Jackel v Sita Queensland Pty Ltd

[2000] QDC 41

DISTRICT COURT OF QUEENSLAND

CITATION:	Jackel v. Sita Queensland Pty Ltd [2000] QDC 041
PARTIES:	BARRIE JOHN JACKEL (Plaintiff) v. SITA QUEENSLAND PTY LTD (Defendant) & GOLD COAST CITY COUNCIL (Third Party)
FILE NO/S:	D348 of 1999
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	9 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2000
JUDGE:	McGill DCJ
ORDER:	[Terms To Be Decided After Further Submissions]
CATCHWORDS:	EMPLOYMENT LAW – injury of employee – liability of employer – requirement for certificate before action – whether offer – whether waiver – whether estoppel – Workers' Compensation Act 1990 s.182D. Neuss v. Roche Bros Pty Ltd [1999] QDC 249 – followed Bonser v. Melnacis [2000] QCA 13 – distinguished Young v. Keong [1999] 2 Qd.R. 335 - applied Coombs v. Queensland Cotton Corp Ltd (No. S.5214/99, Helman J, 14.10.99); Herrmann v. Buzza (Plaint 4561/97, Wylie DCJ, 12.6.98); Ireland v. Civilcon (Queensland) Pty Ltd (No. D3835/99, Samios DCJ, 14.2.00) Hibberd v. South Blackwater Coal Ltd (Rockhampton Writ 47/97, Demack J, 28.8.98). Mears v. Coles Myer Ltd (Writ 99/99, 18.8.99) Commonwealth of Australia v. Hamilton (1992) 2 Qd.R. 257 at 267 Barilla v. James (1964) 81 NW (Pt.1)(NSW) 457 at 461, 468, 478. Beckford Nominees Pty Ltd v. Shell Co of Aust Ltd (1986) 73 ALR 373 Day Ford Pty Ltd v. Sciacca (1990) 2 Qd.R. 209 at 216-7. Wilson v. Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335
COUNSEL:	M.J. Hogan for plaintiff K.F. Holyoak for defendant
SOLICITORS:	Attwood Marshall for plaintiff Hopgood Ganim for defendants

1. This is an application on behalf of the defendant to strike out parts of the plaint.  By a plaint filed on 15 April 1999 the plaintiff claimed damages from the defendant in respect to injuries alleged to have been suffered by him in the course of his employment with the defendant.  It was alleged that on 7 May 1996 the plaintiff while in the course of his employment slipped on a greasy surface of a loading bay thereby injuring himself.  In para. 5 of the plaint it was alleged that as a result of the negligence and/or breach of contract and/or breach of duty of the defendant, the plaintiff has sustained:

“(a)      Personal Injuries

Particulars of Personal Injuries:

(i)         injury to L5/S1 vertebrae,

(ii)       pain down the right leg;

(iii)      pain in right buttock area, right hamstring area and right calf area;

(iv)       psychological injury.”

Paragraph 5 went on to allege that the plaintiff has also sustained pain, suffering and inconvenience, disabilities, expenses, past economic loss, future economic loss, and voluntary home domestic care. 

1. In a defence filed on 25 October 1999, the defendant did not admit that the plaintiff had suffered personal injury as alleged in para. 5 of the Statement of Claim and alleged, in relation to the pleaded injuries other than psychological injuries, that they were a manifestation of pre-existing degenerative conditions of the plaintiff’s spine, and in relation to the pleaded psychological injury, that it was the consequence of other stressors and the pain caused by the pre-existing degenerative condition of the plaintiff’s spine. It was further alleged in relation to the injuries pleaded in sub-paragraph 5(a)(i), (ii) and (iii) of the Statement of Claim that each injury was an injury within the meaning of s.6 of the Workers' Compensation Act 1990 (“the Act”), and the plaintiff did not receive an offer of lump sum compensation from the Board in accordance with s.132 of the Act in respect of the injury, or obtain a damages certificate from the Board pursuant to s.182D of the Act, before the commencement of the proceedings, that there was no decision of the Board that those injuries were a certificate injury and therefore a serious injury for the purpose of s.182A(2), and that therefore the plaintiff was not entitled to seek damages at law and to start this proceeding because of s.182D of the Act. A similar pleading is alleged in respect of the injury pleaded in sub-paragraph 5(a)(iv) of the Statement of Claim.

