Hoa Hong Nguyen v Rocklea Spinning Mills Pty Ltd and - [2000] QSC 33

SUPREME COURT OF QUEENSLAND

CITATION: Hoa Hong Nguyen v Rocklea Spinning Mills Pty Ltd and
Another [2000] QSC 033
PARTIES: HOA HONG NGUYEN
(applicant)
v
ROCKLEA SPINNING MILLS PTY LTD
(ACN 000 070 824)
(first respondent)
and
JOHN FRANK
(second respondent)
FILE NO: 835 of 2000 Brisbane Registry
DIVISION: Trial Division
DELIVERED ON: 2 March 2000
DELIVERED AT: Brisbane
HEARING DATE: 11 February 2000
JUDGE: Shepherdson J
ORDER: Application dismissed
CATCHWORDS: MASTER AND SERVANT – CONSTRUCTIO OF
STATUTES – WorkCover Queensland Act 1996 –
application under s305 of Act for leave to commence
proceedings – whether applicant is "a person mentioned in"
s253(1) and therefore entitled to seek damages for injury.
Bonser v Melnacis & Anor [2000] QCA 13 judgment
8/2/2000 referred to
COUNSEL: Mr J S Douglas QC with Mr Rangiah for applicant
Mr Hoare for respondents
SOLICITORS: Murphy Schmidt for applicant Bradley & Co for respondents

SHEPHERDSON J: The applicant has sought an order pursuant to s305(1) of the WorkCover Queensland Act 1996 (as amended) that she be granted leave to bring a proceeding against the respondents despite non-compliance with the requirement of s280 of that Act.
There is a dispute between Nguyen and WorkCover Queensland (who effectively has conduct of the respondents' case in this application) as to whether or not she suffered an injury within sub-division 2 division 6 of Pt 4 of the WorkCover Queensland Act 1996. Sub-division 2 consists of s34 of that Act.

[3]

Some of the material filed in support of Nguyen's present application does not in
my view relate to the application and is unnecessary.

[4]

The evidence which is found in an affidavit of Luke Thomas Murphy a principal of
Murphy Schmidt, Solicitors for the applicant shows:

(a)	Rocklea Spinning Mills Pty Ltd employed Nguyen as a process worker (machine operator) at its Rocklea premises for about three years until 3 June 1998 when it is said she ceased work.
(b)	Nguyen is said to have suffered a "stress related collapse" at her employer's premises on 3 June 1998. The stress related injury is said to have been caused by conduct of the second named respondent who appears to have been employed by the first respondent.
(c)	The present application concerns the WorkCover Queensland Act 1996 which commenced on 1 February 1997 and it is the applicant's claim that the stress related collapse was caused by conduct of the first respondent and its employees well before 1 February 1997 and continued thereafter until she ceased work (see Exhibit LTM12 to affidavit of Luke Thomas Murphy filed 31 January 2000 which is a letter dated 2/7/1999 written by Murphy Schmidt.)
(d)	On 30 June 1998 the applicant Nguyen who was born on 29 June 1963 signed an application for compensation a copy of which is Exhibit LTM-01 to Murphy's affidavit.

Exhibit LTM-01 shows (inter alia):
(i) the injury was "stress related collapse"(answer to Q22 – "What is the nature of your injury?"
(ii) Question 23 which asked "What part of the body is injured?" was answered "Work related psychological problem (see p 2 of ... report).
(iii) The answer to Question 24 showed the injury happened at the first respondent's Rocklea premises.
(iv) Question 25 "When did the injury happen?" was answered "12.20 a.m. Wednesday 3/6/98".
(v) Question 30 was answered showing the injury happened in "middle

of shift".
(vi) The answer to Question 28 shows that Nguyen stopped work because of this injury on Wednesday 3/6/98.
(vii) Question 31 which asked "explain what you were doing at the time and how the injury happened" was answered – "See psychological report attached (specifically pp 1-2). [no psychological report is attached to the photocopy application Exhibit LTM01].
(viii) Question 33 which asked "Were you or was any person or anything

responsible for the injury ?" was answered "Yes" – John Frank (see
psychological report attached pp 1-2)."

