Evans v Suncoast Fencing - [2023] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

Evans v Suncoast Fencing [2023] QDC 192

PARTIES:

JIMMY MARTIN EVANS
(plaintiff/respondent)

v

MARYBOROUGH/HERVEY BAY FRIENDLY CHEMISTS PTY LTD TRADING AS SUNCOAST FENCING ACN 122 937 026
(defendant/applicant)

FILE NO:

D98/23

DIVISION:

Civil

PROCEEDING:

Originating application

DELIVERED ON:

27 October 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

20 October 2023

JUDGE:

Cash DCJ

ORDERS:

1. The application is dismissed.

2. I will hear the parties as to costs.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – EFFECT OF INACCURACY, DELAY OR FAILURE TO GIVE NOTICE – GENERALLY – where the plaintiff alleges an injury to his wrists or hands arising at work on a specific date – where the plaintiff has received a notice of assessment for an injury said to have occurred on a specific date – where the plaintiff pursues common law damages – whether the plaintiff is prevented from pursuing a claim that the injury was caused over a period of time – meaning of ‘injury’ and ‘event’

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 31, s 32, s 235, s 237
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), reg 120

CASES:

Andersen v Aged Care Employers Self Insurance [2011] QSC 101, [23]
Sayers v Hanson t/as Alguard Security Services [2011] QSC 70, [12]

COUNSEL:

T A Nielsen for the plaintiff/respondent
J M Sorbello for the defendant/applicant

SOLICITORS:

Slater and Gordon Lawyers for the plaintiff/respondent
Cooper Grace Ward for the defendant/applicant

Introduction

The plaintiff alleges he was injured at work. Having engaged in pre-court procedures mandated by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’) the plaintiff commenced a claim against the defendant for common law damages. In pre-court procedures, the plaintiff described the injury as arising on a single day, 26 November 2020. In his statement of claim he alleges the injury arose either then or because of events over a period of time leading up to that date, or a combination of both. The defendant applies to strike out part of the pleadings, saying that the plaintiff is prevented by the WCRA from pursuing the part of his claim that alleges his injury was caused by events over a period of time. It is common ground that the plaintiff cannot pursue a claim for damages unless he satisfies the terms of section 237 of the WCRA, which in this case means that he must have received a notice of assessment for ‘the injury’ in respect of which he claims damages. For the reasons which follow, the defendant has not shown that the parts of the statement of claim it challenges by this application plead a different injury to the one identified in the notice of assessment. The application to strike out part of the pleadings will be dismissed.
The legislation
Any right to pursue a claim for common law damages for ‘an injury sustained by a worker’ is governed by the WCRA. It is necessary to commence with a consideration of the…

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 Evans v Suncoast Fencing

Details

AGLC: Evans v Suncoast Fencing [2023] QDC 192
Case: [2023] QDC 192
Decision Date: 27 October 2023

CaseChat Overview and Summary

The case of Evans v Suncoast Fencing involved the plaintiff seeking compensation for an injury to his wrists that he claimed arose from his employment with the defendant. The plaintiff filed a notice of claim for damages and a statement of claim, specifying a particular date for the injury. The defendant argued that the plaintiff's failure to accurately specify the nature of the injury and the events leading to it precluded him from pursuing common law damages. The court was required to determine whether inaccuracies or delays in notice affected the plaintiff's ability to claim compensation and whether the plaintiff's understanding of the terms 'injury' and 'event' under the Workers’ Compensation and Rehabilitation Act (WCRA) was correct.

The court examined the definitions of 'injury' and 'event' as provided by the WCRA and found that the plaintiff's claim was consistent with these definitions. The court noted that the plaintiff had consistently identified 26 November 2020 as the date he first experienced symptoms of injury and had not alleged any other injury to his wrists or hands. The court concluded that the plaintiff's notice of claim and statement of claim aligned with the requirements of the WCRA, and that the plaintiff was not precluded from pursuing a claim for common law damages. The court found that the plaintiff's understanding of the terms 'injury' and 'event' was consistent with the definitions provided by the WCRA and that the notice of assessment was sufficient to establish the connection between the injury and the event as required by section 237(1)(a)(i) of the WCRA.

