WorkCover Queensland v Padua

[2016] QDC 115

DISTRICT COURT OF QUEENSLAND

CITATION:

WorkCover Queensland and Ors v Padua [2016] QDC 115

PARTIES:

WORKCOVER QUEENSLAND

(first applicant/first respondent)

and

CANNON HILL SERVICES PTY LTD

(ACN 13 095 395 866)

(second applicant/second respondent)

and

AUSTRALIAN COUNTRY CHOICE PRODUCTION PTY LTD

(ACN 32 079 436 258)

(third applicant/third respondent)

v

ELISANGELA PIMENTA BARBOSA PADUA

(respondent/applicant)

FILE NO/S:

2381 of 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

20 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

16, 17, 18 May 2016

JUDGE:

Reid DCJ

ORDER:

1.        It is declared:

(a) The “back” “strain” as referred to in Mrs Padua’s Notice of Claim for Damages sworn 29 May 2015 was sustained before and after 15 October 2013 and is an “injury” within the meaning of s 32 of the Workers Compensation and Rehabilitation Act 2003 (“the back strain”); and

(b) Due to the deeming effect of s 235A of the Workers Compensation and Rehabilitation Act 2003, the Workers Compensation and Rehabilitation Act 2003 as it stood on 19 July 2013 applies to her claim for the back strain.

2. The Notice of Assessment issued by WorkCover dated 16 October 2015 be set aside and WorkCover is directed to assess Mrs Padua’s back strain conformably with s 179 of the Workers Compensation and Rehabilitation Act 2003.

3.        The application of WorkCover is dismissed.

4.        WorkCover pay Mrs Padua’s costs of and incidental to the application to be assessed, excluding those costs associated with the evidence of Dr Estensen.

CATCHWORDS:

APPLICATION -  date of first consultation relating to injury – physical and psychological injury – whether continuum of symptoms – whether work a significant contributing factor to psychological injury up to 29 October 2013 – whether work the major significant contributing factor to psychological injury after that date

Workers Compensation and Rehabilitation Act 2003, ss 31, 32, 235A, 237

Tabet v Gett [2010] 240 CLR 537, considered

March v E & MH Stramare Pty Ltd (1990) 171 CLR 506, considered

COUNSEL:

S.P. Gray for the applicants/respondents

C. Newton for the respondent/applicant

SOLICITORS:

Turner Freeman Lawyers for the respondent/applicant

BT Lawyers for the applicants/respondents

1. This interlocutory application was brought by the respondents to an originating application filed by Mrs Padua. At the hearing Mrs Padua was referred to as the applicant and WorkCover Queensland (WorkCover), Cannon Hill Services Pty Ltd (Cannon Hill) and Australian Country Choice Production Pty Ltd (ACCP) were referred to as the respondents. This convention has been maintained in this judgment.

1. In this matter the applicant claims to have suffered injury to her lower back during the course of her employment with Cannon Hill.  She seeks damages also against ACCP which operates a meat processing plant at Cannon Hill, utilising labourer provided by Cannon Hill, including that of Mrs Padua.

1. Before me the three respondents seek a declaration that Mrs Padua is not entitled to seek damages in respect of the injuries that are the subject of a Notice…