Brittain v Hentys (a firm) & Ors

This case considers the relationship between a number of sections of the Workers’ Compensation and Rehabilitation Act 2003. In particular, it looks at whether the giving of a notice of claim under s 275 amounts to “seeking damages” within the meaning of s 250 of the Act, and whether a noncompliant notice of claim given under s 275 can nonetheless attract the operation of the limitation exception in s 302 if that noncompliance is waived under s 278 of the Act.

Flanagan J

22 March 2017

Pursuant to r 483(1) of the Uniform Civil Procedure Rules 1999 (UCPR) the parties, on the basis of agreed facts, sought the determination of two questions [1]:

1.As at 30 April 2010, was the applicant a claimant able to seek damages pursuant to Ch 5 of the Workers’ Compensation and Rehabilitation Act (the Act).

2.Was the applicant’s notice given to WorkCover on 30 April 2010 ever taken to be a complying notice of claim pursuant to s 278(4) of the Act?

The applicant, a former employee of Brisbane Lions Football Club, was injured at work in 2007 and 2009. [2]. On 30 April 2010, he sought to give to WorkCover a notice of claim for damages pursuant to s 275 of the Act. [5]. As at that date, his injuries had not been assessed for permanent impairment and he had not been given a notice of assessment under s 185 of the Act. [7]. He had previously applied for, and been granted, statutory compensation under the Act with respect to those injuries. [6]. He did not receive a notice of assessment until 15 May 2011. [7].

The correspondence from WorkCover’s solicitors to the applicant’s solicitors revealed that in WorkCover’s view the Notices of Claim had been issued prematurely in the absence of any assessed injury. [14]. But there was an issue as to whether WorkCover had failed to respond within 10 days to the Notice of Claim as required by s 278(2) of the Act such that the Notice of Claim was deemed to be compliant (s 278(4)). The full correspondence is set out at [9]–[14].

The applicant had commenced underlying proceedings against his former solicitors and barrister alleging that the causes of action under the Act had been permanently lost due to their alleged professional negligence in failing to take the prescribed pre-proceeding steps within time.  [17], [18]. The answer to the questions, would determine whether the applicant’s causes of action against the Club were necessarily permanently lost, or instead, might be revived and therefore would not have any cause of action against his former solicitors and barrister. [17], [28].

The Questions

The parties further refined the first question to be “whether the applicant in giving a notice of claim in circumstances where he had not been given a notice of assessment may nonetheless secure a halt to the running of the limitation period (s 302) relying on s 278 of the Act”. [27]. Section 275 of the Act requires a claimant to issue a notice under that section before commencing proceedings. Section 205 (which relevantly applied) provided that a “claimant may seek damages or the injury only if the insurer gives a notice of assessment”. Section 302 of the Act then permits a claimant to bring proceedings after the expiry of the limitation period under the Limitation of Actions Act 1974, if inter alia that claimant has given, or is taken to have given, a complying notice of claim, or has given a notice of claim for which the insurer has waived compliance. [40].

The primary competing arguments regarding the notice of claim were:

(a)for the first respondent, so long as the applicant was a “claimant” as at 30 April 2010, he was at liberty to give a s 275 notice of claim, since such a notice does not entail a claimant proceeding to “seek” damages (within the meaning of s 250) but is simply one “step” in seeking damages.  [45], [49];

(b)for WorkCover, that the giving of a s 275 notice of claim constitutes the seeking of damages, but the entitlement to seek damages cannot not be exercised prior to the receipt of a notice of assessment. [46].

In considering the arguments, his Honour engaged in a detailed analysis of the relevant provisions of the Act. [31]–[51]. His Honour then held that the “giving of a notice of claim is … a claimant seeking damages.” [51].  A claimant is prohibited from doing so by s 250 unless the insurer has given the claimant a notice of assessment. But his Honour concluded that “a notice of claim given in contravention of that section is not invalid and of no effect”. Rather, it is a notice of claim that does not comply with s 275. [51]. Accordingly, it remains a notice of claim requiring a response by the insurer pursuant to s 278. [51].

WorkCover submitted that where a notice of assessment has not been given, a claimant mentioned in s 237(1)(b) cannot give a notice of claim requiring a response from WorkCover under s 278. [67]. His Honour rejected that submission. His Honour found that WorkCover was required to give a response to the applicant’s noncompliant notice of claim and that on the facts in this case WorkCover’s response failed to comply with the requirements of s 278(2) of the Act, thus enlivening the deeming provision in s 278(4).  That provision then enabled the notice of claim to be taken as a complying notice of claim, permitting the claimant to take advantage of the moratorium on the limitation period due to s 302(1)(a)(i) – despite none of the injuries having been assessed. [69]. All that was required to trigger the obligation an insurer to respond to a notice of claim was the giving of a notice of claim to the insurer. Here, the applicant did this on 30 April 2010. [70]. 

His Honour noted ([71]) that WorkCover’s response to the applicant’s notice of claim (set out in [9]–[24]) did not:

(a)identify the ways in which the notice of claim was noncompliant;

(b)state whether it was prepared to waive compliance with the requirements of s 275;

(c)allow the applicant a reasonable period of at least 10 business days either to satisfy WorkCover that he had complied with the requirements or to take reasonable action to remedy the noncompliance; or

(d)state whether WorkCover was prepared, without admitting liability, to meet the cost of reasonable and appropriate rehabilitation. 

In those circumstances, s 278(4) operated to deem the notice of claim given on 30 April 2010 to be a complying notice of claim. [71].

The Result

His Honour answered question 1, namely “whether Mr Brittain, in giving a notice of claim, in circumstances where he had not been given a notice of assessment, may nonetheless secure a halt to the running of the limitation period (s 302) by relying on s 278(4) of the Act?” as “yes”, and question 2, “was the notice given to WorkCover on 30 April 2010 ever taken to be a complying notice of claim pursuant to s 278(4) of the Act?” as “yes”. [73].

A De Jersey