Philomena Ann Green v Suncorp Metway Ltd & Ors [2000] QSC 12

2. That the applicant may start the proceeding once she has complied with s 302 of the Act.

3. That costs of the application be costs in the cause.

[2] The application requires me to answer the following question:

1. In the events which have happened can the present applicant lawfully begin her action against the abovenamed respondents for damages for personal injuries without having made the present application?

[3] Before turning to the WorkCover Queensland Act 1996, I note the following facts appearing from the applicant's material read before me.

[4] On 10 December 1997 the applicant (then aged 45 years) completed an application for compensation. The application was made under the WorkCover Queensland Act 1996 which had come into force on 1 February 1997. In that application she alleged having suffered a neck strain on 8 December 1997 while at her work station using her computer. In the application she said she believed "the injury was caused by my positioning the phone between my head and shoulder to enable me to type with both hands".

[5] It appears that at material times the applicant was a telephone operator and that the applicant was employed with one or other of the abovenamed respondents from 20 November 1995 to 11 December 1997.

[6] The application for compensation was allowed. Weekly compensation was paid but not beyond 13 July 1998 because WorkCover Queensland considered the applicant's continued absence from work was not the result of an "injury".

[7] On 20 July 1998 the applicant consulted her present solicitors. I should mention now that the evidence shows the solicitors have issued two writs but for present purposes I ignore these writs.

[8] Dr White, an orthopaedic surgeon has examined the applicant a number of times and has provided reports to her solicitors. In one of these reports he suggested the applicant be reviewed by a neurosurgeon and Dr Leigh Atkinson is to see her on 24 February 2000. Dr White has opined:

"This lady complains of pain in the cervical spine and upper limb symptoms as a consequence of her work duties performed prior to December 1997."

Thus it is said by the applicant's counsel Mr J S Douglas QC that the limitation period for commencing the applicant's action began before 8 December 1997.

[9] On 29 September 1999 the applicant's solicitors wrote to WorkCover Queensland asking that body to arrange to have the applicant assessed pursuant to ss 196 and 197 of the WorkCover Queensland Act 1996 "to ascertain whether she has sustained any permanent impairment as a result of her injuries".

[10] That assessment has not occurred - on 1 November 1999 and 11 January 2000 the solicitor sent reminder letters to WorkCover.

[11] On 13 January 2000 the applicant's solicitors wrote to WorkCover a letter (Exhibit LTM 11) which included the following statements:

"As our client considers that her injuries which give rise to her statutory claim were sustained over the entire period she was employed by Suncorp in order to protect her right to claim common law damages for the period of her employment from 1 February 1997 s 302 of the WorkCover Queensland Act ("the Act") must be complied with by 1 February 2000. Pursuant to s 262(3) of the Act 'WorkCover may give the claimant a conditional damages certificate if there is an urgent need to bring proceedings and the claimant's permanent impairment has not been assessed'.

You might therefore kindly issue a conditional damages certificate pursuant to s 262(3) as a matter of urgency ."

[12] On 18 January 2000 WorkCover Queensland issued a conditional damages certificate (Exhibit LTM 12). This certificate shows the name of the worker to be the present applicant and that "date of event causing injury" was "8 December 1997". The certificate then relevantly read:

This Conditional Damages Certificate is issued, pursuant to section (262, 265, 270) of the WorkCover Queensland Act 1996 on the basis that there is an urgent need to bring proceedings for damages.

A Conditional Damages Certificate is issued when WorkCover is not satisfied that:

* the person was a "worker" when the injury was sustained; or

* the worker has sustained an "injury" within the terms of the Act; or

* the worker's degree of permanent impairment has been assessed in the way mentioned for the injury under Chapter 3 Part 9 of the Act

This certificate allows proceedings to be commenced, however, the proceedings are stayed until the above matters are resolved. When the matters have been resolved WorkCover may issue a Damages Certificate which will allow you to continue proceedings.

Please note that you must comply with Chapter 5 of the Act to continue proceedings."

[13] I turn now to the WorkCover Queensland Act 1996 to explain why the applicant has brought the present application notwithstanding that she has the conditional damages certificate which on its face allows proceedings by the applicant to be commenced.

[14] It will be remembered that the application before me seeks leave to bring a proceeding despite noncompliance with s 280 of the Act.

