Glenco Manufacturing P/L v Ferrari & Anor

[1] DOUGLAS J: Samuel John Ferrari claims to have been injured at work between about March 2003 and September 2003. He submitted an application for compensation under the WorkCover Queensland Act 1996 which has since been replaced by the Workers' Compensation and Rehabilitation Act 2003. The parties accept that he was a worker for the purposes of those Acts but WorkCover Queensland has, so far, refused his application for compensation on the basis that his employment was not a significant contributing factor to the injury of which he complains. Mr Ferrari has challenged that finding and a hearing in respect of an appeal by him on that issue is to be heard next year in the Industrial Magistrates Court.

[2] On 5 April 2004 he also served a notice of claim on his employer, the applicant in these proceedings, Glenco Manufacturing Pty Ltd ("Glenco"), pursuant to the Personal Injuries Proceedings Act 2002. He has done this on the basis that, if he has not suffered an injury as defined by the WorkCover Queensland Act because his employment was not a significant contributing factor to his injury, then he is entitled to bring proceedings against Glenco in reliance on the procedures prescribed in the Personal Injuries Proceedings Act.

[3] The problem that he faces in those circumstances stems from the terms of s. 253 of the WorkCover Queensland Act abolishing the entitlement of a person in his position to seek damages for an injury sustained by a worker; see s. 253(5) which has been replicated in s. 237 of the Workers Compensation and Rehabilitation Act 2003. The decision of the Court of Appeal in Hawthorne v Thiess Contractors Pty Ltd [2001] QCA 223; [2002] 2 Qd R 157, which interpreted s. 253 of the WorkCover Queensland Act to mean that there was no residual category of common law claim for damages for personal injury in favour of claimants who failed to obtain a certificate at the time required by the Act because their employment was not a significant contributing factor to the injury, creates a significant hurdle for Mr Ferrari's claim to use the procedures available under the Personal Injuries Proceedings Act.

[4] He seeks to distinguish the decision in Hawthorne because of the subsequent enactment of the Personal Injuries Proceedings Act which contains a provision in s. 6 that that Act applies in relation to all personal injury arising out of an incident whether it happened before, on or after 18 June 2002 but does not apply to:-

"(2)(a) personal injury as defined under the Motor Accident Insurance Act 1994 and in relation to which that Act applies; or

(b) injury as defined under the WorkCover Queensland Act 1996."

[5] "Injury" is defined by s. 34 of the WorkCover Queensland Act to be "personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury." Superficially, therefore, the submission by Dr Cross has some merit in suggesting that the Personal Injuries Proceedings Act procedures may apply to Mr Ferrari's case on the basis that he has not suffered an injury as defined under the WorkCover Queensland Act. He relied, in particular, on the failure to use the words "and in relation to which that Act applies" in s. 6(2)(b) where they were used in s. 6(2)(a) of the Personal Injuries Proceedings Act to argue that the legislature intended to exclude from the Personal Injuries Proceedings Act only workers who suffered an "injury" as defined by the WorkCover Queensland Act. The approach does not deal adequately, however, with the abolition of his right to seek damages effected by s. 253 of the WorkCover Queensland Act even in the residual category of common law claims described as "gap cases" by Thomas JA in Hawthorne v Thiess Contractors Pty Ltd.

[6] When one reads the Acts together, the proper view is that an action of the nature anticipated under the Personal Injuries Proceedings Act against Glenco by its former employee Mr Ferrari has been abolished by s. 253 of the WorkCover Queensland Act and has not been revived by some inference to be drawn from the form of s. 6 of the Personal Injuries Proceedings Act. In other words, the general provisions of the latter Act do not override the specific provisions of the WorkCover Queensland Act. In fact they stand together. Although the Personal Injuries Proceedings Act does not apply to an injury as defined under the WorkCover Queensland Act the entitlement of a worker to seek damages under the WorkCover Queensland Act for an injury sustained by him has been abolished except in the circumstances set out in s. 253(1) of that Act and now in s. 237 of the Workers Compensation and Rehabilitation Act. The language of s. 6 of the Personal Injuries Proceedings Act does not suggest that the legislature's purpose was to overturn this Court's recent interpretation of the effect of the WorkCover Queensland Act in Hawthorne v Thiess Contractors Pty Ltd and to revive causes of action it, the legislature, had recently abolished. Thus there is no point to Mr Ferrari's pursuing the procedures under the Personal Injuries Proceedings Act as there is no cause of action available to him to be dealt with under that Act.

[7] Dr Cross also argued that Glenco is estopped from contending that Mr Ferrari has no cause of action against it because Glenco has provided information to it purportedly in response to its notices of claim and requested a further notice of claim from Mr Ferrari as well as a statutory declaration, further disclosure and further information. Estoppel cannot make valid a transaction which is invalid by statute, however, as no estoppel will prevail against the law; United Grocers, Tea and Dairy Produce Employees' Union of Victoria v Linaker [1916] HCA 61; (1916) 22 CLR 176, 179. Nor may an estoppel by representation or conduct be used to expand the scope of a statutory power; generally see Halsbury's Laws of Australia at [190-25]. The previous false assumptions of Glenco about its obligations cannot prevent it from relying now on the proper application of the Act nor could it give the applicant a right denied to him by statute.

[8] WorkCover Queensland was made a party to the application. A declaration was sought in paragraph 3 of the originating application that Mr Ferrari was a "worker" within the meaning of the WorkCover Queensland Act and/or in the alternative the Workers Compensation and Rehabilitation Act. Mr Campbell for WorkCover submitted that there was no need for that relief as it was always accepted by his client that Mr Ferrari was a worker. He also submitted that the proceedings were unnecessary before the resolution of the appeal process to the Industrial Magistrates Court concerning whether Mr Ferrari had sustained an injury.

[9] It is my view that there was some point to the application proceeding at this stage against the plaintiff. It makes it clear that Glenco was not obliged to continue to respond to the procedures prescribed by the Personal Injuries Proceedings Act. There was no need to await the outcome of the review and appeal processes before the Industrial Magistrates Court to determine that issue.

[10] Glenco's solicitors proposed to WorkCover that it could consent to the declaration sought in paragraph 3 of its originating application that Mr Ferrari was a worker in which event their client would not seek to recover costs from it. WorkCover's attitude to that was that it did not wish to consent to an unnecessary order. I agree that the relief sought against WorkCover was unnecessary. In those circumstances it is appropriate that the applicant should pay WorkCover's costs of and incidental to the application.

[11] I shall order, therefore, in the terms of paragraphs 1 and 2 of the originating application, order that the applicant pay the second respondent's costs of and incidental to the application and hear from the applicant and the first respondent in respect of the need for the injunction sought in paragraph 4 of the originating application and the remaining costs of the application.