Seery v Mount Isa Mines Limited

[2000] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:

Seery v Mount Isa Mines Limited [2000] QSC 16

PARTIES:

SEERY, Mark Colin
(applicant)
v
MOUNT ISA MINES LIMITED ACN 009 661 447
(respondent)

FILE NO:

624 of 2000

DIVISION:

Trial Division

REASONS DELIVERED ON:

18 February 2000

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2000

JUDGE:

White J

ORDERS:

31 January 2000

1. The applicant be granted leave, pursuant to s 305(1) of the WorkCover Queensland Act 1996, to commence proceedings against the respondent for personal injury in respect of alleged injury sustained in a work accident which occurred at Mount Isa in the State of Queensland on 2 February 1997.

2.        The lastmentioned leave is granted on condition that, subject to any relaxation from the same which may subsequently be granted by a court, prior to commencement of any proceedings the applicant comply with:

           a)        the relevant division under Part 2, and

b) Part 5, and

           c)        Part 6, and

d) Section 303 of the WorkCover Queensland           Act 1996

3.        There be no order as to costs.

CATCHWORDS:

WORKCOVER ACT 1996 – application for leave to commence proceedings – ss 302, 303, 305 and 308.

Limitation of Actions Act 1974
WorkCover Queensland Act 1996, ss 302, 303, 305(1) and 308

Durie v Data 3 Business Systems Pty Ltd & Ors (unreported decision no 599 of 2000)

COUNSEL:

Mr Richard Douglas SC for the applicant
Mr RI Myers for the respondent

SOLICITORS:

Sciacca’s Lawyers for the applicant
Thynne & McCartney for the respondent

1. WHITE J: The applicant applied on 31 January 2000 for an order pursuant to s 305(1) of WorkCover Queensland Act 1996 (“Act”) to commence an action for damages for personal injury sustained in a work‑related accident which occurred at Mount Isa on 2 February 1997. In the normal course the limitation period would expire on 2 February this year. The Act came into force on 1 February 1997 and therefore applies to this application.

1. The respondent self‑insurer contends that such leave would be futile because of the applicant’s need to comply strictly with the pre‑court proceedings procedures set out in chapter 5 of the Act and that the limitation period would, by then, have expired. When the applicant came before the court I was of the view that this submission was misconceived and made the order with reasons to be delivered subsequently and now do so.

1. The applicant sustained a back injury when driving underground mining machinery in circumstances which raise an arguable case of negligence.  That injury was exacerbated in October 1997.  The applicant was assessed by Dr E Guazzo and in a report to WorkCover dated 12 February 1998 he concluded, inter alia, that the applicant had a 15 per cent disability of his whole body which may be permanent.  The applicant consulted his present solicitors on 13 February 1998.  Dr R Likeman provided a report to WorkCover on 9 March 1998 recommending back surgery for the applicant and giving as his opinion that even if unsuccessful the applicant’s disability was not likely to be higher than 15 per cent but that it was not then appropriate to assess permanent disability.

1. The applicant underwent surgery and after assessment returned to lighter work.  He sustained a second work‑related injury on 27 July 1998 (not the subject of this present application).

1. The applicant made an application for compensation in respect of each injury which was accepted and compensation paid.

1. Pursuant to s 116 of the Act which came into force on 3 March 1999 the respondent as self‑insurer assumed liability for all compensation and common law damages in respect of injuries to the applicant to the exclusion of WorkCover.

1. The applicant sought an assessment for compensation pursuant to s 196 of the Act in respect of the accident on 2 February 1997 by letter to WorkCover dated 24 December 1999 but has received no notice of assessment pursuant to s 203. He sought waiver from complying with s 280 of the Act (notice of claim for damages) and a conditional damages certificate pursuant to s 262 which allows proceedings to be brought in urgent circumstances where a claimant’s permanent impairment has not been assessed or agreed. The respondent has declined to do either. It appears that there have been delays associated with the handover of the applicant’s file from WorkCover to the respondent and as recently as 13 January 2000 this had not occurred.

1. Chapter 5 of the Act concerns a worker’s access to damages. The applicant is a worker within Part 2 because his application for compensation was allowed and his injury has not been assessed for permanent impairment, s 253(1)(b). The claimant may seek damages only after he has received a notice of assessment from WorkCover (or the self‑insurer) and has complied with chapter 3, part 9, division 3.

1. The philosophy, by now it must be supposed, well known in the profession, behind the pre‑court proceedings procedures in Part 5 of the Act is to enable early resolution of claims to be made before the institution of proceedings, s 279. Before starting court proceedings for damages a claimant must give a notice of claim complying with s 280 within the period of time limited by the Limitation of Actions Act 1974. The applicant has prepared such a notice to deliver to the respondent, “JLM6” to the affidavit of Jason Clark McAulay filed 27 January 2000. Thereafter the provisions in the Act relate to steps which must be taken by both the claimant and WorkCover (or the self‑insurer) towards settlement of the claim and concluding with a compulsory conference.

1. Chapter 5 part 7 sets out the conditions which must be satisfied before a claimant can start a court proceeding. Section 302 provides that a claimant may start a proceeding only if the claimant has complied with the relevant division under part 2 (entitlement) and part 5 (other than as provided for by ss 304 and 305) and part 6 (procedures to settle claims) and s 303. Relevantly for this application, by s 303 a claimant may start court proceedings if at least six months have elapsed after the court has made an order under s 304 or s 305. Section 305 is relevant to this application. It provides that

“(1)Subject to s 303, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite non‑compliance with the requirements of s 280.

(2)The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant’s failure to comply with the requirements of s 280.”

It is this section which the respondent maintains defeats any application by the claimant because it will be impossible for six months to elapse and still be within the relevant period of limitation. But s 308 sets this submission to nought. It provides

“(1)A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if –

(a)     before the end of the period of limitation -  

(iv) a court gives leave under s 305; and

(b) the claimant complies with s 302”

In my view this section extends the limitation period so that once leave has been granted under s 305 the claimant may commence proceedings provided the steps required by s 302 are followed. Accordingly, although strictly unnecessary the order which was made on 31 January 2000 granting leave conditioned that leave on compliance with the steps set out in s 302. This enforces what is clear in the Act, namely, that unless those provisions are complied with the claimant may not bring proceedings in a court. In other words, the extension of the period of limitation will be of no effect. I should note that on 31 January 2000 in chambers Shepherdson J reached a similar conclusion in Durie v Data 3 Business Systems Pty Ltd & Ors (unreported decision no 599 of 2000).  I note in passing that the applicant did not, apparently, attempt to raise these issues with the respondent until the eve of the Christmas holiday period and imposed demands which would not have been easy to meet although not impossible.  Since no order as to costs is to be made no further comment is necessary.

1. The order which was made on 31 January 2000 was as follows

1. The applicant be granted leave, pursuant to s 305(1) of the WorkCover Queensland Act 1996, to commence proceedings against the respondent for personal injury in respect of alleged injury sustained in a work accident which occurred at Mount Isa in the State of Queensland on 2 February 1997.

2.          The lastmentioned leave is granted on condition that, subject to any relaxation from the same which may subsequently be granted by a court, prior to commencement of any proceedings the applicant comply with:

a)        the relevant division under Part 2, and

b) Part 5, and

c)        Part 6, and

d) Section 303 of the WorkCover Queensland Act 1996

3.          There be no order as to costs.