Dunn v WorkCover Queensland

[2001] QSC 221

IN THE SUPREME COURT

OF QUEENSLAND

BRISBANE  No S 3079 of 2001

[2001] QSC 221

BETWEEN:               SCOTT ANDREW DUNN

Applicant

AND:WORKCOVER QUEENSLAND

Respondent

REASONS FOR JUDGMENT

B W Ambrose J

Delivered the 28th day of June 2001

CATCHWORDS: PROCEDURE – Miscellaneous Procedural Matters- Notice of Claim form deemed not to be an approved form for the purposes of s 280 of the WorkCover Queensland Act – waiver of non-compliance under s 282

Counsel:G.J Cross for the applicant

D North for the respondent

Solicitors:Watling Roche Lawyers for the applicant

Tutt and Quinlan for the respondent

Statutes:WorkCover Queensland Act 1996 (Qld); s 280, s 282, s 285(4), s 303, s 342(3)(a)

Cases:Scott v WorkCover Queensland [2000] QSC 414

McCullagh v WorkCover Queensland [2001] QSC 029
WorkCover Queensland v Clements [2001] QSC 048
WorkCover Queensland v Zellar [2001] QSC 047

Hearing Dates:           2^nd May 2001

1. This is an application by a person who on 18 September 2000 forwarded to WorkCover under cover of his solicitor’s letter a Notice of Claim for damages pursuant to s 280 of WorkCover Queensland Act 1996.

1. In part of that claim in answer to question 49 it was asserted that the applicant at the time he sustained injury was –

“Putting gap sand in pavers and tapping with mallet, injury happened when standing up from kneeling position.”

1. It was asserted that the injury was sustained on 27 September 1999.

1. In providing detail B1 of the negligence he alleged against his employer, the claimant stated –

“Employer failed to provide safe system of work – employer should have provided two employees for heavy lifting tasks.”

1. Unsurprisingly in the light of these two particulars WorkCover, on 6 November 2000, sought further elucidation and asked the claimant to advise in what heavy lifting task he was involved to which he referred in Schedule B in the light of his response to question 49 to which I have referred.  He was asked to clarify his response by statutory declaration.  He was asked also for further information relating to quantum of damage.  WorkCover made further attempts to obtain a reconciliation of what appeared at first sight anyway to be quite inconsistent accounts of precisely the circumstances in which the claimant sustained his alleged injury.  In the meantime on 20 November 2000, it was held in Scott v WorkCover Queensland [2000] QSC 414 that a form in terms similar to that completed by the claimant in this case and lodged on 18 September 2000 was not “an approved form for the purposes of s 280 of the WorkCover Queensland Act 1996.”

1. Subsequent to that decision however, on 25 November 2000 a new “approved form” was adopted by WorkCover.

1. In my view, on a careful reading of the material, it seems clear enough that the decision in Scott and the approval of a new form subsequent to that decision was used really as an excuse by the claimant to decline to provide the information which WorkCover sought.  Indeed, on 7 February 2001 solicitors for the claimant advised that they were “unable to address non-compliance issues on an invalid form”. In reply WorkCover advised that it was willing to permit the claimant to address non-compliance issues on the old approved form or if he preferred he could simply deliver a new approved form and comply with its requirements.  In reply the claimant’s solicitors advised that in their view it was inappropriate to continue to use the “old approved form” and they were not prepared to complete a second “new” approved form unless they recovered the costs they had thrown away completing the old one.

1. Thereafter the whole matter seems to have become bogged down in an acrimonious exchange of solicitors’ letters.  In my view, it is clear on the face of the correspondence that WorkCover did everything to have the claimant’s claim progress through the system as quickly and as efficiently as possible.

1. An enormous amount of costs must have been generated in the correspondence which emanated from the claimant’s solicitors which to my mind seemed more intent on the recovery of costs allegedly “thrown away” by the claimant’s preparation of the initial claim than in having that claim efficiently processed.  The new authorised claim form requires significantly less detail than the old one and it seems to me that it would have been a relatively minor and inexpensive exercise for the claimant simply to fill out a new claim form complying with the requirements – and in particular attempting to resolve the clear inconsistency which appeared on the first claim form lodged which remained and indeed still remains unresolved.

1. Eventually, on 4 April 2001, the claimant filed an application seeking declaratory relief as to its rights under various sections of the WorkCover Queensland Act.  Interestingly the application was set down for hearing on 2 May 2001.  Although the application was filed, apparently the material supporting it was not.  Many submissions have been made concerning the “tactical” reasons for the claimant’s delayed service of that material.  It is unnecessary and unproductive for me to spend time analysing that material.

