Croden v George Weston Foods Pty Limited t/a Tip Top Production

[2024] QDC 214

DISTRICT COURT OF QUEENSLAND

CITATION:

Croden v George Weston Foods Pty Limited t/a Tip Top Production [2024] QDC 214

PARTIES:

EVAN JAMES CRODEN
(plaintiff)
v
GEORGE WESTON FOODS LIMITED trading as TIP TOP PRODUCTION

(defendant)

FILE NO:

BD No 3340 of 2024

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2024

JUDGE:

Sheridan DCJ

ORDERS:

1. Pursuant to Section 298 of the Workers’ Compensation and Rehabilitation Act 2003 the Applicant be given leave to commence proceedings against the Respondent.

2. The proceedings are stayed until the parties have complied with Part 5 of the Workers Compensation and Rehabilitation Act 2003 (Qld).

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMMENCING PROCEEDINGS – where leave is sought to commence proceedings – where non-compliance with s 275 Workers Compensation and Rehabilitation Act 2003 (Qld) – whether leave should be granted

LEGISLATION:

Limitation of Actions Act 1974 (Qld)

Workers Compensation and Rehabilitation Act 2003 (Qld)

COUNSEL:

C Campbell for the applicant

H Berghofer for the respondent

SOLICITORS:

Shine Lawyers for the applicant

BT Lawyers for the respondent

1. The applicant seeks leave pursuant to s 298 of the Workers Compensation Rehabilitation Act 2003 (Qld) (“WCRA”) to commence proceedings against his former employer for damages for injuries sustained over a period of time from on or about 13 March 2006 to 29 December 2023 despite noncompliance with the requirements of s 275 of the WCRA.

2. Section 275 requires a claimant, before starting a proceeding, to give a notice to the insurer of the employer within the period mentioned in s 302 of the WCRA. Section 302 requires a claimant to bring proceedings either within the general limitation period or within the period mentioned in Schedule 5. Schedule 5 applies to extend the period for the commencing of a proceeding for damages by reference to the general limitation period.

3. Section 275 requires the notice to contain significant details about the claim and imposes significant requirements on the claimant.

4. The applicant served a notice of claim on the insurer on 15 November 2024 in which it was said that the claimant’s symptoms commenced over a period between 5 to 29 December 2023, but said exposure to the regular lifting and carrying tasks during his employment commenced at the start of his first employment with the employer on 13 March 2006. The date of injury for limitation period purposes was stated to be 13 March 2006. 

5. The nature of the injury was stated as bulging disc L5/S1 with nerve compression, lower back.

6. The notice stated that the claimant has been certified unfit to work from 4 January 2024 to the present date. The notice stated that the claimant requires surgery, and listed various specialists the claimant has seen about the injury.  It was said that the claimant’s injuries are not yet stable and stationary.

7. It is accepted that the notice of claim was non-compliant.  The details of the non-compliance were contained in a letter from the solicitors for the insurer to the solicitors for the claimant dated 19 November 2024. 

8. In communication between the solicitors, the solicitors for the claimant confirmed that the claimant’s injuries have yet to be assessed by a medical expert and further stated that they could not be certain that all his injuries have been listed in the notice of claim.

9. The only medical evidence is the work capacity certificate signed by the claimant’s general practitioner on 5 February 2024 which discloses a disc bulge injury.  The certificate stated that the patient was first seen on 29 December 2023.  The certificate stated that the claimant has no functional capacity for work and provided that the claimant was to be reviewed again on 18 February 2023.  The certificate stated the mechanism of injury as lifting at work.

10. The parties acknowledge that the claimant may have to bring an application for an extension of time under s 31 of the Limitation of Actions Act 1974 (Qld). Whether or not that will be necessary obviously depends upon the medical evidence that the parties will no doubt seek to obtain in the future.

11. The application is clearly brought in order to preserve the rights of the claimant given the statutory restrictions on his right to commence proceedings as contained within the WCRA. 

12. On 15 November 2024, the solicitors acting for the claimant asked the solicitors acting for the insurer, given the urgent need to commence proceedings, to waive compliance with the requirements of s 275 of the WCRA. In their response of 19 November 2024, the solicitors acting for the insurer agreed there was an urgent need to start a proceeding in respect of the period of claim that is not already statute barred.

13. In agreeing to any waiver of non-compliance, the solicitors for the insurer sought to impose various conditions upon the claimant pursuant to s 278(2)(b) of the WCRA.  The parties exchanged correspondence in relation to suitable conditions but were unable to agree to them.

14. At the hearing of this application, counsel for the insurer submitted that if the injury occurred in either May or December 2023, in reliance on statements made in the notice, there was no need for the relief sought.  It was said that the limitation period, on that basis, would not expire until at least May 2026.

15. The insurer for the employer did not, however, deal with the position that would apply if the relief under s 298 of the WCRA was subsequently refused, but the complainant was successful in an application to extend the limitation period under s 31 of the Limitation of Actions Act.

16. Counsel for the insurer acknowledged, however, that if the application were granted under s 298, the only prejudice the insurer would suffer was the incurring of unnecessary costs.

17. In the circumstances, it is appropriate to make the orders sought in the application and to include in the orders that are to be made that the proceedings are stayed until the parties have complied with Part 5 of the WCRA.

18. Subject to any submissions the parties may make on costs, my initial view is that the question of costs should be reserved for decision by the Court at a time when the parties and the Court are in a better position to assess whether the application was necessary; taking into account the conduct of the respondent to date in relation to the conditions sought to be imposed and its opposition to the making of the orders.