Apelu v Lusty Tip Trailers Pty Ltd

Case [2023] QSC 262

SUPREME COURT OF QUEENSLAND

CITATION:

Apelu v Lusty Tip Trailers Pty Ltd [2023] QSC 262

PARTIES:

SHEM APELU by his litigation guardian CALEB APELU

(plaintiff)

v
LUSTY TIP TRAILERS PTY LTD
ACN 160 289 332

(defendant)

FILE NO/S:

BS No 11267 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2023

JUDGE:

Brown J

ORDER:

1. The plaintiff’s application is dismissed.

2. The matter be listed for mention on 24 November 2023 at 9.45 am for submissions as to costs.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – CLAIMS FOR COMPENSATION – CONTENT OF CLAIM – where the plaintiff claims damages for personal injuries suffered in the course of employment – where the claim for personal injuries suffered include a psychiatric injury diagnosed as schizophrenia or alternatively a chronic aggravation of pre-existing mild schizophrenia and post-traumatic stress disorder – where notice of assessment referred to post-traumatic only -where notice of claim did not refer to schizophrenia or alternatively a chronic aggravation of pre-existing mild schizophrenia - where the defendant admits breach of duty but denies that the plaintiff is entitled to damages in respect of schizophrenia or a chronic aggravation of pre-existing mild schizophrenia – where the plaintiff seeks a declaration that he is entitled to pursue damages for a psychiatric injury, including the injury of schizophrenia – whether such a declaration should be made

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – CLAIMS FOR COMPENSATION – GENERALLY – where the plaintiff contends that WorkCover Queensland has not made a decision to accept or reject schizophrenia as a separate injury – whether WorkCover is obliged to make such decision

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – CLAIMS FOR COMPENSATION – DETERMINATION OF CLAIMS – JURISDICTION OF COURTS, TRIBUNALS, COMMISSIONS AND BOARDS – where the plaintiff’s injury was referred to the Medical Assessment Tribunal (MAT) – where the MAT did not consider the plaintiff's schizophrenia to be work-related – where no referral was made to the MAT to consider whether schizophrenia constituted an injury to the plaintiff – whether the MAT’s decision was a decision on a medical matter referred to the tribunal

Acts Interpretation Act 1954 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Andersen v Aged Care Employers Self Insurance [2011] QSC 101
Barraclough v WorkCover Queensland [2012] QDC 321
Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209
Connor v Queensland Rail Ltd [2016] QSC 270
Costello v Queensland Rail [2015] 2 Qd R 296
Ley v Woolworths Limited [2013] QSC 59
Muckermann v Skilled Group Limited [2013] 2 Qd R 47
Royalene Pty Ltd v Registrar of Titles [2007] QSC 059
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

COUNSEL:

S Deaves KC with P Nolan for the plaintiff
A Mellick for the defendant

SOLICITORS:

Maurice Blackburn Lawyers for the plaintiff
BT Lawyers for the defendant


  1. The question for…

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Details
AGLC
Apelu v Lusty Tip Trailers Pty Ltd [2023] QSC 262
Case
[2023] QSC 262
Decision Date

CaseChat Overview and Summary

Apelu v Lusty Tip Trailers Pty Ltd involved a dispute over the plaintiff's entitlement to workers' compensation for psychiatric injuries, specifically schizophrenia or the aggravation of pre-existing mild schizophrenia and post-traumatic stress disorder, suffered during employment. The defendant admitted to a breach of duty but contested the plaintiff's entitlement to compensation for the psychiatric injuries. The plaintiff sought a declaration that they could pursue damages for the psychiatric injury, including schizophrenia, and argued that WorkCover Queensland was obligated to decide whether to accept or reject schizophrenia as a separate injury. The Court had to determine the scope of the Medical Assessment Tribunal's (MAT) decision and whether it encompassed the plaintiff's schizophrenia.

The key legal issues revolved around the interpretation of the Workers' Compensation and Rehabilitation Act 2003 (Qld), specifically sections 500 and 515 concerning the referral of medical matters to the MAT and the binding effect of its decisions. Another issue was whether WorkCover was required to decide on the acceptance or rejection of schizophrenia as a separate injury under section 239A(4). The Court had to determine whether the MAT's decision was limited to the specific medical matter referred to it or if it had a broader scope. Additionally, the Court needed to clarify the obligations of WorkCover regarding the acceptance or rejection of the psychiatric injury.

The Court found that the MAT's decision was limited to the specific medical matter referred to it, which did not include the question of whether schizophrenia was work-related. Consequently, the binding effect of the MAT's decision under section 515 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) was limited to the matter referred to it. The Court also ruled that WorkCover was not precluded from accepting the injury under section 239A due to the operation of section 515. However, this did not render the MAT's decision ineffectual, as its validity had not been challenged. The Court held that the defendant's defence disclosed a reasonable cause of action, leading to the dismissal of the plaintiff's application. The matter was listed for mention to address the question of costs.

The Court's orders were that the plaintiff's application was dismissed, and the matter was to be listed for mention on 24 November 2023 at 9.45 am for submissions regarding costs.

