Stankovic v SS Family Pty Ltd - [2018] QDC 54

DISTRICT COURT OF QUEENSLAND

CITATION:

Stankovic v SS Family Pty Ltd & Anor [2018] QDC 54

PARTIES:

MILJAN STANKOVIC (Plaintiff/Respondent)

v

SS FAMILY PTY LTD ACN 117 147 449 (Trading as “Trendbuild”) (Defendant/Applicant)

AND

WORKCOVER QUEENSLAND ABN 40 577 162 756 (Third Party/Respondent)

FILE NO/S:

3948/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 April 2018

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2018

JUDGE:

Porter QC DCJ

ORDER:

1. The application filed by leave on 6 February 2018 is dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – INSURER’S LIABILITY TO INDEMNIFY IN A CLAIM FOR DAMAGES – where the insurer determines that a person is a worker to whom compensation is payable under the Act for an injury sustained by that person as a worker – where the insurer determines that the Work Related Impairment from the injury is less than 20% – where the worker elects to bring a claim for damages – whether the Act on its proper construction precludes the insurer from contending that the plaintiff in those proceedings is not a worker who has sustained an injury under the Act – whether the insurer is required to indemnify the defendant as an employer under the Act.

Legislation
Workers’ Compensation and Rehabilitation Act 2003 (Qld) (current as at 14 August 2012) ss. 4, 5, 8, 9, 10, 11, 30, 32, 46, 48, 108, 131, 132, 134, 135, 141, 168, 170, 178, 180, 184, 185, 186, 187, 188, 189, 233, 237, 239, 250, 254, 258, 262, 270, 275, 278, 278A, 279, 280, 281, 289, 292, 300, 305B, 305C, 305D, 538, 540, 541, 542, 544, 545, 548A, 556, 561

Cases

Bonser v Melnacis [2002] 1 Qd R 1
Castillon v P&O Ports Limited [2006] 2 Qd R 220
Connor v Queensland Rail Limited [2016] QSC 270
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Francis v Emijay Pty Ltd [2006] 2 Qd R 5
Glenco Manufacturing Pty Ltd v Ferrari [2005] 2 Qd R 129
Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157
Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273
Lomsargis v National Mutual Life Association of Australasia Limited [2005] 2 Qd R 295
Maurice Blackburn Cashman v Brown (2011) 242 CLR 647
Watkin v GRM International Pty Ltd [2007] 1 Qd R 389
Wilkinson v Stevensam P/L & Ors [2006] QCA 88
WingfootAustralia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Witheyman v Simpson [2011] 1 Qd R 170

COUNSEL:

M Grant-Taylor QC for the plaintiff

R J Douglas QC and K F Holyoak for the defendant

G W Diehm QC and C S Harding for the third party

SOLICITORS:

Slater & Gordon Lawyers for the plaintiff

Barry Nilsson for the defendant

DWF Legal for the third party

Introduction

If the Third Party (Workcover) determines that a person is a worker to whom compensation is payable under Chapters 3 and 4 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act)…

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.

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Details

Case: [2018] QDC 54
Decision Date: 20 April 2018

CaseChat Overview and Summary

Stankovic brought proceedings against SS Family Pty Ltd, seeking damages for an injury sustained during his employment. SS Family Pty Ltd’s insurer, Workcover, had determined that Stankovic was a worker within the meaning of the Workers Compensation Act, but that the Work Related Impairment (WRI) from the injury was less than 20%. Stankovic elected to bring a claim for damages against SS Family Pty Ltd, and Workcover sought a ruling that it was not required to indemnify SS Family Pty Ltd as an employer under the Act. The court had to determine whether the Act precluded the insurer from contending that Stankovic was not a worker who had sustained an injury under the Act and whether the insurer was required to indemnify the employer under the Act.

The court held that the Act on its proper construction did not preclude the insurer from contending that Stankovic was not a worker who had sustained an injury under the Act. The court also held that the insurer was not required to indemnify the employer as an employer under the Act, as the employer had not been found liable for the injury under the common law.

The court found that the insurer’s determination that Stankovic was a worker within the meaning of the Act did not automatically entitle him to compensation under the Act. The court also found that the insurer was not required to indemnify the employer as an employer under the Act, as the employer had not been found liable for the injury under the common law. The court held that the insurer was not required to indemnify the employer as an employer under the Act, as the employer had not been found liable for the injury under the common law.

The court dismissed the application filed by leave on 6 February 2018.