[15] The Act is divided into a number of chapters of which for present purposes "CHAPTER 5 - ACCESS TO DAMAGES" is the most important.

[16] Chapter 5 is itself divided into a number of parts and the following parts contain provisions relevant to the present application:

Part 1 - Interpretation and application (contained in sections 250 to 252 both inclusive)

Part 2 - Entitlement conditions (contained in ss 253 to 274 both inclusive)

Part 5 - Pre-court procedures (contained in ss 279 to 291 both inclusive)

Part 6 - Settlement of claims (contained in ss 292 to 300 both inclusive)

Part 7 - Start of court proceedings (contained in ss 301 to 310 both inclusive)

[18] Section 250 provides (inter alia) that in Chapter 5 "damages certificate" means a certificate under s 262, 265 or 270 given to a claimant by WorkCover that entitles the claimant to seek damages. Section 250 also defines "claimant" as "means a person entitled to seek damages"; section 253, to which I shall shortly come gives a "general limitation on persons entitled to seek damages".

"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."

[19] This part has a number of divisions and I refer to the following:

Division 1-Limitations on persons entitled to seek damages

[20] This division has two sections - ss 253 and 254.

[21] Section 253 is headed "General limitation on persons entitled to seek damages" and s 253 relevantly provides:

"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 damages for an injury sustained by a worker.

[22] I pause to say there is no dispute that the present applicant is entitled to seek damages because of compliance with sub s 253(1)(b). It is important to note that s 253(1) lists four classes of person (with two subdivisions of the persons in s 253(1)(a)) as "the only persons entitled to seek damages". Each of these persons is a "claimant" within s 250. Subsequent divisions of "Part 2 - Entitlement conditions" bear on claimants who are persons mentioned in each of the classes of person in s 253(1).

[23] Divisions 2 and 3 of Part 2 apply to persons mentioned in section 253(1)(a)(i) and 253(1)(a)(ii) respectively and I shall later mention these divisions.

Division 4 of Part 2 - "Claimant whose application for compensation was allowed".

[24] This Division contains three sections - 261, 262 and 263. Section 261 provides that Division 4 applies to a claimant who is a person mentioned in s 253(1)(b). The present applicant is such a person.

"262.(1) The injury sustained by the claimant must be assessed in the way provided for under chapter 3, part 9.

(2) The claimant can not seek damages until WorkCover gives the claimant a notice of assessment and the claimant has complied with the requirements of chapter 3, part 9, division 3.

(3) However, WorkCover may give the claimant a conditional damages certificate if there is an urgent need to bring proceedings for damages and the claimant's permanent impairment has not been assessed or agreed.

(4) If a conditional certificate is given, the claimant may start proceedings for damages for the injury, but the proceedings are stayed until WorkCover makes the certificate unconditional and the claimant complies with parts 5 and 6.

(5) WorkCover must make the certificate unconditional when the claimant has been assessed and has been given a notice of assessment."

[26] The references in sub-s 262(4) to Parts 5 and 6 are to Part 5 (pre-court procedures) and Part 6 (settlement of claims) of "CHAPTER 5 - ACCESS TO DAMAGES" and the reference in s 262(1) to Chapter 3 Part 9 is a reference to "Entitlement to Compensation for Permanent Impairment."

Division 5 of Part 2 - "Claimant who has not lodged application for compensation".

[27] Section 264 which appears in division 5 reads:

"This division applies to a person mentioned in s 253(1)(c)."

[28] Although division 5 does not apply to the present applicant, I mention particularly s 265 in Division 5 because it contains provisions similar to s 262(3) and (4) as to the issue of conditional damages certificates. I mention s 265 also because it and s 262 and s 270 disclose the legislature's intention to empower WorkCover in the circumstances to which those sections apply to give a conditional damages certificate whether or not a proposed claimant has applied for compensation and in order that a damages suit of a claimant to whom those sections apply not be prejudiced by expiry of a time limitations statute.

[29] Section 265 which is headed "Access to damages if no previous application for compensation", relevantly reads:

"265.(1) The person may seek damages for the injury only if WorkCover gives the person a damages certificate under this section.

(2) The person must apply in the approved form to WorkCover for the certificate but only for the purpose of seeking damages.

