Berhane v Woolworths Limited - [2013] QDC 194

DISTRICT COURT OF QUEENSLAND

CITATION:

Berhane v Woolworths Limited [2013] QDC 194

PARTIES:

BERHANE GHEBREIGZIABIHER BERHANE

(applicant)

and

WOOLWORTHS LIMITED

(respondent)

FILE NO/S:

OA2512/2013

DIVISION:

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

23 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2013

JUDGE:

McGill DCJ

ORDER:

The Court declares that: (a) the applicant’s notice of claim for damages sworn 4th January 2013 and served shortly thereafter complied with s 275 of the Act; (b) the applicant is entitled to seek damages for the injury the subject of the notice of claim pursuant to s 237(1)(a)(i) of the Act. Order the respondent to proceed with the pre-court procedures laid down by the Act on the basis that the notice of claim is valid.

CATCHWORDS:

EMPLOYMENT LAW – Injury to employee – liability of employer – statutory preconditions – whether notice of claim referred to same injury as notice of assessment – cause irrelevant.

Workers Compensation and Rehabilitation Act 2003 s 275.

Andersen v Aged Care Employers Self Insurance [2011] QSC 101 – followed.
Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209 – followed.
Dowd v Swift Australia Pty Ltd [2008] QCA 228 – followed.
Ley v Woolworths Limited [2013] QSC 59 – followed.
Lincoln v Qantas Airways Ltd [2012] QDC 278 – followed.
MacDonald v Teys Australia Distribution Pty Ltd [2013] QDC 139 – followed.
Muckermann v Skilled Group Ltd [2013] QSC 51 – followed.
Sayers v Hanson [2011] QSC 70 – distinguished.

COUNSEL:

R Morgan for the applicant

J S Miles for the respondent

SOLICITORS:

Shine Lawyers for the applicant

DLA Piper Australia for the respondent

The applicant formerly worked for the respondent as a storeman. On 5 October 2012 the respondent issued a notice of assessment under the Workers Compensation and Rehabilitation Act 2003 (“the Act”) to the applicant in respect of an injury described as “aggravation of underlying constitutional degenerative changes in the left shoulder” to which a degree of permanent impairment was assigned.[1] The notice also stated the WRI for the injury was 12.8 percent, and contained an offer of lump sum compensation.
[1]Affidavit of applicant filed 17 July 2013 Exhibit BGB03

On 8 January 2013 the applicant served on the respondent a notice of claim for damages under s 275 of the Act[2] which at point 41, particulars of all injuries, identified as the part of the body injured the left shoulder, and as the nature of the injury, “aggravation of underlying constitutional degenerative changes”. The respondent’s solicitors subsequently wrote to the applicant’s solicitors advising that the injury the subject of the notice of claim had not been assessed. The applicant has brought this proceeding seeking a declaration that the notice of claim was valid, on the basis that the injury the subject of the notice of claim is the same as the injury referred to in the respondent’s notice of assessment.
[2]Ibid, Exhibit BGB02

The basis on which the respondent resists that relief is that the notice of claim…

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 Berhane v Woolworths Limited

Details

AGLC: Berhane v Woolworths Limited [2013] QDC 194
Case: [2013] QDC 194
Decision Date: 23 August 2013

CaseChat Overview and Summary

In Berhane v Woolworths Limited, the applicant, Mr. Berhane, sought damages from Woolworths Limited for injuries sustained in the course of his employment. The central issue before the court was whether the applicant's notice of claim complied with statutory preconditions and whether it referred to the same injury as a prior notice of assessment. The Federal Circuit Court was tasked with determining whether these legal criteria were met, which would allow Mr. Berhane to proceed with his claim for damages.

The primary legal issues involved interpreting the statutory requirements for notices of claim and assessment under relevant employment legislation. The court had to decide if Mr. Berhane's notice of claim complied with section 275 of the Act and if it referred to the same injury as mentioned in the notice of assessment. The court also had to address the argument that the cause of the injury was irrelevant to the validity of the notice of claim. The court focused on the form and content of the notices rather than the underlying cause of the injury.

The court held that Mr. Berhane's notice of claim, sworn on 4th January 2013, complied with the statutory requirements. The court found that the notice sufficiently referenced the same injury as the prior notice of assessment, and thus met the statutory criteria. The court emphasised that the cause of the injury was not a relevant factor in determining the validity of the notice of claim. Consequently, the court ruled that Mr. Berhane was entitled to seek damages for the injury in question.

The court ordered that Woolworths Limited proceed with the pre-court procedures as outlined by the Act, acknowledging that Mr. Berhane's notice of claim was valid. This ruling allowed Mr. Berhane to pursue his claim for damages against Woolworths Limited.

Orders

Orders of the court

The Court declares that: (a) the applicant’s notice of claim for damages sworn 4th January 2013 and served shortly thereafter complied with s 275 of the Act; (b) the applicant is entitled to seek damages for the injury the subject of the notice of claim pursuant to s 237(1)(a)(i) of the Act. Order the respondent to proceed with the pre-court procedures laid down by the Act on the basis that the notice of claim is valid.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Berhane v Woolworths Limited [2013] QDC 194
PARTIES:	BERHANE GHEBREIGZIABIHER BERHANE (applicant) and WOOLWORTHS LIMITED (respondent)
FILE NO/S:	OA2512/2013
DIVISION:
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	23 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2013
JUDGE:	McGill DCJ
ORDER:	The Court declares that: (a) the applicant’s notice of claim for damages sworn 4th January 2013 and served shortly thereafter complied with s 275 of the Act; (b) the applicant is entitled to seek damages for the injury the subject of the notice of claim pursuant to s 237(1)(a)(i) of the Act. Order the respondent to proceed with the pre-court procedures laid down by the Act on the basis that the notice of claim is valid.
CATCHWORDS:	EMPLOYMENT LAW – Injury to employee – liability of employer – statutory preconditions – whether notice of claim referred to same injury as notice of assessment – cause irrelevant. Workers Compensation and Rehabilitation Act 2003 s 275. Andersen v Aged Care Employers Self Insurance [2011] QSC 101 – followed. Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209 – followed. Dowd v Swift Australia Pty Ltd [2008] QCA 228 – followed. Ley v Woolworths Limited [2013] QSC 59 – followed. Lincoln v Qantas Airways Ltd [2012] QDC 278 – followed. MacDonald v Teys Australia Distribution Pty Ltd [2013] QDC 139 – followed. Muckermann v Skilled Group Ltd [2013] QSC 51 – followed. Sayers v Hanson [2011] QSC 70 – distinguished.
COUNSEL:	R Morgan for the applicant J S Miles for the respondent
SOLICITORS:	Shine Lawyers for the applicant DLA Piper Australia for the respondent