1. The defendant filed an amended defence on 18 November 1999, but the amendments made to not affect this aspect of the defence or other aspects relevant to the present application. By a reply filed on 2 December 1999, the plaintiff alleged that a letter and notice dated 25 February 1999 from WorkCover Queensland amounted to a lump sum offer of compensation under s.132 of the Act so that the plaintiff was entitled to institute the proceedings. Further and in the alternative it was alleged that by sending this letter and notice WorkCover waived any rights it may have had to assert that the plaintiff had failed to comply with s.182D of the Act, and was estopped from asserting the provisions of that section had not been complied with, and that the actions of WorkCover as the insurer of the defendant were binding upon the defendant so that the defendant had waived any rights it may have had and was similarly estopped from making such an assertion.

1. In relation to the allegation of non-compliance with the Act in respect to the psychological injury, the plaintiff alleged that on 10 April 1997 he applied to WorkCover for compensation in relation to that injury and on 5 Nov 1997 WorkCover rejected the plaintiff’s claim on the ground that the psychiatric injury was not an injury within the meaning of s.6 of the Act. It was alleged that in the premises the psychiatric injury was not an injury within the meaning of s.6 of the Act, and that having decided to that effect, WorkCover was prohibited by s.182D(3) from issuing the plaintiff with a damages certificate and that accordingly the plaintiff was entitled to institute the proceedings without receiving a damages certificate under s.182D. Further or in the alternative it is alleged that because of these matters WorkCover had waived any rights it may have had to assert that the plaintiff had failed to comply with s.182D or was estopped from so asserting and that, because the defendant was insured and indemnified by WorkCover which had the carriage of the action on behalf of the defendant, the actions of WorkCover were binding on the defendant so that the defendant had similarly waived any rights it may have had to assert that the plaintiff had failed to comply with s.182D, or was estopped from so asserting.

1. The application before me seeks separately to strike out so much of the proceeding as relates to sub-paragraphs 5(a)(i), (ii) and (iii) on the one hand, and 5(a)(iv) on the other hand, as not disclosing a reasonable cause of action by reason of non-compliance with part 11 of the Act, or in the alternative seeks summary judgment in respect of those separate parts on the same basis, or in the alternative seeks the determination as a separate question of law of whether the plaintiff is entitled by these proceedings to seek damages against the defendant in respect of such injuries. In substance therefore, the question that I am being asked to decide is whether or not the effect of Part 11 of the Act is that the plaintiff cannot pursue this claim in respect of either of the injuries relied on.

The Back Injury

1. In the course of argument before me, the matters referred to in para. 5(a)(i), (ii) and (iii) of the plaint were treated as standing or falling together, and as in substance alleging injuries to the plaintiff’s back. It was common ground that no certificate had issued by the Board pursuant to s.182D. Subsection (1) of that section provides:

“(1) A worker who has not received an offer of lump sum compensation under s.132 may seek damages at law for an injury suffered after the commencement only if the Board gives to the worker a certificate under this section.”

In the absence of a certificate therefore it is necessary for the plaintiff to show that an offer of lump sum compensation has been made under s.132 otherwise the proceedings cannot be brought.

1. It was submitted on behalf of the plaintiff that the letter and notice of  25 February amount to an offer of lump sum compensation.  That letter and notice are Exhibit GF16 to the affidavit of Ms. Flanders filed on 5 January 2000 on behalf of the defendant/applicant.  The letter advised the plaintiff that his injury has been assessed to decide if the injury has resulted in a degree of permanent impairment and that the notice of assessment of permanent impairment was attached which provided details of the assessment and specified that the degree of permanent impairment attributable to the injury had been assessed at 0%.  There was a reference then to the ceasing of periodic compensation and a reference to a right of review, the letter advised that if the plaintiff disagreed with the degree of permanent impairment his claim would be referred to a Medical Assessment Tribunal, that as the amount of lump sum compensation is less than 20% of the statutory maximum a copy of sections 182A, 182B and 182C were provided for his information, and that a document “Important Information” was provided as a guide to help him understand “the notice and the offer”. 

1. The notice was headed “Notice of Assessment” and, after reference to the plaintiff and the date of injury, identified the injury as “musculo-skeletal system lumbo-sacral spine”. It advised that it had been determined as a result of the plaintiff’s medical assessment that he had not sustained permanent impairment from his injury. The degree of permanent impairment attributable to the injury was said to be 0%, and the amount of lump sum compensation to which he was entitled was also said to be $0. He was told he must make a decision about the degree of permanent impairment and was invited to tick either a box indicating agreement with that degree or one indicating disagreement with that degree. In either case he was requested to sign his selection and return the notice to WorkCover with the advice that a copy of the completed notice would be provided for his records. With the document was provided copies as indicated of the sections, and s.6A, along with advices as to the meaning of impairment and permanent impairment for the purposes of the Act, pointing out that if he did not agree with the assessment about the degree of permanent impairment he might have the matter assessed by a Medical Assessment Tribunal, the decision of which will be regarded as final and conclusive. That is in accordance with the provisions of s.180 of the Act.

