PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
PLEADINGS – STRIKING OUT – where the plaintiff
was employed by the
defendant – where the plaintiff commenced proceedings for damages arising
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –PLEADINGS – STRIKING OUT – where the plaintiffwas employed by thedefendant – where the plaintiff commenced proceedings for damages arisingout of the defendant’salleged negligence in failing to take adequateprecautions for her safety in the course of her employment – where thedefendantapplies to strike out certain paragraphs of the plaintiff’sclaim on grounds that the plaintiff lacks the necessary entitlementunder theWorkers Compensation and Rehabilitation Act 2003 (Qld) (WCRA) to seekdamages arising from those particularised allegations – whether theimpugned paragraphs should be struckoutWORKERS’ COMPENSATION– ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES ANDCONSEQUENCES THEREOF – ACTIONSFOR DAMAGES AGAINST EMPLOYER –STATUTORY CONSTRAINT ON ACTIONS FOR DAMAGES – where the plaintiff
commenced proceedings
for damages arising out of the defendant’s alleged
negligence in failing to take adequate precautions for her safety in the
course
of her employment with the defendant – where the plaintiff alleges a
single injury arising from five separate acts over
a period of time –
where the plaintiff had lodged an application for compensation that was
initially rejected by the defendant’s insurer –
where the Office of
Industrial Relations (OIR) had reviewed and set aside the insurer’s
decision after finding that three of
the five separate acts had been
substantiated – where the plaintiff was subsequently issued with a notice
of assessment for
the injury – whether the OIR’s determination forms
part of the notice of assessment – whether the plaintiff’s
entitlement to seek damages is confined by the OIR’s
reasoning
Workers Compensation and Rehabilitation Act 2003 (Qld),
s 10, s 237(1)(a)(i)
Andersen v Aged Care Employers Self Insurance
[2011] QSC 101, followed
Dowd v Swift Australia Pty Ltd [2008] QCA
228, considered
Parry v Woolworths Ltd [2010] 1 Qd R 1
[2009] QCA
26, cited
Sayers v Hansen trading as Alguard Security Services
[2011] QSC 70, distinguished
Judgment (61 paragraphs)
[1]
[1] Rachel Molloy was employed by Clean Management Solutions Pty Ltd (CMS). She sues them for damages arising out of CMS's alleged negligence in, among many allegations, failing to take adequate precautions for her safety. In her statement of claim Ms Molloy alleges that Brooke Renwick, the general manager of CMS, "engaged in discrete acts of sexual assault and sexual harassment, and a course of conduct of sexual harassment against the Plaintiff and connected with employment." These acts are said to have taken place between 6 March 2022 and 5 April 2023.
[2] Five separate acts are particularised in Ms Molloy's statement of claim. CMS seeks to strike out:
[2]
(a) paragraph 8 (d) and (e) of the statement of claim which are the fourth and fifth of the five acts set out in the particulars, and
(b) paragraphs 8, 11 and 12 in so far as they relate to events other than those said to have occurred in paragraphs 8 (a), (b) and (c).
[3]
[3] Ms Molloy pleads, in the alternative, that CMS is vicariously liable for her injuries and other damage caused by the sexual assaults committed by Ms Renwick.
[4] CMS contends that Ms Molloy cannot pursue those matters because she does not have the necessary entitlement under the Workers Compensation and Rehabilitation Act 2003 (WCRA).
[5] Ms Molloy argues:
[4]
(a) that the statement of claim alleges a single injury sustained over a period of time, and
(b) that the injury has been assessed as required under s 237 of the WCRA.
[5]
"In the period 6th March 2022 to 5th April 2023, Brooke Renwick engaged in discrete acts of sexual assault and sexual harassment, and a course of conduct of sexual harassment against the Plaintiff and connected with her employment."
[6]
[7] There are five particulars of that allegation. The first three are uncontentious. It is not entirely clear whether Miss Molloy relies on all the particularised events as constituting the course of conduct but no point was taken about that.
[8] Paragraph 8 (d) concerns allegations about Ms Renwick directing Ms Molloy to attend another employee's house during Ms Molloy's rostered evening work shift on 6 December 2022 and then sexually assaulting her.
