Sankey v GPC Asia Pacific Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Sankey v GPC Asia Pacific Pty Ltd [2022] QSC 213

PARTIES:

JARROD EDWARD SANKEY

(applicant)

v
GPC ASIA PACIFIC PTY LTD

(defendant)

FILE NO/S:

SC No. 681/2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

5 October 2022, 11 October 2022 (costs orders)

DELIVERED AT:

Rockhampton

HEARING DATE:

18 July 2022

JUDGE:

Crow J

ORDER:

The court declares:

(a) the period of time within which the plaintiff was entitled to commence a proceeding claiming damages for personal injury arising from an incident on 1 December 2016 when employed by the defendant, being, pursuant to section 11(1) of the Limitation of Actions Act 1974 (Qld), a period of three years expiring on 1 December 2019, was extended, pursuant to section 1(2)(a) of Schedule 5 of the Workers Compensation and Rehabilitation Act 2003 (Qld), to 22 March 2021.

(b) this proceeding is not time-barred pursuant to section 11 of the Limitation of Actions Act 1974 (Qld).

The court orders:

1.   The defendant pay the plaintiff’s costs of the application on the standard basis.

2.   The fees of both senior and junior counsel are to be regarded as necessary or proper for the attainment of justice.

3.   Each party has liberty to apply.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – TIME FOR CLAIM – where the applicant alleges he suffered a lower back injury during his employment with the defendant – where the applicant subsequently suffered a psychiatric injury – where the applicant made an application to WorkCover which was accepted – where, after a period of delay, WorkCover provided the applicant his Notice of Assessment letter and a lump sum offer – where the applicant subsequently began common law court proceedings against the defendant in respect of the injuries sustained – where the defendant claims that the applicant’s claim is time-barred –where the applicant seeks a declaration that the period within which to commence an action for damages for negligence was extended to 22 March 2021 – where the application requires an interpretation of the time limits imposed under schedule 5 section 1(a) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether WorkCover gave the applicant a Notice of Assessment for injury less than 6 months before the end of the general limitation period per sch 5 s 1(1)(b)(i) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)– whether the applicant, prior to the end of the general limitation period, requested WorkCover to have his injuries assessed to determine if his injuries have resulted in a degree of permanent impairment within the meaning of sch 5 s 1(1)(b)(i).

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 235, s 236, s 237, s 239A, s 241, s 242, s 273, s 274, s 275, s 276, s 295, s 297, s 298, s 299, s 302, sch 5 s 1
Limitation of Actions Act 1974 (Qld), s 11

Fox v Percy (2003)…

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Details
Case
[2022] QSC 213
Decision Date

CaseChat Overview and Summary

In Sankey v GPC Asia Pacific Pty Ltd, the applicant, Mr Sankey, sought a declaration that the period within which to commence an action for damages for negligence was extended to 22 March 2021. Mr Sankey had been employed by the defendant in December 2016 when he allegedly suffered a lower back injury and subsequently a psychiatric injury. Mr Sankey made an application for WorkCover benefits which was accepted and his claim was managed by WorkCover Queensland. After various surgeries and delays, Mr Sankey commenced common law court proceedings against the defendant in respect of the injuries sustained. The defendant claimed that Mr Sankey’s claim was time-barred. The court had to determine whether WorkCover provided Mr Sankey with a Notice of Assessment for his injury less than 6 months before the end of the general limitation period and whether Mr Sankey requested WorkCover to assess his injuries prior to the end of the general limitation period. The interpretation of the time limits imposed under Schedule 5 Section 1(a) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) was also at issue.

The court considered the relevant statutory provisions and found that the key question was whether Mr Sankey’s claim was time-barred by Schedule 5 Section 1(1)(b)(i) of the Act. The court held that the relevant time period was less than six months before the end of the general limitation period, which was 1 December 2019. The court found that WorkCover provided Mr Sankey with his Notice of Assessment on 16 September 2020, which was within the required time period. The court also found that Mr Sankey had requested WorkCover to assess his injuries prior to the end of the general limitation period. The court therefore declared that the period within which Mr Sankey was entitled to commence a proceeding claiming damages for personal injury was extended to 22 March 2021 and that the proceeding was not time-barred.

The court ordered that the defendant pay the plaintiff’s costs of the application on the standard basis and that the fees of both senior and junior counsel were to be regarded as necessary or proper for the attainment of justice. The court also granted each party liberty to apply.

Orders

Orders of the court

The court declares:

(a) the period of time within which the plaintiff was entitled to commence a proceeding claiming damages for personal injury arising from an incident on 1 December 2016 when employed by the defendant, being, pursuant to section 11(1) of the Limitation of Actions Act 1974 (Qld), a period of three years expiring on 1 December 2019, was extended, pursuant to section 1(2)(a) of Schedule 5 of the Workers Compensation and Rehabilitation Act 2003 (Qld), to 22 March 2021.

(b) this proceeding is not time-barred pursuant to section 11 of the Limitation of Actions Act 1974 (Qld).