1. On 17 April 2001 the solicitors for WorkCover complained that they had not at that time been served with the application apparently filed on 4 April 2001 nor had they received a “new” s 280 Notice of Claim which had been foreshadowed by the claimant’s solicitors on 22 March 2001.

1. It was pointed out by the solicitors for WorkCover in that letter that the effect of the decision in McCullagh v WorkCover Queensland [2001] QSC 029 was that a s 280 Notice delivered prior to 20 November 2000 was “one to which WorkCover Queensland is obliged to respond under s 282.” At this stage WorkCover, probably exasperated at the time that had been spent exchanging letters with the claimant’s solicitors which seemed to have produced no result, instructed its solicitors to advise the solicitors for the claimant in the following terms –

“Our client now gives formal notice to your client under s 282 that it is satisfied that your client’s Notice of Claim dated 16 May 2000 is non-compliant with s 280 in the respects previously notified to you on 6 November 2000 but our client now waives compliance with those requirements.”

In an accompanying letter WorkCover gave Notice under s 285(4) that liability in connection with the event to which the claim relates was denied.  It rejected the offer of settlement contained in the Notice of Claim.

1. The solicitors for the claimant then offered not to proceed with the application filed on 4 April 2001 in the event that WorkCover paid its indemnity costs in bringing that application.  Unsurprisingly the solicitors for WorkCover refused to pay such costs.

1. The matter was argued at some length.  Long written outlines of submission were provided and oral submissions are recorded in transcript form.

1. In my view it would be unhelpful and an unnecessary spending of time to analyse those arguments in detail.  I simply summarise my views in the following terms –

(1) WorkCover, in an effort to progress the claim, clearly intimated to the claimant that it was prepared to treat the s 280 claim first delivered as effective to preserve the rights of the claimant under the Act – following the cases of McCullagh, Clements, Zellar all of which were delivered in the early part of 2001. 

(2)  WorkCover advised the claimant that if he preferred he could simply submit a fresh claim form which did comply with the requirements of the legislation in that presumably it would provide information of the sort which WorkCover had been seeking to obtain from the claimant for months – that is how he could reconcile the fact that in one paragraph of that claim, he asserted that he hurt his back as he was standing up from a kneeling position and in another part asserted employer’s negligence to be having only one person involved in doing heavy lifting instead of two.

1. I have considered the arguments advanced on behalf of the claimant as to the lack of power in WorkCover to waive compliance with a Notice of Claim which is not in the approved form; I am unpersuaded that there is any substance in that argument.

1. WorkCover is essentially an insurer. In my view there is no reason whatever to read down its power to waive a claimant’s non-compliance with the requirements of s 280 under s 282 in the manner for which the claimant contends.

1. The relevance of the issues debated at such length on behalf of the claimant of course is the effect on his right to start proceedings under s 303 of the Act. The claimant in this case may commence proceedings to recover damage for any injury he suffered in respect of which he has made a claim after six months have elapsed from the time WorkCover has waives the complainant’s non-compliance with the requirements of s 280.

1. As well as that of course WorkCover has denied liability on the part of the employer in respect of the claimant’s injury in this case.

1. In my view in the clearest possible terms, WorkCover did waive any non-compliance with s 280 on the part of the claimant on 17 April 2001.

1. In my view, the matters argued at length on behalf of the claimant in this matter are hypothetical in the extreme.  If the claimant has or at any material time has had any apprehensions about the effect of the decision in Scott on the claim form he submitted on 6 November 2000 – and any apprehension seems to have emerged only when asked to elucidate or explain the apparent inconsistent statements in that claim form – then there is no problem whatever in simply submitting a fresh claim upon a “new” form authorised on 25 November 2000.  That has been an option that could readily have been exercised by the claimant at any time after that new claim form became available.

1. Under s 342(3)(a) the claimant was and is clearly entitled to assume that the claim form given to him by WorkCover which he filled in and submitted in September 2000 did comply with the requirements of the Act – at least for the purpose of the application of s 303(a) of the Act.  The authorities to which I have referred – which the claimant suggests I might not be prepared to follow – clearly establish this.

1. I am unpersuaded that any purpose would be served by making any of the declarations sought.

1. I dismiss the application the bringing of which, in my view, has been motivated principally by the pursuit of costs.

1. I will hear argument on the question of costs.