Bakhit v Brisbane City Council - [2014] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:

Bakhit v Brisbane City Council [2014] QDC 240

PARTIES:

OSMAN BAKHIT
(Applicant)

and

BRISBANE CITY COUNCIL
(Respondent)

FILE NO/S:

Brisbane 2576/14

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 October 2014

DELIVERED AT:

Townsville

HEARING DATE:

16 July 2014 and 20 August 2014

JUDGE:

Durward SC DCJ

ORDERS:

1. Application granted.

2. Declared that the applicant is entitled to seek damages pursuant to s237 (1) (a) (i) of the Workers Compensation and Rehabilitation Act 2003 for the lower back injury specified in the notice of claim for damages sworn on 25 October 2013.

3. Declared that pursuant to s297 of the Workers Compensation and Rehabilitation Act 2003 the applicant’s notice of claim for damages sworn on 25 October 2013 complies with s275 of the Act

4. The respondent to pay to the applicant his costs of the application on the standard basis.

CATCHWORDS:
LEGISLATION:
CASES:

EMPLOYMENT LAW – WORKERS COMPENSATION – COMMON LAW PROCEEDING TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – ASSESSMENT OF INJURY – INJURY AND EVENT - Injury to employee – liability of employer – statutory preconditions – whether notice of claim referred to same injury as notice of assessment – cause irrelevant – where focus of notice of assessment is upon injury and not event – concurrent statutory compensation claim – whether conflict exists where statutory appeal is on foot – whether declaratory relief available in that circumstance.

Workers Compensation and Rehabilitation Act 2003 sections 237, 258, 275 and 297

Andersen v Aged Care Employers Self Insurance [2014] QSC 101; Lincoln v Qantas Airways Limited [2012] QDC 278; Sayers v Hansont/a All Guard Security Services [2011] QSC 70; Ley v Woolworths Limited [2013] QSC 59; MacDonald v Teys Australia Distribution Pty Ltd [2013] QDC 139; Bell v Australian Meat Holdings Pty Ltd 2003] QCA 209; Muckermann v Skilled Group Limited & Anor [2013]QSC 51; Dowd v Swift Australia Pty Ltd [2008]QCA 228; Berhane v Woolworths Limited [2013] QDC 194; Otto v Mackay Sugar Ltd & Anor [2011] QSC 215; Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421; Edwards v Santos Ltd [2011] 85 ALJR 464; Woolworths Ltd v Rodionov [2011] QDC 169; Lincoln v Qantas Airways Ltd (supra) (No. 2) [2012] QDC 351

COUNSEL:

R Morgan of counsel for the Applicant

M T O’Sullivan of counsel for the Respondent

SOLICITORS:

Shine Lawyers for the Applicant

Brisbane City Council Legal Practice for the Respondent

The Applicant filed an Originating Application on 08 July 2014 (superseded by an Amended Originating Application filed by leave on 16 July 2014, the first date of hearing of the Application) claiming, so far as is relevant:

“2.A declaration that the Applicant is entitled to seek damages for the injury which is the subject of his Notice of Claim sworn on 25 October 2013, pursuant to s 237(1)(a)(i) of the Workers' Compensation and Rehabilitation Act 2003 (“the Act”).
3.A declaration pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bakhit v Brisbane City Council 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: [2014] QDC 240
Decision Date: 22 October 2014

CaseChat Overview and Summary

In the case of Bakhit v Brisbane City Council, the applicant, Mr Bakhit, sought compensation for a lower back injury sustained during his employment with the respondent. The dispute centred on the validity of Mr Bakhit's common law action against the council in light of his concurrent statutory compensation claim. The application was brought before the Supreme Court of Queensland, which was required to determine whether Mr Bakhit's notice of claim for damages complied with statutory preconditions and whether the ongoing statutory compensation appeal precluded him from seeking damages at common law.

The central legal issues revolved around whether Mr Bakhit's notice of claim for damages adequately referred to the same injury specified in the notice of assessment, and whether the ongoing statutory appeal rendered his common law action untenable. The court had to consider whether the statutory preconditions were satisfied and whether the cause of the injury was irrelevant as long as the notice of assessment focused on the injury itself. Furthermore, the court needed to determine if there was a conflict between the statutory compensation claim and the common law action, and whether declaratory relief was appropriate in the circumstances.

The court found that Mr Bakhit's notice of claim for damages was compliant with the statutory requirements, as it correctly identified the injury in question, regardless of the cause. The focus of the notice of assessment was on the injury rather than the event, which was sufficient to meet the statutory preconditions. The court also held that the ongoing statutory appeal did not preclude Mr Bakhit from seeking damages at common law, as the two claims were not in conflict. Consequently, the court granted the application, declaring that Mr Bakhit was entitled to seek damages and that his notice of claim complied with the statutory requirements. The respondent was ordered to pay the applicant's costs of the application on the standard basis.

The final orders of the court were that the application was granted, declaring that Mr Bakhit was entitled to seek damages for the specified lower back injury and that his notice of claim complied with the statutory requirements. The respondent was also ordered to pay the applicant's costs of the application.

Orders

Orders of the court

1. Application granted.

2. Declared that the applicant is entitled to seek damages pursuant to s237 (1) (a) (i) of the Workers Compensation and Rehabilitation Act 2003 for the lower back injury specified in the notice of claim for damages sworn on 25 October 2013.

3. Declared that pursuant to s297 of the Workers Compensation and Rehabilitation Act 2003 the applicant’s notice of claim for damages sworn on 25 October 2013 complies with s275 of the Act

4. The respondent to pay to the applicant his costs of the application on the standard basis.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.