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[2026] QCA 62
respondent. Leave to appeal was granted. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs of the appeal. [69]
The Court treated the appellant’s back injury and psychiatric injury as separate injuries, even though she said the psychiatric injury followed from the back injury. The assessment for the back injury did not cover the psychiatric injury. Although the statutory scheme could allow damages for an unassessed injury from the same event in some circumstances, the insurer first had to decide that the worker sustained that injury. As no such decision had been made, the Court upheld the strike-out decision on the ground argued on appeal. It granted leave to appeal but dismissed the appeal.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,457 words · generated 08/10/2026
In Sawtell v State of Queensland [2026] QCA 62, the Queensland Court of Appeal considered whether a worker could pursue damages for a psychiatric injury pleaded as consequential on an assessed physical injury when the insurer had not decided that the psychiatric injury had been sustained.
3 cited instruments linked from this judgment.
Kerri Ann Sawtell was employed by the State of Queensland in the Department of Justice and Attorney-General. She alleged that, on 12 May 2021, while working as a depositions clerk, she injured her lower back through turning and reaching to pass files to and from a Magistrate [4]–[5]. Her workers’ compensation claim described a lower-back injury, and a medical certificate described a lumbar paravertebral muscle strain [8]–[10]. WorkCover later issued a notice of assessment assigning a degree of permanent impairment of zero [11].
Her October 2022 Notice of Claim for Damages also described the injury as a lower-back or lumbar spine injury. It did not identify a psychiatric injury in response to the form’s questions about psychiatric or psychological conditions [12]. In April 2025, however, she amended her pleading to allege that, “[a]s a consequence of the injury”, she suffered a psychiatric injury [6].
The medical evidence described different views about the psychiatric effects. Dr Mathew, retained for Sawtell, diagnosed Major Depressive Disorder and Panic Disorder and attributed her psychological injuries to the workplace physical injury [16]–[18]. Professor Whiteford, retained for the State, considered that the back pain had caused a time-limited aggravation or relapse of previous panic disorder and depression, and that she had no continuing psychiatric condition at the assessment [19]–[20]. The appeal was not a trial of whether those opinions were correct or whether the psychiatric condition was caused by the work event.
The State sought to strike out the psychiatric-injury pleading. The District Court did so under r 171 of the Uniform Civil Procedure Rules 1999 (Qld). The Court of Appeal granted leave to appeal because the case raised an important question about ss 237 and 239A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) [2]–[3]. It dismissed the appeal and ordered Sawtell to pay the State’s appeal costs [69].
Doyle JA’s reasoning proceeded in three steps: identifying whether the back and psychiatric impacts were one or two injuries; deciding what the statutory damages provisions required for the psychiatric injury; and considering whether the strike-out decision involved error [27].
First, the Court rejected the idea that calling the psychiatric condition “consequential” made it part of the back injury for the Act’s purposes. The Act contemplates that a single event can produce multiple injuries. Doyle JA pointed to s 31(4), which provides that multiple injuries from an event are taken to have happened in one event, and to provisions addressing multiple injuries in compensation and assessment processes [33]. The Act’s recognition of services for workers at risk of psychiatric injury arising from physical injury also supported the view that the psychiatric condition could itself be an injury [33].
The Court considered “injury” to describe an impact on the person, not the causal route by which that impact arose. An impact could be an injury even if another impact resulted from the same event or the first impact caused the second [34]–[35]. The level of detail in a description matters: a general description might sometimes capture associated or expected effects, but it does not necessarily encompass every consequential impact, whatever its distance from the described injury [36]–[38]. Here, the back injury was described as a lumbar or lower-back injury, while the psychiatric condition was separately pleaded and medically described. In the Court’s view, the former description did not capture the latter [46], [67].
Second, the Court considered the statutory route for an unassessed injury. Section 237(1)(a)(i) applies where the worker has a notice of assessment for the injury for which damages are sought. Because the notice here concerned the back injury, the Court held that this provision did not cover the separately identified psychiatric injury [57].
Section 237(1)(a)(ii), however, addresses a worker who has not received a notice of assessment for the injury in question but has received one for another injury from the same event, and has made the relevant election to seek damages. The State accepted that Sawtell came within this provision in relation to her psychiatric injury [58]–[60]. That did not complete the analysis: the entitlement was subject to s 239A.
Doyle JA construed s 239A(4) to require an insurer decision that the claimant sustained the non-assessed injury. The alternative reading, that the insurer need only have decided that the worker sustained the already assessed injury, would make s 239A(4) redundant in the circumstances described by s 237(1)(a)(ii). It would also allow a damages claim for a different injury that had not been through the statutory process merely because another injury had [61]. The section’s prospective wording and its provision for review of the insurer’s decision supported the reading that the insurer decision concerned the non-assessed injury [61].
