Rough v Lockwood Aust Pty Ltd & Anor

[3] The statement of claim was filed on 29 October 1999. The applicants' defence was filed on 2 February 2000. Paragraphs 9 and 10 of the defence assert:

"9. Further, the defendants say that in respect of any injuries sustained by the plaintiff after 1 February 1997, the plaintiff has failed to comply with the pre-court proceedings prescribed by the WorkCover Queensland Act 1996 and is thereby prohibited from seeking damages with respect to any injuries sustained on or after 1

10. Further the defendants say that so far as any injuries sustained by the plaintiff between 1 January 1996 and 31 January 1997 are concerned, the plaintiff has failed to obtain from WorkCover Queensland prior to commencement of the proceedings herein, a damages certificate pursuant to Section 182D(3) of the Workers' Compensation Act 1990 or a conditional damages certificate pursuant to Section 182D(4) of the Workers' Compensation Act

1990 and is thereby prohibited from seeking damages with respect to any injuries sustained between the above dates."

[4] By application filed on 30 November 2000 the applicants seek an order striking out the respondent's action in relation to injuries sustained since 1 January 1996 pursuant to rule 171 of the UCPR. The basis for the application is that the respondent has failed to:

(a) obtain a damages certificate (whether conditional or otherwise) prior to the commencement of the action pursuant to either the Workers' Compensation Act 1990 ("the 1990 Act") or the WorkCover Queensland Act 1996 ("the

1996 Act"); and

(b) comply with any of the other pre-court procedures required by the 1996

[5] It is admitted that the second applicant carried on business as a manufacturer of locks and other items of security equipment from premises in Brisbane at which it employed the respondent from approximately January 1980 to 30 June 1998 as a process worker. It is also admitted that the first applicant carried on business of the same nature from the same premises at which it employed the respondent from 1

[6] The respondent alleges that during the course of her employment she was required to do the types of work described in paragraph 5 of the statement of claim which caused degeneration of her right rotator cuff mechanism and caused a prolapse of her vagina.

(a) working on the "drill and tap" machines from approximately January 1980 to the end of 1997 which required the respondent to pull down on the handles of the machines from above shoulder height in a forceful manner;

(b) working on deadlocks from approximately 1990 to the end of 1997 every month for approximately 2 weeks at a time which required the respondent to lift approximately 35 boxes of deadlocks from floor to bench each day and then to lift and carry 35 boxes of deadlocks from the bench to the wall;

(c) working on multi-bolts from approximately 1987 to 1996 which required the respondent to lift very heavy boxes of multi-bolts from bench to floor a number of times each working day;

(d) working on the die-casting machines from the beginning of 1998 to 10

December 1998 which required the respondent, if allocated to an automatic die-casting machine, to hammer approximately 1200 components per day with the components being located at approximately shoulder height or, if allocated to a manual dye-casting machine, to brush approximately 600 components per day using her right arm above shoulder height and hammer approximately 600 components per day using her right arm above shoulder height; and

(e) performing "scraping" work from approximately January 1980 from time to time which included lifting and carrying many boxes of components each day.

[8] According to the respondent's affidavit filed on 29 June 1999, it was not until 10

December 1998 that she noticed pain and soreness in her right shoulder which is alleged by the respondent to be the result of degeneration of her right rotator cuff

mechanism. The respondent in her affidavit filed on 29 June 1999 also deals with her recognition of the symptoms in her vaginal area which resulted in her seeking medical advice on 17 December 1998 and undergoing a hysterectomy on 11

January 1999. The respondent relies on medical evidence that links chronic straining associated with work as a significant factor in the development and/or deterioration of her vaginal prolapse.

[9] The respondent alleges that the degeneration of her right rotator cuff mechanism and her vaginal prolapse and their consequences were caused or contributed to by the negligence and/or breach of contract and/or breach of statutory duty of the first and second applicants respectively with particulars set out in paragraph 7 of the statement of claim.

[10] The respondent was born on 20 August 1946 and claims to have been left with an impairment of function of her right upper limb and to suffer depression. She claims that prior to the conditions becoming evident she was intellectually suited only to occupations of a practical repetitive nature. She therefore claims that she has become effectively unemployable, as those occupations are now unavailable to her because of the injuries sustained in the course of her employment.