Orders

Orders of the court

1. The application filed by leave on 6 February 2018 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Part 5 of Chapter 3 deals with compensation applications. It relevantly provides:(a)By s. 131, that an application for compensation must be brought within 6 months after the entitlement arises;(b)By s. 132, that an application for compensation must be made in the approved form accompanied by certain basic medical evidence;(c)By s. 134, for Workcover to decide the application as follows:Decision about application for compensation(1)A claimant’s application for compensation must be allowed or rejected in the first instance by the insurer.(2)The insurer must make a decision on the application within 20 business days after the application is made.(3)The insurer must notify the claimant of its decision on the application.(4)If the insurer rejects the application, the insurer must also, when giving the claimant notice of its decision, give the claimant written reasons for the decision and the information prescribed under a regulation.(5)Subsection (6) applies if the insurer does not make a decision on the application within the time stated in subsection (2).(6)The insurer must, within 5 business days after the end of the time stated in subsection (2), notify the claimant of its reasons for not making the decision and that the claimant may have the claimant’s application reviewed under chapter 13. As can be seen, Workcover must make its decision under s. 134 fairly promptly, within 20 business days. However, Workcover may seek a medical examination of the applicant pending approval of the application and if the claimant does not co-operate in that regard, any entitlement to compensation is suspended until the claimant undergoes the examination: see s. 135. Further, there is no entitlement to compensation at all until a worker is assessed by a doctor, nurse or dentist as the case may be: s. 141. Workcover’s determination of the entitlement of a claimant can be reviewed by Workcover. Division 6 relevantly provides:(a)By s. 168:Review of compensation and associated payments(1)An insurer may, from time to time, review a person’s entitlement to compensation. (2)On a review, the insurer may terminate, suspend, decrease or increase an entitlement.(b)By s. 170:Recovery of compensation overpaid(1) This section applies if, for an application for compensation, payment has been made to a worker or another person of an amount that is more than the amount to which the worker or person is entitled.(2) The insurer may—(a) recover from the worker or person the difference between the payment and the entitlement; or(b) from time to time deduct from weekly payments of compensation that become payable to the worker, whether for that application or a subsequent application for compensation, the difference between the payment and the entitlement, or any part of the difference.(3) If the overpayment has been made because of incorrect information given by a worker’s employer, WorkCover may recover the overpaid amount from the employer. Part 10 of Chapter 3 deals with compensation for permanent impairment (in contrast to compensation payable as weekly payments). Section 178 contains the general statement of the entitlement to compensation for permanent impairment. It provides:Entitlement to assessment of permanent impairment and lump sum compensation(1) Under this part, an insurer or a worker is entitled to ask for an assessment to decide if a worker has sustained a degree of permanent impairment from injury.(2) If the worker is assessed under this part as having sustained a degree if permanent impairment, the worker is entitled to a payment, or an offer of payment, of lump sum compensation for the permanent impairment.(3) In particular circumstances, the worker may be entitled to a payment of additional lump sum compensation.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Stankovic v SS Family Pty Ltd & Anor [2018] QDC 54
PARTIES:	MILJAN STANKOVIC (Plaintiff/Respondent) v SS FAMILY PTY LTD ACN 117 147 449 (Trading as “Trendbuild”) (Defendant/Applicant) AND WORKCOVER QUEENSLAND ABN 40 577 162 756 (Third Party/Respondent)
FILE NO/S:	3948/16
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 April 2018
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2018
JUDGE:	Porter QC DCJ
ORDER:	1. The application filed by leave on 6 February 2018 is dismissed.
CATCHWORDS:	WORKERS’ COMPENSATION – INSURER’S LIABILITY TO INDEMNIFY IN A CLAIM FOR DAMAGES – where the insurer determines that a person is a worker to whom compensation is payable under the Act for an injury sustained by that person as a worker – where the insurer determines that the Work Related Impairment from the injury is less than 20% – where the worker elects to bring a claim for damages – whether the Act on its proper construction precludes the insurer from contending that the plaintiff in those proceedings is not a worker who has sustained an injury under the Act – whether the insurer is required to indemnify the defendant as an employer under the Act. Legislation Workers’ Compensation and Rehabilitation Act 2003 (Qld) (current as at 14 August 2012) ss. 4, 5, 8, 9, 10, 11, 30, 32, 46, 48, 108, 131, 132, 134, 135, 141, 168, 170, 178, 180, 184, 185, 186, 187, 188, 189, 233, 237, 239, 250, 254, 258, 262, 270, 275, 278, 278A, 279, 280, 281, 289, 292, 300, 305B, 305C, 305D, 538, 540, 541, 542, 544, 545, 548A, 556, 561 Cases Bonser v Melnacis [2002] 1 Qd R 1 Castillon v P&O Ports Limited [2006] 2 Qd R 220 Connor v Queensland Rail Limited [2016] QSC 270 Dey v Victorian Railways Commissioner (1949) 78 CLR 62 Francis v Emijay Pty Ltd [2006] 2 Qd R 5 Glenco Manufacturing Pty Ltd v Ferrari [2005] 2 Qd R 129 Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157 Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273 Lomsargis v National Mutual Life Association of Australasia Limited [2005] 2 Qd R 295 Maurice Blackburn Cashman v Brown (2011) 242 CLR 647 Watkin v GRM International Pty Ltd [2007] 1 Qd R 389 Wilkinson v Stevensam P/L & Ors [2006] QCA 88 WingfootAustralia Partners Pty Ltd v Kocak (2013) 252 CLR 480 Witheyman v Simpson [2011] 1 Qd R 170
COUNSEL:	M Grant-Taylor QC for the plaintiff R J Douglas QC and K F Holyoak for the defendant G W Diehm QC and C S Harding for the third party
SOLICITORS:	Slater & Gordon Lawyers for the plaintiff Barry Nilsson for the defendant DWF Legal for the third party