Octavio Agudelo v State of Queensland

[2000] QSC 37

SUPREME COURT OF QUEENSLAND

CITATION:	Octavio Agudelo v State of Queensland [2000] QSC 037
PARTIES:	OCTAVIO AGUDELO (applicant) v STATE OF QUEENSLAND (respondent)
FILE NO:	S679 of 2000 Brisbane Registry
DIVISION:	Trial Division
DELIVERED ON:	2 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2000
JUDGE:	Shepherdson J
ORDERS:	1. Leave to amend application by deleting "Queensland Government Printing Office" and inserting in lieu "State of Queensland". 2. 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 Crown Solicitor for respondent

1. SHEPHERDSON J: The abovenamed applicant has applied pursuant to s305(1) of the WorkCover Queensland Act 1996 (as amended) for leave to bring a proceeding against the abovenamed respondent despite non-compliance with the requirements of s280 of the Act. Other relief is also sought.

2. Before I go further I deal with a formal matter and that is an application made by the applicant's solicitors that the name of the respondent shown in the application as filed (Queensland Government Printing Office) be deleted and "State of Queensland" substituted therefor. The application is not opposed and I order that the applicant have leave to delete "Queensland Government Printing Office" as the name of the respondent and substitute in lieu "State of Queensland".

3. I turn now to the substance of the application. There is a dispute between Agudelo and WorkCover as to whether or not he suffered an "injury" within Pt 4 Div 6 sub- division 2 of the WorkCover Queensland Act 1996. Sub-division 2 consists of s34 of that Act and s34 defines "injury". WorkCover effectively represents the respondent State of Queensland. This dispute has become apparent since Agudelo lodged an application for compensation specifying the injury as having occurred on 24/6/1998.

4. A large amount of material has been filed and relied on to support Agudelo's application but in my view part of it is irrelevant and unnecessary for my decision on this application. I say that because the application before me relates only to the WorkCover Queensland Act 1996 and matters which concern earlier legislation namely Workers' Compensation Act 1990 and Workers' Compensation Act 1990 as amended really have little, if any bearing on my decision.

[5] The evidence consists of four affidavits of Karen Suzanne Foulds a solicitor
employed by Murphy Schmidt the solicitors for the applicant.

1. The evidence shows:

(a)	Agudelo who was born on 4 August 1951 was employed by the respondent at the Queensland Government Printing Office ("Go Print") at Vulture Street, Brisbane. He was a printing machinist from about August 1989 until 24 June 1998 but in August 1994 he was suspended from work for three months.
(b)	Agudelo is said to have suffered a major depressive illness caused by conduct of his follow workers at Go Print.
(c)	The present application as I have said concerns the WorkCover Queensland Act 1996 which commenced on 1 February 1997 and it is the applicant's claim that the depressive illness began well before 1 February 1997 and continued thereafter.
(d)	On 23 August 1998 Agudelo who comes from a Spanish speaking background signed a claim for compensation which disclosed:

(i)         the injury was "reactive depression" (answer to Question 21)

(ii)        "head, heart (emotions )" was the answer to question 22 "What part of the body is injured?

(iii)       the injury happened on 19 July 1996

(iv)       the injury happened "over a period of time" (answer to Question 29)

(v)        Question 29 "Did you stop work because of this injury?" was answered "Wednesday 24/6/98 – 9.45a.m."

(v)        "the same problem has been occurring over 3 yrs ago" (answer to Question 35 – "Have you previously suffered any similar injury or condition?")

(e)

the application for compensation claim form is Exhibit KSF-04 to Foulds' affidavit filed 28 January 2000 – the form was lodged with WorkCover Queensland.

(f)

By letter dated 31 May 1999 (Exhibit KSF-05 to Foulds affidavit filed 28/1/2000) WorkCover rejected the application dated 23 August 1998 and gave written reasons for its decision. These reasons mentioned evidence considered by WorkCover. In those reasons WorkCover under "The facts established from this evidence." stated "You have lodged a claim for Worker's Compensation for an "injury" you state occurred on 24/6/98 and has been certified as "Reactive Depression and Anxiety". In the course of its reasons WorkCover said (inter alia):

"In a medical report from your treating psychiatrist Dr Tom Bell dated 26/10/98, Dr Bell states he believes you have suffered an "injury" defined in the WorkCover legislation. Dr Bell further advised that although the nominated injury date is 24/06/98 as the date of "the incident", the condition really is a continuation of a depressive disorder which has continued due to significant problems at work since approximately 1995."

(g)	Thereafter Agudelo sought a review by WorkCover's statutory review unit of the decision of 31 May 1999.
(h)	The review occurred but the result of the review stated in a letter dated 8 September 1999 (Exhibit KSF-07 to Foulds' affidavit filed 28/1/2000) was unfavourable to Agudelo.

(i)           An appeal from that decision of 8 September 1999 has been filed and is to be heard by the Industrial Magistrate at Brisbane on 20 and 21 March 2000.