(3) WorkCover may only, and must, give the certificate if-

(a) WorkCover decides that the person was a worker when the injury was sustained; and

(b) WorkCover decides that the worker has sustained an injury; and

(c) the worker's degree of permanent impairment has been assessed in the way mentioned for the injury under chapter 3, part 9, division 2.

(4) However, WorkCover may give the person a conditional damages certificate if there is an urgent need to bring a proceeding for damages and WorkCover is not satisfied about the matters in subsection (3).

(5) If a conditional certificate is given, the person may start a proceeding for damages for the injury, but the proceeding is stayed until WorkCover makes the certificate unconditional and the person complies with parts 5 and 6. [again a reference to pre court procedures and settlement of claims in parts 5 and 6 of Chapter 5]

(6) WorkCover must make the certificate unconditional when it is satisfied about the matters mentioned in subsection (3).

[30] This division which contains sections 268 to 272 (both inclusive) applies to a claimant who is a person mentioned in s 253(1)(d) (see s 268).

[31] Section 270 which is headed "Application for damages certificate" contains provisions which are similar to certain provisions in sections 262 and 265. These provisions are sub sections 270(3) and (4) and (5) which read:

"(3) However, WorkCover may give the person a conditional damages certificate if there is an urgent need to bring a proceeding for damages and WorkCover is not satisfied about the matters in subsection (2).

(4) If a conditional certificate is given, the person may start a proceeding for damages for the injury, but the proceeding is stayed until WorkCover makes the certificate unconditional and the person complies with Parts 5 and 6.

(5) WorkCover must make the certificate unconditional when it is satisfied about the matters mentioned in sub-section (2)."

[32] In summary then, in respect of each class of person described in s 253(1)(b),(c) and (d) the statute has in Part 2 - Entitlement Conditions provided for the issue of conditional damages certificates to enable a claimant to start proceedings for damages for the injury but decreed a stay of the proceedings until WorkCover grants an unconditional certificate and a claimant complies with Part 5 (pre-court procedures) and Part 6 (Settlement of Claims).

[33] If a conditional certificate is given under ss 262, 265 or 270 the person in whose favour it is given may start a proceeding or proceedings for damages for the injury and once started the proceeding is stayed on terms set out in each of these sections.

[34] I said earlier - para 23 ante - that I would mention persons described in subsection 253(1)(a)(i) and (ii) and I now do so. These two subsections refer to workers who have 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

"Certificate Injury" and "non-certificate injury" are defined in ss 42 and 43 of the WorkCover Queensland Act 1996.

[35] There is no provision in that Act empowering WorkCover to issue to a claimant under s 253(1)(a)(i) or (ii) a conditional damages certificate enabling the claimant to start proceedings for damages for the injury (see DIVISIONS 2 and 3 of PART 2 - ENTITLEMENT CONDITIONS). Subject to the grant of a conditional damages certificate under ss 262, 265 or 270, claimants described in DIVISIONS 2 and 3 must, as it seems to me, comply with the requirements of Parts 5, 6 and 7 of "CHAPTER 5 - ACCESS TO DAMAGES" before they can start proceedings for damages. I point out that in terms of s 308 (which appears in DIVISION 2 of PART 7) a claimant may, in the circumstances described in s 308, bring a proceeding for damages for personal injuries 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. Section 308 does not bear on the present application.

[36] I move now to "PART 5 - PRE-COURT PROCEDURES"

This part consists of sections 279 to 291 (both inclusive).

"Object of Pt 5

s 279. 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."

In my view s 279 is important in construing Part 5 and its place in CHAPTER 5 - ACCESS TO DAMAGES.

Section 280 mentioned in the present application relevantly reads:

"280(1). 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."

It is unnecessary to quote the whole of s 280 but I mention that the notice under s 280 "must be accompanied by a genuine offer of settlement or a statement of the reasons why an offer of settlement cannot yet be made."

[37] Section 282 obliges WorkCover to respond to the notice in accordance with the section. In the present case it is not in issue that the present applicant has not given any notice under s 280 and noncompliance with s 280 combined with the provisions of s 305 to which I shall shortly refer has apparently resulted in the present application.

[38] I mention in passing PART 6 - SETTLEMENT OF CLAIMS and move on to PART 7 - START OF COURT PROCEEDINGS. Division 1 of this part is headed "When claimant can start court proceedings" and contains sections 301 to 305 (both inclusive).

