Lau v WorkCover Queensland [2000] QSC 271

[1] The applicant/plaintiff was injured at work. On 6 February 1998, WorkCover issued a notice of assessment in relation to her "left index finger lacerations and lumbar sacral spine".

[2] On 12 March 1999, the applicant submitted a notice of claim for damages under s 280 of the WorkCover Queensland Act 1996 ("the Act"). It claimed in respect of three sets of injuries which, broadly speaking, were:

[3] The notice of assessment did not cover the shoulder injury.

[4] On 20 July 1999, the applicant received a letter from WorkCover informing her that the notice of claim did not comply with the Act.

[5] On 13 September 1999, WorkCover's solicitors wrote to the applicant stating that the notice of claim for damages was a non-complying one. The solicitors wrote again on 20 December 1999 asserting that the notice remained non-complying. The plaintiff maintained her claim for compensation in respect of the shoulder injury until after the expiration of the limitation period for her personal injuries claims on 6 February 2000.

[6] The application is for a declaration that the applicant gave the respondent on 15 December 1999 a complying notice of claim in accordance with s 280 of the Act.

[7] The relevance of 15 December 1999 is that on that date the applicant served on WorkCover a statutory declaration purporting to remedy matters of non-compliance in respect of the notice of claim. However, there was no abandonment, at that stage, of the claim in respect of the shoulder injury.

[8] Mr Hoare for the respondent argues that the notice of claim does not comply with the requirements of s 280 of the Act on the basis that the scheme of the Act, and in particular ss 253, 256, 259 and/or 265, prevent a claimant, such as the plaintiff, from seeking damages for injuries sustained until such time as he or she has received a notice of assessment from WorkCover. In considering the legislative scheme regard may be had also to ss 196, 197, 201, 203, 206 , 207 and 262.

[9] Mr Hoare relies on the reasons in Re Robinson[1] and Re Lankheet[2] to support his submissions about the scheme of the Act. The act or matter of non-compliance contended for being that the notice of assessment did not cover the shoulder injury.

"Before starting a proceeding in a Court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974."

[11] Section 280(3) requires that the notice include the particulars prescribed under a regulation. Regulation 74 of the WorkCover Queensland Regulations 1997 sets out at length particulars which must be included in a notice of claim. Section 282(2) imposes obligations on WorkCover consequent upon receiving a notice of claim. That subsection provides:

"WorkCover must, within 30 days after receiving the notice, give the claimant written notice -

(a) stating whether WorkCover is satisfied that the notice of claim complies with section 280 (a `complying notice of claim') and

(b) if WorkCover is not so satisfied - identifying the non-compliance and stating whether WorkCover waives requirements with the compliance; and

(c) if WorkCover does not waive compliance with the requirements - allowing the claimant a reasonable period of at least 30 days either to satisfy WorkCover that the claimant has complied with the requirements or to take reasonable action to remedy the non-compliance."

[12] I now come to s 308 which is the provision of immediate relevance. It relevantly provides:

"(1) A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if -

(i) the claimant gives a notice of claim that is a complying notice of claim; or ..."

[13] Mr G. Mullins, who appears for the applicant, initially conceded that on the basis of the reasoning in the two cases mentioned in para 9, there is a deficiency in the notice of claim but submitted that it is of a minor nature and not such as to prevent his client from falling within s 308(1)(a) of the Act. I will return to this point shortly. He later withdrew the concession and argued that the inclusion in the notice of claim of the non-assessed injury did not cause the claim to be non-complying.

[14] Mr Mullins submitted that by abandoning the claim in relation to the shoulder, if the claim was a non-complying one by virtue of its inclusion, it is thereby converted into a complying one. The difficulty with that submission, for present purposes, is that the plaintiff was required to give a complying notice within a prescribed time, that is, before the end of the limitation period.

[15] It was further submitted that the notice of claim given by the applicant should not be regarded as a nullity. This contention appears to be an attempt to counter the conclusion reached in Re Robinson, that in circumstances generally similar to those under consideration here, "the notice was fatally flawed".

[16] But the matter that needs to be determined for the purposes of s 308 is simply whether, before the end of the period of limitation, the plaintiff has given a complying notice of claim.

[17] The term "complying notice of claim" receives a definition of sorts in s 282(2)(a) of the Act. A claim will be complying if it "complies with section 280". On the respondent's argument, the notice was non-complying because, although setting out full particulars of the injuries "alleged to have been sustained by the claimant," it included a claim for the shoulder injuries for which no assessment had issued.

[18] There is no express requirement in either s 280 of the Act or regulation 74 of the Regulations that the notice of claim be in respect of assessed injuries. However, as was observed in the joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority[3]-

"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined `by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that `the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning that the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions."