1. It seems to me that there are two obstacles to the proposition that this amounts to an offer of lump sum compensation. The first is that, under s.132, a two stage process is contemplated; the Board must first secure the agreement of the worker to its assessment of the degree of permanent impairment, or have that determined by a Medical Assessment Tribunal so that the issue as to the degree of permanent impairment attributable to the injury is resolved. Only at that point may the Board make an offer of lump sum compensation under s.132: Coombs v. Queensland Cotton Corp Ltd (No. S.5214/99, Helman J, 14.10.99); Herrmann v. Buzza (Plaint 4561/97, Wylie DCJ, 12.6.98); Ireland v. Civilcon (Queensland) Pty Ltd (No. D3835/99, Samios DCJ, 14.2.00).  By that section such an offer can only be made where the worker sustained a permanent impairment from the injury, and in circumstances where the decision is that there is no such permanent impairment, and that has not been changed by a Medical Assessment Tribunal on appeal,  there is no statutory authority for the making of a lump sum offer of compensation.  A 0% assessment is not an assessment of permanent impairment;  it is a determination that there is no permanent impairment: cf Commissioner of Taxation v. Ryan [2000] HCA 4.

1. It seems to me however that even if that obstacle could be overcome, the notice with or without the letter do not amount to an offer to pay any particular amount of lump sum compensation.  It contains an assertion that the amount of lump sum compensation to which the plaintiff is entitled is $0, but even that cannot be regarded as an offer to pay $0 because such a proposition is meaningless.  It is in substance a statement that no lump sum compensation is payable, but such a statement cannot, I think, sensibly be regarded as a statement to make an offer of lump sum compensation in the amount of $0, that is to say, nothing.  I think the document cannot realistically be characterised in this way. 

1. It is not to the point that if the document had amounted to an offer of lump sum compensation that offer would have been rejected automatically by commencing proceedings: s.182B(4):  Hibberd v. South Blackwater Coal Ltd (Rockhampton Writ 47/97, Demack J, 28.8.98).  

1. As to the argument about waiver and estoppel, I do not accept that by sending this letter and the enclosures, including the notice, WorkCover has waived the benefit of s.182D, so as to remove that provision as an obstacle to the pursuit by the plaintiff of a claim for damages. The defendant relied on a number of obstacles to such a proposition. It was submitted that it followed from the approach adopted by the Court of Appeal in Bonser v. Melnacis [2000] QCA 13 that there is no complete cause of action until s.182D(1) has been satisfied. Insofar as one or other of the requirements of that subsection amount to a necessary element of the cause of action, that element cannot be provided by something in the nature of waiver. That would only be possible if the subsection operated as a procedural bar to enforcement of the cause of action, an approach rejected by the Court of Appeal. On this basis it was sought to overcome the decision of His Honour Judge Forde in Neuss v. Roche Bros Pty Ltd [1999] QDC 249, which was relied on on behalf of the plaintiff. But Bonser was a decision on the WorkCover Queensland Act 1996, and turned in part on the express terms of ss. 252, 253, 262 and 302 of that Act, which are expressed much more widely than the relevant provisions of the Act.

1. I therefore prefer in the present case to follow the decision in Neuss (supra), and would hold that the right to rely on the bar established by s.182D(1) may be waived by WorkCover. The question remains however whether that has occurred in the present case. The facts in Neuss (supra) were different. Here the issue was raised when the defence was filed on 25 October 1999. Although this was outside the limitation period, the limitation period had expired before the time for filing an Entry of Appearance and Defence expired. There is nothing in the letter or the notice on which the plaintiff relies which amounts to a waiver, and the appropriate course for a plaintiff who had received it was to apply for a certificate under s.182D. In my opinion, waiver has not been established on the facts.

