly the substance of Mrs Sankey’s request for the Notice of Assessment, particularly where the process required to obtain the Notice of Assessment was in train.
  8. [81]
    In assessing the credit of any witnesses, it is necessary to assess the honesty of the witness and the reliability of the witness. As stated above, I have no doubt that Mr Hanna is an honest witness. In terms of reliability, in order to accept the respondent’s argument that Mrs Sankey did not request a Notice of Assessment from Mr Hanna on 5 November 2019, it requires not only the rejection of Mrs Sankey as a witness of credit but also the acceptance of the proposition that Mr Hanna definitely complied with his usual practice of recording information where requests were made that could not be fulfilled.
  9. [82]
    The difficulty in accepting that proposition is, in the face of Mrs Sankey’s compelling testimony, it requires a conclusion that Mr Hanna did not make an error on 5 November 2019 and is incapable of making an error. That Mr Hanna, like most human beings, is capable of making an error in failing to adopt his usual practise was demonstrated by senior counsel for the appellant with respect to Mr Hanna’s mis-description of Exhibit SH4 in his affidavit.[37] Mr Hanna had deposed in paragraph 15 of his affidavit that at 9:18am on 1 November 2019, he received from the MAT a referral and that Exhibit SH4 was a copy of the referral document.[38] In the three pages that constitute Exhibit SH4, there is no document received on 1 November 2019 at 9:18am, or any time. Exhibit SH4 is not a copy of a referral document received from the MAT at 9:18am on 1 November 2019. It was demonstrated by senior counsel for the applicant that Mr Hanna had deposed to a document which was not correctly described, thus demonstrating Mr Hanna was, like every other human being, capable of making an error.
  10. [83]
    As I accept Mrs Sankey’s evidence, I conclude that the applicant has, before the general limitation period of 1 December 2019, asked an insurer, WorkCover Queensland, to have the applicant’s injury assessed to decide if the injury has resulted in a DPI.
  11. [84]
    I declare that the period within which the applicant may commence an action for damages for negligence arising from an incident on 1 December 2016 was extended to 22 March 2021.
  12. [85]
    I will hear the parties as to costs.

Footnotes

[1]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-1’, page 140.

[2]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-5’, page 166.

[3]Exhibit 2.

[4]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-5’.

[5]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-2’.

[6]Degree of Permanent Impairment as assessed under GEPI, the Guide to the Evaluation of Permanent Impairment.

[7]Affidavit of Alexander Bruce Dalton filed 21 March 2022 (Court doc 9) at Exhibit ‘ABD-01’, pages 1-4.

[8]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-1’, page 10.

[9]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-1’. Pages 8-9.

[10]Affidavit of Alexander Bruce Dalton filed 21 March 2022 (Court doc 9) at Exhibit ‘ABD-01’ pages 5-6.

[11]Affidavit of Alexander Bruce Dalton filed 21 March 2022 (Court doc 9) at [8]-[9].

[12]Notice of Intention to Defend filed 27 August 2021 (Court doc 3).

[13]Workcover Queensland Amendment Act 2002 (Qld) (commencing 28 November 2002).

[14][2001] QCA 103.

[15]See Re Robinson [1999] QSC 11.

[16]So as to provide evidence of the request and thus avoid the difficulty of proof of an oral request.

[17]Affidavit of Yvonne Louise Sankey filed 31 March 2022 (Court doc 13) at [23].

[18]Affidavit of Yvonne Louise Sankey filed 31 March 2022 (Court doc 13) at [24].

[19]Walter v Durham & anor [2003] QCA 531, per Wilson J at [6] with which Davis and McPherson JJA agreed, quoting Fox v Percy (2003) 214 CLR 118 at [30] to [31] per Gleeson CJ, Gummow and Kirby JJ.

[20]Little v McCarthy & Anor [2014] QSC 274 at [37] per McMeekin J.

[21]And similar views continue to be held: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] per Keane JA; New South Wales v Hunt [2014] NSWCA 47 at [56] per Leeming JA (with whom Barrett JA and Tobias AJA agreed).

[22]Which was appropriate in the circumstances.

[23]T1-23, line 21 – 23.

[24]Affidavit of Yvonne Louise Sankey filed 31 March 2022 (Court doc 13) at [15].

[25]Affidavit of Yvonne Louise Sankey filed 31 March 2022 (Court doc 13) at [14].

[26]Affidavit of Yvonne Louise Sankey filed 31 March 2022 (Court doc 13) at [14].

[27]Affidavit of Adrian Scott Land filed 21 March 2022 (Court doc 10).

[28]Exhibit ASL to Affidavit of Adrian Scott Land filed 21 March 2022 (Court doc 10).

[29]Affidavit of Yvonne Louise Sankey filed 31 March 2022 (Court doc 13) at [18].

[30]Affidavit of Yvonne Louise Sankey filed 31 March 2022 (Court doc 13) at [21].

[31]T1-47, lines 6 – 19.

[32]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-1’, page 39.

[33]T1-57, line 39 – T1-58, line 2.

[34]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at [23] – [25].

[35]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-1’, page 39.

[36]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-1’, page 40.

[37]T1-67

[38]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12), at [15].

Close

Editorial Notes

  • Published Case Name:

    Sankey v GPC Asia Pacific Pty Ltd

  • Shortened Case Name:

    Sankey v GPC Asia Pacific Pty Ltd

  • Reported Citation:

    (2022) 12 QR 1

  • MNC:

    [2022] QSC 213

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    05 Oct 2022

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
2 citations
Jump To
Cite 1 - [2007] QCA 136
Cite 2 - [2008] 1 Qd R 39
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Little v McCarthy [2014] QSC 274
2 citations
Jump To
Cite 1 - [2014] QSC 274
Cite 2 - [2014] QSC 274
New South Wales v Hunt [2014] NSWCA 47
1 citation
Jump To
Cite 1 - [2014] NSWCA 47
Re Robinson [1999] QSC 11
1 citation
Jump To
Cite 1 - [1999] QSC 11
Socit d'Avances Commerciales (Socit Anonyme Egyptienne) v Merchants' Marine Insurance Co (1924) 20 LI L Rep 140
1 citation
Jump To
Cite 1 - (1924) 20 LI L Rep 140
Tanks v WorkCover Queensland [2001] QCA 103
2 citations
Jump To
Cite 1 - [2001] QCA 103
Cite 2 - [2001] QCA 103
Walker v Durham [2003] QCA 531
2 citations
Jump To
Cite 1 - [2003] QCA 531
Cite 2 - [2003] QCA 531

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.