Ruiz v P&O Berkeley Challenge P/L

[2000] QSC 30

SUPREME COURT OF QUEENSLAND

CITATION:	Mirna Ruiz v P&O Berkeley Challenge Pty Ltd & Another [2000] QSC 030
PARTIES:	MIRNA RUIZ v P&O BERKELEY CHALLENGE PTY LTD (ACN 000 464 755) (first respondent) and WORKCOVER QUEENSLAND (second respondent)
FILE NO:	847 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 – applicant is "a person mentioned in" s253(1)(a)(ii) and therefore entitled to seek damages for injury – whether applicant made out case under s305 – no pressing urgency to begin action based on injury on 23/6/1997.
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 Bradley & Co for respondent

1. SHEPHERDSON J: This applicant has sought an order pursuant to s305(1) of the WorkCover Queensland Act 1996 that she be granted leave to bring a proceeding against the respondent despite non-compliance with the requirements of s280 of that Act.

2. The applicant has relied on affidavits of Jeremy Ian Chenoweth a solicitor in the employ of Murphy Schmidt Solicitors of Brisbane.

[3]

The evidence placed before me shows:

1.	The applicant claims that in about December 1996 or January 1997 she developed pain in her right elbow, shoulder and neck.
2.	It appears that she ceased work on 23 June 1997 because of pain in these sites, although there is one document – a statement (Exhibit JIC003 to Chenoweth's affidavit filed 31/1/2000) which suggests that she was still working on 15 July 1997.
3.	Exhibit JIC002 to the same affidavit is a photocopy of an application for compensation signed by the applicant Ruiz on 25 June 1997. This shows:

(a)        she was born on 29 July 1944;

(b)        Spanish is spoken at her home;

(c)        she was employed as a cleaner;

(d)        the injury suffered is described as "strain" (see answer to Q21);

(e)        the injury was said to be to "right & left arms" (see answer to Q22);

(f)         the injury happened on 23/6/1997 at police headquarters Roma Street, Brisbane (see answers to Q23 and Q24);

(g)        Question 29 which also asked "When did the injury happen?" was answered by the applicant ticking a box "Over a period".

(h)        Question 30 required the applicant to explain what she was doing at the time and how the injury happened and she answered:

"The injury has been caused by constant use of vacuum cleaner, polisher and also dusting and mopping. It has gradually worsened over the last two months."

4.          Exhibit JIC003 to Chenoweth's affidavit filed 31/1/2000 is a copy of a statement to WorkCover Queensland signed by the applicant on 15 July 1997. This statement said (inter alia) that she first noticed her "symptoms in both arms, right arm much worse, approx. 6 months ago, the pain was becoming more noticeable about 4 months ago."

5.          By letter dated 18 November 1997 addressed to the applicant Ruiz (Exhibit JIC004 to Chenoweth's affidavit filed 31/1/2000) WorkCover wrote stating the applicant's injury had been assessed to decide if the injury had resulted in a degree of permanent impairment. A notice of assessment was attached and the letter drew the applicant's attention to the fact that "the degree of permanent impairment attributable to the injury has been assessed at 0%" The attached notice of assessment showed (inter alia) "the WRI calculated for the injury is 0.00 %" It said the amount of lump sum compensation under s198 to which the applicant was entitled for the injury was $0.00. The notice said: "This is a non-certificate injury" and informed the applicant that she must make a decision about the degree of permanent impairment by ticking either box A or box B. The applicant ticked box B which said 'I disagree with the degree of permanent impairment’. Please sign and return the notice."

6.           The notice of assessment described the injury as "strain both arms". No date was assigned to the injury but in my view, given that the application (see Exhibit JIC002) stated the date of injury as 23/6/1997 it is reasonable to assume the notice of assessment related to an injury suffered on that date.

7.       On about 5 June 1998 Murphy Schmidt received instructions from Ruiz to investigate a claim for common law damages with respect to the injuries sustained by her (para 12 Chenoweth's affidavit sworn 31/1/2000).

8.     In the same affidavit Chenoweth swore (in paragraph 13):

"Upon perusal of the applicant's WorkCover file it was apparent that WorkCover's assessment was substantially or partially based on a report received by WorkCover from Dr Hazelton dated 16 October 1997."

