Gray v WorkCover Queensland

[2000] QSC 418

SUPREME COURT OF QUEENSLAND

CITATION:	Gray v WorkCover Queensland & Anor [2000] QSC 418
PARTIES:	PATRICK LIONEL GRAY (applicant) v WORKCOVER QUEENSLAND (first respondent) SECA CRANES & RIGGING PTY LTD ACN 068 918 552) (second respondent)
FILE NO:	S7761 of 2000
DIVISION:	Trial Division
DELIVERED ON:	22nd November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	06th October 2000
JUDGE:	Holmes J
ORDER:	Respondent’s application for declarations dismissed
CATCHWORDS:	STATUTES – STATUTORY CONSTRUCTION – s 203(2), s 253(1) WorkCover Queensland Act 1996 – Whether multiple injuries can be assessed separately – Power of WorkCover to revoke a notice of assessment – Effect of a conditional damages certificate where multiple injuries fall under different categories
WorkCover Queensland Act (Qld) 1996 – ss 203, 253(1) and (3), 265, 280, 305 Acts Interpretation Act (Qld) 1954 – s24AA
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Re Robinson unreported QSC 11614/98; 29 January 1999 Re Lankheet unreported QSC 1959/99; 19 March 1999
COUNSEL:	R. M. Treston for the applicant R. A. I. Myers for the respondent
SOLICITORS:	Quinlan Miller & Treston for the Applicant WorkCover Queensland for the Respondent

1. HOLMES J: This is yet another case in which application has been made under s 305 of the WorkCover Queensland Act 1996 for leave to commence proceedings. I have already, on the hearing of the application, granted leave pursuant to that section; what remains to be dealt with is a cross-application by the respondent for declarations.

2. The plaintiff, Mr Gray, was injured on 11 October 1997 and was paid worker’s compensation benefits under the WorkCover Queensland Act. He underwent an assessment by the Medical Assessment Tribunal on 7 June 1999. On 18 June 1999, WorkCover issued a notice of assessment under s 203 of the WorkCover Queensland Act in relation to four injuries: spinal fractures with paraplegia, a fractured pelvis, a fractured right ankle and bilateral ulnar nerve lesions. These were said to constitute a certificate injury[1]. He was offered lump sum compensation in respect of those injuries, which he accepted.

   [1] As defined by s 42 of the WorkCover Queensland Act.

3. In February 2000, the plaintiff’s solicitors, reviewing the medical evidence which they had obtained, concluded that there were other physical complications of the accident and psychiatric sequelae which had not been addressed in the notice of assessment. The solicitors applied to WorkCover for a damages certificate for all the injuries suffered by the plaintiff. Correspondence ensued about the need for further assessments of the plaintiff. As the expiry date for the limitation period approached, it became apparent that the necessary assessment would not be completed. However, WorkCover, taking the view that the original notice of assessment was invalid because not all Mr Gray’s injuries had been assessed, rescinded it and issued a conditional damages certificate to permit the applicant to commence proceedings. The plaintiff’s solicitors, not being confident of WorkCover’s power to take that course, nonetheless proceeded with an application for leave to proceed. Because of the urgency involved I gave that leave, leaving the matter of the declarations sought by the respondent to be dealt with later.

4. Section 253(1) of the Act governs the categories of persons eligible to commence common law actions for damages in respect of employment-related injury. It is in the following terms

   “The following are the only persons entitled to seek damages for an
   injury sustained by a worker -

   (a)   the worker, if the worker has received a notice of assessment from WorkCover stating that -

(i)	the worker has sustained a certificate injury; or
(ii)	the worker has sustained a non-certificate injury; or

(b)  the worker, if the worker’s application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment; or

(c)   the worker, if the worker has not lodged an application for compensation for the injury; or

(d)  a dependant of the deceased worker, if the injury sustained by the worker results in the worker’s death.”

1. Putting aside the purported rescission of the notice of assessment, Mr Gray was capable of falling within s 253(1)(a)(i) and s 253(1)(c), because in respect of some of his injuries he had lodged an application for compensation, and received a notice of assessment stating that he had a certificate injury; while in respect of other injuries he had not sought compensation.

2. As a worker falling within the category set out in s 253(1)(a)(i) the plaintiff would be entitled, subject to compliance with the requirements of Parts 5 and 6 (Pre-court Procedures and Settlement of Claims) and s 303 of the Act, to commence an action for damages once he had received a notice of assessment confirming his certificate injury. The Act does not contemplate the issue of a damages certificate, conditional or unconditional, to a worker within s 253(1)(a); that is, a worker who has received a notice of assessment specifying a certificate or non-certificate injury.

3. However, insofar as Mr Gray may have been a worker falling within the category in 253(1)(c), it was necessary for him to obtain a damages certificate from WorkCover. Such a certificate could not be provided unless WorkCover was satisfied of the matters set out in s 265(3), i.e, that he was a worker, and, as such, had sustained an injury, and that his degree of permanent impairment had been assessed. Section 265 permits, however, the provision of a conditional damages certificate where WorkCover has not yet satisfied itself of those matters and there is an urgent need to commence the proceedings.