[9] Paragraph 8 (e) concerns allegations that, during January to April 2023, Ms Renwick engaged in retaliatory behaviour including a contrived assertion of a failure to follow procedures, withholding payment of wages, and failing to provide a work schedule. It also contains an allegation that CMS unjustifiably terminated Ms Molloy's employment on 5 April 2023.
[7]
[10] Ms Molloy is a "worker" for the purposes of the WCRA and she is seeking "damages" as defined in s 10 of that Act. Unless she comes within s 237 of the WCRA she cannot seek damages for injury sustained by her in circumstances creating, independently of the WCRA, a legal liability in CMS to pay damages.
[11] Section 237 relevantly provides:
[8]
(1) The following are the only persons entitled to seek damages for an injury sustained by a worker -
[9]
(i) has received a notice of assessment from the insurer for the injury; or
[10]
(ii) has not received a notice of assessment for the injury, but -
[11]
(A) has received a notice of assessment for any injury resulting from the same event (the assessed injury); and
[12]
(B) for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages ...
[13]
[12] In order to make the restriction on seeking damages clear, s 237(5) provides:
[14]
(5) 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.
[15]
[13] In this case, WorkCover Queensland is the insurer referred to in s 237(1)(a)(ii).
[14] Chapter 5, Part 7 of the WCRA sets out the requirements to be met before a proceeding is commenced. They were not in issue.
[15] A system of reviews and appeals is created by Chapter 13 of the WCRA. Where an insurer (which includes WorkCover) rejects a claim an injured worker can seek a review by the Office of Industrial Relations. A person aggrieved by the OIR review decision can appeal to the Queensland Industrial Relations Commission.
[16]
[16] Ms Molloy lodged an application for compensation with WorkCover on 2 May 2023 in which she asserted:
[17]
(a) her injury happened "over a period of time",
(b) that the nature of the injury was "Psychological",
(c) that the injury was caused by "sexual harassment and assault", and
(d) that the injury happened while "working at the normal workplace" and while "working away from the normal workplace".
[18]
[17] Ms Molloy's claim was rejected by WorkCover. With respect to her submission to WorkCover the following is recorded:
[19]
"In your statement you outlined multiple events in which you were sexually harassed by your boss Brooke Renwick since you [sic] commencement with CMS in March 2022. You described specific events that occurred at a worker event at the Charming Squire and Fat Louie's, the 2022 Christmas party, a gathering at a colleague Terri's house as well as Brooke's behaviour towards you from March 2022 until December 2022."
[20]
[18] She pursued a review by OIR.
[19] Ms Webster (the Review Officer at the OIR) gave her decision on 5 April 2024. The decision was expressed this way:
[21]
"I have set aside the decision of WorkCover to reject Miss Molloy's application for compensation and substituted a new decision to accept the application in accordance with section 32 of the Workers' Compensation and Rehabilitation Act2003".
[22]
[20] In the summary set out at the conclusion of the decision, the following appears:
[23]
"Therefore, I have determined that Miss Molloy sustained an 'injury' in accordance with section 32 of the Act and Miss Molloy has an entitlement to compensation."
[24]
[21] On 20 September WorkCover issued a Notice of Assessment. It specified that the date range for the injury was 29 April 2022 to 15 March 2023 and that:
[25]
"You have sustained a degree of permanent impairment from psychiatric/psychological injury assessed for the purposes of this Notice of Assessment.
[26]
The degree of permanent impairment (DPI) for your psychiatric/psychological injury is: 8%".
[27]
[22] Upon that notice issuing, Miss Molloy came within s 237(1)(a)(i) of the WCRA.
[28]
Is Miss Molloy's entitlement to seek damages confined in some way?
[29]
[23] The "injury" referred to in s 237(1)(a)(i) must be the same as the "injury" in the description in s 237(1): "entitled to seek damages for an injury". In other words, a Notice of Assessment opens the door for a worker to seek damages but only for the injury referred to in the Notice of Assessment.
[24] In these circumstances, s 237(1)(a)(i) provides that the entitlement to seek damages is confined by the Notice of Assessment for the "injury". Thus, Miss Molloy's "injury" is restricted to the nature of the injury identified in the Notice of Assessment - a psychiatric/psychological injury.