Orders

Orders of the court

1. The plaintiff’s application is dismissed.

2. The matter be listed for mention on 24 November 2023 at 9.45 am for submissions as to costs.

Background

Background to the litigation

Alternatively, the plaintiff contends that WorkCover did not make a decision to accept or reject schizophrenia as a separate injury, in which case the plaintiff seeks a declaration that WorkCover is obliged to do so under s 239A(4) of the WCRA.Factual background It is uncontentious for the purposes of this application that:(a)the plaintiff suffers from schizophrenia;(b)schizophrenia was not specifically raised as a work-related injury until it was pleaded in the amended statement of claim, but medical reports provided during the pre-court proceedings did raise it as an injury suffered from the work-related event;(c)there is conflicting medical evidence as to whether the plaintiff’s condition of schizophrenia is work-related or not; and(d)there is conflicting evidence as to whether schizophrenia or the aggravation of schizophrenia was caused by the work-related incident. Given the nature of the arguments raised on behalf of the plaintiff it is necessary to canvas the factual background and some of the medical evidence in a summary form. On 24 January 2018, the plaintiff made an application for compensation under the WCRA. The only injury identified in that application was described as follows:[4]“Head – unspecified locations, Laceration not involving amputation”.[4]Exhibit SWK2 to the Affidavit of Scott Wallace Keft filed 11 May 2023. On 28 January 2018, the plaintiff’s general practitioner issued a work capacity certificate which included a diagnosis of “post traumatic stress”.[5][5]Exhibit SWK4 to the Affidavit of Scott Wallace Keft filed 11 May 2023. On 5 February 2018, the plaintiff’s general practitioner issued a work capacity certificate which included a diagnosis of “post traumatic stress” with a treatment recommendation of “psychology review”.[6][6]Exhibit SWK7 to the Affidavit of Scott Wallace Keft filed 11 May 2023. Two further certificates in similar terms were issued by the plaintiff’s general practitioner identifying the need for an independent assessment by a psychologist and a psychiatrist. Although the claim for a psychological condition had not been formally included in the application for compensation, WorkCover acted upon the work capacity certificates and treated the claim for compensation as being for both the physical injury to the head as well as the PTSD. On 9 February 2018, WorkCover began paying the plaintiff statutory benefits. On 12 and 20 February 2018, WorkCover advised the plaintiff’s employer that it would not pay wages for time off work at that stage because it had not “accepted a psychological claim as of yet”.[7][7]Exhibit SWK39 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 252. WorkCover arranged for the plaintiff to be examined by Dr Daniel, psychiatrist, for an independent opinion. The plaintiff was examined by Dr Daniel on 13 February 2018. In his report to WorkCover dated 20 February 2018, Dr Daniel found that the plaintiff had “a post traumatic stress disorder which is work-related, and a mild psychotic disorder which is not work-related”.[8] He stated that the plaintiff appeared to have “a premorbid and pre-existing paranoid state with minimal trust and mild auditory hallucinations”.[9] [8]Exhibit SWK9 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 16.[9]Exhibit SWK9 to the Affidavit of Scott Wallace Keft filed 11 May 2023 at 15.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

While the defendant submits that it was part and parcel of the MAT being able to assess the level of impairment of PTSD and that was done by reference to what symptoms were ascribed to PTSD and what could be ascribed to schizophrenia, the fact it formed part of its reasoning does not mean that it is part of “the medical matter referred to the tribunal under s 500.” The question of whether or not schizophrenia was part of the plaintiff’s alleged injury was not the subject of referral to the MAT. While the demarcation between PTSD and schizophrenia was important to the MAT’s assessment, strictly speaking whether or not schizophrenia was work-related or not was not the medical matter referred to it given its narrow terms of reference. Given the conclusive effect of a decision of a medical matter pursuant to s 515 of the WCRA, where any redress is limited to judicial review the binding effect of the MAT’s decision under s 515 of the WCRA is limited to the matter referred to it. The decision of the majority of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak does not call for the “medical matter” the subject of the MAT’s decision to be broader than the question that was referred to it but rather is consistent with it encompassing the medical questions which were the subject of the medical matter referred to the MAT.[78] . I do not consider, as WorkCover contends that it would be precluded from accepting the injury under s 239A because of the operation of s 515 of the WCRA would apply. That does not however lead to a finding that the decision of the MAT is “ineffectual”, whatever that means. The MAT decision stands as its validity has not been the subject of challenge under judicial review. However, the scope of the “medical matter” under s 515 of the WCRA is not as wide as WorkCover contends in terms of its binding effect. [78](2013) 252 CLR 480. That is made clear by [37] and [47]. In [47], the majority referred to the function of the Medical Panel being to “form and give its own opinion on the medical question referred for its opinion.”Decision Given the findings above, the defence of the defendant contained in paragraph 9(c)(iv) does disclose a reasonable cause of action presently and the plaintiff’s application is therefore dismissed. The matter will be listed for mention on Friday 24 November 2023 at 9.45 am for the parties to address the question of costs.Orders The orders of the Court are that:1. The plaintiff’s application is dismissed.2. The matter be listed for mention on 24 November 2023 at 9.45 am for submissions as to costs.

Ratio Decidendi

Legal Principle Established

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