(e) By letter dated 14 December 1998 addressed to the applicant (exhibit LTM-03 to Murphy's affidavit) WorkCover rejected the application for compensation dated 30 June 1998 and gave written reasons for its decision.
(f) By letter dated 7 April 1999 and accompanying formal application the applicant by her solicitors Murphy Schmidt sought review by the statutory review unit of WorkCover of the decision of 14 December 1998 (see Exhibit LTM05 to Murphy's affidavit).
(g) By letter dated 19/5/1999 addressed to Murphy Schmidt the Statutory Review Unit of WorkCover Queensland notified Murphy Schmidt the result of the review which was to confirm WorkCover's decision to reject the applicant Nguyen's application dated 30 June 1998. (see Exhibit LTM06 to the affidavit of Murphy filed 31/1/2000).
(h) Under cover of a letter dated 16 June 1999 addressed to WorkCover (Exhibit LTM-07 to Murphy's affidavit) Nguyen then applied for a hearing by an Industrial Magistrate concerning her claim. That hearing is set down for 3 and 4 April 2000.
(i) By letter dated 27/5/1999 written by Murphy Schmidt to WorkCover (Exhibit LTM-08 to Murphy's affidavit) the solicitors, on behalf of Nguyen sought a conditional damages certificate under s182D of The Workers' Compensation Act 1990 (as amended). This certificate was expressly sought for injury suffered from 1 January 1996 to 2 June 1996 and Exhibit LTM-08 includes a copy of "Application for Damages Certificate".

(j) The letter Exhibit LTM-08 included the following statements:-
"The psychological injuries for which our client claims are considered to have been suffered by our client as a result of sexual harassment and the hostile work environment she endured over the entire period of her employment at the Spinning Mill ... she commenced work at the Spinning Mills approximately three years prior to 3 June 1998."

................................

"Due to our client's condition only being diagnosed after she ceased
work on 3 June 1998 . ... ."

(k)

On 1/6/1999 WorkCover issued a conditional damages certificate pursuant to s 182D of the Workers' Compensation Act 1990 (see Exhibit LTM-09 to Murphy's affidavit). Exhibit LTM-09 shows "Date of Event causing Injury: 3/6/96" and "Statutory Claim Number 980108534".

(l)

Murphy Schmidt have issued Writs of Summons 5114 and 5113 of 1999 in this court claiming damages for negligence and breach of statutory duty and/or assault. Although these writs (see Exhibit LTM 10 to Murphy's affidavit) are said by Murphy in his affidavit to be for damages up to 31 January 1997, the endorsements on the writs do not show such time limitation.

(m)

On 2/6/1999 WorkCover wrote to Murphy Schmidt a letter (Exhibit LTM- 11 to Murphy's affidavit). This letter, according to Exhibit LTM-11 enclosed the Conditional Damages Certificate, a copy of which is Exhibit LTM-09 above.
However, the letter Exhibit LTM-11 referred to the application for the damages certificate sent with the letter 27/5/1999 (Exhibit LTM-08 supra). The letter Exhibit LTM-11 showed WorkCover rejected the application for damages certificate and attached reasons for the decision. In its reasons it showed "Claim No 980108534" and later said "You are applying for compensation for a psychological injury as a result of alleged sexual harassment in the workplace. WorkCover has extensively investigated this allegation on your previous claim 980089739 [this should read 980059739]. As previously advised WorkCover has been unable to substantiate the allegation of sexual harassment".

(n)

The number 980059739 appears in the correspondence between WorkCover and Nguyen (see Exhibits LTM-03 and LTM-04).

