Henderson v Dexalaw Pty Ltd

[2015] QDC 71

[2015] QDC 71

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE DEVEREAUX SC

THOMAS HENDERSON  Plaintiff

and

DEXALAW PTY LTD  Defendant

BRISBANE

10.13 AM, TUESDAY, 31 MARCH 2015

JUDGMENT

HIS HONOUR:   What the problem it seems to me, comes down to is the meaning of section 515.  Is section 515 designed simply to prevent the bringing of a claim for damages with respect to an injury, or is it a decision about certain facts that is unquestionable for all purposes. And it seems to me it’s the second one.  Now, I’d like to put on the record some reasons for reaching that conclusion.

References to ‘the Act’ are to the Workers’ Compensation and Rehabilitation Act 2003 are to the Act as it was at the relevant time. I’ve been supplied with reprint 3C. Some of the facts recited are taken from the written outlines of counsel.

The incident giving rise to the claim occurred on 27 May 2009.  A notice of claim, dated 10 March 2011, listed three head injuries - loss of smell and taste, scaring and fractured nasal and facial bones and one whole-body injury - “psychological”.  The plaintiff had on 17 May 2010 been assessed for permanent impairment for the head injuries.  The plaintiff may seek damages for an unassessed injury by section 237(1)(a)(ii) subject to section 245 of the Act. 

By a letter dated 18 March 2011, WorkCover said it would decide whether the psychological injury was an injury for the purposes of section 245 within three months.  It also suggested other possibilities should the decision not be made.  It appears no decision has been made. 

On 31 March 2011 the notice of claim was confirmed to be compliant as at 23 March 2011.

Although the insurer has not decided that, for example, any psychiatric condition the plaintiff suffers is an injury as defined in section 32, Mr Holyoak has instructions that the defendant does not take issue with a claim for damages for any unassessed injury that is not inconsistent with the tribunal’s ruling.  

The plaintiff provided a statutory declaration on 9 September 2011, whereby he sought to amend the notice of claim to include:  “post-concussion syndrome or mild brain injury”.  According to the letter commissioning Dr Senior’s report, Dr Todman, neurologist, diagnosed that condition.

On 14 September 2011, WorkCover rejected a claim for compensation for such injury pursuant to section 245(3) of the Act.  On 22 December 2011, the defendant sought a review of the decision.  On 3 April 2012, the review officer set aside the decision of WorkCover, and, acting under section 545, returned the matter to WorkCover with a direction to refer the matter to the Medical Assessment Tribunal.  The Neurological/Neurosurgical Assessment Tribunal convened on 8 November 2012.  By a decision dated 7 December 2012, it decided the matters alleged, that is post-concussion syndrome or mild traumatic brain injury, did not constitute an injury to the worker. 

By a letter dated 18 February 2013, WorkCover gave notice of its decision under section 245 of the Act “rejecting” the claim for post-concussion syndrome or mild traumatic brain injury as it was not an injury under section 32 of the Act. 

The tribunal’s decision cannot be questioned in this proceeding: s. 515 of the Act. 

At paragraphs 7(a)(vi), (vii) and (viii) of the statement of claim, the plaintiff claims damages for ongoing unsteadiness, severe headache and dizziness, poor memory and concentration and forgetfulness, loss of self-esteem and self-confidence, and a psychiatric injury in the form of a chronic adjustment disorder with mixed anxious and depressed mood.  Those are pleaded as particulars of personal injury.  And as particulars of permanent disability, the statement of claim pleads in paragraph 7(b) the plaintiff’s psychiatric impairment, which, it is pleaded, amounted to a whole-person impairment of six per cent.

The defendant applies to strike out these sub-paragraphs and a paragraph in the Reply ‘on the basis and to the extent that such allegations differ from or are inconsistent with the NAT.’

As the discussion developed yesterday, it became clear that, in effect, the defendant seeks a ruling that the plaintiff cannot recover damages for any psychiatric injury or any injury, if and to the extent that it is secondary to a post-concussional syndrome or mild traumatic brain injury.  During argument, Mr Holyoak expressed the ruling sought in this way:

What this court … can’t decide … or can’t compensate the plaintiff for is … injury, if you want to include unsteadiness as an injury, just for argument sake, or a symptom as an injury, just for argument sake, which involves, causally, a step in the process of attributing legal responsibility, a post-concussional syndrome or mild traumatic brain injury (1-83.40 to 45).