1. In the same way, I do not think that there is any estoppel applicable. It may be possible that the existence as a matter of fact of a certificate, or for that matter a lump sum offer, could be the subject of an estoppel, and I will assume that such an estoppel would be binding on the defendant, on the basis that WorkCover is treated as the agent of the defendant for the purposes of the conduct of the action, having a statutory right and obligation to conduct the action on behalf of the defendant. I think, however, that the fatal difficulty is that there was no representation on behalf of WorkCover either that it has made an offer, or that it has given a certificate, which could be relied upon by the plaintiff to his detriment. I do not think that a representation that the plaintiff was entitled to commence proceedings without either an offer or a certificate would be effective, as I do not think there can be an estoppel as to the proper operation of a statute, but even if such a thing were possible, I cannot find anything which amounts to a representation in the present case that the plaintiff is entitled to commence proceedings without either an offer of lump sum compensation or a certificate as contemplated by the Act. The plaintiff cannot rely on estoppel or waiver in respect of the back injuries, because the letter and notice relied on do not provide the factual basis necessary for those pleas.

1. It follows that in my opinion the plaintiff is prohibited by s.182D from pursuing this action in respect of the back injuries. It was not argued on behalf of the plaintiff that s.182D did not apply pursuant to s.182A(1), and indeed, given the terms of the definition of “certificate injury” in s.6A which operates by reference to the Board’s opinion, I do not think that such an argument could properly have been advanced. It follows that this action is prohibited by the Act. By analogy with the reasoning of the Court of Appeal in Young v. Keong [1999] 2 Qd.R. 335, the appropriate course is to strike out the action insofar as it is in respect of the injury to the back.

The Psychological Injury

1. With regard to the “psychological injury”, it is not clear from the pleading whether the plaintiff is alleging this is a separate injury suffered by him, or whether it is alleged that the back injury has produced consequences which amount to a psychological injury.  It may be that the effect of the statutory prohibition on the plaintiff’s pursuing an action in respect to the physical injury to his back is that he cannot recover damages for any aspect of that physical injury including the psychological consequences; if that is the case, and the psychological injury is simply a consequence of the physical injury, then it follows that such a claim also runs into the prohibition in that section.  Assuming however that that is not the situation and the psychological injury represents a separate injury, the plaintiff suffers the same difficulty that he has not received a lump sum offer in respect of it, nor has he received a certificate from the Board. 

1. The plaintiff did at least attempt to obtain a certificate of the Board prior to commencing proceedings. The plaintiff was met with the response that WorkCover was rejecting the request because there was not an injury to which the Act applied so there could not be a certificate. If the psychological injury is not “an injury” within the meaning of that term in the Act, s.182D(1) will not apply because that statutory provision only applies to “injury”. If, however, there is an injury as defined, then there is no answer to the proposition that the subsection prohibits the pursuit of this action. The letter of 28 April 1999 seems to be saying that there can be no certificate because there was no injury, rather than because the injury did not fall within the Act, but in theory either situation could arise.

1. The legislation unfortunately draws a distinction in more than one provision between the effect of a determination by the Board about an injury and an injury itself. For example, the exclusion of s.182D by s.182A(1) on the basis that the injury is a serious injury depends on the existence of the Board’s opinion as to their level of lump sum compensation payable under the Act. It follows that if the Board forms the view that the level of lump sum compensation is 30%, s.182D(1) will not apply even if in truth the injury is such as to justify only an award of lump sum compensation of 15% of the maximum. Conversely, if the Board determines that the percentage is less than 20% (as it did in the present case in respect of the back injury) the definition of “certificate injury” is necessarily not complied with, and therefore neither is the definition of “serious injury” so s.182A does not operate.

1. Within s.182D however there is the difficulty that the Board may only give a certificate (and then must do so) if it forms the opinion that the worker has suffered an injury for the purposes of the Act. If the Board forms that opinion, and it is correct, the worker is not prejudiced by the absence of a certificate, because s.182D(1) will not be a bar, since he is not seeking damages in respect of an “injury”. The plaintiff simply sues the defendant, which is then left to attempt to persuade the Board that it should receive an indemnity. That is of no concern so far as the legality of the plaintiff’s action against the defendant is concerned, even if it may have some practical consequences about the prospect of the plaintiff’s recovering damages. If the Board decides that the injury is one to which the Act applies, and that decision is correct, there will not be any difficulty for the plaintiff because the Board then must issue a certificate and once the plaintiff has the certificate, the plaintiff can sue. For the same reason, it would not matter if the Board decided incorrectly that the injury was one to which the Act applied, and issued the certificate; if the plaintiff needed a certificate he had one, and if he did not, he could sue anyway.

