Kabamba v AAPC Ltd

[2000] QSC 32

SUPREME COURT OF QUEENSLAND

CITATION:	Kabamba v AAPC Limited & Another [2000] QSC 032
PARTIES:	MARIE CLAIRE KABAMBA (applicant) v AAPC LTD (ACN 009 175 820) (first respondent) and RAFFLES TIMES SQUARE PTY LIMITED (ACN 063 904 763) (second respondent)
FILE NO:	668 of 2000 (Brisbane Registry)
DIVISION:	Trial Division
DELIVERED ON:	2 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2000
JUDGE:	Shepherdson J
ORDER:	Orders by way of relief for bilateral carpal tunnel syndrome claim to be discussed with counsel; in respect of other injuries claimed application dismissed.
CATCHWORDS:	MASTER AND SERVANT – CONSTRUCTION OF STATUTES – WorkCover Queensland Act 1996 – application under s305 of Act for leave to commence proceedings.
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 respondent

1. SHEPHERDSON J: This applicant has applied for 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 requirements of s280 of that Act.

2. The application is in respect of a number of alleged injuries which are:

• bi-lateral carpal tunnel syndrome

• bi-lateral trigger thumbs

• bi-lateral shoulder pain

• bi-lateral foot pain

1. Each of these injuries is said to have occurred before 1 February 1997 when the Workers' Compensation Act of Queensland 1996 came into force and continued thereafter when the applicant continued to work for the respondents or one of them. I shall deal with the injuries seriatim. The applicant relies on two affidavits of Luke Thomas Murphy a member of Murphy Schmidt Solicitors for the applicant and an affidavit for Matthew Edward Holmes.

   Bi-lateral carpal tunnel syndrome

2. The evidence before me does not disclose any application for compensation under WorkCover Queensland Act 1996 made by Kabamba for this injury.

3. The evidence appearing from the affidavit of Luke Thomas Murphy filed 28/1/2000 (para 14) and the affidavit of Matthew Edward Holmes filed 10/2/2000 (paras 4 and 5 and Exhibit MEH-01) shows that on 7 October 1996 Kabamba signed an application for Workers' Compensation in respect of an injury. A copy of the application is Exhibit MEH-O1 and the application described the injury as "carpal tunnel syndrome" – "both hands". The application shows the injury is said to have occurred at 9.30 am on an unspecified date in July 1996 and further says that Kabamba ceased work on 15/9/1996 because of that injury. This application Exhibit MEH-O1 was made under the Workers' Compensation Act 1990 and not under WorkCover Queensland Act 1996. This application was rejected by letter dated 9/1/1997 from the Workers' Compensation Board and this letter of rejection (part of Exhibit MEH-01) is dated 9 January 1997 which was before WorkCover Queensland Act came into force.

4. I can see no application for compensation made by this applicant for injury allegedly suffered on or after 1/2/1997 when WorkCover Queensland Act came into force.

5. Mr Murphy's affidavit filed on 28 January 2000 deals with bi-lateral carpal tunnel syndrome. It is apparent from his affidavit, especially paras 11 to 16 (both inclusive) that his firm, acting for the applicant Kabamba, has appealed a decision of 1/4/1999 made by WorkCover. However that appeal relates to a claim Kabamba had made concerning the Workers' Compensation Act 1990 (as amended) and appears to be the application signed by Kabamba on 7/10/1996 a copy of which is in Exhibit MEH-O1.

6. Holmes swears that Kabamba continued to work for the first and/or second respondents until the date of her bi-lateral carpal tunnel syndrome operation in August 1997.

7. I proceed with this matter on the basis that Kabamba has made no application for compensation for injury allegedly suffered after the WorkCover Queensland Act 1996 came into force and further that there is on foot a dispute as to whether or not Kabamba suffered bi-lateral carpal tunnel syndrome injury under the Workers' Compensation Act 1990 as amended.

8. If a worker has sustained an injury and has not lodged an application for compensation for the injury that person is entitled to seek damages for the injury (s 253)(1)(c)).

9. It appears therefore that in respect of any injury allegedly suffered by Kabamba over the period of time from 1/2/1997 until she ceased work for the respondents ("an injury over a period of time") Kabamba may be eligible to seek damages.