He exhibited a copy of Dr Hazelton's report (Exhibit JIC005) and Dr Hazelton (who is a rheumatologist and physician) reported that he had seen Ruiz on 16 October 1997, that her current complaint was of pain in the right lateral elbow, right anterior shoulder and lower neck posteriorly. In the portion of his report headed "Clinical Impression" he said:

"Detailed examination of the above today has revealed evidence of nodal osteoarthritis affecting the small joints of the fingers of both hands particularly the right as well as some reduction in range of movement of the cervical spine due to pain . The recent blood tests reveal an elevated E.S.R. and A.N.A. consistent with a systemic rheumatic disease the above's osteoarthritis and systemic rheumatic disease are not related to the workplace."

9.          Murphy Schmidt obtained a report dated 14 October 1999 from Dr Martin Devereaux a consultant physician in rheumatic diseases. A copy of this report is Exhibit JIC-006 to Chenoweth's affidavit filed 31 /1/2000.

10.        By letter dated 27/1/2000 (Exhibit JIC007) addressed to WorkCover Murphy Schmidt sought a damages certificate and attached an "application for damages certificate" completed by the applicant's solicitor Joanne Rennick and dated 27/1/2000.

11.        This application for damages certificate:

(a)	detailed the nature of the injury as tendonitis of right shoulder rotator cuff and tennis elbow in the right arm;
(b)	said in answer to Question 34 "Explain what the worker was doing

at the time and how the injury happened? -

"Injury was caused by prolonged use of vacuum cleaning equipment strapped to my back, heavy lifting and cleaning duties."

12.          The letter dated 27 January 2000 (EXJ1C007) also shows that:

(i)           Ruiz did not attend the review of her claim on 13/2/1998 before the Orthopaedic Assessment Tribunal to which Tribunal her claim had been referred.

(ii)          Murphy Schmidt sought damages certificates covering the periods March 1996 to 23 June 1997 or 9/7/1997 – (Exhibit JIC007 contains both dates). One of these certificates was sought under the Workers' Compensation Act 1990 (as amended) for the period from March 1996 to 31/1/1997 and the second was under the WorkCover Queensland Act 1996.

(iii)         Ruiz claimed that the respondent's system of work continued to contribute to her "injuries" and I infer from this statement that Ruiz claims that her injury or injuries were suffered over a period of time from 1/2/1997 to when she ceased work.

13.          A further affidavit of Chenoweth which was filed on 3 February 2000 exhibits medical reports obtained by Murphy Schmidt from Drs Devereaux and Blenkin.

Ruiz's case is not one under which there is any entitlement to a conditional damages certificate under ss262, 265 or 270 of the WorkCover Queensland Act. The reason appears to be that Ruiz falls within sub-s 253(1)(a) of the WorkCover Queensland Act 1996 because she is a worker who has received a notice of assessment from WorkCover stating that she has sustained a non-certificate injury. She is therefore entitled to seek damages for an injury sustained by a worker and when one refers to Div 3 of Pt 2 – Entitlement Conditions of the WorkCover Queensland Act 1993 which division is headed "Div 3 – Claimant who has sustained non-certificate injury" it is clear that that division applies to a claimant who is a person mentioned in s253(1)(a)(ii) and division 3 says nothing about conditional damages certificates as do other sections in the Act – 262, 265 and 270 which relate to persons referred to in ss253(1)(b) (c) and (d).

1. I note s259 of the WorkCover Queensland Act 1996 which is Part of "Div 3 – claimant who has sustained non-certificate injury" - which reads:

   "Claimant may seek damages only on receipt of notice of
   assessment
   259(1) The claimant may seek damages for the injury only after the
   claimant has received a notice of assessment from WorkCover
   (2) If, in the notice, the claimant is offered a payment of lump sum
   compensation for the injury, the claimant is not entitled to both –

   (a)        payment of lump sum compensation for the injury; and

   (b)        damages for the injury

   (3) If, in the notice, a claimant is required to make an election to seek damages for the injury, the claimant cannot change the claimants election –

   (a)        if the claimant has elected to seek damages for the injury – after notice of election is given to Workcover; or

   (b)        if the claimant is taken, under s207(7), to have elected to seek damages for the injury – after the claimant lodges a notice of claim

   (4) If the notice states that the claimant has not sustained any degree of permanent impairment from the injury, the claimant's entitlement is unaffected by sub-s(2) or(3)."

2. It is clear that in the case of the applicant Ruiz, sub-ss2 and 3 of s259 do not affect Ruiz's entitlement to seek damages for an injury sustained by her.

3. I do not treat Ruiz as a person to whom s253(1)(c) of WorkCover Queensland Act applies as I did in the case of Gamero (No 667 of 2000). Ruiz has proved one injury – suffered on 23/6/1997 – and she applied for compensation for that injury. She has not led any evidence suggesting even a prima facie case that she suffered any other injury.

