Jones v Persal & Co (No 2) - [1999] QDC 205

IN THE DISTRICT COURT
HELD AT MARYBOROUGH
QUEENSLAND

[Jones v. Persal & Co (No. 2)]

[Before McGill DCJ]

Plaint No 136 of 1997
  (Brisbane No 1442 of 1999)
BETWEEN:
  BRETT ANDREW JONES
  Plaintiff
AND
  PERSAL & COMPANY
  Defendant

JUDGMENT

Judgment delivered: 10 August 1999

Catchwords: COSTS - offer to settle - employee’s claim from employer for personal injury - whether other “final” - Workers’ Compensation Act 1990 s.182C(4)

WORKERS COMPENSATION - claim for damages at common law - limitation on costs - whether offer “final” - Workers’ Compensation Act 1990 s.182C(4)
Bishoff v. Lyh Australia Pty Ltd (Plaint 198/98, Forno DCJ, 19.3.99, unreported) - not followed

Counsel:R.C. Morton for the plaintiff
M.T. O’Sullivan for the defendant

Solicitors: Carswell & Co for the plaintiff
Tutt & Quinlan for the defendant

Hearing Date(s): 4 August 1999

IN THE DISTRICT COURT
HELD AT MARYBOROUGH
QUEENSLAND

Plaint No 136 of 1997
(Brisbane No 1442 of 1999)

BETWEEN:

BRETT ANDREW JONES

Plaintiff

AND

PERSAL & COMPANY

Defendant
REASONS FOR JUDGMENT -McGILL D.C.J.

Delivered the10th day of August1999

In this matter I gave judgment on 23 July 1999 that the defendant pay the plaintiff the sum of $218,601. When judgment was delivered the question of costs was reserved, since it was necessary to hear argument and counsel were not immediately available. That argument came on before me on 4 August 1999 and my decision was then reserved.

The argument turned on the correct interpretation of s.182C of the Workers’ Compensation Act 1990 (“the Act”). That Act was repealed by the WorkCover Queensland Act 1996, but continues to apply in relation to injury sustained before the repeal (see s.551 of the 1996 Act), so it applies in the present case because the plaintiff sustained his injury on 22 August 1996. Section 182C is one of a number of provisions inserted by the Workers’ Compensation Amendment Act (No 2) 1995, which commenced on 1 January 1996. Relevantly, it provides:

“(1) This section applies if the worker is not entitled to, or rejects, lump sum compensation under this Act for an injury and seeks damages at law for the injury.

(3) No order as to costs, other than an order allowed under this section, is to be made by the court in the proceeding, unless the Board certifies that the worker’s injury is a serious injury.
(4) If a party to the proceeding makes an offer of settlement that is refused and the court later awards damages to the worker, the court must, in the following circumstances, make the order about costs provided for -

(a)if the amount of damages awarded is equal to or more than the worker’s final offer - an order that the defendant pay the worker’s party and party costs from the day of the final offer;
(1)if the amount of damages awarded is equal to or less than the defendant’s final offer - an order that the worker pay the defendant’s party and party costs from the day 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 Jones v Persal & Co (No 2)

Details

AGLC: Jones v Persal and Co (No 2) [1999] QDC 205
Case: [1999] QDC 205
Decision Date: 10 August 1999

CaseChat Overview and Summary

In the matter of Jones v Persal & Co (No 2), the plaintiff, Brett Andrew Jones, brought a claim against his employer, Persal & Company, for damages resulting from personal injury sustained during employment. The case was heard in the District Court of Maryborough, Queensland. The central issue before the court was the interpretation of Section 182C of the Workers’ Compensation Act 1990, specifically regarding the term “final offer” in the context of settlement offers and the implications for cost awards under the statute.

The court found that the plaintiff, having rejected a lump sum compensation under the Act, was entitled to claim damages at common law. The crux of the legal dispute centered on whether the plaintiff's offer to settle the claim for $160,000 on 1 July 1998 constituted a “final offer” as required by Section 182C(4) of the Act to warrant an order for costs in his favor if the damages awarded were equal to or more than this amount. The plaintiff argued that the offer was unconditional and comprehensive, covering the entire claim. However, the defendant contended that the offer was not explicitly labeled as “final” and hence did not qualify under the statute.

The court deliberated on the meaning of “final offer,” considering both prospective and retrospective interpretations. It ultimately concluded that the retrospective interpretation, where the “final offer” is determined by whether a subsequent offer was made, was more consistent and practical. Given that the plaintiff made no further offers after 1 July 1998, this offer was deemed the “final offer.” Since the damages awarded exceeded this amount, the court ruled that the defendant must pay the plaintiff’s costs from the date of the final offer.

The final orders of the court mandated that Persal & Co pay Brett Andrew Jones’s costs of the proceeding from 1 July 1998, assessed on the standard basis, and that these costs include those incurred during the appearance on 4 August 1999.

Orders