4. Mr Gray’s position did not, prior to the purported repeal of the notice of assessment, fall neatly within either of the categories mentioned. On the one hand he had received a notice of assessment, but it did not cover all the injuries for which he wished to sue; on the other hand, it was questionable whether he could be described as a worker who had “not lodged an application for compensation for the injury”. Thus, he was in the difficult position of having a notice of assessment which was not comprehensive, while there was a live issue as to whether he was entitled to a conditional damages certificate. The rescission by WorkCover of its notice of assessment was an attempt to resolve that impasse.

5. If the notice of assessment were validly rescinded, it was arguable that, at least in respect of those injuries for which he had sought and been allowed compensation, Mr Gray was to be regarded as falling within 253(1)(b); that is, his application for compensation had been allowed but his injury not assessed. In that event, he would be obliged to obtain a notice of assessment, but would be entitled to a conditional certificate in circumstances of urgency, which could be made unconditional once he was assessed.

6. It was common ground that Mr Gray had not met, and could not prior to assessment meet, the requirements of s 280 of the Act, which necessitates the provision of a complying notice of claim before commencement of proceedings. That notice cannot be given prior to assessment of injury[2]. It was that inability to comply with s 280 in respect of all his injuries which necessitated the successful application for leave to proceed under s 305.

   [2]         Lau v WorkCover Queensland [2000] QSC 271 unreported Muir J 13/7/00

7. The declarations sought by the respondent were in the following terms:

   “1. A Declaration that the Notice of Assessment of permanent impairment dated 18 June 1999 was validly revoked by the First Respondent on 22 September 2000.

   2.       A Declaration that the Conditional Damages Certificate issued on 25 September 2000 permitted the applicant to start proceedings for all of the injuries occasioned to him in the incident on 11 October 1997.”

8. The respondent’s aim in seeking those declarations was to obtain endorsement of a mechanism designed to simplify matters where further injuries emerged after it provided a notice of assessment. Essentially, what it hoped was that by rescission of the notice of assessment in such a case, it could, in effect, start again in its considerations and avoid fragmentation of claims for different injuries.

9. It can be seen that two issues arise on the declarations sought: firstly, the power of the first respondent to revoke its notice of assessment and, secondly, the effect of a conditional damages certificate in the circumstances. As to the first, the respondent suggested but did not press an argument under s 203(2) of the WorkCover Queensland Act that the notice was invalid because the degree of permanent impairment from all the worker’s injuries had not been assessed. Section 203(2) provides that

   “If a worker sustains multiple injuries in an event, WorkCover must give the notice only after the worker’s degree of permanent impairment from all the injuries has been assessed.”

10. In any event, Mr Myers submitted, s 24AA of the Acts Interpretation Act 1954 entitled WorkCover to rescind its notice. That provision is in the following terms:

    “If an Act authorises or requires the making of an instrument or
    decision -

    (a)   the power includes power to amend or repeal the instrument or decision; and

    (b)  the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.”

    “Instrument” by s36 of the Act is given the same meaning given to the term in the Statutory Instruments Act 1992; which is (s6) “any document”. The width of that definition leaves no doubt that the notice of assessment falls within s24AA.

11. Mr Myers argued that, the notice of assessment having been validly rescinded, the plaintiff’s rights were protected by the issue of the conditional damages certificate which was sufficiently broad in its terms to cover any injury he might have sustained in the workplace accident.

12. While I am in no doubt that the approach of WorkCover’s employees in this matter results from a desire to assist the plaintiff, I do not think that the situation can be addressed in the manner adopted. Although I have no difficulty in accepting WorkCover’s power to rescind its notices as an abstract proposition, there remains the question whether in any given case the exercise of the power is a proper one. In the present case, where there is no suggestion of fraud, misrepresentation, or mistake it is difficult to identify the grounds on which such a rescission could properly be effected. The problem is compounded by the fact that the respondent has already acted on the notice to offer lump sum compensation, which has been accepted by the applicant.

13. As to any argument that the notice of assessment was invalid as not complying with s 203(2) of the WorkCover Act, because it did not incorporate all of Mr Gray’s injuries, I note that in Re Lankheet[3] White J expressed a view that s 203(2) concerned only injury in respect of which an application for compensation had been made.

    [3] Unreported, White J, QSC 1959 of 1999, 19/3/99

14. The division in which s 203(2) is to be found in Part 9 of Chapter 3 of the WorkCover Act (“Division 3 - Notification of assessment of permanent impairment”) applies where assessment has been made under s 197. The scheme of the Act seems to be that such assessment is made in connection with an application for compensation. Although s 265(3)(c) of the Act precludes a claimant who has not lodged an application for compensation from receiving a damages certificate until he has been assessed “in the way mentioned for the injury under Chapter 3 Part 9 Division 2” (which includes s 197), the provision seems to prescribe a manner of assessment rather than actual assessment under the Part 9 provisions. It may well be, as White J suggests, that s 203(2) is addressed only to assessment of “all the injuries” in respect of which compensation has been claimed.