1. The real difficulty for a plaintiff arises in a situation where the Board decides incorrectly that there is no injury to which the Act applies. The plaintiff has a right to appeal to an Industrial Magistrate on the merits, but it is possible that the incorrect decision may be confirmed on appeal. There may also be a right to review the decision making process under the Judical Review Act, if there has been an error of law in the process, but that will not provide a review on the merits and it may be that there has not been any error of law, the decision being one which was fairly open to the Board (and the Industrial Magistrate), but one which is wrong only in the sense that a court deciding the question for itself would arrive at the contrary conclusion.  In such a situation, the plaintiff cannot obtain a certificate because the Board cannot issue one, because it has not formed the opinion which is a necessary prerequisite to such a certificate. 

1. The first argument advanced on behalf of the plaintiff to overcome this difficulty is that subsection (1) does not apply because the Board has decided that the injury is not one to which the Act applies. This is in substance a submission that subsection (1) operates as if the reference to “injury” in the subsection is a reference to an injury which in the opinion of the Board is an injury for the purposes of the Act. That would be consistent with the format and terminology of subsection (3), and one could say that, where an application is made for a certificate, one would expect such a decision to precede the commencement of proceedings, so that a person who is refused a certificate on the ground that the injury was not one to which the Act applied would have the benefit of such a determination when deciding that he was free to commence proceedings because s.182D(1) did not apply. There are, however, two difficulties with that argument.

1. The first is that the clear words of the section are against it. The second is that it would really assume that subsection (1) would necessary only apply when there had been a decision of the Board, and that may not occur. It will not occur, for example, in a situation where a plaintiff simply commences proceedings without ever applying for a certificate. If the plaintiff has not received an offer of lump sum compensation at that point, and his injury is in fact one to which the Act applies, he must be caught by the section, because there will be no room to interpret the word “injury” by reference to the opinion of the Board. In these circumstances, I think it is difficult to give that word in that subsection a potentially shifting meaning, that is to say that it will operate by reference to the opinion of the Board as to whether or not there is an injury if the Board has formed an opinion on that issue, but, if the Board has not formed an opinion, it will operate by reference to whether or not there is in fact an injury for the purpose of the Act. To make this section operate in such a way would, I think, extend beyond the legitimate bounds of statutory construction.

1. It may be that a plaintiff cannot fall between two stools in this way where advantage was taken of the provisions permitting an appeal to an Industrial Magistrate. The legislation provides that in respect of such an appeal notice is to be given to the employer who may attend and be heard in respect of the question. In such circumstances, it may well be that the employer (i.e., the defendant) would be bound by the decision of the Industrial Magistrate, whether or not it in fact took advantage of this right to be heard, so as to give rise to an issue estoppel for the purposes of the plaintiff’s later action against the defendant. If the Industrial Magistrate decided that the injury was not one to which the Act applied, it would not be open to the defendant in the litigation to allege to the contrary, that is to advance the argument now being advanced on behalf of the defendant, which is based on the proposition that the psychological injury is one to which the Act applies. Given the mechanism for appeal to the Industrial Magistrate therefore, the doctrine of issue estoppel may well prevent this particular difficulty from arising.

Waiver

1. The other argument relied on on behalf of the plaintiff is that WorkCover (and therefore the defendant) has waived reliance on s.182D(1) or is it estopped from relying on it. As to the question of waiver, it seems to me that for the reasons advanced earlier, the decision of the Court of Appeal in Bonser v. Melcanis (supra) is distinguishable, and there is scope for the operation of the doctrine of waiver along the lines suggested by His Honour Judge Forde in Neuss v. Roche Bros Pty Ltd (supra). To refuse to issue a certificate must amount to a waiver of the obligation to obtain such a certificate. If waiver is possible, it occurred here. Indeed, the fact that waiver will operate in this way to overcome the difficulty otherwise created by the inconsequence between subsections (1) and (3) referred to earlier, is a powerful reason why the Act should not be construed in such a way as to prevent waiver of this obligation. In Neuss (supra) the waiver was treated as binding on the defendant. 

Estoppel

1. With regard to estoppel, there is, I think, no great difficulty in regarding the statement by WorkCover as amounting to a representation that the injury is not one to which s.182D applies. That, I think, raises directly the question of whether the representation by WorkCover, that the injury is not one for purposes of the Act, is to be treated as a representation on behalf of the defendant so as to be binding on the defendant. Because the action is against the defendant, it is necessary for there to be an estoppel binding on the defendant for it to be of any assistance to the plaintiff. WorkCover has statutory rights in relation to the conduct of the litigation on behalf of the defendant, the Act must give WorkCover the right to make a representation concerning such litigation on behalf of the defendant, so that it would give rise to an estoppel binding on the defendant.

