Otto v Mackay Sugar Ltd (No 2)
[2011] QSC 305
•13 October 2011
SUPREME COURT OF QUEENSLAND
CITATION:
Otto v Mackay Sugar Ltd & Anor [2011] QSC 305
PARTIES:
GARY ALAN OTTO
(applicant)
v
MACKAY SUGAR LIMITED ACN 057463671
(first respondent)
and
WORKCOVER QUEENSLAND
(second respondent)FILE NO/S:
BS5636/11
DIVISION:
Trial
PROCEEDING:
Application
DELIVERED ON:
13 October 2011
DELIVERED AT:
Brisbane
HEARING DATE:
Written submissions of 3 August 2011 and 10 August 2011
JUDGE:
Douglas J
ORDER:
Order the applicant to pay the respondents’ costs of and incidental to the application.
CATCHWORDS:
WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – COSTS – GENERALLY – where application dismissed – where applicant sought reliance on s 316(4) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) in relation to costs – whether the claimant is a worker who has a WRI of less than 20% or no WRI
Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 39, 233, 315, 316(4)
Edmunds v D. Dunn Industries Pty Ltd(No. 2) [2007] 2 Qd R 128 referred
Handover v Consolidated Meat Group Pty Ltd [2009] 2 Qd R 133 referred
COUNSEL:
R F King-Scott for the applicant
J S Miles for the respondentsSOLICITORS:
Shine Lawyers for the applicant
WorkCover Queensland for the respondents
Douglas J: I dismissed the application in this matter but counsel for the applicant argued his client should not pay his costs of the application because s 316(4) of the Workers’ Compensation and Rehabilitation Act 2003[1] (Qld) (“the Act”) provides that an order about costs for an interlocutory application may be made (under Div 2 of Pt 12 of the Act) only if the court is satisfied that the application has been brought because of unreasonable delay by one of the parties.
[1]In reprint 3E in force at the relevant times and now reproduced in s 318C.
It is not asserted for the second respondent that there has been unreasonable delay by the applicant. Rather, it argued in written submissions, that reliance on s 316(4) is misconceived. Its submission was that s 316(4) relates to applications for costs made under Pt 12 Div 2 of the Act because of s 315 which provides that the division applies “if the claimant is a worker who has a WRI of less than 20% or no WRI.” A WRI is a work related impairment.
The second respondent’s argument is that the applicant is neither a claimant as defined in s 233 nor a “worker … who has no WRI.” It says he is not a claimant as he is not entitled to seek damages because of its earlier determination that there was no “injury” as defined in s 32 of the Act and my decision refusing him leave to claim common law damages.
Further, it says that he is not a worker because that word is defined in s 233 as follows:
“Worker for a claim, means the worker in relation to whose injury the claim is made.”
The submission is that “claim” in that section should be understood to mean a claim for damages as distinct from a statutory application for compensation and that the applicant, again as a result of my decision, does not have a claim for damages. That argument is based partly on the appearance of s 233 in ch 5 of the Act dealing with access to damages. The submission then proceeded to point out that the applicant has not suffered an “injury” as referred to in the s 233 definition of “worker” because of the decision to that effect by the second respondent which has not been disturbed.
Finally, the submission is that the applicant is not someone who has a work related impairment (WRI) of “less than 20% or no WRI” but rather is someone who has never had an assessed WRI. That is said to follow from s 39 of the Act which provides:
“39 Meaning of work related impairment
(1) A worker’s work related impairment from injury is the worker’s entitlement to lump sum compensation under section 180 expressed as a percentage of maximum statutory compensation calculated under section 183.
(2) To remove any doubt, it is declared that a work related impairment only relates to an injury arising out of, or in the course of, the worker’s employment within the meaning of this division.”
Again, as the determination that the applicant has not suffered an injury stands, the argument is that he does not have an assessed WRI. The expression “no WRI” in s 315 was said to refer to a worker who has sustained an “injury” but who has not suffered a measurable degree of impairment as occurred in Handover v Consolidated Meat Group Pty Ltd [2009] 2 Qd R 133, 135 [4] or, as appears in an example in Div 2 of Pt 4 of Sch 2 of the Workers’ Compensation and Rehabilitation Regulation 2003 under the heading “Lumbosacral spine” where a “mild aggravation of pre-existing degenerative disease in lumbosacral spine with subjective symptoms, but no significant clinical findings other than degenerative changes on x-ray” is said to have a 0% maximum WRI.
Those submissions seem to me to be correct with the result that s 316(4) does not apply. Mr Otto is not a claimant for damages who has suffered an injury for which damages under ch 5 can be claimed. Nor is he a worker with an assessed WRI. The costs regime in Pt 12 Div 2 of the Act does not apply to him.
Mr Miles for the second respondent also made submissions about the effect of s 316(1) in this context as confining s 316(4) to applications in a proceeding for damages of the kind referred to in ch 5 and sought to distinguish a decision of Cullinane J in Edmunds v D. Dunn Industries Pty Ltd(No. 2) [2007] 2 Qd R 128 dealing with whether the application before his Honour was an interlocutory application. As I have concluded that s 316(4) does not apply to this application, I do not need to consider those arguments.
Accordingly, I order the applicant to pay the respondents’ costs of and incidental to the application.
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