[19] It is desirable then to look at the statutory framework in further detail. Section 203 relevantly provides -

"203.(1). WorkCover must, within 28 days after receiving the assessment of the worker's permanent impairment, give the worker a notice of assessment in the approved form.

(2) However, if a worker sustains multiple injuries in an event, WorkCover must give the notice only after the worker's degree of permanent impairment from all the injuries has been assessed." (emphasis supplied)

"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

(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 damages for an injury sustained by a worker."

[21] Section 256 applies where a claimant comes within s 253(1)(a)(i). It provides -

"The claimant may seek damages for the injury only after the claimant has received a notice of assessment from WorkCover."

[22] A "certificate injury" is defined in s 42 as -

"(a) a psychiatric or psychological injury from an event that results in a WRI of a worker of 20% or more; or

(b) another injury from an event that results in a WRI of a worker of 20% or more."

WRI means work related impairment. Non-certificate injuries are ones which result in work related impairment of less than 20%.

[23] In the case of non-certificate injuries, a claimant may seek damages for the injury only after receiving a notice of assessment (s 259(1)).

[24] Section 279, in Part 5 of the Act, provides -

"The object of this part is to enable WorkCover to enter into early negotiations with claimants to achieve early resolution of claims for damages before the start of court proceedings."

Application of the relevant statutory provisions to the facts

[25] The sections of the Act preceding s 280 establish a regime under which: multiple injuries must be assessed (s 203(2)); notice of assessment may be given only after such assessment has taken place (s 203(1)) and a claimant may seek damages only after a notice of assessment has been received from WorkCover (s 256 (in the case of certificate injuries) and s 259 (in the case of non-certificate injuries)).

[26] The applicant sustained multiple injuries "in an event" and s 203(2) requires that the notice of assessment be given only after the applicant's "degree of permanent impairment from all injuries has been assessed".

[27] A notice of assessment was issued. It contained a determination that the applicant had sustained permanent impairment from her injury and notification that the injury was "a Non-Certificate" one.

[28] There is some attraction in the view that a notice of claim is good in respect of the injuries in it which are the subject of a notice of assessment but not in respect of other injuries included in it, which are not the subject of a requisite assessment. That approach would enable a claim to go forward in respect of the assessed injuries. Also, there is nothing in s 280 or regulation 74 which expressly refers to assessed injuries or prohibits the inclusion in a claim of non-assessed injuries. A construction which may result in a claimant losing rights as a result of conduct which is not expressly prohibited should not be arrived at lightly.

[29] However, and not without some hesitation, I conclude that the references in s 280 and regulation 74 to "injuries" are to injuries which have been the subject matter of assessment and that, as a result of including the non-assessed injury, the notice of claim was non-complying.

[30] As mentioned earlier, regulation 74 and s 280 must be construed in the context of other sections of the Act. The statutory scheme, relevantly, assumes that multiple injuries sustained in an event will all be assessed before a notice of assessment is given. An obvious purpose for the imposition of such a requirement is the facilitation and simplification of compensation claims and their resolution.

[31] Section 279 expressly states that the object of Part 5 is to enable WorkCover to enter into early negotiations with claimants in order to achieve early resolution of claims. The staggering of claims in respect of "multiple injuries [sustained] in an event" is inconsistent with that object.

[32] Where a potential claimant has suffered multiple injuries, a notice of assessment contemplated by s 259(1) is to be given in respect of all injuries. It is not necessary, for present purposes, to consider whether there may be more than one notice of assessment. Section 259(1) also prevents a person "seeking damages for the injury" until after receipt of a notice of assessment. This prohibition suggests that references to injuries in regulation 74 and s 280 are to assessed injuries. I will make further reference to this subsection shortly.

[33] Section 280(6) requires the notice of claim to be accompanied by a genuine offer of settlement or a statement of reasons why an offer of settlement cannot be made. Subsections (4) and (8) make reference to "the injury". Where multiple injuries have been suffered in an event, those references, in my view, are to the multiple injuries and not to some of them only. That conclusion does not exclude the possibility that a claimant may abandon a right to recover in respect of one or more of such injuries with the consequence that the injuries the subject of abandonment, do not require inclusion in an assessment or in the claim. In this case though, the applicant has included non-assessed injuries (which form part of multiple injuries in the claim and has pressed the claim.

[34] The offer of settlement in the claim makes no apportionment between the various injuries suffered by the applicant, whilst claiming $25,000 for general damages, $662 for special damages and $14,096.10 for income loss. Consequently, there is no offer capable of assessment in respect of the assessed injuries. In my view, this constitutes a clear failure to comply with s 280.