[11] The relevant amendments to the 1990 Act made by the Workers' Compensation Amendment Act (No 2) 1995 commenced on 1 January 1996 and remained operative until 31 January 1997. In summary these amendments provide that a worker may seek damages at law only if the worker has obtained a certificate from the Workers' Compensation Board of Queensland. Section 182D(1) of the 1990 Act was in the following terms:

"182D.(1) A worker who has not received an offer of lump sum compensation under section 132 may seek damages at law for an injury suffered after the commencement only if the board gives to the worker a certificate under this section.

(2) The worker must apply in the approved form to the board for a certificate.

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

(a) the board decides the injury is an injury within the meaning of this Act and was suffered after the commencement; and

(b) the degree of the worker's permanent impairment resulting from the injury has been assessed in the way mentioned for the injury under section 130A(1).

(4) However, the board may issue the worker with a conditional certificate if-

(a) the degree of the worker's permanent impairment is not agreed or has not been decided by a tribunal; or

(b) there is an urgent need to bring proceedings for damages.

(5) If a conditional certificate is given, the worker may start proceedings at law for damages for the injury, but the proceeding are stayed until the board makes the certificate unconditional.

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

(7) If the board is unable to make a decision about a matter mentioned in subsection (3)(a) or (b), the board must-

(a) refer the matter to a medical assessment tribunal for decision; and

(b) in an appropriate case, ask the tribunal to assess the worker's degree of permanent impairment resulting from the injury.

(8) If the board makes a decision under subsection (3)(a), a worker aggrieved by the decision may appeal the decision in the way, and within the time, prescribed under the regulations.

(9) A decision of a medical assessment tribunal on a reference under this section is final and cannot be questioned in any proceedings whatever before a tribunal or a court."

[12] The consequence of proceedings for common law damages being commenced by an injured worker without having obtained the certificate provided for under section

182D(1) where that was applicable is that the proceedings are incompetent: Mears v Coles Myer Ltd [2000] QCA 342 (25 August 2000) which dismissed an appeal from the decision by Shepherdson J in Mears v Coles Myer Ltd (unreported, Sup Ct

(Q), 18 August 1999).

[13] The respondent has neither sought nor obtained a certificate under section 182D of the 1990 Act. Mr Land of Counsel who appeared on behalf of the respondent did not dispute the authority of the decisions in Mears v Coles Myer Ltd, but argues that the requirement to comply with section 182D did not arise unless the respondent's employment was "a significant contributing factor" to the respondent's injury to which the 1990 Act could apply. This is a reference to the definition of "injury" in section 6(1) of the 1990 Act:

"'injury' means personal injury arising out of, or in the course of, employment if the employment was a significant contributing factor to the injury."

[14] The respondent therefore argues that as this would require a consideration of the evidence relating to what changes in the right rotator cuff and her vagina were caused during the period to which the 1990 Act could apply, it is not appropriate or possible on an application of this type to conclude whether or not the respondent was required to comply with section 182D.

[15] The respondent also argues that there is no evidence that, during the period of 13 months when section 182D was operative, the respondent's employment was a significant contributing factor to the respondent's rotator cuff disease or to the vaginal prolapse. The respondent submits that the period from 1 January 1996 to

31 January 1997 is approximately 6% of the overall period in which it is alleged that the respondent's condition has developed and that 6% of the overall period could not be said to constitute a significant contributing factor to the disease, if

100% of the employment period was required for the disease to develop.

[16] The 1996 Act commenced on 1 February 1997. Although it repealed the 1990 Act, section 551 of the 1996 Act provides that the 1990 Act applies in relation to an injury sustained by a worker before the repeal of the 1990 Act, as if the 1990 Act had not been repealed.

[17] Chapter 5 of the 1996 Act deals with access to common law damages. Section 253

"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. "

[18] Section 302 of the 1996 Act provides that a worker may start a proceeding in a court for damages only if the worker has satisfied four requirements:

(1) the worker is offered lump sum compensation in lieu of damages after either agreement is reached with WorkCover on the level of permanent impairment or, failing agreement, assessment by a Medical Tribunal which requirement is covered in part 2 of chapter 5 of the 1996 Act headed

(2) the worker delivers to WorkCover a complying notice under section 280 of the 1996 Act (other than as provided by sections 304 and 305 of the 1996

Act) in respect of which WorkCover must decide whether the notice complies and the parties then must attempt to resolve the claim in the manner required by part 5 of chapter 5 of the 1996 Act;

(3) a compulsory conference has been held under part 6 of chapter 5 of the

(4) section 303 of the 1996 Act has been complied with.