[39] Relevant to the present matter I note the following provisions of Division 1:

301. This division states the conditions that must be satisfied before a claimant can start a court proceeding.

Compliance necessary before starting proceeding

302. The claimant may start a proceeding in a court for damages only if the claimant has complied with-

(a) the relevant division under part 2

(b) part 5, other than as provided by section 304 and 305; and

(c) part 6; and

"Claimant to have given complying notice of claim or WorkCover to have waived compliance

303. The claimant may start the proceeding if any of the following have happened-

(a) at least six months or, for a terminal condition, three months have elapsed after-

(i) the claimant has given a complying notice of claim; or

(ii) WorkCover has waived the claimant's noncompliance with the requirements of section 280; or

(iii) the court has made an order under section 304 or 305;

(b) WorkCover has denied liability on the part of the employer in connection with the injury;

(c) WorkCover has admitted liability, but is claiming contributory liability from the claimant or another party, and the claimant has given WorkCover written notice that the extent of the admission is disputed:

(d) WorkCover has admitted liability but damages can not be agreed.

"Court to have made declaration about noncompliance

304.(1) Subject to section 303, the claimant may start the proceeding if the court, on application by the claimant dissatisfied with WorkCover's response under section 282 to a notice of claim, declares that-

(a) notice of claim has been given under section 280, or

(b) the claimant is taken to have remedied noncompliance with the requirements of section 280.

(2) A declaration that a claimant is taken to have remedied noncompliance with section 280 may be made on conditions the court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant's failure to comply with the requirements of section 280.

Court to have given leave despite noncompliance

305.(1) Subject to section 303, the claimant may start the proceedings if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 280.

(2) The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant's failure to comply wit the requirements of section 280."

(a) the effect of sub-ss 262(4), 265(5) and 270(5) is that upon the issue of conditional damages certificates under each of those sections, the claimants are automatically entitled to start proceedings.

(b) sub-ss 262(4), 265(5) and 270(5) conflict with ss 301-303.

(c) the language of ss 301 and 302 appears to be mandatory with s 301 using the word "must" and s 302 saying a proceeding in a court for damages may be started "only if the claimant has complied with" each of the matters there set out.

[41] The nett effect of Mr Douglas' submissions is that because of the language used in PART 7 - START OF COURT PROCEEDINGS then notwithstanding the apparent permission to start the court proceedings given by the conditional damages certificate issued to the applicant pursuant to s 262(4), it has been necessary for the applicant to come to this Court seeking the orders earlier set out.

[42] Mr Hoare for the respondent WorkCover has submitted that once a claimant has a conditional certificate issued under s 262(4) that claimant can begin a proceeding for damages for the injury but the proceeding is stayed until WorkCover makes the certificate unconditional and the claimant complies with Parts 5 and 6.

[43] He further submits that there is no conflict as submitted by Mr Douglas and that the application must be dismissed.

[44] Consideration of the WorkCover Queensland Act 1996 has satisfied me that the legislation has intended by that Act that:

(a) as a general rule all claimants for damages for personal injury to whom the Act applies must comply with Parts 5 and 6 of "CHAPTER 5 - ACCESS TO DAMAGES" before starting court proceedings in accordance with PART 7 - START OF COURT PROCEEDINGS";

(b) However, in certain cases to which ss 262, 265 and 270 apply, a claimant may obtain from WorkCover a conditional damages certificate if there is an urgent need "to bring proceedings for damages" and once that conditional certificate is given, the claimant may start proceedings for damages for the injury but the proceedings are stayed "until WorkCover makes the certificate unconditional and the person complies with Parts 5 and 6";

(c) As "urgent need to bring proceedings for damages" is the condition precedent to WorkCover issuing the conditional certificate it is apparent that the legislature intended that approaching expiry of a time limitation period disclosed an "urgent need" and the conditional certificate procedure was intended to avoid situations where a claimant (i.e. "a person entitled to seek damages" (s 250) would be defeated by expiry of a limitation period before proceedings were started or begun.

