Wicks v Queensland University of Technology

[2000] QSC 34

SUPREME COURT OF QUEENSLAND

CITATION:	Eve Frances Wicks v The Queensland University of Technology [2000] QSC 034
PARTIES:	EVE FRANCIS WICKS (applicant) v THE QUEENSLAND UNIVERSITY OF TECHNOLOGY (respondent)
FILE NO:	834 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 – whether applicant is "a person mentioned in" s253(1) and therefore entitled to seek damages for injury.
Bonser v Melnacis & Anor [2000] QCA13 – 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: The applicant has applied for an order pursuant to s305(1) of the WorkCover Queensland Act 1996 (as amended) that she be granted leave to bring a proceeding against the respondent despite non-compliance with the requirements of s280 of that Act.

2. Before I go further I should mention that a number of the exhibits to the affidavit of Celia Elizabeth Just filed 31 January 2000 incorrectly show the name of the respondent as University of Queensland.

3. This application raises the same point as do the applications of Lara (680 of 2000) Agudelo (No 679 of 2000) Nguyen (No 835 of 2000) Reat (No 839 of 2000). I am giving judgments in each of these matters today.

4. There is a dispute between Wicks and WorkCover as to whether or not she suffered an injury within Pt 4 Div 6 sub-division 2 of the WorkCover Queensland Act 1996. Sub-division 2 consists of s 34 of that Act.

5. The applicant relies on two affidavits of Celia Elizabeth Just a solicitor employed by Murphy Schmidt Solicitors for the applicant, and the respondent relies on an affidavit of Dell Patricia Stevens. Some of the material on which the applicant relies relates to events occurring before 1 February 1997.

[6]

The evidence before me shows:

(a)	The applicant Wicks who was born on 31 July 1944 was employed by the respondent as coordinator of Careers and Employment and had commenced that employment in May 1986.
(b)	Wicks is said to have suffered "psychological stress" while working for the respondent caused by "insufficient administrative support, rudeness and harassment by administration staff and head of service failure to support me through these issues".
(c)	The present application concerns the WorkCover Queensland Act 1996 which commenced on 1 February 1997 and it is the applicant's claim that her injury began before 1 February 1997 and continued thereafter.
(d)	On 23 April 1997 Wicks signed an application for compensation (Exhibit DS1 to Stevens' affidavit) which disclosed (inter alia):

(i)         the injury was psychological stress

(ii)        the injury happened on 8/3/1996 (see answer to Q24)

(iii)       the injury happened "over a period of time" (see response to Q29)

A copy of the claim for compensation is also Exhibit CEJ-1 to Just's affidavit filed 10 February 2000.

(e)          By letter dated 21 April 1998 addressed to the applicant Wicks (Exhibit CEJ-2 to Just's affidavit filed 10 February 2000) WorkCover Queensland rejected her application and gave written reasons for its decision.

(f)           Thereafter Wicks, by her solicitors sought a review by WorkCover's statutory review unit of the decision dated 21/4/1998.

(g)          The review occurred and by letter dated 19/6/1998 addressed to Wicks' solicitors (Exhibit CEJ-4 to Just's affidavit filed 10/2/2000) the statutory review unit said its decision was to confirm WorkCover's decision.

(h)          By letter dated 24/6/1998 (Exhibit CEJ5 to Just's affidavit filed 10/2/2000) the applicant applied for a hearing before the Industrial Magistrate.

(i)           The hearing before the Industrial Magistrate has been set down for 27 and 28 March 2000.

(j)           By letter dated 27/1/2000 (Exhibit CEJ-5 to Just's affidavit filed 31/1/2000) the applicant's solicitors sought from WorkCover a conditional certificate to be issued pursuant to the WorkCover Queensland Act and on the same day such a certificate was issued (see Exhibit CEJ-6 to Just's affidavit filed 31/1/2000) purportedly "pursuant to section (262, 265, 270) of the WorkCover Queensland Act 1996". Mr Douglas QC has in his submission stated that that certificate is invalid and cannot be relied on by his client. To support his submission as to invalidity he relies on ss253(1)(b) and (c) of the WorkCover Queensland Act 1996 and I shall later set out these sections.

(k)          By the letter of 27/1/2000 the applicant's solicitors said:-

" . . . in order to protect our client's right to claim common law damages for that part of her condition sustained during the course of her employment from 1 February 1997 until 27 March 1997 section 302 of the WorkCover Queensland Act must be complied with before 1 February 2000."

(It is apparent from this passage that the damages concerned are

probably small indeed.)

1. I should mention that Exhibit CEJ-2 to Just's affidavit filed 31/1/2000 is a letter (dated 12/2/1999) to WorkCover in which two conditional damages certificates were sought –one for injuries between 1/1/1996 and 31/1/1997 and the other for an unspecified period beginning 1 February 1997.

2. Exhibit CEJ-3 to Just's same affidavit is said to be a conditional damages certificate in Wicks' name issued on 22/2/1999 for an injury "over a period of time". Just relied on this certificate when issuing a writ (Exhibit CEJ-4) on 23/2/1999 "to protect the applicant's interests from 1986 (sic) to 31 January 1997 with the respondent".

3. One difficulty is that Exhibit CEJ-3 is a conditional damages certificate issued by WorkCover "pursuant to section (262, 265, 270) of the WorkCover Queensland Act 1996 . . ." It certainly was not issued under s182D of the Workers' Compensation Act 1990 and could not have been relied on when issuing the writ (Exhibit CEJ-4).