(j) By letter dated 27 January 2000 (see Exhibit KSF09 to Foulds' affidavit filed 28 January 2000) Agudelo's solicitors Murphy Schmidt sought from WorkCover a number of certificates. One certificate sought and relevant to the present application before me was "conditional damages certificate pursuant to WorkCover Queensland Act 1996 to cover our client's medical condition – reactive depression – for the period 1 February 1997 to 24 June 1998".

All certificates were sought "as a matter of urgency". The "application for damages certificate" which accompanied the letter of 27/1/2000 was signed by Agudelo's solicitors and in part of that application headed "Details of the event resulting in the injury" the solicitor answered Question 32 – "When did the event occur?" by writing 6.45 a.m. Wednesday 24/6/98.

(k) By letter dated 31/1/2000 (Exhibit KSF-02 to Foulds' affidavit filed 3/2/2000) WorkCover Queensland wrote to Murphy Schmidt and (omitting formal parts) said:

"I refer to the Application for Damages Certificate completed on behalf of your client, dated 27 January 2000 for an injury stated as reactive depression which you have indicated your client suffered as a result of an incident at his place of employment on 24 June 1998.

As you have indicated that the condition for which you are seeking the damages certificate arose out of a specific event on 24 June 1998 your application has been considered under the provisions of s262 of the WorkCover Queensland Act 1996.

Section 262(3) provides that – damages certificate if there is an urgent need to bring proceedings for damages and the claimants permanent impairment has not been assessed or agreed.'

As the limitation period with respect to your client's action for this injury does not expire until 24 June 2001 it is not considered that there is an urgent need to bring proceedings for damages. A conditional certificate will therefore not be issued at this point in time.

Once the matter of your client's appeal against WorkCover's decision that your client did not suffer an injury has been heard the issue of a damages certificate will be considered further."

[I mention in passing that s262 refers to a claimant whose application was allowed
– s253(1)(b) - That is not Agudelo]

1. (l) By letter dated 31/1/2000 (Exhibit KSF-03 to Foulds' affidavit filed 3/2/2000) the solicitors explained that the application for the damages certificate was intended to be for reactive depression for the period 1/2/1997 to 24/6/1998.

2. I mention now that Exhibit KSF-03 to Foulds' affidavit filed 28/1/2000 is said to be a copy of Agudelo's application for compensation lodged on 19/7/1996 with the then Workers' Compensation Board of Queensland. It appears to me to be an incomplete copy. The question "When did the injury occur?" is not answered. Details of the injury are shown as:

   "Severe depression and stress triggered by unfair statement at work

   in relation to disciplinary action in 1994."

   KSF-03 shows Agudelo last worked "because of this injury" – "3.00 pm 27/6/96."

3. In my view although this information in KSF-03 is before me I should ignore it. It was not referred to by WorkCover when it made its decision dated 31 May 1999 (Exhibit KSF-05 see p 4 ante).

4. It appears tolerably clear that the application for compensation which Agudelo signed on 23/8/1998 (Exhibit KSF-04) although stating the injury happened on 19/7/1996 went on to say that it was not until 24/6/98 that Agudelo ceased work because of that injury.

5. I should at this stage say that in my reasons for judgment in the application of Gamero 667/2000 I set out provisions of WorkCover Queensland Act 1996. I do not propose to repeat those provisions in these reasons.

6. 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 1996.

7. "s250 In this chapter

   "claimant" means a person entitled to seek damages".

   ["this Chapter" means "CHAPTER 5"]

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

2. Mr Douglas QC has argued that Agudelo'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.

[16] He argues that such a person may well succeed on review and in effect become at
some time in the future a person within s253(i)(a) or (b).

1. 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.

2. 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 rejection decision.

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 on 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 extract 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).

5. In my opinion, Agudelo does not, on the material before me, fit within any of the classes of worker in s253(1). In respect of his application for compensation his present status is not mentioned in s253(1).

[24] It is true that he may in time fall within s253(1)(a) or (b) but at the present time he
does not.

1. The WorkCover Queensland Act has revolutionised the law applicable to projected claims at common law by workers seeking damages for personal injuries against their employers. 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 one of these hurdles. I mention also another 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

2. I would add that I have considered whether or not Agudelo falls within s253(1)(c) on the basis that he did not lodge an application for compensation for the injury allegedly suffered from 1/2/1997 and beyond being a continuation of a depressive disorder as described by Dr Bell. (see page 3 ante).

3. Had I decided that the applicant was a person mentioned in s253(1)(c) then I would have made orders as I did in Gamero. I decided against Agudelo because for reasons I have given I consider that the applications for compensation were based on a continued course of conduct at his workplace said to have caused Agudelo injury and culminating in the events of 24/6/1998.

[28] I have concluded that the interpretation of s253 for which Mr Hoare contends is
correct and for reasons I have given I dismiss the application.