In summary, the court dismissed the defendant's application and found that the plaintiff's claim was valid under the WCRA. The court also directed that the parties would be heard regarding costs.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Subsequently, on 24 May 2022, the plaintiff issued a notice of claim for damages. Beside a box labelled ‘Date of injury (for limitation period purposes)’ the plaintiff recorded ‘26/11/2020’. Later in the document the same date is recorded under ‘Details of the event resulting in the “injury”’, adjacent to a box labelled ‘Date and time of event’. The claim and statement of claim was filed on 23 June 2023 and was soon followed by this application.Consideration From this background the following facts emerge. First, the plaintiff has consistently described the 26th of November 2020 as being the first occasion he experienced symptoms of an injury to his wrists. Secondly, the plaintiff has not alleged any other injury to his wrists or hands apart from that which he became aware of on 26 November 2020. Thirdly, the plaintiff has received a notice of assessment for an injury to his wrists arising on 26 November 2020. This is sufficient to demonstrate that the plaintiff has received a notice of assessment for the injury to his wrists that is pleaded in paragraph 16(a) of the statement of claim. It is important to distinguish between paragraphs 16 and 17 of the statement of claim. The injury described in paragraph 16(a) of the statement of claim may be understood as a description of matters that meet the definition of ‘injury’ in the WCRA. Paragraph 17 is concerned with how that injury occurred. This includes reference to the plaintiff’s work over a period of time and may be understood as a description of the event (or events) that resulted in the injury, consistent with the definition in section 31 of the WCRA. The dates endorsed by the plaintiff on the notice of claim are not inconsistent with this view, and those dates do not restrict the plaintiff as the defendant suggests. One date entry was expressly for the purpose of any relevant limitation period. This represented the date by which the plaintiff must have been aware of the injury. The other date entry was tied to ‘the event resulting in the “injury”’, rather than the injury itself. Nothing in this document, or the plaintiff’s other conversations relied upon by the defendant, suggest he is claiming for a different injury to his wrists or hands. Of course, the notice of assessment is critical. The ‘injury’ identified in the notice of assessment, as set out above, is sufficiently connected to the ‘injury’ described in paragraph 16(a) of the statement of claim as to satisfy section 237(1)(a)(i). Section 237 of the WCRA is a gateway through which the plaintiff must pass, but it does not prohibit the plaintiff setting out whatever events he said caused or contributed to the injury. The present case has similarities to the case considered by Dalton J in Andersen v Aged Care Employers Self Insurance.[3] There, as here, there was ‘confusion between the concepts of injury and event as defined by the WCRA’. I agree with Dalton J that ‘[a]n injury is not the means by which damage is inflicted, but is the effect on the person of the worker of an event’.[4] Paragraph 17(b) of the statement of claim addresses the means by which the damage was inflicted, but does not plead a new or different injury to that identified in the notice of assessment.[3][2011] QSC 101.[4]Ibid, [23].

CITATION:	Evans v Suncoast Fencing [2023] QDC 192
PARTIES:	JIMMY MARTIN EVANS (plaintiff/respondent)
v
MARYBOROUGH/HERVEY BAY FRIENDLY CHEMISTS PTY LTD TRADING AS SUNCOAST FENCING ACN 122 937 026 (defendant/applicant)
FILE NO:	D98/23
DIVISION:	Civil
PROCEEDING:	Originating application
DELIVERED ON:	27 October 2023
DELIVERED AT:	Maroochydore
HEARING DATE:	20 October 2023
JUDGE:	Cash DCJ
ORDERS:	1. The application is dismissed. 2. I will hear the parties as to costs.
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – EFFECT OF INACCURACY, DELAY OR FAILURE TO GIVE NOTICE – GENERALLY – where the plaintiff alleges an injury to his wrists or hands arising at work on a specific date – where the plaintiff has received a notice of assessment for an injury said to have occurred on a specific date – where the plaintiff pursues common law damages – whether the plaintiff is prevented from pursuing a claim that the injury was caused over a period of time – meaning of ‘injury’ and ‘event’
LEGISLATION:	Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 31, s 32, s 235, s 237 Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), reg 120
CASES:	Andersen v Aged Care Employers Self Insurance [2011] QSC 101, [23] Sayers v Hanson t/as Alguard Security Services [2011] QSC 70, [12]
COUNSEL:	T A Nielsen for the plaintiff/respondent J M Sorbello for the defendant/applicant
SOLICITORS:	Slater and Gordon Lawyers for the plaintiff/respondent Cooper Grace Ward for the defendant/applicant