Van Der Berg v Key Solutions

Case [2020] QSC 262

SUPREME COURT OF QUEENSLAND

CITATION:

Van Der Berg v Key Solutions & Anor [2020] QSC 262

PARTIES:

PETRUS STEFANUS VAN DER BERG

(applicant)

V

KEY SOLUTIONS GROUP (A FIRM)

(first respondent)

WORKCOVER QUEENSLAND

(second respondent)

FILE NO/S:

SC No 768 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application
ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

26 August 2020

DELIVERED AT:

Rockhampton

HEARING DATE:

17 August 2020

JUDGE:

Crow J

ORDER:

1.   The application is dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – PROCEDURE – TIME FOR APPEAL OR REVIEW – where the applicant was awarded compensation at first instance by the insurer, WorkCover Queensland – where the respondent employer successfully reviewed the decision – where applicant denied compensation at second instance – where the applicant failed to apply for review within the statutory time limit -  where, approximately 6 years later, the applicant seeks declaration to have the limitation period extended – whether there is a special reason for intervention by the court  

Limitation of Actions Act 1974 (Qld), s 31
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 32, s 134, s 237, s 295, s 298, s 540, s 561, s 572

Costello v Queensland Rail [2015] 2 Qd R 296; [2014] QSC 83, followed
Forster v Jododex (1972) 127 CLR 42; [1972] HCA 61, followed
Jacobs v Woolworths Ltd [2010] 2 Qd R 400; [2010] QSC 24, considered
Otto v Mackay Sugar Ltd & Anor [2011] QSC 215, followed

COUNSEL:

A W Collins for the applicant

R J Douglas QC, with S J Deaves, for the respondents
SOLICITORS:

Mobbs & Marr Legal for the applicant

Hall & Wilcox for the respondents

  1. On 28 July 2020, Mr Van Der Berg filed an application seeking the following orders:

    1. Pursuant to s 31 of the Limitation of Actions Act 1974, the period of limitation for the action in respect of personal injury suffered by the Applicant over a period of time between 25 June 2013 to 27 June 2013 during the course of his employment be extended up to and including 60 days from the date upon which the Applicant complies with s 295 of the Workers’ Compensation and Rehabilitation Act 2003.

    2. A declaration that the Applicant suffered an injury within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003.

    3. A declaration that the Applicant is entitled to an assessment of permanent impairment under Chapter 2, Part 10 of the Workers’ Compensation and Rehabilitation Act 2003.

    4.   The Respondent pay the Applicant’s costs of the application on a standard basis.

    5.   Such further or other orders as the Court considers appropriate.

  2. On 3 August 2020, orders were made granting the applicant leave pursuant to s 298 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”) to commence proceedings against the first respondent for damages for personal injury allegedly suffered over a period of time between 25 June…

Continue reading Van Der Berg v Key Solutions

Sign in free to access the full text

Details
AGLC
Van Der Berg v Key Solutions [2020] QSC 262
Case
[2020] QSC 262
Decision Date

CaseChat Overview and Summary

Van Der Berg v Key Solutions was a case involving a dispute over workers' compensation in Queensland. The applicant, Van Der Berg, had initially been awarded compensation by the insurer, WorkCover Queensland. However, the respondent employer successfully reviewed this decision, resulting in Van Der Berg being denied compensation at the second instance. Van Der Berg subsequently failed to apply for review within the statutory time limit and sought a declaration to extend the limitation period approximately six years later. The court was required to determine whether there was a special reason for intervention by the court.

The central legal issue was whether the jurisdiction of the court was ousted by section 134 of the Workers' Compensation and Rehabilitation and Workplace Injury Management Act 2003 (Qld). The respondent argued that the court's jurisdiction was indeed ousted as the decision to allow or reject a claim in the first instance was entrusted to the insurer. However, the applicant contended that the combination of unlawful non-disclosure of critical information, wrongful assertions by the employer, and the prejudice caused by the applicant's dyslexia and lack of legal assistance constituted special reasons for intervention by the court. The court considered precedent cases such as Otto, Costello, and Jacobs to determine the extent of its jurisdiction.

After careful consideration of the arguments and the relevant legal precedents, the court found that section 134 of the Act was not sufficiently clear to lead to a conclusion that the court's jurisdiction was ousted with respect to the decision as to whether the applicant had suffered an injury under Chapter 3 of the Act. The court did not find the combination of factors presented by the applicant to constitute a special reason for intervention, and dismissed the application.

The court's final order was that the application was dismissed.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Counsel for the respondent submits that the present application differs significantly from Otto in that the decision sought to be reviewed is a decision pursuant to s 134 of the WCRA. Section 134 provides:“134Decision 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.[10] (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.” [10]This is as to right of review. As pointed out by Respondents’ counsel, Costello also differs as it involved an acceptance of a physical injury subject to Chapters 3, 4 and 5 of the WCRA and a psychological injury. Whilst psychological injury is also subject to Chapters 3 and 4, in Costello the decision in relation to the psychiatric injury was not made under Chapters 3 and 4. The Respondents further pointed to Jacobs v Woolworths Ltd,[11] as an example of a case where a court’s jurisdiction was not ousted and declarations made, however, Jacobs involved a self-insurer refusing to process a claim.[11][2010] 2 Qd R 400. Although pursuant to s 134 of the WCRA the decision to allow or reject a claim in the first instance is a decision which is entrusted to the insurer, I agree with McMeekin J in that,[12] s 134 (either by itself or in conjunction with the WCRA as a whole) is insufficiently clear to lead to a conclusion that the jurisdiction of this court is ousted with respect to the decision as to whether or not an applicant has suffered an injury pursuant to Chapter 3 of the Act. [12]Costello v Queensland Rail [2015] 2 Qd R 296 at 305. The Applicant points to paragraph 49 of Costello and submits that special reason for intervention is demonstrated by a combination of the following three factors: (a)Firstly, the unlawful non-disclosure by the first Respondent employer of critical information, namely the chemicals used by the Applicant in his employment.(b)The wrongful, but positive, assertion by the employer that the Applicant was not exposed to chemicals which may cause his injury.(c)The prejudice to the Applicant in the conduct of his WCRA application caused by the combination of his dyslexia and lack of assistance by a lawyer. With regard to the first factor, the Applicant points to the material safety data sheet (MSDS) for the product “Protecta Grit”. The handling and storage information for Protecta Grit provides: [13]“[p]eople who use this product regularly are advised to regularly apply a moisturising cream in order to reduce the possibility of industrial dermatitis. Do not apply the product to irritated or dermatitic skin… If irritation occurs or dermatitis develops, discontinue using this product.”[13]Exhibit KKB3, page 173 of the affidavit of Kendall Kareem Bocos filed 3 August 2020.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.