Mr Kent frankly says that is the reasoning he suggests, as the following exchange shows:

HIS HONOUR:   So Dr Dr Senior’s evidence is that there’s a brain injury acquired in May 2009?

MR KENT:   Yes.  Not one we can seek damages for…

And then I said something.  And then Mr Kent said:

Because of this problem, but one which is a causative link in other things that we do seek damages for, namely, the psychiatric injury and the unsteadiness. (1-33)

So Mr Kent submits that no claim is being or could be brought, for damages for a post-concussional syndrome or mild traumatic brain injury, but argues the tribunal’s decision does not preclude a claim for a different, even if related, injury. 

As Mr Holyoak submits, the statutory scheme is to limit and define the entitlement of persons to bring a claim for damages, abolishing:

… any entitlement of a person not mentioned in [subsection 237(1)] to seek damages for an injury sustained by a worker.  (See subsection 237(5))

In his outline, Mr Holyoak submits that the consequence is that the plaintiff is prohibited by statute from claiming any damages for a brain injury or post-concussional syndrome.  But the defendant’s argument goes further and treats the tribunal’s decision as a judgment on a matter of fact which must be adopted in this proceeding.  It ‘cannot be questioned.’ And, the argument proceeds, to press for a finding inconsistent with the decision would be an abuse of process.  If that’s right, the question becomes what precisely did the tribunal decide?

The decision which by section 515 is final and cannot be questioned in a proceeding before a Tribunal or a court is, relevantly, the decision “on a medical matter referred to the Tribunal under section 500”.  In its reasons for decision, the Tribunal expresses the referral as being with respect to “brain injury causing ataxia, headaches and cognitive impairment”.  It seems to me that this identifies the medical matter that the Tribunal decided, although there is no denying that the decision is that the asserted conditions were not an injury under section 32, probably on the basis that the injury was not suffered at work.  The reasons of the Tribunal include the following:

However, given the mild nature of the head injury he sustained, it is likely that his symptoms of headache, dizziness and memory impairment relate to factors other than structural brain injury.  Mr Henderson has been assessed by a number of psychiatrists as suffering from a chronic adjustment order with depressed mood and anxiety.  This may be significant in his persisting neurological symptoms, particularly those of cognitive impairment.

So it seems to me that the Tribunal recognises, independently of the brain injury, the existence of psychiatric injury.  Indeed, the Tribunal seems to allow the possibility that there’s a connection between a psychiatric injury and the other symptoms just referred to, but that’s, in a sense, by the way. 

If the legislative effect is merely to limit the injuries in respect of which damages may be sought, then, arguably, there is no logical reason to prevent a claim for an injury, even though it may arise out of or be caused by an injury which the Tribunal has found was not a personal injury arising out of or in the course of employment where the employment is a significant contributing factor to the injury as section 32 requires. 

It may be asked, as a matter of fact, if there is a psychiatric injury which is referrable to the event, then why should it matter by what mechanism it arises, provided it originates in the event?  On the other hand, as a matter of fact, it’s difficult to see how a condition which was caused by an injury which it has been decided did not arise out of the employment could itself meet the definition of injury. 

But, as I said before, the real question seems to be whether section 515 makes the Tribunal’s decision unquestionable only for the purposes of preventing a claim for damages for the injury or for all purposes.  I’ve been provided no cases directly on this point and I’ve not found anything overnight. And I have not sought to articulate or understand the meaning of section 515 in terms of res judicata or issue estoppel.  I think it does mean what it says.  The decision is final and may not be questioned in the proceeding. To claim damages for an injury that is simply a symptom of the injury considered by the Tribunal would be to traverse the decision.  Section 515 would also prevent proof of an injury which depends for its existence on the injury considered by the Tribunal.  That’s as far as I am. 

I invite submissions as to the orders I should make.

Orders:

By consent His Honour ordered that:-

(a)there be judgment for the Defendant against the Plaintiff in the proceedings;

(b)there be no order as to the costs of the proceedings, including reserved or deferred costs.