Ohmsen v State of Queensland

[2000] QSC 45

SUPREME COURT OF QUEENSLAND

CITATION:

Ohmsen v State of Queensland [2000] QSC 045

PARTIES:

OWEN OHMSEN
(plaintiff)
-v-
STATE OF QUEENSLAND
(defendant)

FILE NO:

SC No 2176 of 1998

DIVISION:

Trial Division

PROCEEDING:

Application to strike out action

DELIVERED ON:

25 February 2000

DELIVERED AT:

Brisbane

HEARING DATE:

9 July 1999

JUDGE:

Douglas J

ORDER:

Application allowed.

Ordered that the action be struck out.

CATCHWORDS:

PROCEDURE – APPLICATION TO STRIKE OUT ACTION – plaintiff injured at work on 25 January 1996 - on 10 March 1998 issued writ of summons – plaintiff had not obtained a certificate, conditional or otherwise, pursuant to s 182D of the Workers’ Compensation Act 1990 – whether the action should be struck out because of lack of certificate.

Workers Compensation Act 1990, s 132, s 182A(2), s 182B, s 182D

Hermann v Buzza (Unreported, Qld DC, Plaint No 4561 of 1997, 12^th June 1998)
Moars v Coles Myer Ltd Mears v Coles Myer Ltd (unreported, Qld SC, No 99 of 1999, 18 August 1999). 
Sheward v Toowoomba City Council (Unreported, Qld DC, Toowoomba Plain No 56 of 1997, 15^th December 1998)

Short v Michaliczac (Unreported Qld DC, Plaint No 3951 of 1997, 22 May 1998)
Wilkie v Doche Pty Ltd (Unreported, Qld DC Plaint No 2137 of 1997, 17 September 1997)
Wilson v Nattrass (1995) 21 MVR 41 (Vic CA)

Woods v Wilson (1902) 19 WN (NSW) 147

Young v Keong (1998) 27 MVR 465

COUNSEL:

Mr S A McGhie (not of counsel) for the plaintiff
Mr R J Douglas SC for the defendant

SOLICITORS:

Richardson McGhie for the plaintiff
Crown Solicitor for the defendant

1. Douglas J: This application seeks the dismissal of this action on the footing that there is a ground of defence, namely that prior to the commencement of the action the plaintiff as he was obliged to do, failed to obtain a certificate from WorkCover pursuant to s 182(D) of the Workers Compensation Act 1990 (as amended from 1^st January 1996).

1. A relevant chronology is as follows:

1st November 1940      Plaintiff born.

25th January 1996        Plaintiff injured.

30th January 1996        Plaintiff makes application to Workers’ Compensation           Board of Queensland (now WorkCover) for compensation.

22nd November 1996   Dr Fraser reports to WorkCover to effect that plaintiff enjoyed “good range of rotation” in his injured right shoulder, pain and extremes of movement, that he was “fit to return to work on lighter alternative duties”, that he sustained a strain of the right rotator cuff, and that he had 5% disability (to right arm?).

10th March 1998          Writ of summons issued.

8th January 1999          Writ of summons served.

26th January 1999        Limitation period expires.

16th April 1999            Statement of claim delivered.

7th May 1999               Defence delivered (raising relevant issue).

30th June 1999             No reply delivered.

1. It is common ground between the parties that (1) part 11 of the Act applies to any claim by the plaintiff for common law damages arising out of his alleged work injury.  The injury was not a “serious injury” pursuant to s 182A(2) because no certificate to this effect had been issued by WorkCover (see section 6); and in any event the medical evidence underwrites that the level of disability did not even approach the certificate injury threshold namely 20 per cent; and (2) that at no time did WorkCover make to the plaintiff a lump sum offer pursuant to s 132.  If it had, then pursuant to s 182B, no certificate would have been required. 

1. In my view, properly construed the Act requires that the issue of a s 182D certificate is a mandatory procedural step for the commencement of proceedings where no lump sum offer has been made.

1. Relevantly, s 182D(1) provides that a worker “may seek damages at law . . . only if” WorkCover gives a certificate under this section.  In my view that means that a certificate is required prior to the commencement of proceedings.  In a case involving similar wording so much was found by the Court of Appeal of Victoria in Young v Keong (1998) 27 MVR 465.

1. Further s 182B(6) provides that a “worker is taken to seek damages at law for an injury when the worker . . . starts proceedings at law for damage”.  In my view the words “seek damages at law” should be given comity of meaning in part 11.  It therefore means the commencement of proceedings, that is, it is the mechanism by which damages can be adjudicated and enforced.

1. Lastly s 182D(4) provides for the issue of a conditional certificate in the absence of agreement or a decision by a tribunal on the workers permanent impairment or where “there is an urgent need to bring proceedings for damages”. It was submitted by the defendant, and I agree, that this provision would be superfluous in the event that s 182D(1) were to be construed (as the plaintiff appears to contend) such that proceedings may be commenced but are stayed pending the subsequent procuring of a certificate. The flaw in the plaintiff’s argument is that there is no provision providing for such stay in such circumstances.

1. The construction contended for by the defendant and outlined above is supported by the District Court decisional law which is to that effect: see Wilkie v Doche Pty Ltd (Unreported, Qld DC Plaint No 2137 of 1997, McGill DCJ, 17^th September 1997); Hermann v Buzza (Unreported, Qld DC, Plaint No 4561 of 1997, 12^th June 1998, Wylie DCJ); Sheward v Toowoomba City Council (Unreported, Qld DC, Toowoomba Plain No 56 of 1997, 15^th December 1998, McGill DCJ); Short v Michaliczac (Unreported, Qld DC, Plaint No 3951 of 1997, McMurdo DCJ, 22^nd May 1998).

1. Similar provisions in Victoria have been construed in Wilson v Nattrass 1995 21 MVR 41 (Vic. CA) has meaning that the procedures described under part 11 are mandatory preconditions to the commencement of proceedings.

1. There is no doubt that the plaintiff is statute barred in respect of the commencement of a further action, but this was a consequence of the failure of the plaintiff to seek a conditional certificate under s 182D(4). Had he done so, the action could have commenced but been stayed pending the assessment and a lump sum offer. The plaintiff argues that he can be relieved of the consequences by relying upon a failure of WorkCover to make a lump sum offer. This seems to me to be both illogical and nonsensical. There was no lump sum offer made (probably for the reason that the medical reports did not indicate a need to) however this should have induced the plaintiff to seek at the very least a conditional certificate. The plaintiff, relying on Woods v Wilson (1902) 19 WN (NSW) 147, submits that “I should not strike out a plea unless it is plain beyond all doubt that it is banned in law”.

1. I am satisfied that the claim made in this action is bad and I’m fortified in that view by the reasoning of Shepherdson J in Mears v Coles Myer Ltd (Unreported, Qld SC, No 99 of 1999, 18 August 1999) with respect to the above provisions of the Act.

1. The consequence is that the appropriate order should be that the action should be struck out.  I further order that the plaintiff pay the defendant’s costs of and incidental to the application to be assessed.