Nobel Ross Reat v The University of Queensland

[2000] QSC 35

SUPREME COURT OF QUEENSLAND

CITATION:	Nobel Ross Reat v The University of Queensland [2000] QSC 035
PARTIES:	NOBEL ROSS REAT (applicant) v THE UNIVERSITY OF QUEENSLAND (respondent)
FILE NO:	839 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 – CONSTRUCTION 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 respondent

1. SHEPHERDSON J: This applicant has sought an order pursuant to s 305(1) of the WorkCover Queensland Act 1996 that he be granted leave to bring a proceeding against the respondent despite non-compliance with the requirements of s280 of the Act and a further order that he may start the proceeding once he has complied with s302 of that Act.

2. On 24 February 1999 this applicant instructed Murphy Schmidt to investigate a claim for common law damages in relation to what was said to be a stress condition caused by his work as a lecturer with University of Queensland. He had been employed by the respondent university since 1981.

3. According to an affidavit of Celia Elizabeth Just a solicitor employed by Murphy Schmidt and filed 31 January 2000, he told her that his stress condition had been caused by his work as a lecturer and that he had been subjected to unreasonable and undue stress and harassment and unreasonable management action by staff at the university.

[4] The applicant relies on two affidavits by Just. There is no affidavit by or on behalf
of the respondent.

1. The evidence before me, contained in Just's two affidavits shows:

(a)  On 21/9/1998 Reat signed and lodged an application for compensation. A copy of the application is Exhibit C.E.J.-1 to Just's affidavit filed 10 February 2000. This application shows:

(i)         Q.21 "What is the nature of the injury?" was answered "Acute anxiety and depression".

(ii)        Q.23 "Where did the injury happen?" was answered "Department of Studies in Religion University of Queensland St Lucia ... ."

(iii)       Q.24 "When did the injury happen?" was answered "Over a period of time".

(iv)       On 24/8/98 Reat stopped work "because of this injury".

(v)        When asked to explain what he was "doing at the time and how the injury happened?" (Q30) he commenced – "I have been subjected to stress at work over a long period of time".

(vi)       Reat said "Management staff and departmental staff" were responsible for the injury.

(b)	WorkCover gave this application a file No 980146771 and by letter dated 21/5/1999 addressed to Reat notified Reat that his application dated 21/9/98 was rejected. Reasons for the decision were given (see Exhibit CEJ-2 Just's affidavit filed 10 February 2000).
(c)	Exhibit CEJ-3 to the same affidavit is a letter from Murphy Schmidt to WorkCover's statutory review branch enclosing application for review of the decision of 21/5/1999.
(d)	By letter dated 15/7/1999 to Murphy Schmidt (Exhibit CEJ-4 to Just's affidavit filed 10/2/2000) the statutory review unit advised that it confirmed WorkCover's decision of 21/5/1999.
(e)	Exhibit CEJ-5 contains Reat's application for a hearing by an Industrial Magistrate to review WorkCover's decision to reject.
(f)	As at 11 February 2000 no date for the hearing before the Industrial Magistrate has been set.

1. Murphy Schmidt have produced to ma a copy of a report dated 1 March 1999 from Dr Jon Steinberg a consultant psychiatrist, who had first interviewed Reat on 29 September 1998 on referral from his general practitioner a Dr Warszawski. This copy report (Exhibit CEJ-1 to Just's affidavit filed 31/1/2000) does not assist me because it is apparent that the issue whether Reat has suffered an injury within s34 of the WorkCover Queensland Act is yet to be determined.

2. On 24 August 1999 Murphy Schmidt wrote WorkCover Queensland a letter which said that Reat considers that the injuries that form the basis of his statutory claim have been sustained over the entire period he was employed by the University of Queensland. This letter (Exhibit CEJ-2 to Just's affidavit filed 31 January 2000) contends that the applicant's injuries are in effect governed by three statutes namely:

1.	The Workers' Compensation Act 1990 which applied to that part of his injuries sustained prior to 31 December 1995; and
2.	The Workers' Compensation Act 1990 as amended (called "the Goss Amendments") which it was said applied to that part of his injuries sustained from 1 January 1996 to 31 January 1997.
3.	The Work Cover Queensland Act 1996 which applies to that part of his injury sustained from 1 February 1997 to 25 August 1998.

1. I am concerned with the third statute only.

2. I should add that annexed to Exhibit CEJ2 was an application dated 24 August 1999 for a damages certificate signed by the applicant's solicitor but not by the applicant. This application related to a conditional certificate sought in accordance with s182D of the WorkCover Act 1990 (as amended) and was in respect of injuries from 1/1/1996 to 31/1/1997. However, the application said the event resulting in the injury [anxiety and depression] occurred over a period of time (Q 32).

3. A conditional damages certificate dated 24 August 1999 issued pursuant to s182D of the Workers' Compensation Act 1990 (as amended) issued. The certificate shows "Date of Event causing injury: over a period of time". An action S7669/99 has begun said to be based on issue of that certificate but that certificate which is Exhibit CEJ3 to Just's affidavit filed 31 January 2000 does not bear on the matter before me.

