PB v WorkCover Queensland

Case [2020] QCA 278

SUPREME COURT OF QUEENSLAND

CITATION:

PB v WorkCover Queensland [2020] QCA 278

PARTIES:

PB
(applicant)
v
WORKCOVER QUEENSLAND
ABN 40 577 162 756
(respondent)

FILE NO/S:

Appeal No 4414 of 2020
QCATA No 137 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2020] QCATA 29 (Senior Member Brown and Member Browne)

DELIVERED ON:

8 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2020

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Order that the decision of the Queensland Civil and Administrative Tribunal made on 4 May 2018 be varied by substituting, in order number 4, the sum of $15,000 for the sum of $5,000.

4.   Direct the parties to provide written submissions (if any) on the costs of the proceeding in this Court, not to exceed three pages in length, within 14 days of this judgment.

CATCHWORDS:

HUMAN RIGHTS – PRIVACY LEGISLATION – where the applicant applied for workers’ compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where, in responding to the application for workers’ compensation, the respondent conceded that it did not comply with the requirements of the Information Privacy Act 2009 (Qld) (the IPA) – whether certain Information Privacy Principles contained in the IPA were breached by the respondent – whether the Queensland Civil and Administrative Tribunal erred in awarding $5,000 in compensation

Information Privacy Act 2009 (Qld), s 178, sch 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 122

COUNSEL:

The applicant appeared on his own behalf with CB assisting
S A McLeod QC for the respondent

SOLICITORS:

The applicant appeared on his own behalf with CB assisting
Crown Law for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.

  2. PHILIPPIDES JA:  I agree with the orders proposed by McMurdo JA for the reasons given by his Honour.

  3. McMURDO JA:  The applicant for leave to appeal, whom I will call PB, applied for workers’ compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the WCRA). The respondent (WorkCover) rejected his claim, a decision which was confirmed by Q-Comp.[1]  PB unsuccessfully applied for an extension of time to appeal the Q-Comp decision to the Queensland Industrial Relations Commission.

    [1]Now the Workers’ Compensation Regulator.

  4. None of those decisions is in question in this proceeding.  Of present relevance is the non-compliance by WorkCover, in responding to the application for workers’ compensation, with the requirements of the Information Privacy Act 2009 (Qld) (the IPA).

  5. By s 27 of the IPA, WorkCover must comply with the Information Privacy Principles (IPPs) which are set out in schedule 3 of the IPA.[2] PB made a complaint, under chapter 5 of the IPA, that WorkCover had breached nine of the 11 IPPs. WorkCover conceded that it had breached three of them, and when the complaint was referred to QCAT, Member…

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Details
AGLC
PB v WorkCover Queensland [2020] QCA 278
Case
[2020] QCA 278
Decision Date

CaseChat Overview and Summary

The case of PB v WorkCover Queensland involves the applicant, PB, who unsuccessfully applied for workers' compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld). The dispute arises from WorkCover's alleged non-compliance with the Information Privacy Act 2009 (Qld) (IPA) in handling PB's personal information during the processing of his compensation claim. Specifically, PB contends that WorkCover inaccurately recorded his occupation, the date of his injury, the nature of his injury, and incorrectly obtained his consent to disclose his medical information. The Queensland Civil and Administrative Tribunal (QCAT) awarded PB $5,000 in compensation, a decision which PB now appeals to the Supreme Court of Queensland.

The central legal issues before the court were whether the Information Privacy Principles in the IPA were indeed breached by WorkCover and, if so, whether QCAT erred in its assessment of compensation. The court had to examine the accuracy of the personal information recorded by WorkCover, the consent obtained for the disclosure of medical information, and the extent of any breaches of privacy legislation. Additionally, the court needed to determine if QCAT correctly assessed the compensation payable to PB in light of the alleged privacy breaches.

The Supreme Court found that WorkCover did breach certain Information Privacy Principles by inaccurately recording PB's personal information and incorrectly obtaining his consent for the disclosure of medical information. However, the court held that these breaches did not constitute a significant invasion of privacy that warranted an increased compensation award. Instead, the court increased the compensation from $5,000 to $15,000, finding that the QCAT's original award was too low given the established breaches. The court also granted PB leave to appeal and allowed the appeal on the ground of the compensation assessment.

The final orders of the court were to grant leave to appeal, allow the appeal in part, and vary the compensation awarded by QCAT from $5,000 to $15,000. Additionally, the court directed the parties to submit written submissions on the costs of the proceeding within 14 days of the judgment.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Order that the decision of the Queensland Civil and Administrative Tribunal made on 4 May 2018 be varied by substituting, in order number 4, the sum of $15,000 for the sum of $5,000.