[25] In this case, CMS points to findings made in the reasons of Ms Webster as limiting Ms Molloy's capacity to sue. In her reasons Ms Webster identified five factors which arose from the material which had been provided to her. They were:
[30]
Factor 1 comments made regarding Miss Molloy's appearance
[31]
Factor 3 staff end-of-year celebration on 2 December 2022
[32]
Factor 5 adverse action taken against Miss Molloy by Ms Renwick after 6 December 2022
[33]
[26] Ms Webster found that Factors 1, 2 and 3 did not arise out of or in the course of management action and that Miss Molloy's injury arose out of her employment.
[27] The events constituting Factor 4 as described by Ms Webster are of a similar nature to the matters pleaded in paragraph 8(d) of the statement of claim. Ms Webster's conclusion was:
[34]
"Reading Miss Molloy's statement against those provided by Ms Renwick and Ms Potter, it is evident that Miss Molloy, Ms Renwick and Ms Potter attended at Ms Potter's residence on 6 December 2022. However, given the conflicting evidence provided by the parties, I cannot find this factor capable of substantiation to any extent. It will therefore not be considered further in this review decision."
[35]
[28] With respect to Factor 5, Ms Webster considered the written warning received by Miss Molloy and similar matters. She refers to the end of Miss Molloy's employment on or about 4 April 2023 and concludes:
[36]
"... I must conclude this factor constitutes reasonable management action and, where the language used in and the tone of Ms Renwick's emails to Miss Molloy is appropriate, I find such action was taken in a reasonable way."
[37]
[29] CMS argues that Miss Molloy is not entitled to sue in respect of Factors 4 and 5 because:
[38]
(a) The OIR's determination rejected Factors 4 and 5 on the basis that the definition of "injury" under s 32 of the WCRA was not satisfied, and
(b) As those factors were rejected there is no "injury" under s 32 and, once "injury" is formally rejected, a plaintiff cannot sue in respect of those matters.
[39]
[30] An inconsistency arises between Ms Webster's findings and the Notice of Assessment which declares the date range of injury to be 29 April 2022 to 15 March 2023. On the argument advanced by CMS the date range should have concluded on 2 December - the end of year social event. That was not explained, but, on its face, it includes that period in which the 6 December event and CMS giving a written warning (6 January 2023) occurred.
[31] In Sayers v Hansen trading as Alguard Security Services[1], de Jersey J (as he then was) said that the entitlement to sue was tied to the injury to which the notice of assessment relates. In that case, the plaintiff's Notice of Assessment specified 7 October 2007 as the "date of the injury". Further, the plaintiff disavowed the injury as having occurred over a period of time. The defendant's application to strike out parts of the statement of claim was successful because those parts claimed that the plaintiff had suffered harassment and intimidation after 7 October. Those paragraphs alleged matters beyond the temporal limit contained in the Notice of Assessment.
[32] It appears that de Jersey J may not have been referred to the consideration of the limited nature and effect of a Notice of Assessment considered by the Court of Appeal in Dowd v Swift Australia Pty Ltd[2]. That was a decision which concerned the repealed WorkCover Queensland Act1996, but the provisions of that Act are relevantly the same as in the WCRA so far as a Notice of Assessment is concerned. In that case, the plaintiff alleged that he had suffered an injury to his spine, and he nominated three alternative dates upon which he said the injury occurred. The Notice of Assessment specified the date of the injury as 13 April 2002. Before the District Court the insurer sought to strike out those parts of the statement of claim which dealt with the allegations that the worker's injury was suffered over a period of time culminating in an incident on 13 April 2002 or while he was on light duties on 15 May 2002.
[40]
"[8] Prior to the commencement of the proceedings, the respondent received a Notice of Assessment for an injury to his lumbar spine. The Notice of Assessment specified the date of the injury as being 13 April 2002.
[41]
[9] In dismissing the application, the primary judge proceeded on the basis that there was only one injury pleaded in relation to which compensation was sought and that was the injury as described in the Notice of Assessment. His Honour found that the cause of the injury and the date on which it was suffered were matters that should properly be left to the trial.