1. It was submitted on behalf of the defendant that no estoppel could arise because that would amount to an estoppel against the operation of a statute, and reliance was placed on the comment by Shepherdson J in Mears v. Coles Myer Ltd (Writ 99/99, 18.8.99) at p.21 that:

“Estoppel cannot be invoked to negative the operation of a statute”.

I am not at all sure that there can be no estoppel in relation to the operation of the statute, but it is certainly established that a statutory obligation cannot be avoided by a representation from the authority responsible for administering the statute: Commonwealth of Australia v. Hamilton [1992] 2 Qd.R. 257 at 267. It is also well established that the benefit of a statutory provision cannot be lost by an estoppel: Barilla v. James (1964) 81 WN (Pt.1)(NSW) 457 at 461, 468, 478. See also Beckford Nominees Pty Ltd v. Shell Co of Aust Ltd (1986) 73 ALR 373 and Day Ford Pty Ltd v. Sciacca [1990] 2 Qd.R. 209 at 216-7. But in the present case admitting the estoppel would not frustrate the protective element of the statute; it would assist the position of the injured worker. It is well established that a construction of such legislation which is favourable to such a worker should be preferred: Wilson v. Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J. It may be that the motive for the amendments in 1996, which introduced provisions such as s.182D, was probably less of a reflection of the policy justifying that approach to construction than is usual with such legislation, and one may perhaps be forgiven for suspecting that the motivation was rather directed towards protecting the workers' compensation fund, and indirectly those responsible for contributing to it, by multiplying obstacles to the successful recover of damages from it. I am not at all sure that it is correct to say that there cannot be an estoppel against WorkCover in relation to these provisions, but the difficulty I think lies in identifying a particular representation alleged to arise from the letter of 28 April 1999, or any reliance on that by the plaintiff to his detriment.

1. The certificate was refused on the basis that the psychological condition was not an injury, there was no entitlement to compensation under the Act, and no right to damages, but the plaintiff is not seeking to establish any of those matters; on the contrary the plaintiff is expressly seeking to establish the opposite of the first and third of these assertions. An assertion by WorkCover that there is no right to damages because there is no injury, and a decision not to issue a certificate on this basis is (in the absence of waiver) self fulfilling, since there can be no successful pursuit of any right to damages, or the opportunity to establish as a matter of fact that there has been an injury suffered, if the plaintiff is prevented by that decision from commencing proceedings. But this is not like a situation where there is a representation that the plaintiff does not need to do X before commencing proceedings, and in reliance on that representation the plaintiff commences proceedings without doing X, and WorkCover (through the defendant) then asserts that the commencement of the proceedings was ineffective because of a failure first to do X.

1. Apart from this difficulty, it seems to me that there is no basis upon which the plaintiff has acted to his detriment in reliance on the refusal to give the certificate.  It is not as though the plaintiff gave up his claim for damages for the psychological injury because that letter was sent, and his complaint is not that he was led to change his position to his detriment because of it, but that the latter denied him something to which he was really entitled.  That, I think, is not a basis for an estoppel.  It seems to me therefore that in relation to this aspect of the case there has been no representation on behalf of the defendant which the plaintiff has relied on to his detriment, in the sense that he will suffer loss if the representation is resiled from, and therefore there can be no estoppel. 

1. It follows that in my opinion the plaintiff cannot avoid the operation of s.182D(1) in respect of the psychological injury (assuming it is a separate injury) by reliance on an estoppel. Of course if the plaintiff wishes to allege that the true situation is that the psychiatric injury is a separate injury and not one to which the Act applies, that will be a good plea to the defence, the merits of which cannot be decided now, indeed can only be decided at a trial, as was conceded by counsel for the defendant.

Conclusion

1. It follows that the plaintiff cannot in this proceeding seek damages in respect of the back injury, and the action should be struck out as far as he does so. On the other hand, the plaintiff is entitled to proceed with the claim for damages in respect of the psychological injury if it is a separate injury, but is not entitled to rely on an estoppel in response to the plea that that injury is one to which the Act applies. The applicant defendant sought various relief in the alternative in the application, and I have not heard argument as to how these conclusions should be implemented, so I will publish these reasons and invite the parties to agree on or make submissions about the terms of the order appropriate to give effect to them.