Apelu v Lusty Tip Trailers Pty Ltd

Link copied
Case Copied 31 min read

SUPREME COURT OF QUEENSLAND

CITATION:

Apelu v Lusty Tip Trailers Pty Ltd [2024] QCA 158

PARTIES:

SHEM APELU by his litigation guardian CALEB APELU
(appellant)
v
LUSTY TIP TRAILERS PTY LTD
ACN 160 289 332
(respondent)

FILE NO/S:

Appeal No 16051 of 2023
SC No 11267 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2023] QSC 262 (Brown J)

DELIVERED ON:

30 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2024

JUDGES:

Bond and Boddice JJA and Crowley J

ORDERS:

1.   The appeal is dismissed.

2.   The appellant is to pay the respondent’s costs.

CATCHWORDS:

WORKERS' COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – NOTICE OF INJURY – EFFECT OF INACCURACY, DELAY OR FAILURE TO GIVE NOTICE – 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 and post-traumatic stress disorder (“PTSD”) – where a separate notice of assessment was not made for schizophrenia – where the respondent admits it was negligent – where schizophrenia was not specifically raised as a work-related injury until it was pleaded in the amended statement of claim – where there is conflicting evidence regarding whether the injury was work related – whether “a psychiatric or psychological disorder/injury” in s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) refers to a single injury to the mind – whether the primary judge erred in finding that the notices of assessment issued by WorkCover in respect of the accepted injuries did not also encompass an assessment of the appellant’s schizophrenia

WORKERS' COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – EVIDENCE – MEDICAL EVIDENCE – whether the primary judge erred in finding that for the schizophrenia to be pursued at trial, on the basis that it was “secondary” to his physical injuries and/or his PTSD, the medical opinion to that affect must be the “overwhelming” view

Acts Interpretation Act 1954 (Qld), s 32C
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 32, s 179, s 237, s 500

Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; [1940] HCA 44, cited
Barraclough v WorkCover Queensland [2012] QDC 321, distinguished
Bell v Australia Meat Holdings Pty Ltd[2003] QCA 209, considered
Costello v Queensland Rail [2015] 2 Qd R 296; [2014] QSC 83, distinguished
Dowd v Swift Australia Pty Ltd[2008] QCA 228, considered
Mitchell v Clancy [1960] Qd R 62, cited

COUNSEL:

S J Deaves KC, with P M Nolan, for the appellant
R J Douglas KC, with A S Mellick, for the respondent

SOLICITORS:

Maurice Blackburn Lawyers for the appellant
BT Lawyers for the respondent

  1. BOND JA:  I agree with the reasons for judgment of Crowley J and the orders proposed by his Honour.

  2. BODDICE JA:  I agree with Crowley J.

  3. CROWLEY J:  The respondent is a manufacturer of trailers.  It previously employed the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Apelu v Lusty Tip Trailers Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2024] QCA 158
Decision Date

CaseChat Overview and Summary

The matter of Apelu v Lusty Tip Trailers Pty Ltd involved the appellant, who was claiming damages for personal injuries sustained during his employment, including a psychiatric injury diagnosed as schizophrenia and post-traumatic stress disorder (PTSD). The dispute centred on whether the appellant's schizophrenia was encompassed by the notices of assessment issued by WorkCover in relation to his accepted injuries. The respondent admitted negligence but contested the extent of the injuries and their relation to the work incident.

The legal issues before the court were whether the definition of “injury” in section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) referred to a single injury to the mind, and if the primary judge was correct in finding that the notices of assessment did not include an evaluation of the appellant’s schizophrenia. Additionally, the court needed to determine whether the appellant could pursue a claim for damages for schizophrenia without a separate notice of assessment, and whether the medical opinion regarding the link between the appellant’s PTSD, major depressive disorder, and schizophrenia needed to be the “overwhelming” view to be pursued at trial.