[42]
[10] The submissions of the applicant before the primary judge, and before this court, were predicated upon the assumption that the Act requires an injury to be related to a specific event. By nominating alternative events as giving rise to the injury the respondent should be taken to be alleging three separate injuries.
[43]
[11] The applicant's argument was framed around s 33 of the Act which defined an "event" as anything resulting in an injury to a worker and s 253(1)(a)(ii). The latter provision allows a worker with an assessed WRI exceeding per cent to claim for any other injury arising out of the same event.
[44]
[12] Sections 253 and 266 of the Act in force at the time of the respondent's injury, limited the right to commence an action for damages for personal injury to a worker who had received a Notice of Assessment for the injury. Section 266 identified the Notice of Assessment as one under Chapter 3 Part 9 of the Act.
[45]
[13] Chapter 3 Part 9 is concerned with the identification of, and assessment of permanent disability arising from an injury. While undoubtedly, the date an injury is suffered is significant in its identification, it is not per se a matter to which the statutory provisions make reference." (emphasis added)
[46]
"[17] ... the approach of the primary judge, deferring consideration of the respondent's entitlement to claim until the relevant facts are ascertained by a trial is one which is difficult to criticise. It was in accordance with the approach adopted by the High Court in the context of limitation periods in Wardley Australia Ltd v The State of Western Australia[1992] HCA 55; (1992) 175 CLR 514." (emphasis added)
[47]
[35] Section 185(3) of the WCRA provides that a Notice of Assessment must state:
[48]
"(a) whether the worker has sustained permanent impairment from the injury; and
[49]
(b) if the worker has sustained permanent impairment -
[50]
(ii) the amount of lump sum compensation under section 180 to which the worker is entitled for the injury; and
(c) if the worker is entitled to additional lump sum compensation under division 4 - the worker's entitlement."
[51]
[36] The Notice of Assessment for Miss Molloy complies with those requirements. There is no requirement for the Notice of Assessment to define the "events" which gave rise to the injury. The WCRA draws a distinction between "event" and "injury". As Dalton J said in Andersen v Aged Care Employers Self Insurance[3]:
[52]
"[23] The WCRA defines "event" as, "anything that results in injury" - s 31(1); "injury" as, "personal injury arising out of, or in the course of, employment" - s 32(1), and "impairment" as, "loss of efficient use of any part of a worker's body" - s 37. An injury is not the means by which damage is inflicted, but is the effect on the person of the worker of an event, as can be readily seen when the schedules to the WCR Regulation are perused. ..."
[53]
[37] I also respectfully agree with her Honour's analysis:
[54]
"Once it had received an assessment from the doctor, ACES [the self-insurer] was to issue a notice of assessment which was to state, inter alia, whether, and to what degree, Ms Andersen had sustained a permanent impairment by reason of her back injury - s 185(1) and (3) of the WCRA. Under these provisions of the WCRA, ACES' task in issuing a notice of assessment was to assess injury and impairment, not to make findings about what events caused the injury or the date those events might have occurred." (emphasis added)
[55]
[38] The effect of a Notice of Assessment is confined by the legislation. For example, it does not bind an insurer at trial - see Parry v Woolworths Ltd[4] where Fraser JA (with whom McMurdo P and White AJA agreed) said:
[56]
"[124] The assessment of injury under the Act in this case did potentially affect the appellant's proceedings for damages in other ways: assessment was a necessary pre-condition of the appellant's entitlement to seek damages for the injury, the appellant was obliged to elect between seeking damages and receiving his statutory entitlement to lump sum compensation, and the assessment also potentially affected the costs orders that could be made in the damages proceeding. But the Act contained no provision that made the assessment of injury stated in a notice of assessment binding upon the respondent in the appellant's proceedings for damages." (emphasis added)
[57]
[39] A Notice of Assessment is a necessary precondition to a plaintiff commencing an action, but the notice does not bring with it the reasoning behind the giving of the notice. It does, though, serve to confine a plaintiff to the nature of the injury allegedly suffered. The findings made by the OIR which led to the decision to issue a Notice of Assessment are not part of that notice and do not confine an applicant for damages.