(o)

Exhibit LTM-12 is a copy of a letter dated 2/7/1999 from Murphy Schmidt to WorkCover's review unit enclosing an application for review of WorkCover's decision of 2/6/1999 (claim No 980108534) referred to in para (m) above. This review does not relate to the WorkCover Queensland Act – it related only to earlier legislation but the formal application for review made clear that Nguyen claims that the psychological injuries she alleges she sustained resulted from the sexual harassment she says she experienced" over the entire period of her employment.

(p)

The effect of the conditional damages certificate issued on 1/6/1999 shows that WorkCover recognise an alleged event causing injury on 3/6/1996 but against that the rejection in (m) above shows that WorkCover is not satisfied that Nguyen suffered injury being sexual harassment over the entire period of her employment .

(q)

By letter dated 27 January 2000 (see Exhibit LTM13 to Murphy's affidavit filed 31/1/2000) Nguyen's solicitors sought a conditional damages certificate so that proceedings might be instituted in accordance with the WorkCover Queensland Act 1996. The letter noted the Magistrates Court appeal to be heard on 3 and 4 April 2000.

(r)

Attached to Exhibit LTM13 was an application for a damages certificate and I note that in answer to Question 34 "Explain what the worker was doing at the time and how the injury happened?" the answer was as follows:
"Continuing sexual harassment from the employer in the
workplace from 1995 – 3 June 1998 (see Psych report)."

(s) The application for damages certificate shows that the "event resulting in 'the injury' occurred on Wednesday 3/6/1998"
(t) No conditional damages certificate has issued under the WorkCover Queensland Act 1996.
The application before me is made under s305 of WorkCover Queensland Act 1996. I do not propose to set out the relevant statutory provisions – they appear in my reasons for judgment delivered today in the application of Gamero 667/2000.

[5]	For present purposes though I requote the following provisions from parts 1 and 2 of CHAPTER 5 – ACCESS TO DAMAGES in the WorkCover Queensland Act.

"s250 In this chapter
"claimant" means a person entitled to seek damages".
[this Chapter means "CHAPTER 5"]

s253 which appears in "division 1 – limitations on persons entitled to seek
damages" in "PART 2 – ENTITLEMENT CONDITONS" reads:
"General limitation on persons entitled to seek damages
253.(1) 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.
(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.
(3) To remove any doubt, it is declared that subsection (1)
abolishes any entitlement of a person not mentioned in the
subsection to seek damage for an injury sustained by a worker."

Mr Hoare for the respondent opposes the present application by Nguyen arguing that on the proper construction of the WorkCover Queensland Act 1996 and more particularly s253 thereof the applicant Nguyen is not a person entitled to seek damages for injury sustained.
Mr Douglas QC has argued that Nguyen's position is that of a person who has applied for compensation and whose application has been rejected but who has sought review of the decision either by initial review or subsequent appeal to an Industrial Magistrate.
He argues that such a person may well succeed on review or appeal and in effect become at some time in the future a person mentioned in and within s253(i)(a) or (b).
Mr Hoare's case is that ss250 and 253 and especially sub-s253(3) are to be construed as making clear beyond dispute that the entitlement of any worker or person not mentioned ins253(1) to seek damages for an injury sustained by a worker is abolished.
The cases before me and argued on 11 February 2000 have shown that, leaving aside the operation ofs253(3), the following persons, apart from the persons mentioned in s253(1), could be entitled to seek damages for an injury sustained by a worker:

1. A worker who has on the evidence a prima facie claim for common law damages for injury over a period of time and who has lodged an application for compensation for injury but whose application has not, at the time of hearing an application under s305, been decided by WorkCover and the decision communicated to the applicant worker.
2. A worker who on the evidence has a prima facie claim for common law damages for injury over a period of time and who has lodged with WorkCover an application for compensation which application has been rejected by WorkCover on the ground that the worker did not sustain an injury within s34 of the WorkCover Queensland Act 1996.
3. A worker in 2 above who has instituted review and/or appeal procedures against WorkCover's decision to reject.
The above list is not intended to be exhaustive.