The court examined the statutory language and legislative intent of sections 32, 179, and 237 of the WCRA. It found that the definition of "injury" in section 32 was broad enough to encompass multiple psychiatric or psychological disorders, and that the appellant's schizophrenia was not necessarily included in the notices of assessment issued for his other injuries. The court concluded that for the appellant to pursue a claim for damages for schizophrenia, he would need a separate notice of assessment, as the condition was not inherently included in the initial notices. The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After his claim and statement of claim were filed, the appellant obtained further reports from Professor Alexander McFarlane, a professor of psychiatry. In his first report of 28 January 2022, Professor McFarlane opined that there was a link between the appellant’s workplace accident and the onset of his schizophrenia. He considered the appellant’s PTSD was a significant contributing risk factor to developing schizophrenia and that it should not be assumed that the two disorders existed independently of each other. In his view, the two conditions were “inextricably intertwined”. In his second report, dated 19 May 2022, Professor McFarlane confirmed his opinion that there was a causal link between the trauma the appellant had experienced as a result of the work accident and the onset of PTSD, a major depressive disorder and schizophrenia.The appellant’s application and the decision of the primary judge The issues for determination below were whether, for the purposes of s 237 of the WCRA, the appellant has one “psychiatric injury” for which he had received a notice of assessment, irrespective of his diagnoses, and is therefore able to pursue his claim for damages for that condition; or whether his schizophrenia is a separate psychiatric injury to his PTSD and therefore he would require a separate notice of assessment before he could pursue a claim for damages for that injury. Drawing support from the terms of s 179(4) of the WCRA, the appellant’s argument was that regardless of how the assessed psychiatric injury was described in the second notice of assessment, a referral of a psychiatric or psychological injury to the MAT under s 179 of the WCRA was only in respect of a single “injury to the mind”. Therefore, he argued, he was entitled to pursue a claim for damages for his schizophrenia as that condition was necessarily encompassed by the second notice of assessment which had been issued by WorkCover in respect of his single psychiatric or psychological injury. In dealing with this aspect of the appellant’s application, the primary judge recorded that the following matters were uncontentious:(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. The primary judge found that whilst WorkCover had accepted the appellant’s “secondary psych claim”, that phrase could not be fairly construed as extending to a psychological injury which had been identified as being non-work-related, given the definition of “injury” under s 32 of the WCRA. Her Honour did not find that WorkCover had, by its conduct, accepted schizophrenia as an injury under s 32 of the WCRA.

Ratio Decidendi

Legal Principle Established

The appellant’s ultimate submission is that if his construction argument is correct, it is open for this Court to then find, contrary to the erroneous finding of the primary judge, that the second notice of assessment extends to cover his schizophrenia condition and therefore he satisfies the requirement imposed by s 237(1)(a)(i) of the WCRA, enabling him to pursue his damages claim for that alleged psychiatric injury.Consideration The appellant does not challenge any of the factual findings made by the primary judge, nor does he suggest that the second notice of assessment is invalid. Disposition of the first ground of appeal therefore turns upon his construction argument concerning s 32, s 179 and s 237 of the WCRA. The proper construction of those provisions is to be determined having regard to the statutory text, interpreted having regard to their context and legislative purpose.[4] An interpretation that will best achieve the purposes of the WCRA is to be preferred to any other interpretation.[5][4]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 31 [4] (French CJ) and 46–47 [47] (Hayne, Heydon, Crennan and Kiefel JJ).[5]Acts Interpretation Act 1954 (Qld), s 14A(1). The starting point is to consider the text of s 32. As the appellant acknowledges, it is the definition of “injury” in s 32 that applies whenever the word is used in the WCRA, including in s 237 and s 179. For the appellant’s argument to succeed, the phrase “a psychiatric or psychological disorder” within s 32(1), would need to be interpreted as referring to a single injury to the mind. Aside from the use of the definite article “a” to distinguish “a psychiatric or psychological disorder” from some other type of injury, there is no textual indication within the section that the phrase should be given the limited meaning for which the appellant contends. Indeed, when read as a whole, it seems to me to be contrary to the actual language used within the section. Definite articles and singular phrases are employed within the section simply to distinguish between injury types and the different criteria that must be met to satisfy the definition of “an injury”. To my mind, the fact that s 32(1) speaks of alternatives of “psychiatric or psychological disorder” strongly suggests that either kind of disorder may constitute an injury. It would logically follow then, in my view, that an injured worker who develops a psychiatric disorder and a psychological disorder, as a result of the one work-related event, will have sustained two injuries. Much of course would depend on the evidence concerning the particular conditions experienced by an injured worker in a given case. In this case there is no such evidence suggesting that the appellant’s PTSD and schizophrenia are one and the same condition or disorder. In any event, the appellant’s argument solely concerns the construction of provisions of the WCRA. Although the appellant submitted that various cases dealing with the interpretation of s 32 established principles that supported his argument, that is not the case.