10. As I said in Quintanilla (681 of 2000) in which I delivered judgment today, an applicant seeking to prove entitlement under s253(1)(c) must on an application under s305 provide evidence showing a prima facie causal nexus between the injury and the workplace in which it is said the injury was suffered as well as a prima facie case in negligence or breach of statutory duty. (see also my comments in Ruiz (847 of 2000) in which I delivered judgment today) .

11. Kabamba, in respect of the bi-lateral carpal tunnel syndrome claim has in fact a claim under the earlier legislation the Workers' Compensation Act 1990. This earlier claim is for the same injury said to have been suffered when Kabamba was employed by the same respondents before 1/2/1997. The claim has been rejected and the decision to has been appealed but the appeal has not yet been heard.

12. It seems to me that in the present case I should not insist on evidence showing a prima facie causal nexus but should instead give considerable weight to the following facts:

    (a)        her claim for bilateral carpal tunnel syndrome before 1/7/1997 has been rejected by WorkCover and is the subject of appeal to an Industrial Magistrate to be heard on 3/6/1999;

    (b)        the outcome of that appeal will determine the issue of the causal nexus between work (pre–1/2/1997) and the carpal tunnel syndrome;

    (c) the nature of Kabamba's work did not change after 1/2/1997;

    (d)        the claim the subject of the appeal is accepted by WorkCover as a claim for an injury over a period of time (see Exhibit LTM-03 including the annexed conditional damages certificate under s182D of the Workers Compensation Act 1990).

13. Thus, I should be most surprised if the Magistrates decision is not regarded by both Kabamba and WorkCover as deciding the issue of the causal nexus post 1/2/1997.

14. I do not know the likely outcome of the appeal now on foot but in the circumstances of this case it would in my view be incorrect not to give this applicant Kabamba the opportunity of bringing proceedings (pursuant to leave given under s305) in respect of the same injury over a period of time commencing on 1/2/1997. The WorkCover Act gives indications of protecting would be plaintiffs from prejudice by expiry of a time limitations statute (see Green v Suncorp Metway & Ors (File 673 of 2000 – Judgment of mine delivered 8/2/2000) at para 29 and also s308 of WorkCover Queensland Act).

15. If I were to refuse this application then, if Kabamba's appeal in respect of the carpal tunnel syndrome succeeds and she then again pressed an application similar to the present one, time will have run against her and a plea of time limitation may defeat or partly defeat her claim. Whether in such circumstances WorkCover would plead the statute would remain to be seen.

16. The present application can be disposed of in one of two ways. First WorkCover may decide to issue a conditional Damages Certificate for bi-lateral carpal tunnel syndrome over a period for time from 1/2/1997 or I could make an order under s305 and impose conditions.

17. I propose to discuss these options with the parties' counsel at the time I deliver these reasons for judgment.

    Bi-lateral trigger thumbs

18. On 27/7/1998 Kabamba applied for compensation for injury being bi-lateral trigger thumbs. WorkCover rejected this application and on 27/5/1999 the applicant applied for review of that decision to reject.

19. By letter dated 2/6/1999 WorkCover's review officer set aside WorkCover's decision and decided that Kabamba's application for compensation in respect to trigger thumbs was valid (see Exhibit LTM-11 to Murphy's affidavit filed 28 January 2000).

20. On 24 January 2000 WorkCover issued a conditional damages certificate in favour of Kabamba (Exhibit LTM-13 to Murphy's affidavit). This certificate contained an error in the statutory claim number and on 26 January 2000 WorkCover issued an amended certificate to correct that error. That amended certificate (Exhibit LTM- 14 to Murphy's affidavit filed 28 January 2000) was in respect of Kabamba's claim for injury suffered by her as a worker being bi-lateral thumb injury. Although by- lateral thumbs are not mentioned that conclusion can be drawn from the statutory claim number appearing in the amended certificate. Exhibit LTM-14 also says "Date of Event causing injury: over a period of time". The conditional damages certificate was "issued, pursuant to section (262, 265, 270) of the WorkCover Queensland Act 1996 on the basis that there is an urgent need to bring proceedings for damages".