4. The letter Exhibit JIC-007 dated 27/1/2000 from Murphy Schmidt to WorkCover shows that at that date the applicant, at best, had hopes that evidence then to be obtained would show that after 1 February 1997 the respondent's system of work "continued to contribute to the cause of our client's injuries".

5. The medical evidence placed before me by Murphy Schmidt does not state that the applicant's problems with her right shoulder and her arms (apart from the injury of 23/6/1997) are related to her workplace. For instance Dr Martin Devereaux in his report dated 18 December 1998 (Exhibit JIC 002 to Chenoweth's affidavit filed 3/2/2000) does not express such an opinion and he ended his report saying: "The description given to me was of a gradually progressing problem with right elbow, shoulder and neck".

6. Dr Blenkin's report dated 15 December 1998 (Exhibit JIC001 to Chenoweth's same affidavit) says nothing to contradict Dr Hazelton's opinion that Ruiz's symptoms in her neck and right upper limb were not regarded as being related to a Workplace injury.

7. Ruiz's case, on the evidence before, is not one where it can be said, as I did say with Gamero, that there was evidence to show a causal nexus between Gamero's work and an injury over a period of time.

8. In Gamero in which I am delivering judgment today I have set out the relevant extracts from the WorkCover Queensland Acts and I do not propose to repeat them in these reasons.

9. There is no doubt that this applicant Ruiz, having received a notice of assessment from WorkCover is entitled to seek damages for the injury described in that certificate namely that which occurred on 23/6/1997.

10. In Gamero I have referred to "Part 7 – Start of Court Proceedings" – this is part of ch 5 in the WorkCover Act. Division 1 of Pt 7 "When claimant can start court proceedings" is set out in Gamero.

[14] Division 1 contains ss301 to 306 (both inclusive).

1. One bears in mind Part 5 – Pre-Court Procedures "contained in ss279 to 281 of WorkCover Queensland Act". Section 279 sets out the object of Pt 5 and it reads:

   "279. The object of this part is to enable WorkCover to enter into early negotiations with claimants to achieve early resolution of claims for damages before the start of court proceedings."

[16] Section 280 relevantly says:

"Notice of claim for damages
280(1) Before starting a proceeding in a court for damages, a
claimant must give notice under this section within the period of
limitation for bringing a proceeding for the damages under the
Limitation of Actions Act 1974."

1. The balance of s280 appears in Gamero. I mention regulation 74 of WorkCover Queensland Regulation 1997 which deals with "notice of claim for damages – Act s280". Regulation 74 commences in sub-s1-"A notice of claim must be made in the approved form and include the following particulars". The regulation then proceeds to state quite a large number of particulars.

2. Ruiz has given no explanation why a notice under s280 has not been given in respect of the June 1997 injury. She received the notice of assessment in respect of that injury on or about 18/11/1997. Thereafter on 13/2/1998 she did not attend at a review of her claim before the Orthopaedic Assessment Tribunal. It seems also that her solicitors concentrated more on attempting to obtain, so far unsuccessfully, evidence linking with her work Ruiz's right shoulder and neck condition (over the period of time from 1/2/1997 to 23 June 1997.

3. It is my view that before proceedings seeking damages for injury to which the WorkCover Queensland Act applies are begun, applicants should proceed diligently with claims for compensation (if such claims are made) and having established entitlement under s253 of the Act diligently and promptly take all steps prescribed by the Act and the regulation thereunder as necessary to be taken.

4. The Act and regulations, the Act in particular, erect a number of hurdles for would be litigants before proceedings can actually be begun in court (see my comments in my judgment delivered today in Quintanilla No 681/2000). Would be litigants do not help their causes if they exhibit a dilatory approach to compliance with the requirements of the Act and regulation.

5. There is at present no pressing urgency to begin the action based on the 23/6/1997 injury. Section 280(1) requires the notice of claim to be given under s280 within the time there prescribed. In the present case that notice must be given on or before 23/6/2000. Once she does so, and on the basis that the notice is a "complying notice" then s308 of the WorkCover Queensland Act applies. If s308 does apply the period of limitation allowed is extended as prescribed in s308. Again there are hurdles imposed and these appear in s308. I point out sub-s308(2) which provides that the proceeding must be brought within 60 days after a compulsory conference for the claim is held".

[22] For reasons which I have given I dismiss the application.