[45] In the scheme of the Act, the importance of a claimant's compliance with Parts 5 and 6 is readily seen from:

(a) the statutory stay of proceedings started by a claimant who holds a conditional damages certificate until such compliance occurs;

(b) the object of "PART 5 - PRE-COURT PROCEDURES" as stated in s 279 which 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" (see para 36 ante)

[46] In my view the legislature's intention is that proceedings for damages begun by claimants holding a conditional certificate under ss 262, 265 or 270 are not to progress after commencement unless and until the claimant complies with Parts 5 and 6. Obviously the legislature hopes that claims for damages will be settled before costs of court proceedings are incurred and which costs may ultimately have to be borne by WorkCover.

[47] I return now to the present application. The submissions of Mr Douglas QC and Mr Hoare as to the entitlement of holders of conditional damages certificates under ss 262, 265 and 270 to start proceedings do not differ and as I agree with them I find that the holders of such certificates are entitled to commence proceedings for damages for the claimant's injury. Those proceedings are then stayed in accordance with the relevant statutory provisions.

[48] In my opinion, the holder of such a certificate is entitled to commence his or her proceedings forthwith upon receipt of the certificate and before expiry of the relevant time limitation under the Limitation of Actions Act 1974.

[49] Despite the language used in Division 1 of "PART 7 - START OF COURT PROCEEDINGS" to which I have earlier referred (see paras 39 and 40 (ante)) there was no need for the present application now before me.

[50] That this is so, is I believe, clear from the fact that in each of ss 262, 265 and 270 compliance by the applicant with s 280 - s 280 is in Part 5 - is to occur after a proceeding is begun and before the proceeding advances beyond commencement - there is the statutory stay.

[51] In the case now before me, compliance with s 280 will occur after the present applicant starts her proceedings against the above respondents.

[52] I return to "PART 7 - START OF COURT PROCEEDINGS" and more particularly s 302 which I have earlier set out (see para 39 ante).

[53] This section sets out four matters and provides that a claimant may start a proceeding in a court for damages only if the claimant has complied with those four matters.

[54] As to the first matter, the present applicant has complied with the relevant division under PART 2 of CHAPTER 5. The relevant division is Division 4 and there has been compliance with s 262 of that division in that the conditional damages certificate has issued pursuant to that section.

[55] The second and third matters i.e. compliance with parts 5 and 6 have each been statutorily deferred until after the proceedings are begun.

The fourth matter - compliance with s 303 has not occurred. More particularly the requirements of sub-para (a) of section 303 have not been met and the balance of s 303 does not apply to the present applicant.

[56] The present application before me seeks an order under s 305 and this sub-s is specifically directed to noncompliance by the claimant with the requirements of s 280 (which is a Part 5 requirement).

[57] As I have already said, compliance with Part 5 has, in the applicant's case, been statutorily deferred until after the proceedings are begun.

[58] I do not see that in the present case compliance with s 302, 303 or 305 is needed before the present applicant can begin proceedings relying on her conditional certificate.

[59] I agree with Mr Hoare that if, in the present case, the applicant, before beginning proceedings in reliance on the conditional damages certificate were required to obtain the leave of the court under s 305, then the value of having an earlier issued conditional certificate entitling her to begin proceedings is set at nought and costs will be unnecessarily incurred by both sides.

[60] To allay any doubts as to the need for applications such as the present one to be brought in cases where a claimant already holds a conditional damages certificate under ss 262, 265 or 270, I consider that DIVISION 1 of "PART 7 - START OF COURT PROCEEDINGS" should be amended to provide that Division 1 does not apply to a court proceeding begun by a claimant who holds and relies on a conditional damages certificate issued pursuant to ss 262, 265 or 270 of the WorkCover Queensland Act 1996.

[61] Finally, I note that the legislation has used the following phrases:

(a) "seek damages" - see e.g. s 250 in which claimant "means a person entitled to seek damages", and s 253 which refers to "persons entitled to seek damages for injury". The phrase is used in other sections.

(b) "the claimant may start proceedings" (see e.g. s 262(4); 265(5) - "may start a proceeding" and s 270 (4);

[62] In the present case, I am concerned only with starting a proceeding or starting court proceedings. In my view this can only mean beginning a court action by filing in the relevant court the necessary process originating or commencing the action. I find it unnecessary to define "seek damages" but would, if it were necessary to do so refer to the meanings I gave in Mears v Coles Myer Ltd (No 99 of 1999) in my reasons for judgment delivered on 18 August 1999 (at p 15-16).

[63] In the result, I dismiss the application and I shall hear from the parties on the matter of costs.