Sawtell v State of Queensland [2025] QDC 134

[9] In compliance with the pre-court procedures under the Act, the plaintiff subsequently commenced her common law claim against the defendant by serving a compliant Notice of Claim for Damages.
[10] Relevantly, the plaintiff's Notice of Claim for Damages was only with respect to the specific back injury.
[11] As the matter did not resolve at the Compulsory Conference, the plaintiff commenced proceedings against the defendant by filing her Claim and Statement of Claim in the Rockhampton District Court on 6 July 2023.
[12] Pursuant to the plaintiff's Claim and Statement of Claim (and again by Amended Statement of Claim, filed on 24 January 2024) the plaintiff claimed damages for the soft tissue back injury to her lumbar spine.
[13] On 14 June 2024, the plaintiff ceased work and lodged an income protection claim for a psychiatric injury (there is also an allegation of workplace bullying).
[14] On 23 July 2024, the plaintiff's lawyers advised the defendant's lawyers through correspondence that the plaintiff was suffering a psychiatric injury, which was a consequence of her back injury. The defendant's lawyers in response took issue with this, as the plaintiff sought to include an unassessed injury as part of her claim.
[15] Following this, the defendant's lawyers replied pursuant to r 444 UCPR, stating that the plaintiff had no entitlement to claim for damages for any consequential psychiatric injury, as there had been non-compliance with the mandatory legislative regime in the Act.
[16] In response, the plaintiff's lawyers advised that they did not think that they needed to comply with the requirements of legislative regime and declined to take steps which the defendant invited them to.
[17] On 23 August 2024 the plaintiff's solicitor advised Crown Law that his client agreed that any psychological symptoms relating to her initial back injury had ceased by May 2022.
[18] Consequently, the plaintiff's lawyers arranged for the plaintiff to be examined by Dr Mathew on 5 December 2024. In Dr Mathew's report of that same day, he opined that the plaintiff suffers psychological conditions of major depressive disorder and panic disorder. He found her conditions were caused by the workplace physical injury in May 2021, despite her past psychological issues in 2006, 2012 and 2014, family history for anxiety and depression, and despite her "reported long history of back problems with chronic back pain." Dr Mathew found her symptoms stable, but that she was unable to return to work. The assessment was for 7% impairment on the Psychiatric Impairment Rating Scale, with no pre-existing impairment. The plaintiff told Dr Mathew that her pain symptoms worsened after her return to work. She did not suffer a re-injury of her back injury. She had been fearful of that happening, but it was the demands of the job that she was emotionally unable to cope with.
[19] Crown Law subsequently arranged for the plaintiff to be assessed by Professor Whiteford on 25 February 2025. Professor Whiteford comprehensively summarized the various reports and correspondence, including some of the information I have just referred to.
[20] The plaintiff told Professor Whiteford that she suffered anxiety and depression after the back pain she experienced after the incident in May 2021, but only had residual symptoms by the time she returned to work in February 2022. Apart from interpersonal difficulties and workplace stress in June 2024 (which led to the Income Protection Benefit Claim for depression and anxiety) she told him that there was an aggravation of her back pain in early 2024 when she had to fill in for another depositions clerk, which led to a re-aggravation of her panic attacks and depression.
[21] Professor Whiteford's report also confirms the plaintiff told him of her wish to return to work, which seems to be confirmed by the independent information that she had unsuccessfully applied for two (higher duties) positions with the Department of Justice at administrative officer level 4, in September 2024.
[22] Upon conducting a mental state examination, Professor Whiteford found no evidence of clinically significant anxiety, depression, or other mental disorder, despite the plaintiff's vulnerability at times of stress. Professor Whiteford found there was nothing preventing her return to work, from a psychiatric perspective.
[23] On 24 April 2025 the plaintiff filed the Further Amended Statement of Claim, claiming damages not only for the lower back injury, but also for a consequential psychiatric injury.
[24] It was following the filing of this Further Amended Statement of Claim, that the defendant brought the present application to strike out.