[19] It is not in issue that the respondent has neither obtained a notice of assessment nor given a notice of claim under the 1996 Act. The respondent does not dispute the effect of section of 253(1) of the 1996 Act in making proceedings by a worker for common law damages incompetent where the worker is required to comply with the pre-court procedures in chapter 5 of the 1996 Act and has failed to do so.

[20] The respondent mounts an argument in relation to the need to comply with chapter

5 of the 1996 Act in similar terms to that advanced in respect of section 182D of the

1990 Act. It is argued that the respondent is not required to comply with the pre- court procedures unless she is claiming damages for an injury to which section 34 of the 1996 Act applies.

[21] Having regard to the facts pleaded in paragraph 5 of the statement of claim, the period in respect of which the 1996 Act could apply to the respondent is from 1

February 1997 to on or about 10 December 1998. Although the respondent's submissions were made on the basis of the current definition of "injury" in section

34(1) of the 1996 Act, that definition was as a result of an amendment made by the

WorkCover Queensland Amendment Act 1999 which relevantly commenced on 1

July 1999. During the period 1 February 1997 to 10 December 1998, section 34(1)

of the 1996 Act was in the following terms:

"An 'injury' is personal injury arising out of, or in the course of, employment if the employment is the major significant factor causing the injury."

[22] The respondent therefore argues that to determine whether the respondent's injury is one to which the 1996 Act could apply would require consideration of the evidence relating to what changes in the right rotator cuff and her vagina were caused during the period to which the 1996 Act could apply and it is therefore neither appropriate nor possible on an application of this type to determine whether or not the respondent was required to comply with chapter 5 of the 1996 Act, before commencing her proceedings.

[23] The respondent also argues that it is difficult to see how her employment during the period 1 February 1997 to 10 December 1998 could be a major significant factor causing the injury giving that that period of 16 months is approximately 7% of her total employment period of 18.5 years over which her condition has developed. The respondent also submits that there is no evidence that during this period from 1

February 1997 to 10 December 1998 there was any perceptible progress of the rotator cuff disease or the damage to the vagina.

[24] There is no express allegation in the statement of claim as to when the respondent's respective injuries to her shoulder and vagina were sustained. It is implicit in paragraph 5 of the statement of claim that the injuries were sustained at the latest on or about 10 December 1998. It is also implicit in the bringing of the action against the first applicant which commenced as the respondent's employer on 1 July 1998 that a cause of action by the respondent against the first applicant has accrued since that date. At this stage there has been no attempt by the respondent to be more particular in identifying the date of the onset of her injuries or to discriminate in any way between the sustaining of the injury to her right shoulder and the sustaining of further injuries, as a result of aggravation of that injury. The defences raised in paragraphs 9 and 10 of the applicants' defence and the underlying basis of this application that the respondent's claim to some extent relates to injuries sustained after 1 January 1996 makes pertinent the timing of the respondent's injuries for which she is suing.

[25] It is also implicit in the respondent's submissions that to the extent that the injuries were progressively sustained, they may have been sustained after 1 January 1996.

[26] Although medical reports were in evidence on this application, it is not possible on an application of this nature to endeavour to determine when the respective injuries by the respondent relative to her action against the second applicant were sustained in the sense of when an injury reached the stage that the court could properly give damages for the harm done: Cartledge v E Jopling & Sons Ltd [1963] AC 758,

[27] Mr Land of Counsel referred me to authorities such as Federal Broom Co Pty Ltd v

Semlitch [1964] HCA 34; (1964) 110 CLR 626, 632 and Favelle Mort Ltd v Murray (1976) 133 CLR

580, 587 which deal with statutory definitions of injury in workers' compensation legislation and the application of those definitions to the suffering of a disease by a worker. It is not in issue on this application that the injuries in the nature of rotator cuff syndrome and the prolapse of the respondent's vagina are injuries for the purpose of the bringing of a common law damages action by a worker against the employer.

[28] To the extent that Mr Land of Counsel relied on Semlitch to show that an injury can be sustained where there has been an aggravation of an underlying condition, that does not seem to be relevant on the present state of the respondent's statement of claim.

Definition of "injury" in 1990 Act and 1996 Act

[29] It is critical to the respondent's submissions that any injury sustained by her between 1 January 1996 and 31 January 1997 was not an injury within the meaning of section 6(1) of the 1990 Act and any injury sustained by her between 1 February

1997 and 10 December 1998 was not an injury within the meaning of section 34(1)

of the 1996 Act.

