Connor v Queensland Rail Ltd

Case [2016] QSC 270

SUPREME COURT OF QUEENSLAND

CITATION:

Connor v Queensland Rail Ltd [2016] QSC 270

PARTIES:

KRISTINA MARY CONNOR

(Applicant)

v
QUEENSLAND RAIL LIMITED

(First Respondent)
WORKERS’ COMPENSATION REGULATOR

(Second Respondent)

FILE NO/S:

BS No 8531 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2016

JUDGE:

Martin J

ORDER:

1.   Application dismissed.

2.   It is declared that the applicant, in making a claim for damages against QR arising out of any injury sustained in a work incident which occurred on 16 May 2013, has no entitlement to damages arising out of, or in consequence of the rejected injuries.

CATCHWORDS:

WORKERS’ COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF – ACTIONS FOR DAMAGES AGAINST EMPLOYER – STATUTORY CONSTRAINT ON ACTIONS FOR DAMAGES – EXCEPTIONS TO STATUTORY CONSTRAINT – OTHER CASES – where the applicant claimed for compensation said to have arisen from injuries sustained in the course of her employment with the first respondent (QR) – where QR, a self-insurer under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)(‘the Act’), accepted liability for several of the injuries but not for others – where the applicant unsuccessfully exercised some of her appeal rights – where QR issued the applicant with a notice of assessment in respect of the injuries for which it accepted liability – where the applicant then served QR with a notice of a claim for damages under s 275 of the Act claiming compensation for all of the injuries that she alleged she had suffered – whether the applicant’s common law right to sue for damages is preserved by s 237(1)(a)(ii) of the Act – whether s 237(1)(a)(ii) is a drafting error able to be corrected in accordance with accepted principles of statutory interpretation

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 5, s 32, s 185, s 237, s 244, s 245, s 275

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation  (1981) 147 CLR 297, applied
Inco Europe Pty Ltd v First Choice Distribution [2000] 1 WLR 586, cited
Kuligowski v Metrobus (2004) 220 CLR 363, cited
Lau v WorkCover Queensland [2003] 2 Qd R 53, cited
Marshall v Watson (1972) 124 CLR 640, cited
Minister for Immigration and Citizenship v SZIZO (2008) 238 CLR 642, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited

Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531, cited

COUNSEL:

M Black for the applicant

R J Douglas QC for the first respondent

M T Hickey for the second respondent

SOLICITORS:

Maurice Blackburn for the applicant

Minter Ellison Lawyers for the first respondent

Crown Law for the second respondent

  1. The applicant was an employee of the first respondent (QR) when, on 16 July 2013, she suffered some workplace injuries. QR is a self-insurer under the Workers’ Compensation and Rehabilitation Act 2003[1] (the Act) and it accepted…

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Connor v Queensland Rail Ltd [2016] QSC 270
Case
[2016] QSC 270
Decision Date

CaseChat Overview and Summary

Connor sought a declaration that she was entitled to seek damages for injuries that Queensland Rail (QR) had rejected as compensable under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). QR opposed the application and submitted that the applicant had no entitlement to seek damages for the rejected injuries. The court was required to determine whether the applicant’s common law right to sue for damages was preserved by s 237(1)(a)(ii) of the Act and whether the section was a drafting error. The court considered the relevant provisions of the Act and concluded that s 245(3) contained a drafting error, as it was inconsistent with the objects and the rest of the Act to require an insurer to engage in a series of steps which had already been undertaken. The court further concluded that the proper construction of the Act would be to read s 245(3) as if, after the word “However”, it contained words to the effect “where the insurer has not already decided the matters in this subsection”. This reading allowed for the situation where an application had been made but not decided but did not allow an unsuccessful applicant to have a second bite of the cherry. The court dismissed the application and declared that the applicant had no entitlement to damages arising out of, or in consequence of the rejected injuries. The court further declared that QR had no entitlement to damages arising out of, or in consequence of the rejected injuries.

Orders

Orders of the court

1. Application dismissed.

2. It is declared that the applicant, in making a claim for damages against QR arising out of any injury sustained in a work incident which occurred on 16 May 2013, has no entitlement to damages arising out of, or in consequence of the rejected injuries.

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

Section 245(3) contains a drafting error. It does not make any sense, and it is inconsistent with the objects and the rest of the Act, to require an insurer to engage in a series of steps which have already been undertaken. The proper construction of the Act would be to read s 245(3) as if, after the word “However”, it contained words to the effect “where the insurer has not already decided the matters in this subsection”. That reading allows for the situation where an application has been made but not decided – but it does not allow an unsuccessful applicant to have a second bite of the cherry. Conclusion The applicant sought a declaration that she was entitled to seek damages for the rejected injuries. On the construction of the relevant section which I favour that declaration cannot be made. QR sought a declaration with contrary intent and, for the purposes of clarity, I think it appropriate that such a declaration be made. The application is dismissed. It is declared that the applicant, in making a claim for damages against QR arising out of any injury sustained in a work incident which occurred on 16 May 2013, has no entitlement to damages arising out of, or in consequence of the rejected injuries.

Ratio Decidendi

Legal Principle Established

Mr Hickey (for the Regulator) adopted the submissions of QR and argued that the Act should not be construed so as to allow the applicant to re-agitate her case about the rejected injuries. He also submitted that the construction of the Act proposed by the applicant might lead to:(a)duplication of claims and conflicting decisions,(b)increased administrative, medical and legal costs for all parties to the workers’ compensation scheme and detract from the efficiency and effectiveness of the scheme, and(c)increased cost of workers compensation insurance premiums being payable by employers.Consideration Part of the problem that arises when construing these (and other) parts of the Act is that the word “injury” is sometimes used when it is not intended to mean “injury” as defined in s 32 of the Act. What is often intended in those cases is: “alleged injury”. Section 108(1) of the Act provides that “Compensation is payable under this Act for an injury sustained by a worker.” Compensation is paid, if the employer is a self-insurer, by the insurer, otherwise it is paid by WorkCover (s 109). Whether an application for compensation is accepted is a decision made by the insurer under s 134 and that decision is subject to review under Chapter 13. Thus, the decision as to whether an alleged injury is an injury as defined is made by the insurer, and that decision is amenable to review. There are, though, sections of the Act in which the word “injury” is used both as “alleged injury” and “injury as defined”. For example, s 245(3) provides:“(3) However, the claimant may seek damages for the injury only if the insurer decides that the claimant—(a)was a worker when the injury was sustained; and(b)has sustained an injury.” (emphasis added) Thus, in s 245(3), “injury” where it first appears must be an “alleged injury” otherwise a decision that it was an “injury as defined” would be unnecessary. Section 245(6) contemplates a decision that an “alleged injury” may not be an “injury as defined”:“(6) If the insurer decides that the claimant—(a) was not a worker when the injury was sustained; or(b) has not sustained an injury;the notification must include written reasons for the decision.” There is a further delineation to be observed in s 237 and s 245. Section 237(1) speaks of “an injury sustained” which, in s 237(1)(a)(ii), becomes “the injury”. In s 245 it is “the injury” which must be the subject of a decision by the insurer. The issue which arises is whether it is intended that “the injury” is one which has not already been the subject of a decision by the insurer. A discussion of the principles to be applied when construing a statute usually commence with these statements in Project Blue Sky v Australian Broadcasting Authority:[2]“Conflicting statutory provisions should be reconciled so far as is possible69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.” (emphasis added, citations omitted)[2] (1998) 194 CLR 355.