[25] The plaintiff defends the strike out and argues that even though it is "unclear" whether the plaintiff suffers a psychiatric injury as a consequence of the back injury, the court may nevertheless ultimately find that she has suffered a consequential psychiatric injury and make an award pursuant to s 237 of the Act. It is argued the plaintiff does not have to follow the statutory regime at all, or in the particular circumstances, where it is claimed the consequential injury has developed over time.
[26] Reliance is made upon some obiter in the judgment of de Jersey CJ and Davies JA in Lee v Quality Bakers Australia Ltd [2000] QCA 285. I note that case was decided prior to the Act, which commenced in 2003 to specifically provide for the legislative regime, among other things. I am not persuaded that case assists, with respect.
[27] I am also not assisted by reference to cases from other jurisdictions, where a similar legislative regime to that set out in the Act is not in force, such as the Western Australian case of State Government Insurance Commission v Oakley (1990) 10 MVR 570, which I note is also consistent with the observations of Jackson J in Peebles v WorkCover Queensland [2020] QSC 106.
[28] I am also not prepared to accept the argument on behalf of the plaintiff that cases of Barraclough v WorkCover Queensland [2012] QDC 321 (Barraclough) and Apelu v Lusty Tip Trailers Pty Ltd [2023] QSC 262 (Apelu) support the contention made on the plaintiff's behalf that a Notice of Assessment is not required in the case of a secondary or consequential injury. Neither Barraclough nor Apelu assist in defending the application to strike out. Both cases also confirm the necessity for a Notice of Assessment to be issued in order for there to be an entitlement to bring a claim for common law damages.
[29] Barraclough was a case where the claimant was shown, on a consideration of the medical evidence, to have suffered a "causally connected" condition of reflex sympathetic dystrophy (RSD) as a consequence of the claimed hand injuries sustained as a result of exposure to bleach, in the course of her work washing dishes at a mine camp. It was not a "separate injury" requiring assessment and Durward SC DCJ was not asked to make a determination about a psychiatric or phycological injury claim - indeed, the RSD was a neurological injury, not a psychiatric injury, and a symptom which had developed as a consequence of the accepted hand injury.
[30] The central issue in Barraclough was whether the injury could be construed to have been described in the Notice of Assessment. The injury in the Notice of Assessment was described as "burns to both hands". Whether or not the RSD injury was included in the Notice of Assessment came down to the construction of the words used to describe the injuries. Durward SC DCJ determined that it was "likely that the administrative system has affected the constriction of the description of the original injury to some extent" and that the RSD was a symptom of the "burns to both hands" injury as originally described.[1]
[31] In my view, this is quite different to the issues in the present application and I am satisfied that Barraclough can readily be distinguished from the present case; it could not be argued that a psychiatric injury is a symptom of the claimed back injury.
[32] The primary judge in Apelu had found that Barraclough should be distinguished, in circumstances where there had been a notified and assessed psychiatric injury; the issue in Apelu being whether the claimant's schizophrenia was a continuation of the accepted Post-Traumatic Stress Disorder (PTSD) condition/injury.
[33] In this application, the plaintiff's counsel also attempts to rely upon what is stated in the last sentence of Crowley J's judgment at [75] in Apelu as supporting a contention that allows a claimant to sue for a consequential injury, regardless of whether a Notice of Assessment has been given.
[34] In Apelu, the plaintiff suffered a head injury, and a "secondary" psychiatric injury described in the Notices of Assessment as PTSD. The plaintiff further developed symptoms of schizophrenia, for which a Notice of Assessment had not been issued.
[35] Apelu confirms that a claim can succeed only if it is a secondary consequence of an accepted injury, or if it is a separate accepted injury, and if the necessary breach of duty and causation (liability) can be proven, in accordance with ss 305B - 305E of the Act. That is not the case here.
[36] I am prepared to accept the defendant's submission that the reasoning in Apelu, consistent with the view of the primary judge, that a separate Notice of Assessment was required in that case, to distinguish the principle derived from Barraclough.[2]
[37] Other than that, I am not directed to any binding precedent that confirms that if a plaintiff claims damages for another or separate injury, such as a psychiatric injury, whether it is alleged to be a consequential workplace injury or not, that the plaintiff does not need to comply with the legislative regime of the Act.