[30] Some assistance as to the meaning of "injury" in the respective definitions is found in the Explanatory Notes for the WorkCover Queensland Bill 1996. With respect to clause 34 which was enacted as section 34 of the 1996 Act, the following statement was made:

"Clause 34 replaces section 6 of the Workers' Compensation Act

1990. It explains the meaning of 'injury'.

This clause changes the requirement for employment to be 'a significant contributing' factor to the injury to 'the major significant factor' causing the injury. The former requirement was added to the definition in 1994 in an attempt to exclude those injuries where the relationship of the injury to employment was only minimal and for which employers were held responsible.

Determining what 'a significant contributing factor' means has been difficult for claims staff. Courts have applied a lenient interpretation to 'a significant contributing factor' such that this 1994 addition has become less meaningful.

Changing 'a significant contributing factor' to 'the major significant factor' is designed to achieve what the 1994 amendment has not i.e.

to exclude those injuries which have only a minimal work related component."

In the case of both the definition in the 1990 Act and the definition in the 1996 Act, as enacted, the reference to "a significant contributing factor" or "the major significant factor" was to emphasise the connection or relationship between the injury and the employment. In each case that is apparent from the wording of the definition.

[31] To the extent that the respondent sustained any injury between 1 January 1996 and

31 January 1997, the only cause attributed to that injury on the statement of claim is the work that the respondent was required to perform for the second applicant. The same can be stated in relation to any injury sustained by the respondent between 1

February 1997 and 30 June 1998. In respect of any injury sustained by the respondent between 1 July 1998 and on or about 10 December 1998 the only cause of that injury as alleged in the statement of claim was the work that the respondent was required to perform for the first applicant.

[32] I do not accept the respondent's submission that the question of whether the 1990

Act applies to the respondent's injuries is determined by looking at the degree of injury which the plaintiff suffered during the period from 1 January 1996 to 31

January 1997 and comparing that proportion of the injury to the total injury sustained by the respondent since January 1980. The same comment applies to the respondent's submission in respect of the application of the 1996 Act. These submissions assume (and it is neither pleaded nor supported by medical evidence) that the injuries were each progressively sustained at a constant rate over the total period of employment by the applicant. The issue is whether the respondent is seeking to recover damages in respect of an injury sustained after 1 January 1996.

[33] As there has been no attempt by the respondent to specify when her injuries were sustained or when aggravations occurred if that is to be her case), it is possible that the statement of claim does relate to injuries sustained after 1 January 1996.

[34] There is some similarity in the respective positions of the respondent in this matter as from 1 January 1996 and the applicant in Hawthorne v Thiess Contractors Pty Ltd & Anor [2000] QSC 154 (2 June 2000). Hawthorne was a decision of Williams J (as he then was) which is the subject of an appeal which has been argued, but the decision is reserved.

[35] The applicant employee in Hawthorne sought a declaration that she was entitled to commence and prosecute her action against her former employer without having to comply or further comply with the provisions of the 1996 Act. The applicant had commenced her personal injuries action claiming damages for injuries arising in the course of her employment notwithstanding that WorkCover refused to issue a certificate under section 265 of the 1996 Act (as it stood without the 1999 amendments).

[36] The applicant was working for the employer as an architect when she was diagnosed in January 1995 as suffering from cytomegalovirus which was caused by her working conditions. She was incapacitated for work until February 1996.

Thereafter she worked on projects for her employer primarily from home and by February 1997 she began working normally. She was paid workers' compensation for the period from 30 January to 30 June 1995 under the 1990 Act.

[37] By 4 August 1997 the applicant had become ill again and had not worked since that time. She successfully sought a reopening of her earlier claim for compensation as from 7 August 1997. In March 1999 WorkCover referred to the applicant's claim to a General Medical Assessment Tribunal (M) and a General Medical Assessment Tribunal (P) pursuant to section 171 of the 1990 Act.

[38] The (M) Tribunal determined that the applicant's incapacity for work resulting from the injury was then "nil" and that the applicant's symptoms were not due to any organic medical condition. The (P) Tribunal determined that the applicant had suffered permanent partial disability resulting from the injury and the extent of that disability which was employment caused was 20% loss of bodily function, and the nature of the disability was major depressive illness with somatoform features occurring in the course of her employment and aggravated by work circumstances.