None of the above three classes of persons falls within any of the classes in s253(1) and the legislature has made abundantly clear in s253(3) that, any entitlement of a person not mentioned ins253(1) to seek damages for an injury sustained by a worker is abolished. "Entitlement" must mean an entitlement to seek damages for an injury sustained by a worker – see opening words of s253(1).
In Bonser v Melnacis & Anor [2000] QCA 13 judgment delivered 8 February 2000 (and from which I have quoted some extracts in Gamero) (supra) the Court of Appeal described s253 as the key section of the sections within "PART 2 – ENTITLEMENT CONDITIONS" – 1 respectfully agree with that view.
Another provision which is very relevant to the present matter is s252 which appears in "Part 1 – Interpretation and Application" of CHAPTER 5 – ACCES TO DAMAGES.
s252 reads:
"Requirements of chapter to prevail and are substantive law
252.(1) If a provision of an Act or a rule of law is inconsistent with
this chapter, this chapter prevails.
(2) All the provisions of this chapter are provisions of substantive
law.
(3) However, subsection (2) does not affect minor variations in
procedure."
In my opinion s252(2) reinforces the strength of s253(3).
In my opinion, Nguyen does not, on the material before me, fit within any of the classes of worker in s253(1). In respect of her application for compensation Nguyen's present status is not mentioned in s253(1).
It is true that she may in time fall within s253(1)(a) or (b) but at the present time she does not. The WorkCover Queensland Act has revolutionised the law applicable to projected claims at common law by would-be plaintiff workers for damages suffered by reason of negligence and/or breach of statutory duty of an employer. The Act has erected a number of hurdles to be cleared by would be plaintiffs before being entitled to start the proceeding for damages. I mention as one hurdle "Part 5 – Pre-Court Procedures" the object of which is, as s279 says – "to enable WorkCover to enter into early negotiation with claimants to achieve early resolution of claims for damages before the start of proceedings" s280 is within Part 5. Proof that a would be claimant falls within a class in s253 is another and earlier hurdle.
I would add that I have considered whether or not Nguyen falls within s253(1)(c) on the basis that she did not lodge an application for compensation for the injury allegedly suffered from 1/2/1997 up to 3/6/1998 being a continuation of sexual harassment causing psychological injuries.
Had I decided that the applicant Nguyen was a person mentioned in s253(1)(c) then I would have made orders as I did in Gamero. I decided that Nguyen was not a person mentioned in s253(1)(c) because, for reasons I have given the applicant and her solicitors made clear to WorkCover that although the culminating injury happened on 3/6/1998 compensation was claimed for injury which resulted from conduct of Nguyen's fellow employees directed to her over a period of about 3 years before 3/6/1998 – all of which conduct it is said injured the applicant.
I accept Mr Hoare's submission and I dismiss the application.

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Hoa Hong Nguyen v Rocklea Spinning Mills Pty Ltd and [2000] QSC 33

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Bonser v Melnacis [2000] QCA 13

CITATION:	Hoa Hong Nguyen v Rocklea Spinning Mills Pty Ltd and Another [2000] QSC 033
PARTIES:	HOA HONG NGUYEN (applicant) v ROCKLEA SPINNING MILLS PTY LTD (ACN 000 070 824) (first respondent) and JOHN FRANK (second respondent)
FILE NO:	835 of 2000 Brisbane Registry
DIVISION:	Trial Division
DELIVERED ON:	2 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2000
JUDGE:	Shepherdson J
ORDER:	Application dismissed
CATCHWORDS:	MASTER AND SERVANT – CONSTRUCTIO OF STATUTES – WorkCover Queensland Act 1996 – application under s305 of Act for leave to commence proceedings – whether applicant is "a person mentioned in" s253(1) and therefore entitled to seek damages for injury.
Bonser v Melnacis & Anor [2000] QCA 13 judgment 8/2/2000 referred to
COUNSEL:	Mr J S Douglas QC with Mr Rangiah for applicant Mr Hoare for respondents
SOLICITORS:	Murphy Schmidt for applicant Bradley & Co for respondents

