Pablo Mejia v M E and G L Hayman Pty Ltd

[2000] QSC 31

SUPREME COURT OF QUEENSLAND

CITATION:	Pablo MEJIA v M E & G L HAYMAN PTY LTD [2000] QSC 031
PARTIES:	Pablo MEJIA (applicant) v M E & G L HAYMAN PTY LTD (ACN 009 717 935) (respondent)
FILE NO:	676 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 Corrs Chambers Westgarth for respondent

1. SHEPHERDSON J: The application by Mejia is made by a person who is said to have lodged an application for compensation under the WorkCover Queensland Act 1996 but that WorkCover Queensland with whom the application was lodged has not made any decision as to whether to accept or reject the claim. The applicant Mejia has applied pursuant to s305(1) of the WorkCover Queensland Act 1996 that he be granted leave to bring a proceeding against the respondent despite non- compliance with s280 of that Act. The applicant relies on three affidavits by Susan Frances Coke, a solicitor employed by Murphy Schmidt the solicitors acting for the applicant. The respondent relies on an affidavit of Dell Stevens.

2. The evidence relied on shows:

(a)	In November 1994 Mejia allegedly began employment with the respondents first as polisher and then as a door assembler and he has continued to work for the respondent to 11/2/2000 the date of the hearing before me.
(b)	On 13 January 1998 Mejia consulted his local general practitioner complaining of loss of hearing.
(c)	On 4/3/1998 Mejia first consulted a solicitor.
(d)	It is the applicant's case that he suffered industrial deafness caused by the respondent's negligence over a period of time.
(e)	The application now before me concerns injury allegedly suffered since 1/2/1997 the date on which WorkCover Queensland Act 1996 commenced.
(f)	In 1998 Mejia's solicitors issued two writs of summons against the respondent but despite the claim endorsed on each writ, which is wide enough to cover a claim for damages for personal injuries suffered on or after 1 February 1997 his solicitor Coke swears the two writs are to cover Mejia's alleged loss of hearing sustained from employment to 31December 1995 and from 1/1/1996 to 31/1/1997.
(g)	Coke, in an affidavit filed on 10/2/2000, swears that, based on hearsay on hearsay one Jorge Rodriguez, described as agent for Mejia, lodged Mejia's application for compensation at WorkCover's head office on 280 Adelaide Street, Brisbane on 28 January 2000.
(h)	On 11 February 2000 Rodriguez swore an affidavit deposing to such lodgment.
(i)	No copy of the application for compensation has been placed before me. This means I do not know the date (if any) of injury or nature of injury shown in the application.
(j)	By letter dated 28 January 2000, Coke asked WorkCover to issue a conditional damages certificate for Mejia's loss of hearing sustained from 1 February 1997 (Exhibit SFC-O1 to Coke's affidavit filed on 3/2/2000).
(k)	On 31/1/2000, Corrs Chambers Westgarth sent by fax a letter to Murphy Schmidt stating that Mejia had lodged an application for a conditional damages certificate under s265(4) [of WorkCover Queensland Act] on 31/1/2000. This letter (Exhibit SFC-02 to Coke's affidavit filed 3/2/2000) said WorkCover would issue a conditional damages certificate under s265(4) of the Act "today" – 31/1/2000.
(l)	Coke's affidavit filed 3/2/2000 says that "A conditional damages certificate has been received". Her affidavit filed 10/2/2000 exhibits (Exhibit SFC3- 02) what she says is a facsimile copy of that certificate.
(m)	The Exhibit SFC3.02 shows "Date of event causing injury" as having been 23/12/1998 and this is not consistent with applicant's claim that the injury being hearing loss has been continuous since 1/2/1997.
(n)	Despite the giving of the certificate Exhibit SFC3.02 an affidavit sworn on 11/2/2000 by Dell Stevens, who is employed by WorkCover Queensland as a Damages Case Manager shows that, based partly on hearsay, searches have shown that the applicant did not lodge an application with WorkCover prior to 9/2/2000.
(o)	Mr Douglas QC does not rely on the conditional damages certificate saying that it should not have been issued.
(p)	Despite WorkCover being unable to find any application for compensation lodged by or on behalf of Mejia, Mr Hoare, counsel for the respondent has stated that the respondent does not challenge the assertion made on behalf of the applicant that an application for compensation has in fact been filed.

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

2. I should at this stage say that in my reasons for judgment (also given today) in the application of Gamero 667/2000 I set out provisions of WorkCover Queensland Act 1996 and if necessary, the reader can have recourse to those provisions. I do not propose to repeat those provisions in these reasons.

[5] 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".

[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 Douglas Q C has argued that Mejia's position is the same as 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.

2. 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).

3. 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.

4. 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 to 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 extracts in Gamero) (supra) 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, Mejia 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 Mejia's present status is not mentioned in s253(1).

[15] 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 made 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.

2. The Act has erected a number of hurdles to be cleared by would-be plaintiff's before being entitled to start the proceeding for damages. proof that a would be plaintiff falls within a class in s253(1) is one of these hurdles.

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