[11] On 27 January 2000 Murphy Schmidt wrote to WorkCover (Exhibit CEJ-5 to Just's
affidavit filed 31 January 2000). This letter said:

"As you are aware we act for Nobel Ross Reat in a claim for statutory benefits for a stress condition which developed during the course of his employment with the University of Queensland. As you would also be aware our client lodged an application for compensation in September 1998. By letter of 21 May 1999 WorkCover rejected his application. This decision is presently on appeal to an Industrial Magistrate.

Our client considers his condition which gives rise to his statutory claim was sustained over the entire course of his employment with the University of Queensland.

In these circumstances in order to protect our client's right to claim common law damages for that part of his condition sustained during the course of his employment from 1 February 1997 until 24 August 1998 s302 of the WorkCover Queensland Act 1996 must be complied with before 1 February 2000.

The WorkCover Act does not appear to provide for circumstances where a claimant has lodged his/her application and are (sic) pursuing their rights of appeal against a decision to reject the application.

Notwithstanding there are no provisions in the WorkCover Act to cover these circumstances in order to protect our client's right to claim common law damages you might kindly issue our client with a conditional damages certificate as a matter of urgency.

..................... ."

[12] WorkCover issued a conditional damages certificate dated 27 January 2000 in the
name of Reat. The certificate included:

"Date of event causing injury: over a period" satisfied that:
and showed statutory number 980146771
Permanent Impairment from Injury
This conditional damages certificate is 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.

· 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 ch 3 Pt 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 to proceedings. Please note that you must comply with ch 5 of the Act to continue proceedings."

[13] For reasons I shall later give, this certificate (Exhibit CEJ-6 to Just's affidavit filed
31/1/2000) is of no effect.

1. The evidence to which I have already referred makes it clear that Reat's application for compensation (under the WorkCover Act 1996) has been rejected by WorkCover and that there is a dispute between WorkCover and the applicant as to whether or not the injury claimed by the applicant was an 'injury' within the terms of the WorkCover Act. This issue is to be resolved by the Industrial Magistrate.

2. I do not propose to set out the relevant provisions of WorkCover Queensland Act – they appear in my reasons for judgment in the application of Gamero 667/2000. I do not propose to repeat those provisions in these reasons.

[16] 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 CONDITIONS" 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."

1. Mr Hoare for the respondent opposes the application by Reat arguing that on the proper construction of WorkCover Queensland Act 1996 and more particularly s253 thereof the applicant Reat is not a person entitled to seek damages for injury sustained by him.

2. Mr Douglas Q C has argued that Reat'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..

3. 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).

4. 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 in s253(1) to seek damages for an injury sustained by a worker is abolished.

5. The cases before me and argued on 11 February 2000 have shown that, leaving aside the operation of s253(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 re reject.

The above list is not intended to be exhaustive.

1. 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 in s253(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).

2. In Bonser v Melnacis & Anor [2000] QCA 13 judgment delivered 8 February 2000 (and from which I have quoted some extracts in Gamero) the Court of Appeal described s253 as the key section of the sections within "PART 2 – ENTITLEMENT CONDITIONS" – I respectfully agree with that view.

3. Another provision which is very relevant to the present matter is s252 which appears in "Part 1 – Interpretation and Application" of CHAPTER 5 – ACCESS 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."

4. In my opinion section 252(2) reinforces the strength of s253(3).

[26]	In my opinion, Reat does not, on the material before me, fit within any of the classes of worker in s253(1).
[27]	In respect of his application for compensation Reat's present status is not mentioned in s253(i).

1. It is true that he may in time fall within s253(1)(a) or (b) but at the present time he does not. The WorkCover Queensland Act has revolutionised the law applicable to projected claims at common law by a worker against his or her employer for damages for personal injuries caused by alleged negligence or breach of statutory duty of the 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. Proof that a would-be claimant falls within a class in s253 is "the first" of these hurdles. I mention another hurdle "Part 5 – Pre-Court Procedures" in which s280 appears. The object of part 5 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".

2. I would add that I have considered whether or not Reat falls within or is mentioned in s253(1)(c) on the basis that he did not lodge an application for compensation for the injury allegedly suffered from 1/2/1997 up to 24/8/1998 being acute anxiety and depression caused by workplace conditions.

3. Had I decided that the applicant Reat was a person mentioned on s253(1)(c) then I would have made orders as I did in Gamero. I decided that Reat was not a person mentioned in s253(1)(c) because, for reasons I have given I consider that the application for compensation (Exhibit CEJ-1 to Just's affidavit filed 10/2/2000) made clear although that the culminating injury happened on 24/8/1998 the claim was in respect of injury which resulted from and was contributed to by conduct of Reat's fellow employees directed to him over a period of many years before 24/8/1998.

4. I accept Mr Hoare's submission and I dismiss the application.

5. Finally, I said earlier that the conditional damages certificate issued on 27/1/2000 is of no effect. The power to issue such a certificate is found in one of sections 262, 265 or 270 of the WorkCover Act. Section 262 applies to a person mentioned in s253(1)(b) (see s261).

6. Section 265 applies to a person mentioned in s253(1)(c) (see s264).

7. Section 270 applies to a person mentioned in s253(1)(d) (see s268).

8. The applicant Reat is not a person mentioned in any of these three sub-sections. Therefore WorkCover had no power or authority to issue the certificate which it did.

Order:

1. I dismiss the application.