(e)	By letter dated 14 December 1998 addressed to the applicant (exhibit LTM-03 to Murphy's affidavit) WorkCover rejected the application for compensation dated 30 June 1998 and gave written reasons for its decision.
(f)	By letter dated 7 April 1999 and accompanying formal application the applicant by her solicitors Murphy Schmidt sought review by the statutory review unit of WorkCover of the decision of 14 December 1998 (see Exhibit LTM05 to Murphy's affidavit).
(g)	By letter dated 19/5/1999 addressed to Murphy Schmidt the Statutory Review Unit of WorkCover Queensland notified Murphy Schmidt the result of the review which was to confirm WorkCover's decision to reject the applicant Nguyen's application dated 30 June 1998. (see Exhibit LTM06 to the affidavit of Murphy filed 31/1/2000).
(h)	Under cover of a letter dated 16 June 1999 addressed to WorkCover (Exhibit LTM-07 to Murphy's affidavit) Nguyen then applied for a hearing by an Industrial Magistrate concerning her claim. That hearing is set down for 3 and 4 April 2000.

(k)	On 1/6/1999 WorkCover issued a conditional damages certificate pursuant to s 182D of the Workers' Compensation Act 1990 (see Exhibit LTM-09 to Murphy's affidavit). Exhibit LTM-09 shows "Date of Event causing Injury: 3/6/96" and "Statutory Claim Number 980108534".
(l)	Murphy Schmidt have issued Writs of Summons 5114 and 5113 of 1999 in this court claiming damages for negligence and breach of statutory duty and/or assault. Although these writs (see Exhibit LTM 10 to Murphy's affidavit) are said by Murphy in his affidavit to be for damages up to 31 January 1997, the endorsements on the writs do not show such time limitation.
(m)	On 2/6/1999 WorkCover wrote to Murphy Schmidt a letter (Exhibit LTM- 11 to Murphy's affidavit). This letter, according to Exhibit LTM-11 enclosed the Conditional Damages Certificate, a copy of which is Exhibit LTM-09 above.

(n)	The number 980059739 appears in the correspondence between WorkCover and Nguyen (see Exhibits LTM-03 and LTM-04).
(o)	Exhibit LTM-12 is a copy of a letter dated 2/7/1999 from Murphy Schmidt to WorkCover's review unit enclosing an application for review of WorkCover's decision of 2/6/1999 (claim No 980108534) referred to in para (m) above. This review does not relate to the WorkCover Queensland Act – it related only to earlier legislation but the formal application for review made clear that Nguyen claims that the psychological injuries she alleges she sustained resulted from the sexual harassment she says she experienced" over the entire period of her employment.
(p)	The effect of the conditional damages certificate issued on 1/6/1999 shows that WorkCover recognise an alleged event causing injury on 3/6/1996 but against that the rejection in (m) above shows that WorkCover is not satisfied that Nguyen suffered injury being sexual harassment over the entire period of her employment .
(q)	By letter dated 27 January 2000 (see Exhibit LTM13 to Murphy's affidavit filed 31/1/2000) Nguyen's solicitors sought a conditional damages certificate so that proceedings might be instituted in accordance with the WorkCover Queensland Act 1996. The letter noted the Magistrates Court appeal to be heard on 3 and 4 April 2000.
(r)	Attached to Exhibit LTM13 was an application for a damages certificate and I note that in answer to Question 34 "Explain what the worker was doing at the time and how the injury happened?" the answer was as follows:

(s)	The application for damages certificate shows that the "event resulting in 'the injury' occurred on Wednesday 3/6/1998"
(t)	No conditional damages certificate has issued under the WorkCover Queensland Act 1996.