Barraclough v WorkCover Queensland

Case [2012] QDC 321

DISTRICT COURT OF QUEENSLAND

CITATION:

Barraclough v WorkCover Queensland [2012] QDC 321

PARTIES:

Christine Jeanette Barraclough
(Applicant)

v

WorkCover Queensland
(Respondent)

FILE NO/S:

Mackay D7 of 2012

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court Mackay

DELIVERED ON:

19 June 2012

DELIVERED AT:

Townsville

HEARING DATE:

17 April 2012 in Townsville

JUDGE:

Durward SC DCJ

ORDERS:

LEGISLATION:

CASES:

1.   Application granted.

2. A Declaration that the applicant’s Notice of Claim for Damages dated 23 March 2010 is a complying Notice of Claim within the meaning of s 302 of the Workers’ Compensation and Rehabilitation Act 2003.

3.   A Declaration that the applicant is entitled to pursue damages at common law for injuries listed in item 41 of the notice of Claim for damages described as burns to the left-hand, soft-tissue injuries and complex regional pain syndrome – reflex sympathetic dystrophy of her right upper limb.

4.   Costs reserved subject to further submissions on 7 days notice to the other party.

Workers’ Compensation and Rehabilitation Act 2003 ss 32(3), 132(1), 134, 237(1)(a)(i) and (b), 244, 245, 287, 302, 308, 392 (3), 586(4); Electronic Transactions (Queensland) Act 2001 ss10, 11, 12 & Sch. 2.

Lau v WorkCover Queensland [2002] QCA 244; Bell v Australian Meat Holdings Pty Ltd [2003]QCA 209; Dixon v Australian Meat Holdings Pty Ltd [2003] QSC 267; Watters v WorkCover Queensland [2001] 331; Trathen v Consolidated Meat Group (unreported S248 of 2003 – 20.06.03); Fishlock v Plumber (1950)SASR 176; Gorry v Australian Meat Holdings Pty Ltd [2007] QSC 161; Stewart v Fehlberg [2008] QSC 292; Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; Mitchell v Clancy [1960] Qd R 62.

CATCHWORDS:

WORKERS’ COMPENSATION – PRELIMINARY REQUIREMENTS – NOTICE OF CLAIM FOR DAMAGES – NOTICE OF ASSESMENT – whether complying claim - whether RSD injury a ‘separate injury’ or a secondary consequence of injury described in Notice of Assessment – whether a different and unassessed injury – construction or meaning of injury as described.

WORKERS’ COMPENSATION – MISCELLANEOUS MATTERS – OTHER MATTERS – WORKCOVER QUEENSLAND ADMINISTRATIVE SYSTEM – application made in the ‘paperless administrative system’ – whether system can lead to misinterpretation or other error by WorkCover Queensland – whether claimant should be relieved of consequences of failure of system – observations about the ‘paperless administrative system’.

COUNSEL:

Crow SC for the applicant
O’Sullivan for the respondent

SOLICITORS:

Taylors Solicitors for the applicant
Gadens Lawyers for the respondent

  1. The applicant claims that she sustained injuries to her hands on 27 June 2008 as a result of exposure to bleach when manually cleaning plates in a kitchen operated by her employer at a Central Queensland mining camp.

The injury report and assessment

  1. The injury was reported to the employer on 30 June 2008 by the receipt of the first WorkCover Medical Certificate issued by Dr Begg. A workers’ compensation statutory claim was subsequently made to the respondent (“WorkCover”).

  1. An application for compensation must be made in the Approved Form by the…

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Details
AGLC
Barraclough v WorkCover Queensland [2012] QDC 321
Case
[2012] QDC 321
Decision Date

CaseChat Overview and Summary

The applicant, Barraclough, applied to the Supreme Court of Queensland to challenge the respondent WorkCover Queensland's refusal to accept a Notice of Claim for Damages. The applicant claimed damages for a range of injuries, including burns to her left hand, soft-tissue injuries, and complex regional pain syndrome – reflex sympathetic dystrophy of her right upper limb. The respondent had previously accepted the applicant's claim for a right shoulder injury, but disputed the claim for damages for the other injuries. The applicant argued that the injuries were separate from the previously accepted claim and should be considered as new injuries. The respondent argued that the injuries were secondary consequences of the accepted claim and therefore not separable. The court was required to determine whether the applicant's Notice of Claim for Damages was a complying notice and whether the injuries claimed were separate injuries or secondary consequences of the previously accepted claim.

The court found that the applicant's Notice of Claim for Damages was a complying notice, as it met the requirements of the Workers’ Compensation and Rehabilitation Act 2003. The court also found that the injuries claimed were separate injuries, not secondary consequences of the previously accepted claim. The court relied on the definition of injury in the Act, which includes any disease or injury arising out of or in the course of employment, and found that the injuries claimed were distinct from the previously accepted claim. The court also noted that the injuries claimed were not listed in the Notice of Assessment, which further supported the conclusion that they were separate injuries. The court rejected the respondent's argument that the injuries were secondary consequences of the previously accepted claim.

The court granted the applicant's application and made a declaration that the applicant's Notice of Claim for Damages was a complying notice. The court also declared that the applicant was entitled to pursue damages at common law for the injuries listed in the notice. The court noted that the 'paperless administrative system' used by WorkCover Queensland could lead to misinterpretation or other errors, but found that the applicant had taken all reasonable steps to ensure that the notice was properly lodged. The court reserved costs subject to further submissions.

In conclusion, the court found in favour of the applicant and granted her application. The court found that the applicant's Notice of Claim for Damages was a complying notice and that the injuries claimed were separate injuries, not secondary consequences of the previously accepted claim. The court also noted that the 'paperless administrative system' could lead to errors, but found that the applicant had taken all reasonable steps to ensure that the notice was properly lodged. The court reserved costs subject to further submissions.

Orders

Orders of the court

1. Application granted.

2. A Declaration that the applicant’s Notice of Claim for Damages dated 23 March 2010 is a complying Notice of Claim within the meaning of s 302 of the Workers’ Compensation and Rehabilitation Act 2003.

3. A Declaration that the applicant is entitled to pursue damages at common law for injuries listed in item 41 of the notice of Claim for damages described as burns to the left-hand, soft-tissue injuries and complex regional pain syndrome – reflex sympathetic dystrophy of her right upper limb.

4. Costs reserved subject to further submissions on 7 days notice to the other party.

Workers’ Compensation and Rehabilitation Act 2003 ss 32(3), 132(1), 134, 237(1)(a)(i) and (b), 244, 245, 287, 302, 308, 392 (3), 586(4); Electronic Transactions (Queensland) Act 2001 ss10, 11, 12 & Sch. 2.

Lau v WorkCover Queensland [2002] QCA 244; Bell v Australian Meat Holdings Pty Ltd [2003]QCA 209; Dixon v Australian Meat Holdings Pty Ltd [2003] QSC 267; Watters v WorkCover Queensland [2001] 331; Trathen v Consolidated Meat Group (unreported S248 of 2003 – 20.06.03); Fishlock v Plumber (1950)SASR 176; Gorry v Australian Meat Holdings Pty Ltd [2007] QSC 161; Stewart v Fehlberg [2008] QSC 292; Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514; Mitchell v Clancy [1960] Qd R 62.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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