[38] To the contrary, I am satisfied that there is a requirement for strict compliance with the legislative regime. I am not satisfied that a claim for damages for a consequential injury (which is not a symptom of the claimed injury), brought pursuant to the Act against an employer or insurer, should be allowed to circumvent or bypass the clear procedural steps in the Act.
[39] In my view, it is incongruous with the purpose and object of the Act to allow the plaintiff to seek damages for an injury, for which no Notice of Assessment has been given. In that regard, s 5 clearly establishes the Workers' compensation scheme. In Hintz v WorkCover Queensland & Anor [2007] QCA 72 (which was effectively a limitations case) the Court referred to the provisions in the Act as the "gateway" requirements of the scheme.
[40] In my view, the clear legislative intention is to provide rules for the appropriate notification, assessment, and advancement of a claim, especially for a consequential injury, as is contemplated by ss 239A and 295 of the Act.
[41] Otherwise, the injured worker has the option of seeking a declaration pursuant to s 297 of the Act, but that is not the situation here.
[42] I also note that s 132 mandates the lodgement of a valid application in the approved form for a psychiatric injury, and s 179 of the Act specifically provides that a psychiatric injury is different to a physical injury, which requires a different assessment process by the Medical Assessment Tribunal, after the relevant Notice has been duly given.[3]
[43] Whether or not any resolved or continuing psychiatric injury is causally connected to the plaintiff's back injury in this case does not absolve compliance with, or make irrelevant, the legislative scheme that would otherwise apply to any other claimant.
[44] In order to accept the plaintiff's submissions would require me to ignore the fairness ensured by the implementation of the workers' compensation scheme in s 5, the Part 10 provisions in Chapter 3 setting out how a worker gives notice of permanent impairment and how they are assessed, the appropriate access to damages ensured by Chapter 5, and having regard to the process for commencing a claim, as set out in Part 7 of Chapter 5 of the Act.
[45] Compliance with the legislative regime would have ensured the plaintiff's ability to also bring a claim for the further psychiatric injury.
[46] As a result of the non-compliance with the legislative regime, WorkCover have not been asked, nor had the chance to make a determination, that the plaintiff has suffered a psychiatric injury, in accordance with s 239A of the Act. There has consequently been no participation in a compulsory conference as prescribed by s 289, or exchange of final written offers as prescribed by s 292 of the Act, four years post the workplace event, for that injury.
[47] As a consequence of the non-compliance with the regime, I am satisfied the paragraphs which plead a psychiatric injury are defective and offend r 171 UCPR in that they disclose no reasonable cause of action, have a tendency to prejudice or delay a fair trial, and are otherwise an abuse of the processes of the Court.
[48] The discretion to order strike out in r 171 UCPR is clear and unambiguous. In Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248 Bowskill J (as the Honourable Chief Justice then was) said this:

[49] I have also regard to these guiding principles, cautioning against using the power sparingly, unless in the most clear, plain and obvious case, as set out by Martin J in Petersen v Nolan [2019] QSC 216 at [7] and by Cooper J in Sentinel Income Pty Ltd v Santrev Pty Ltd & Ors [2023] QSC 165.
[50] Applying r 171 UCPR with those principles in mind, I am satisfied, on a cautious consideration of the pleadings in this regard (specifically the paragraphs the subject of the application), that it is appropriate to order strike out. The plaintiff has not identified and properly pleaded a cause of action.
[51] Further, the decision of de Jersey CJ in Sayers v Hanson t/as Alguard Security Services [2011] QSC 70 confirms the use of r 171 UCPR to strike out pleadings in a Statement of Claim for an injury the defendant insurer identified as not being compliant with the statutory requirements of the Act.
[52] I order the application be granted. Paragraph 8A and the references to consequential injury pleaded in paragraphs 11 and 12 of the plaintiff's Further Amended Statement of Claim should be struck out, pursuant to r 171 UCPR.
[53] I will hear the parties on the appropriate order as to costs. The parties must file and serve written submissions (limited to four pages) within 14 days of the giving of these reasons, failing agreement.

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