4. Mr Hoare opposes the application arguing that on the proper construction of WorkCover Queensland Act 1996 and more particularly of s253 thereof the applicant Wicks is not a person entitled to seek damages for injury sustained by her.

5. I should at this stage say that in my reasons for judgment in the application of Gamero 667/2000 I set out provisions of WorkCover Queensland Act 1996. I do not propose to repeat those provisions in these reasons.

6. For present purposes though I requote the following provisions from parts 1 and 2 of CHAPTER 5 – ACCESS TO DAMAGES in the WorkCover Queensland Act.

   "s250 In this chapter

   "claimant" means a person entitled to seek damages".

   [this Chapter means "CHAPTER 5"]

s253(1) which appears in "division 1 – limitations on persons entitled to seek
damages" in "PART 2 – ENTITLEMENT CONDITIONS" reads:

"General limitation on persons entitled to seek damages
253.(1) The following are the only persons entitled to seek damages
for an injury sustained by a worker-

(a)          the worker, if the worker has received a notice of assessment from WorkCover stating that-

(i)	the worker has sustained a certificate injury; or
(ii)	the worker has sustained a non-certificate injury; or

(b)          the worker, if the worker's application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment; or

(c)          the worker, if the worker has not lodged an application for compensation for the injury; or

(d)          a dependant of the deceased worker, if the injury sustained by the worker results in the worker's death.

(2) The entitlement of a worker, or a dependant of a deceased
worker, to seek damages is subject to the provisions of this chapter.
(3) To remove any doubt, it is declared that subsection (1) abolishes
any entitlement of a person not mentioned in the subsection to seek
damage for an injury sustained by a worker."

1. Mr Douglas Q C has argued that Wicks position is the same as that of a person who has lodged an application for compensation and whose application has been rejected but who has sought review of the decision.

2. He argues that such a person may well succeed on review and in effect become at some time in the future a person within s253(i)(a) or (b).

3. Mr Hoare's case is that ss250 and 253 and especially s253(3) are to be construed as making clear beyond dispute that the entitlement of any worker or person not mentioned in s253(1) to seek damages for an injury sustained by a worker is abolished.

4. The cases before me and argued on 11 February 2000 have shown that, leaving aside the operation of s253(3), the following persons, apart from the persons mentioned in s253(1), could be entitled to seek damages for an injury sustained by a worker:

1.	A worker who has on the evidence a prima facie claim for common law damages for injury over a period of time and who has lodged an application for compensation for injury but whose application has not, at the time of hearing an application under s305, been decided by WorkCover and the decision communicated to the applicant worker.
2.	A worker who on the evidence has a prima facie claim for common law damages for injury over a period of time and who has lodged with WorkCover an application for compensation which application has been rejected by WorkCover on the ground that the worker did not sustain an injury within s34 of the WorkCover Queensland Act 1996.
3.	A worker in 2 above who has instituted review and/or appeal procedures against WorkCover's decision to reject it.

The above list is not intended to be exhaustive.

1. None of the above three classes of persons falls within any of the classes in s253(1) and the legislature has made abundantly clear in s253(3) that, any entitlement of a person not mentioned in s253(1) to seek damages for an injury sustained by a worker is abolished. "Entitlement" must mean an entitlement to seek damages for an injury sustained by a worker – see opening words of s253(1).

2. In Bonser v Melnacis & Anor [2000] QCA 13 judgment delivered 8 February 2000 (and from which I have quoted some extracts in Gamero) (supra) the Court of Appeal described s253 as the key section of the sections within "PART 2 – ENTITLEMENT CONDITIONS" – I respectfully adopt that view.

3. Another provision which is relevant to the present matter is s252 which appears in "Part 1 – Interpretation and Application" of CHAPTER 5 – ACCESS TO DAMAGES.

   s252 reads:

   "Requirements of chapter to prevail and are substantive law
   252.(1) If a provision of an Act or a rule of law is inconsistent with
   this chapter, this chapter prevails.
   (2) All the provisions of this chapter are provisions of substantive
   law.
   (3) However, subsection (2) does not affect minor variations in

   procedure."

[20] In my opinion section 252(2) reinforces the strength of s253(3).

1. In my opinion, Wicks does not, on the material before me, fit within any of the classes of worker in s253(1). In respect of her application for compensation Wicks' present status – an applicant whose application has been rejected but appealed – is not mentioned in s253(1).

2. It is true that, she may in time fall within s253(1)(a) or (b) but at the present time she does not.

[23] The WorkCover Queensland Act has revolutionised the law applicable to projected

claims at common law against an employer for damages suffered by a worker.

1. The Act has erected a number of hurdles to be cleared by would-be plaintiffs before being entitled to start the proceedings for damages. Proof that a would-be claimant falls within a class in s253 is one of the hurdles.

2. I would add that I have considered whether or not Wicks falls within s253(1)(c) on the basis that she did not lodge an application for compensation for the injury allegedly suffered over a period of time from 1/2/1997 up to 27/3/1997.

3. Had I decided that the applicant Wicks was a person mentioned in s253(1)(c) then I would have made orders as I did in Gamero. I decided that Wicks was not a person mentioned in s253(1)(c) because, for reasons I have given I consider that the applications for compensation and reviews made clear to WorkCover that the culminating injury happened from alleged negligence of the respondent over a period of years before 27/3/1997 – the claim for compensation is for injury over a period of time.

[27] I accept Mr Hoare's submission and I dismiss the application.

1. I would add that, for reasons I have given in Reat (appl. 839 of 2000) WorkCover, in the present state of affairs concerning Wicks' application, had no power to issue a conditional damages certificate under sections 262 or 265 of the WorkCover Act.