The court orders:

1. The defendant pay the plaintiff’s costs of the application on the standard basis.

2. The fees of both senior and junior counsel are to be regarded as necessary or proper for the attainment of justice.

3. Each party has liberty to apply.

Background

Background to the litigation

I am informed by Senior Counsel that this application raises a question of law as to the proper interpretation of sch 5 s 1(a) which is not the subject of any prior authority. The application also raises a question of fact to be applied to sch 5 s 1(b)(ii).Background Facts Mr Sankey is currently 24 years of age having been born on 22 January 1998. Mr Sankey was 18 years of age on 1 December 2016, when he was employed by the defendant to assist in removing shop fittings. Mr Sankey alleges that when carrying four or five punch panels from the shop to a skip, he suffered an injury to his lower back in the nature of a disc protrusion at L5/S1. Mr Sankey subsequently suffered from a psychiatric injury. Mr Sankey made an application for WorkCover benefits prior to 29 May 2017 and it was accepted. The respondent’s insurer, WorkCover Queensland, acting via several customer advisers, managed Mr Sankey’s WorkCover claim. One experienced adviser, Stephen Hanna, is recorded in a WorkCover communications report as first having contact with Mr Sankey’s claim on 1 June 2017.[1] Many communication notes in Mr Sankey’s claim were authored by Mr Hanna. [1]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-1’, page 140. After the acceptance of Mr Sankey’s WorkCover claim, he embarked upon conservative rehabilitation, including physiotherapy.[2] That did not succeed and accordingly on 22 August 2017, Dr Peter Lucas, neurosurgeon, performed a left L5/S1 microdiscectomy and rhizolysis upon Mr Sankey. Mr Sankey was certified fit to return to work six months after surgery and attempted to return to work, lasting only two weeks before ceasing work. On 12 February 2018 Mr Sankey’s claim was closed, however, it was reopened on 2 July 2018, after it was shown that Mr Sankey could not return to work. [2]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-5’, page 166. Mr Sankey’s mental health deteriorated. Mr Sankey was admitted to hospital in Maryborough with mental health issues on 24 August 2018. Mr Sankey again consulted Dr Lucas who arranged for an epidural to relieve his back pains on 29 March 2019, however, that did not succeed in relieving Mr Sankey’s back pain. Dr Lucas then advised that further surgery was required, however, Dr Lucas was unable to perform that surgery himself. There was then a considerable delay whilst Mr Sankey tried to obtain alternative specialist medical assistance. Eventually Mr Sankey consulted Dr Martin Wood, neurosurgeon, who recommended further surgery. On 23 February 2020 Dr Wood performed a transforaminal lumbar interbody fusion upon Mr Sankey’s L5/S1 intervertebral joint. During the period of delay between Dr Lucas’ recommendation for further surgery and the first consultation with Dr Wood, Dr Michael Coroneos, neurosurgeon, examined Mr Sankey on 19 July 2019. Contrary to treating surgeon Dr Lucas’ opinion, Dr Coroneos formed the opinion that Mr Sankey was stable and stationary, not in need of any further surgery, and had an 11% whole person impairment.[3] [3]Exhibit 2.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 302 of the WCRA provides:302Alteration of period of limitation(1)A claimant may bring a proceeding for damages for a personal injury—(a)within the period of limitation (the general limitation period) allowed for bringing a proceeding for damages for personal injury under the Limitations of Actions Act 1974; or(b)if schedule 5 provides for a different period for bringing the proceeding—within the period mentioned in schedule 5.(2)A claimant may bring a proceeding for damages for personal injury after the end of the period mentioned in subsection (1) only if—(a)before the end of that period—(i) the claimant gives, or is taken to have given, a complying notice of claim; or(ii) the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or(iii) a court makes a declaration under section 297; or(iv) a court gives leave under section 298; and(b)the claimant complies with section 295.(3)However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held. I am informed by Senior Counsel that this application raises a question of law as to the proper interpretation of sch 5 s 1(a) which is not the subject of any prior authority. The application also raises a question of fact to be applied to sch 5 s 1(b)(ii).Background Facts Mr Sankey is currently 24 years of age having been born on 22 January 1998. Mr Sankey was 18 years of age on 1 December 2016, when he was employed by the defendant to assist in removing shop fittings. Mr Sankey alleges that when carrying four or five punch panels from the shop to a skip, he suffered an injury to his lower back in the nature of a disc protrusion at L5/S1. Mr Sankey subsequently suffered from a psychiatric injury. Mr Sankey made an application for WorkCover benefits prior to 29 May 2017 and it was accepted. The respondent’s insurer, WorkCover Queensland, acting via several customer advisers, managed Mr Sankey’s WorkCover claim. One experienced adviser, Stephen Hanna, is recorded in a WorkCover communications report as first having contact with Mr Sankey’s claim on 1 June 2017.[1] Many communication notes in Mr Sankey’s claim were authored by Mr Hanna. [1]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-1’, page 140. After the acceptance of Mr Sankey’s WorkCover claim, he embarked upon conservative rehabilitation, including physiotherapy.[2] That did not succeed and accordingly on 22 August 2017, Dr Peter Lucas, neurosurgeon, performed a left L5/S1 microdiscectomy and rhizolysis upon Mr Sankey. Mr Sankey was certified fit to return to work six months after surgery and attempted to return to work, lasting only two weeks before ceasing work. On 12 February 2018 Mr Sankey’s claim was closed, however, it was reopened on 2 July 2018, after it was shown that Mr Sankey could not return to work. [2]Affidavit of Stephen Hanna filed 24 March 2022 (Court doc 12) at Exhibit ‘SH-5’, page 166.