Graham v State of Queensland

The question which arose in this application was whether a notice of claim for damages under the Workers’ Compensation and Rehabilitation Act 2003 claiming damages for psychiatric injuries alleged to be sustained from working for the respondent as a correctional services officer was a compliant notice in terms of its description of the “event” claimed. His Honour declared that the notice complied with s 275 and clarified that the test is not to require a properly particularised statement of claim, but rather to satisfy the “substantially lesser” requirement of reg 120(b) Workers’ Compensation and Rehabilitation Regulation 2014.

Crow J

20 October 2022

The relevant notice which the applicant gave to the respondent alleged psychiatric/psychological injury arising out of his employment as a corrective services officer. [1], [2]. The respondent argued that it was non-compliant given the applicant did not properly particularise the “event” pursuant to regulation 120. [10]. In that regard, the notice stated as follows:

“The claimant was a member of the correctional response team on a permanent basis. The claimant transferred into the correctional response team on or about 16th October 2019. The role of the correctional response team is to be the first responders to critical and acute prisoner situations. There was no rotation in and out of the correctional response team. Prior to the commencements [sic] of his role as a tactical response officer the claimant received approximately 3 days training primarily in physical fitness.” [2].

The applicant sought a declaration that he had in fact complied with s 275 of the Act. [17].

Was the notice compliant?

The primary purpose of a notice of claim is to facilitate the settlement of claims: see Callaghan v WorkCover Queensland [2000] QSC 125, [21]. Section 275(3) of the Act stipulates that the notice must include the particulars prescribed under a regulation. Regulation 120 of the Act states that a notice of claim is required to contain certain particulars.

The respondent argued that there were various difficulties and discrepancies between the notice and the subsequent correspondence. [28]. His Honour also noted that the factual basis of the case contained in the applicant’s psychiatrist’s report differed from that contained in the notice. [30]. Notwithstanding those matters, the court held that given there is a distinction between the notice of claim for damages and the documents required to accompany it (see s 257(8)), the recitation of the nature of the claim in one of the accompanying documents could not be used to challenge the adequacy of the description of the event in the notice itself, and nor could subsequent correspondence. [39].

His Honour observed that pursuant to reg 120, the claimant’s description of the facts and circumstances surrounding his suffering of the injury are key. In that regard, his Honour noted that whilst the description of the event in the applicant’s notice would be “woefully inadequate” in pleading a claim, that is not the test:

“The test is whether Mr Graham, as the applicant has, in the terms of reg 120(b) described the facts of the circumstances surrounding his injury”. [41].

Here, the applicant had canvassed specific matters relating to his duties, lack of rotation and lack of training in particularising the “event”. [42]. He omitted to include any allegations of fact. [43]. The response which he provided was drafted without the assistance of his solicitors. [44].

By contrast to the meticulous requirements for pleading a pure psychiatric injury claim, regulation 120(b) does not demand the same level of detail: (see Scott v K & S Freighters [1999] QSC 427, wherein Justice R. Douglas stated that all is required is a description of what occurred so as to enable an employer to readily ascertain the nature of the claim). [20], [45]. Here, his Honour was satisfied that the claimant’s description of the facts and circumstances surrounding his suffering of the injury in the notice was sufficient. [46].

Disposition 

The court declared that the Notice of Claim for Damages complied with s 275 Workers’ Compensation and Rehabilitation Act 2003 and heard the parties as to costs.

A Jarro