15. In any event, having regard to the approach to construction prescribed in Project Blue Sky v Australian Broadcasting Authority4, of considering the consequences of holding void every act done in breach of the provision, the absurdity of construing s203(2) as requiring any notice which does not encompass every injury sustained by a worker was invalid, is apparent. Plainly, there will be circumstances in which an injury manifests itself later; or there may be injuries in respect of which a worker does not wish to claim. To conclude that a notice of assessment was not valid because it did not encompass such injuries would defeat the administration of the Act. It is not necessary for present purposes to reach a concluded view on what “all the injuries” must encompass; but I would not be prepared to read it so strictly as to conclude that the notice of assessment in the present case must have been invalid. I should note, in fairness to Mr Myers, that in his oral submissions he recognised the difficulties attendant upon such a construction and did not press for it.

16. I am, as will be apparent, in considerable doubt as to any basis on which the notice of assessment could validly be rescinded. One can only conclude that in the absence of proper grounds, the rescission would at best have been voidable at the instance of the applicant. Nor am I convinced that the rescission of the notice of assessment, if valid, could have effect ab initio so as to convert a “worker [who] has received a notice of assessment” into one who has not, for the purposes of s 253(1)(a). Even it were effective in that way, I do not consider that it follows that it could then be said that Mr Gray’s injuries, in respect of which his application for compensation had been allowed had “not been assessed for permanent impairment” so as to bring him within s 253(1)(b). The fact that a notice of assessment no longer exists does not mean that an assessment has not taken place. Tempting as it may be to try and resolve the Gordian knot by a conclusion that the notice of assessment is no more, I do not think that approach can resolve the difficulties presented by s 253(1).

17. In short, it is one thing to accept that the power to revoke exists; it is another to declare that it has been validly exercised in circumstances where the effect of this exercise is attended by doubt. I am not, in any case, satisfied that rescission of the notice, assuming it to have been validly undertaken would have been effective ab initio so as to render Mr Gray, a worker who had not “received a notice of assessment”. I am correspondingly not satisfied that a damages certificate could properly be issued to him in respect of the injuries for which he had received compensation. Accordingly, I do not think it appropriate to make either of the declarations sought.

18. Given my doubt as to the effectiveness of the rescission of the notice of assessment, and my consequent refusal of the declarations sought, it is not strictly necessary to consider the effect, in terms of the WorkCover Act’s application, of Mr Gray’s injuries’ comprehending both those the subject of compensation and those which were not. However, it seems to me that the plaintiff’s different groups of injuries could only be approached sensibly and consistently with the requirements of the Act by treating them as falling into distinct categories for the purposes of s 253(1). That is to say, in respect of those injuries for which Mr Gray had received a notice of assessment he should have been treated as a worker falling within s 253(1)(a)(i); and he had no entitlement to the issue of a damages certificate. In respect of those injuries in respect of which he had not claimed compensation and had not been assessed, he was to be regarded as falling within s 253(1)(c), and the conditional damages certificate was appropriately issued in respect of those injuries. All injuries, provided they had been the subject of a notice of assessment or a damages certificate, could have been included in one notice of claim under s 280.

19. This approach, which allows that a worker may fall, in respect of the same incident, into two different categories applicable to different injuries sustained by him is consistent with decisions of other members of this court. In Re Robinson[5]Williams J concluded that a worker who had received a notice of assessment in respect of lumbar strain could not give a complying notice of claim for a larger set of injuries including psychological injury for which he had received no damages certificate. In his reasons, his Honour observed that the applicant could seek damages if provided with a certificate under s 265 of the Act with respect to psychological injury. That observation suggested his Honour considered it possible to proceed separately by way of notice of assessment and a damages certificate for distinct injuries arising out of one incident.

    [5]

20. In Re Lankheet[6] White J was considering a similar situation, in which a notice of a claim had been given for physical and psychological injuries although no notice of assessment had been given in respect of the latter. Her Honour noted that, in that case, s 253(1)(a)(ii) covered the applicant’s damages claim for his physical injuries, while s 253(1)(c) applied to his claim for psychological injuries. Her Honour considered that there was nothing to preclude the provision of separate notices of claim after assessment in respect of different injuries arising out of the same event. Alternatively, the applicant in that case could await the receipt of a damages certificate in respect of the unassessed injuries before issuing a new notice of claim encompassing all his injuries. Section 203(2) did not, she considered, preclude such an outcome because it concerned only injury in respect of which an application for compensation had been made.

    [6]

21. While it is plainly the statutory intention that claims should not be staggered[7], it seems to me inevitable that in some circumstances, injuries will fall to be assessed separately. This is such a case.

    [7] See, for example, the comments of Moynihan SJA in Conway v WorkCover Queensland [2000] 406

22. I dismiss the respondent’s application for declarations. I will hear the parties as to costs.

4	(1998) 194 CLR 355 at 389-391
Unreported, Williams J, QSC 11614 of 1999, 29/1/99.
Unreported, White J, QSC 1959 of 1999, 19/3/99.