Re: Mears v Coles Myer Ltd - [1999] QSC 194

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.99 of 1999
Before the Hon. Mr Justice Shepherdson
[re: Mears v Coles Myer Ltd]
BETWEEN:
  ANDREW CHARLES MEARS
  Plaintiff
AND:
  COLES MYER LTD (ACN 004 089 936)
  Defendant
REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 18 August 1999

CATCHWORDS: PROCEDURE - APPLICATION TO STRIKE OUT ACTION - plaintiff injured at work on 10 January 1996 and on 6 January 1996 issued writ of summons - plaintiff had not obtained a certificate, conditional or otherwise, pursuant to s 182D of the Workers' Compensation Act1990 - whether the action should be struck out because of lack of certificate.

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241
Thorpe v The Commonwealth (No 3) (1997) 71 ALJR 767
Ha v New South Wales (1996) 70 ALJR 611 at p 613
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Young v Keong (1998) 27 MVR 465
Workers' Compensation Act 1990 s 182D
LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - plaintiff makes cross-application that if defendant is successful on application to have action struck out that the limitation period be extended pursuant to s 31(2) Limitation of Actions Act 1974.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Limitation of Actions Act 1974 ss 11, 31(2)
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - statutory construction - meaning of "seek damages at law" pursuant to s 182D(1) Workers' Compensation Act 1990.
Workers' Compensation Act 1990 ss 182A - 182E

Counsel:Mr D Kent for the plaintiff
Mr R J Douglas SC for the defendant

Solicitors: Shepherds Lawyers for the plaintiff
Mullins & Mullins for the defendant

Hearing date: 21 July 1999

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane  No.99 of 1999
Before the Hon. Mr Justice Shepherdson
[re: Mears v Coles Myer Ltd]
BETWEEN:
  ANDREW CHARLES MEARS
  Plaintiff
AND:
  COLES MYER LTD (ACN 004 089 936)
  Defendant
REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 18 August 1999

The defendant has applied on summons to strike out the plaintiff's action on the grounds set out in its conditional appearance namely, that the defendant:
"denies the jurisdiction of the court to entertain the action against the defendant in that the plaintiff is a worker who had not, as at the date of issue of the writ in this action, received an offer of lump sum compensation under s 132 of the Workers Compensation Act 1990 and, further, had not then received from the Workers' Compensation Board a certificate under s 182D of that Act either conditionally or otherwise and is therefore not entitled, having regard to s 182D, to seek damages at law for the alleged injury the subject of this action."
The application, which is opposed, poses some difficulty in that it requires consideration of the interaction of s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Mears v Coles Myer Ltd

Details

AGLC: Re: Mears [1999] QSC 194
Case: [1999] QSC 194
Decision Date: 18 August 1999

CaseChat Overview and Summary

In the case of Mears v Coles Myer Ltd, the plaintiff, Mears, sought to recover damages for personal injuries sustained at work. The dispute centred on the procedural requirements for Mears to initiate legal proceedings for damages under the applicable workers' compensation legislation. The matter was heard in the Supreme Court of Queensland. The court was tasked with determining whether the plaintiff's failure to comply with the statutory prerequisites for initiating legal action barred his claim for damages. Specifically, the court needed to ascertain whether the absence of a necessary certificate from the Industrial Commission under section 182D of the relevant Act precluded Mears from pursuing his claim at law.

The court examined the legislative provisions and determined that the Industrial Commission's certificate was a mandatory prerequisite for initiating legal proceedings for damages. The court noted that the plaintiff had not obtained the requisite certificate and had thus failed to comply with the statutory requirements. Following the precedent set by the Court of Appeal in Young v Keong, the court held that the failure to obtain the necessary certificate rendered the plaintiff's writ invalid and consequently barred his claim for damages. The court emphasised the binding nature of statutory provisions in such contexts and highlighted the importance of strict adherence to the legislative framework governing workers' compensation claims.

In conclusion, the court dismissed the plaintiff's action for damages due to his non-compliance with the statutory prerequisites for initiating legal proceedings. The court underscored the importance of understanding and complying with the legislative requirements in workers' compensation cases, highlighting the potential consequences of procedural missteps. The court's decision underscored the mandatory nature of the statutory provisions and reinforced the necessity for claimants to meticulously adhere to the legislative framework to avoid procedural defaults.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This section is immediately preceded by the following words in heavy print:"Decision not to seek damages at law reviewable in certain circumstances." Under this section a worker who has chosen under s 182B to accept lump sum compensation might ask the board to consider fresh medical evidence about the worker's injury. I think the defendant's application has to be resolved by considering the situation as it existed on 6 January 1999. On that date the plaintiff had not sought to negotiate a damages settlement with the board - whether or not he had done so the board had not, in any event, given the plaintiff a certificate under s 182D - the giving of such a certificate is a necessary precursor to seeking to negotiate. Thus, the only way remaining for the plaintiff to seek damages at law for his injury was to start proceedings at law for damages. This he did by issuing the writ of 6 January 1999. In terms of s 182D(1) he could do that only if the board gave him a certificate under s 182D. Such a certificate was not given and on any view of s 182D(1) the obtaining of such a certificate was an essential prerequisite to the issue of the writ. Once that stage is reached the Court of Appeal decision of Young v Keong (supra) becomes applicable and binding on me. Following that decision I would decide that the terms of s 182D(1) are mandatory and legal proceedings cannot be commenced where the board has not given the plaintiff a certificate under s 182D(1). Apart from that certificate, which in my view was required to be an unconditional certificate, it was open to the plaintiff to have sought to obtain from the board a conditional certificate pursuant to s 182D(4)(b). Had such a conditional certificate been obtained before 10 January 1999, the plaintiff could lawfully have sought damages at law (s182D(1)) by then issuing the writ of summons not later than 10 January 1999 and thereby starting proceedings. Unfortunately this was not done and at the end of the day it becomes clear that in the absence of the board giving the plaintiff either an unconditional certificate or a conditional certificate pursuant to s 182D, the plaintiff's writ could not be lawfully issued and there cannot be any doubt that the action begun thereby must fail. I must say that the decision I have reached gives me no satisfaction. In the present case, there was delay by Work Cover in arranging for the assessment by a doctor, further delay after receipt of that assessment and then finally delay in signing and delivering of the notice of assessment in which one of the choices offered to the plaintiff was illusory - a choice to reject the offer and seek damages for the injury. The conduct of the board in this case shows that he who sups with the board must sup with a long spoon. (see Brewer's Dictionary of Phrase and Fable (14th Edition) under "spoon") The case also shows the need for lawyers to be aware of the pitfalls in litigation of this type - and especially the provisions of relevant statute law. No longer can a prospective plaintiff seeking damages at law for personal injuries rely on complying with the Limitation of Actions Act1974 only.

Ratio Decidendi

Legal Principle Established

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