[39] The applicant then asserted that the findings of the Tribunals should be treated as recognising a fresh injury which should be assessed under the 1996 Act, rather than as a reopening of the original claim pursuant to the 1990 Act. The applicant wanted to bring a claim for common law damages in relation to her loss arising out of the injury/illness sustained by her in 1997 (as she was out of time for suing in respect of the 1995 illness) and therefore requested WorkCover to provide damages certificates pursuant to section 265 of the 1996 Act in respect of what was described as the applicant's physical relapse and her psychiatric/psychological illness. WorkCover refused to give the applicant damages certificates on the basis that there was no evidence that any event from June 1997 to 1 August 1997 was the result of an "injury" within the 1996 Act.

[40] On the application before Williams J the applicant accepted WorkCover's decision that she did not sustain an injury within the meaning of section 34 of the 1996 Act in June-August 1997, but contended that she could establish at common law that she did suffer an injury through the negligence of her employer which she could pursue against the employer as she was not seeking to recover damages from the fund established pursuant to the 1996 Act. It was argued on behalf of the applicant that the 1996 Act only regulates the common law rights of employees who seek to recover damages from the fund maintained pursuant to the scheme provided for by the 1996 Act.

[41] The difficulty identified by Williams J with that argument was that if the applicant established the facts alleged in her statement of claim she would necessarily have established that she sustained an injury within section 34 of the 1996 Act in or about June, July or August 1997, but the employer would be unable to obtain indemnity from WorkCover, because the action was not prosecuted in compliance with the 1996 Act, as the applicant fell within section 253(1)(c) of the 1996 Act and therefore her entitlement to seek damages was subject to the provisions of chapter 5 of the 1996 Act. Williams J concluded:

"Primarily because the applicant to be successful in the action must establish that she suffered an injury which of necessity would be caught by the definition of injury in s34 of the 1996 Act, I am of the

view that she does not enjoy a right to pursue a cause of action against Thiess independently of the 1996 Act."

[42] Having regard to the present terms of the respondent's statement of claim, the only way in which the respondent can establish the liability of the second applicant for any injury she sustained between 1 January 1996 and 30 June 1998 is in respect of a cause of action that she is prohibited from pursuing by section 182D of the 1990

Act and section 253(1) of the 1996 Act. Similarly, if the respondent were to otherwise establish the liability of the first applicant for any injury sustained between 1 July 1998 and 10 December 1998, it would be in respect of a cause of action which she is presently prohibited from pursuing, because of her failure to comply with chapter 5 of the 1996 Act. In those circumstances the respondent should not be allowed to pursue her present action to the extent that it seeks to recover damages for injury sustained after 1 January 1996.

[43] This application is brought by the applicants pursuant to rule 171 of the UCPR which permits the striking out of a pleading or part of a pleading which discloses no reasonable cause of action. The result of the conclusion which I have reached about the application of the 1996 Act to the claim against the first applicant is that to the extent that the respondent's statement of claim pleads a cause of action against the first applicant, it must be struck out.

[44] Because of the general terms in which the action against the second applicant is pleaded in the statement of claim, it is not possible to isolate specific parts of the pleading to strike out on the basis that they relate to injury sustained by the respondent after 1 January 1996. Subject to hearing the parties on the form of orders including consequential orders, I propose to order that those parts of the statement of claim pleaded against the second applicant which relate to any injury sustained by the respondent from and including 1 January 1996 are struck out.

[45] I will hear submissions from the parties on the question of costs.

[46] The applicant submitted that the extension of the limitation period ordered on 3

September 1999 could be only in respect of a claim for damages which was otherwise able to be brought under the 1990 Act and the 1996 Act. The order granting the extension was not so qualified. In the usual course, one would have expected that the second applicant would have raised in opposition to the extension of the limitation period the matters which are the subject of this application. Once the unqualified extension of the limitation period was granted, it was necessary for the second applicant to make this application to raise the issue of the non- compliance with the 1990 Act and the 1996 Act.

[47] It is likely that the decision of the Court of Appeal in Hawthorne will have some relevance to the issues raised on this application. I have not waited for that decision to be given, however, because time may well now be critical to the respondent, if she seeks to comply with the 1996 Act. Submissions were made on behalf of the applicants that she would still be able to obtain a damages certificate for any injury

since 1 January 1996 and a notice of assessment for any injury since 1 February

1997, because no limitation period runs until she obtains such. Reliance for that submission was placed on the decision at first instance in Tanks v WorkCover Qld

[2000] QSC 326 (12 October 2000). That proposition is now no longer sustainable, as the appeal in Tanks was allowed: Tanks v WorkCover Qld [2001] QCA 103 (20 March 2001).