[23] The amended certificate (Exhibit LTM-14) went on to say:

"A Conditional Damages Certificate is issued when WorkCover is

not satisfied that

• the person was a 'worker' when the injury was sustained; or

• the worker has sustained an 'injury' within the terms of the Act; or

• the worker's degree of permanent impairment has been assessed in the way mentioned for the injury under chapter 3 Part 9 of the Act

This certificate allows proceedings to be commenced, however, the proceedings are stayed until the above matters are resolved. When the above matters have been resolved, WorkCover may issue a damages certificate which will allow you to continue proceedings. Please note that you must comply with chapter 5 of the Act to continue proceedings."

1. I shall later return to the words used in this conditional damages certificate and for the time being simply say that in light of my decision in Green v SunCorp Metway Limited & Others (673 of 2000) in which I delivered judgment on 8 February 2000, Kabamba could after issue of the amended conditional damages certificate begin her action for damages for the bi-lateral trigger thumb injury but that action will be statutorily stayed. Thus, it is unnecessary to pursue further the present application by Kabamba concerning the bi-lateral trigger thumbs injury.

   Bi-lateral shoulder and feet pain

2. I do not have before me any details of Kabamba's application for compensation in respect of bi-lateral shoulder and feet pain which according to para 32 of Murphy's affidavit filed on 28 January 2000 the applicant instructed him she had developed over the course of her employment as a housekeeper. In Exhibit LTM-08 to Murphy's affidavit filed 28/1/2000 Murphy says "We understand that our client lodged an application for compensation in respect of these complaints".

3. On 14 January 2000 Kabamba's solicitors sent by facsimile transmission to WorkCover a letter (see Exhibits LTM-15 and LTM-12 and LTM-8 to Murphy's affidavit filed 28 January 2000) in which they sought the issue of a conditional damages certificate in respect of each of the above four areas of damage which I have set out in par 2 ante. There is some triplication in Murphy's exhibits – Exhibits 15 and 12 and 8 are identical..

4. On 27 January 2000 WorkCover did issue two conditional damages certificates; the first was for statutory claim 990014160 and the second was for statutory claim No. 990026840. Each certificate described "date of event causing injury" as "over period of time" but neither stated the nature of injury. It is I think more likely than not that these numbers do relate to Kabamba's statement that she suffered bi-lateral shoulder pain and bi-lateral foot pain, and I say this because Murphy's letter of 14 January 2000 (Exhibit LTM15) stated in respect of each of these matters "Your reference unknown". The two numbers I have quoted in this paragraph are not the numbers for the carpal tunnel syndrome or the trigger thumbs.

5. Mr Douglas QC has submitted that in respect of Kabamba's claim for bi-lateral shoulder and foot injuries those claims do not come within ss 262, 265 or 270, and that WorkCover has purported to issue conditional damage certificates in those cases but that they are invalid.

6. This latter submission may or may not be correct. Neither side has put before me any evidence to show that Kabamba did in fact claim compensation under WorkCover Queensland Act in respect of bi-lateral shoulder and foot pain resulting from injury to which it is said s34 of that Act applied.

7. All I have are statements by Murphy mentioned earlier in these reasons.

8. In the absence of evidence of an application by Kabamba made under WorkCover Queensland Act for compensation for bi-lateral shoulder and feet injuries, it seems to me that I should treat her as not having lodged such an application. She therefore appears to be prima facie entitled under s253(1)(c).

9. There is power in s265 of the Act (which applies to persons entitled under s253(1)(c)) for WorkCover to have issued the Conditional Damages Certificate copies of which are Exhibit LTM-16. I have set out s265 in full in Gamero No 667 of 2000. These certificates in Exhibit LTM16 are consistent with WorkCover having no application from Kabamba for these particular injuries and I treat them as conditional damages certificates issued by WorkCover for claims as to bi-lateral should and feet injuries.

10. If I am correct in what I have just said then these certificates can be relied on by Kabamba's solicitors to begin proceedings for damages for these particular injuries (see Green v Metway Bank (supra).

11. I propose therefore to dismiss the application under s305 so far as it relates to these claimed injuries – bi-lateral shoulder and feet

    Summary of Orders

[35] 1. For bi-lateral carpal tunnel syndrome claim

• details of order or orders to be discussed with counsel (see paras 18 and 19 ante)

2.           For bi-lateral trigger thumbs injury

• application dismissed

3.          For bi-lateral shoulder and feet injury

• application dismissed