Cocaris v Brisbane City Council

DISTRICT COURT OF QUEENSLAND

CITATION:

Cocaris v  Brisbane City Council [2015] QDC 319

PARTIES:

VICTORIA REBECCA COCARIS
(applicant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

D 4215/2015

DIVISION:

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2015

JUDGE:

McGill SC, DCJ

ORDER:

Declarations as sought.

CATCHWORDS:

INSURANCE – Workers’ compensation – journey claim – whether claim for damages against employer must be brought in accordance with requirements of Chapter 5 of Workers’ Compensation and Rehabilitation Act 2003 – whether notice of claim valid.

Personal Injuries Proceedings Act 2002 s 6(2)(c).

Aydar v Pashen [2003] 1 Qd R 601 – cited.
Ballandis v Swebbs [2015] QCA 76 – considered.
Ballandas v Swebbs [2014] QDC 129 – cited.
Bonser v Melnacis [2002] 1 Qd R 1 – cited.
Devlin v South Molle Island Resort [2003] 2 Qd R 346 – cited.
Hervey Bay City Council v Workers Compensation Board of Queensland [1999] 1 Qd R 274 – applied.
Jaye v Grahame Allen Earthmoving Pty Ltd [1993] 1 Qd R 389 – cited.
Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643 – cited.
King v Parsons [2005] QSC 214 – followed.
Lorimer v Thatcher [1993] 2 Qd R 25 – cited.
Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 – cited.
Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 – cited.
Pukeroa v Berkeley Challenge Pty Ltd [2005] 2 Qd R 46 – applied.
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 – cited.
Seery v Mt Isa Mines Ltd [2000] QSC 16 – cited.
State of Queensland v Heraud [2011] QCA 297 – considered.
Suncorp Insurance and Finance v Ploner [1991] 1 Qd R 69 – cited.
Tanks v WorkCover Queensland [2001] QCA 103 – cited.
Watkin v GRM International Pty Ltd [2006] QCA 382 – cited.

COUNSEL:

G A Hampson for the applicant.

M T O’Sullivan for the respondent.

SOLICITORS:

Schultz Toomey O’Brien Lawyers for the applicant.

Brisbane City Legal Practice for the respondent. 

1. On 1 August 2014 the applicant’s solicitors served on the respondent a notice of claim (part 1) under the Personal Injuries Proceedings Act 2002 (“PIPA”). The solicitors were subsequently contacted by the respondent’s insurer who asserted that PIPA did not apply, and that the applicant had no right of action other than through a workers’ compensation claim, since she was at the time employed by the respondent. On 28 January 2015 the solicitors for the applicant served on the respondent a notice of claim for damages pursuant to s 275 of the Workers Compensation and Rehabilitation Act 2003 (“WCRA”). On 18 February 2015 the solicitors received from the respondent a letter asserting that WCRA was not the applicable scheme for the applicant’s common law claim, which was essentially a PIPA claim. With no doubt more than a touch of understandable frustration, the applicant…