Barrass v BHP Coal Pty Ltd - [2002] QSC 364

SUPREME COURT OF QUEENSLAND

CITATION:

Barrass v BHP Coal Pty Ltd [2002] QSC 364

PARTIES:

HENRY EDWARD BARRASS
(plaintiff/applicant)
v
BHP COAL PTY LTD ACN 010 545 721
(defendant/respondent)

FILE NO:

S11282 of 2000

DIVISION:

Trial Division

DELIVERED ON:

8 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2002

JUDGE:

Mullins J

ORDER:

1. It is declared that the inclusion of pain disorder due to physical and psychological factors as an injury suffered as a result of the accident on 27 December 1997 in the applicant’s notice of claim dated 26 February 2002 did not preclude the notice of claim from complying with s 280 of the WorkCover Queensland Act 1996.
2. The applicant’s application filed on 29 July 2002 is otherwise dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – RIGHT TO PROCEED FOR DAMAGES – non-certificate injury – conditional damages certificate allowed proceeding for damages to be commenced – offer to settle by applicant in notice of claim included costs on the Supreme Court scale – whether offer complied with s280(6) of WorkCover Queensland Act 1996 (Q) – whether offer amounted to genuine offer of settlement – not a genuine offer to settle because of inclusion of costs in light of object of pre-court procedures and the constraints of the Act

WORKERS’ COMPENSATION – RIGHT TO PROCEED FOR DAMAGES – whether applicant assessed by relevant medical assessment tribunal for pain disorder deriving from the accident – no notice of assessment issued by WorkCover – no utility in making declaration about process of tribunal’s decision making

WorkCover Queensland Act 1996
WorkCover Queensland Regulation 1997

Lau v WorkCover Queensland [2002] QCA 244

COUNSEL:

PJ Favell for the applicant
AS Kitchin for the respondent

SOLICITORS:

Wide Bay Law for the applicant
Clayton Utz for the respondent

MULLINS J: On 22 December 2000 Mr Henry Edward Barrass (“the applicant”) who was born on 18 April 1940 commenced this proceeding against BHP Coal Pty Ltd (“the respondent”) in respect of a claim for damages for personal injury alleged to have been caused by the negligence of, and breach of contract of employment, breach of duty of care and breach of statutory duty by the respondent. The applicant claims to have been working in the course of his employment as a fitter on a D10N Caterpillar dozer owned by the respondent at 6.30pm on 27 December 1997, when the applicant fell from the dozer and suffered injury (“the accident”).

By application filed on 29 July 2002, the applicant seeks declarations that he has complied with the requirements of s 280(6) of the WorkCover Queensland Act 1996 (“the Act”), he has been assessed for pain disorder in accordance with the Act and that he is entitled to continue this proceeding to seek damages, including damages for pain disorder.

Both Counsel agreed that the relevant provisions of the Act for the purpose of this application were those found in Reprint No 2 of the Act. The references to the Act in these reasons are therefore as it stood…

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.

Continue reading Barrass v BHP Coal Pty Ltd

Details

AGLC: Barrass v BHP Coal Pty Ltd [2002] QSC 364
Case: [2002] QSC 364
Decision Date: 8 November 2002

CaseChat Overview and Summary

The case of Barrass v BHP Coal Pty Ltd involved the applicant, Barrass, seeking damages for injuries sustained in a workplace accident. The applicant had been injured in an incident that was not certified under the WorkCover Queensland Act 1996, which necessitated the acquisition of a conditional damages certificate to proceed with legal action. Barrass included a claim for costs on the Supreme Court scale in the notice of claim, which was central to the dispute. The court was tasked with determining whether this inclusion was compliant with statutory requirements and whether it constituted a genuine offer of settlement.

The primary legal issue before the court was whether Barrass's offer to settle, which included costs, complied with the statutory requirements of section 280(6) of the WorkCover Queensland Act 1996. Specifically, the court had to examine whether the inclusion of costs in the offer rendered it non-compliant with the legislative intent to facilitate genuine pre-court settlement procedures. Additionally, the court was required to assess if the applicant had undergone the necessary medical assessment for the pain disorder deriving from the accident, as this would affect the utility of any declaration regarding the tribunal's decision-making process.

The court found that the inclusion of costs in Barrass's offer to settle did not comply with section 280(6) of the WorkCover Queensland Act 1996. The legislative intent behind the pre-court procedures was to encourage genuine offers of settlement without the burden of legal costs, thus the inclusion of such costs was deemed inappropriate. Consequently, the offer did not qualify as a genuine offer of settlement under the Act. Furthermore, the court noted that since no notice of medical assessment had been issued by WorkCover regarding the pain disorder, any declaration about the tribunal's decision-making process would be of no practical utility. Therefore, the court declared that the inclusion of the pain disorder in the notice of claim did not preclude compliance with section 280 of the Act but dismissed the rest of the applicant's application.

Orders

Orders of the court

1. It is declared that the inclusion of pain disorder due to physical and psychological factors as an injury suffered as a result of the accident on 27 December 1997 in the applicant’s notice of claim dated 26 February 2002 did not preclude the notice of claim from complying with s 280 of the WorkCover Queensland Act 1996.

2. The applicant’s application filed on 29 July 2002 is otherwise dismissed.

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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CITATION:	Barrass v BHP Coal Pty Ltd [2002] QSC 364
PARTIES:	HENRY EDWARD BARRASS (plaintiff/applicant) v BHP COAL PTY LTD ACN 010 545 721 (defendant/respondent)
FILE NO:	S11282 of 2000
DIVISION:	Trial Division
DELIVERED ON:	8 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2002
JUDGE:	Mullins J
ORDER:	1. It is declared that the inclusion of pain disorder due to physical and psychological factors as an injury suffered as a result of the accident on 27 December 1997 in the applicant’s notice of claim dated 26 February 2002 did not preclude the notice of claim from complying with s 280 of the WorkCover Queensland Act 1996. 2. The applicant’s application filed on 29 July 2002 is otherwise dismissed.
CATCHWORDS:	WORKERS’ COMPENSATION – RIGHT TO PROCEED FOR DAMAGES – non-certificate injury – conditional damages certificate allowed proceeding for damages to be commenced – offer to settle by applicant in notice of claim included costs on the Supreme Court scale – whether offer complied with s280(6) of WorkCover Queensland Act 1996 (Q) – whether offer amounted to genuine offer of settlement – not a genuine offer to settle because of inclusion of costs in light of object of pre-court procedures and the constraints of the Act WORKERS’ COMPENSATION – RIGHT TO PROCEED FOR DAMAGES – whether applicant assessed by relevant medical assessment tribunal for pain disorder deriving from the accident – no notice of assessment issued by WorkCover – no utility in making declaration about process of tribunal’s decision making WorkCover Queensland Act 1996 WorkCover Queensland Regulation 1997 Lau v WorkCover Queensland [2002] QCA 244
COUNSEL:	PJ Favell for the applicant AS Kitchin for the respondent
SOLICITORS:	Wide Bay Law for the applicant Clayton Utz for the respondent