4. Direct the parties to provide written submissions (if any) on the costs of the proceeding in this Court, not to exceed three pages in length, within 14 days of this judgment.

Background

Background to the litigation

PB applied, unsuccessfully, for leave to appeal to the Appeal Tribunal of QCAT,[4] and this is an application for leave to appeal against that decision. According to s 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), such an appeal may be made only with this Court’s leave and on a question of law. In the usual way, this Court heard full argument on the merits of the proposed appeal.[4]PB v WorkCover Queensland Pty Ltd [2020] QCATA 29 (“QCAT appeal decision”).Relevant facts On 22 July 2013, PB made his claim for workers’ compensation via telephone. Some of the information which PB provided was inaccurately recorded by WorkCover. His occupation was recorded as “engine or boiler operator”, instead of “boilermaker”. It was recorded that he suffered his injury on 22 July 2012, when in fact, he had said that his injury occurred over a period of time. And the nature of his injury and the part of his body which was injured was described as “hand, other and unspecified dermatitis” arising from “irritant/allergy from substances exposed to at work”, when his true medical condition was bilateral contact dermatitis, and at the time he was unsure of its cause.[5][5]Original QCAT decision [5]. During this same telephone call, a recording was played to him which described the circumstances in which WorkCover might release or obtain relevant information or documents about him. In the recording this was said:“WorkCover undertakes all reasonable measures to protect your privacy by collecting, using, storing and disclosing the personal information we hold about you in accordance with Queensland Government privacy requirements. However, WorkCover may be required or authorised by law to release or obtain information or documents to other parties eg doctors, health authorities, allied health providers, rehabilitation providers or other insurers.” After the telephone call, a printed claim form was generated by WorkCover. It contained what purported to be a statement by the applicant, within which there was this authorisation by the applicant of the disclosure of relevant information:“I authorize any doctor, health authority, allied health provider, rehabilitation provider or other insurer to disclose to WorkCover Queensland and its agents any information about my medical history relevant to this claim.” On the day following the telephone call, the applicant spoke to a claims representative from WorkCover. That person’s notes of the conversation correctly recorded the applicant’s occupation and his stated medical condition. As to the cause of that condition, the claims representative recorded that the applicant was “[u]nable to confirm event that cause injury - specialists are unsure of the cause.” The claims representative concluded that PB’s claim for compensation should be accepted, after receiving a report from PB’s treating dermatologist, saying that PB had an irritant contact dermatitis related to his work as a boilermaker.

Evidence

Evidence Before The Court

This question was not argued by either side, making this not an appropriate case in which to decide it. And on a practical level, it would be expected that the Archivist would agree to the destruction by WorkCover or any remaining record of such of the irrelevant information which WorkCover received from the medical practices.Further evidence The application for leave to appeal sought an order that PB be allowed to rely on fresh evidence. No argument was addressed by PB to this Court in that respect. However three affidavits were filed in this Court for this application. The first was by PB’s wife, which explained the reasons why she was allowed to argue PB’s case on his behalf. There were two affidavits by PB, one of which went to the question of being represented by his wife, but also contained matters of argument. The third affidavit contained evidence of PB’s poor financial position. I have had regard to this evidence, which need not be further discussed because it does not advance any of the grounds of the proposed appeal.Conclusion and orders In my conclusion PB’s case should succeed in one respect, namely the assessment of compensation. The other grounds of his proposed appeal are not established. I would order as follows:1.Grant leave to appeal.2.Allow the appeal.3.Order that the decision of the Queensland Civil and Administrative Tribunal made on 4 May 2018 be varied by substituting, in order number 4, the sum of $15,000 for the sum of $5,000.4.Direct the parties to provide written submissions (if any) on the costs of the proceeding in this Court, not to exceed three pages in length, within 14 days of this judgment.

Decision

Reasons for decision

I have had regard to this evidence, which need not be further discussed because it does not advance any of the grounds of the proposed appeal.Conclusion and orders In my conclusion PB’s case should succeed in one respect, namely the assessment of compensation. The other grounds of his proposed appeal are not established. I would order as follows:1.Grant leave to appeal.2.Allow the appeal.3.Order that the decision of the Queensland Civil and Administrative Tribunal made on 4 May 2018 be varied by substituting, in order number 4, the sum of $15,000 for the sum of $5,000.4.Direct the parties to provide written submissions (if any) on the costs of the proceeding in this Court, not to exceed three pages in length, within 14 days of this judgment.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.