[35] The giving of a notice of claim under s 280 constitutes the seeking of damages for the purposes of s 259(1). The claim form is entitled "Notice of Claim for Damages". Although there is no express claim for damages in it, it is implicit in the part of the form headed "offer of settlement" that the applicant has a claim for damages and is offering to settle it. Another part of the form is headed "method of calculating heads of damage". Section 207 supports the conclusion that a person "seeks damages" by giving a notice of claim.

[36] Consequently, s 259(1) prohibited the giving of the notice of claim until after assessment of the shoulder injury. In my view, that provides further support for the earlier conclusion that the notice of claim was a non-complying one. Further, the finding that the giving of the notice of claim was prohibited by s 259(1) is probably sufficient to dispose of the application. Section 302 prohibits a claimant starting a proceeding in court for damages if the claimant has not complied with "Part 5, other than as provided by sections 304 and 305".

[37] Mr Mullins advanced an alternative argument. It was to the effect that although the requirements of s 280(1) were mandatory, the remainder of the requirements in the section were directory in nature.

"To interpret the Act in the manner the respondent contends leads to an absurd and irrational result. In many cases it is impossible for a claimant to comply with the provisions.

The aim of the Act is to regulate access to damages, not abolish them without good reason. The interpretation submitted by the appellant still requires the claimant to lodge a notice of claim, but relieves them from the burden of losing their Common Law rights over minor technicalities."

[39] He also placed reliance on the beneficial and remedial nature of the legislation and on ss 289 and 291 which he submitted contained the sanctions for non-compliance with Part 5 of the Act.

[40] In order to construe s 308(1) it is not appropriate to proceed in terms of such "mandatory" and "directory" classifications. In Project Blue Sky Inc v Australian Broadcasting Authority,[4] it was said of such requirements in para 93 of the joint judgment.

"They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning."

[41] I have little doubt that in order to give something which is able to be recognised as a notice of claim for the purposes of s 280, it is not necessary to comply with all of the requirements of regulation 74 of the Regulations with complete precision. Having regard to the mass of detailed information and documentation to be included in a notice of claim, a contrary conclusion would mean that compliance was not only difficult to achieve, but would often be difficult to ascertain. It is unlikely that the legislature would have intended to introduce such a draconian and uncertain regime.[5] In any event, ss 282, 291, 304 and 305 make it plain that failure to comply with s 280 does not invalidate a notice of claim: the Act prescribes the consequences of non-compliance.

[42] Mr Mullins' argument, as I comprehend it, is to the effect that in looking to see whether there is a complying notice one looks to see whether there is substantial compliance or not. For the purposes of this application, it is unnecessary for me to decide that point. That is because, in my view, having regard to the scheme of the legislation, whatever the extent of the deficiency necessary to result in a non-complying claim, there has been non-compliance in this case. I should mention though that the relevant enquiry is most unlikely to be simply whether there has been substantial compliance. Section 282 refers to compliance, not substantive compliance. To treat references to compliance in the relevant statutory provisions as references to substantial compliance would appear to effect an alteration to the substance of the legislation.

[43] Mr Mullins then argues that his client, having abandoned the claim in respect of the shoulder, has, in effect, made a retrospective amendment or variation to the notice of claim such that it became a complying notice of claim within the limitation period.

[44] He relies on McKelvie v Page.[6] In that case leave to commence proceedings pursuant to s 39(5)(c) of the Motor Accidents Insurance Act 1994 was given nunc pro tunc. It was explained:[7]

"The remedying of the non-compliance is akin to the amendment of a document, and in the absence of any provision to the contrary, has the effect of a notice satisfying s 37 being deemed to have been given when the notice was first given. Accordingly, I reject the argument that the plaintiff cannot rely on s 57 because a valid notice was not given before the expiration of the limitation period."

[45] The difficulty with this argument in the context of s 308 is that the section defines the circumstances in which damages for personal injury may be commenced after the expiration of a limitation period. An element of the right to bring proceedings after expiration of the limitation period is that a complying notice of claim be given before the end of the period of limitation.[8]

[46] As the applicant has not given a complying notice of claim within the limitation period and has not sought any relief from non-compliance under other provisions of the Act, the application must fail.

(b) the applicant pay the respondent's costs of and incidental to the application to be assessed.

[3] (1998) 194 CLR 255 at 381.

[4] [1998] HCA 28; (1998) 194 CLR 355 at 381.

[5] cf Attorney-General (NSW) Ex Rel Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955.

[6] [1999] 2 Qd R 259, particularly at 265.

[8] cf David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 at 277.