No insurer decision had been made that Sawtell sustained the psychiatric injury. The Court therefore held that she could not then seek damages for it under s 239A(4) [62]. It did not need to decide the State’s separate reliance on s 295 [63].
Third, the appeal challenged the strike-out only on the basis that the Act did not preclude the claim. Once the Court rejected that statutory construction, the sole ground of challenge failed [65]–[66]. The Court recognised that the existence of a present statutory obstacle does not necessarily mean a pleading must always be struck out. If it had been established that Sawtell would likely be able to meet the statutory requirements for seeking damages for the psychiatric injury, a different exercise of the discretion might have been open. That question had not arisen below or on appeal [66]. The appeal accordingly failed on the case actually argued [68]–[69].
The judgment’s account of the statutory setting begins with the Act’s balance between providing workers’ compensation benefits and controlling the costs to employers of insuring against claims. Section 5 includes regulating access to damages as an object of the Act, and Chapter 5 imposes limits on claims against employers [22], [39]. The decision applies that scheme to distinct injuries said to result from the same event.
The Court explained how ss 237(1)(a)(i) and 237(1)(a)(ii) provide different routes. Under subparagraph (i), the notice of assessment must concern the injury for which damages are sought. Under subparagraph (ii), a worker may be within the provision despite lacking an assessment for that injury, if an assessment exists for another injury from the same event and the relevant election has been made [57]–[60]. But the latter route remains subject to s 239A(4), which the Court read as requiring an insurer decision about the non-assessed injury [61]–[62].
The judgment also places weight on the statutory processes for assessing impairment and resolving damages claims. It describes provisions for assessment, notice, lump-sum offers, information exchange, medical examinations, compulsory conferences and final offers [40]–[45]. In the Court’s view, those processes could be undermined if a claim were processed for one impact while a distinct consequential injury were left to be raised at trial [42], [45].
The judgment notes that s 239A was introduced in 2015 at the same time as s 237 was inserted reinstating workers’ rights to seek damages [footnote 2]. It does not give a comprehensive history of the law before those amendments or set out a general account of every later legislative change. The “before and after” significance that can safely be drawn from the judgment is therefore limited: it clarifies how the Court read the current relationship between ss 237 and 239A for a worker with separate injuries from one event.
It also clarifies the Court’s treatment of causation. Even if a claimant establishes that an event caused an injury, the Act may still limit the entitlement to seek damages for it [53]. The appeal concerned that statutory entitlement, not a final determination of medical causation or damages.
At [32], Doyle JA states: “The impact either is or is not an injury and the proximity of the emergence of the impact to the ‘event’ does not determine whether it is an injury.” In plain English, an injury is not absorbed into another injury just because it appeared later or because it was caused by the first impact.
At [35], the Court says: “An impact is an injury whether or not some other impact also results from the event, and indeed whether the two impacts are such that one can be described as consequential upon the other.” This is the central explanation for treating physical and psychiatric impacts as potentially separate injuries under the Act.
At [36]–[38], the Court qualifies that reasoning. A general description may sometimes cover associated impacts, but it does not automatically include every consequence. The relevant question is what the description actually conveys. A lower-back injury description could not readily be understood to describe a psychiatric illness [38].
At [61], the Court explains why s 239A(4) requires an insurer decision about the unassessed injury. In plain terms, an assessment and election for one injury do not automatically satisfy the statutory process for a different injury from the same event. The insurer must decide that the worker sustained the second injury before damages may be sought for it.
At [66], the Court cautions against treating the strike-out outcome as an automatic consequence in every case involving an unmet statutory condition. It says it might have been open not to strike out the pleading if it had been shown that the appellant would likely be able to satisfy the requirements for seeking damages. That possibility was not before the Court on the appeal.
The decision is most directly relevant where a worker alleges multiple physical or psychological impacts from one workplace event, seeks damages for one impact after receiving a notice of assessment for it, and later seeks damages for a distinct injury not covered by that assessment. Its statutory analysis also matters where the later injury is said to be consequential on the assessed injury, because the causal relationship alone did not make the two impacts one injury for the purposes of the provisions considered [35]–[38], [57]–[62].
The detail of the claim description may matter. In Sawtell, the notice and claim materials referred to the lumbar spine, a lower-back injury and related symptoms, while the later pleading separately identified a psychiatric injury [12], [46], [67]. The Court did not hold that every general description of a physical injury must exclude every consequential condition. It recognised that a sufficiently general description might sometimes encompass associated impacts [36]. The issue is whether the description used, read in context, actually covers the claimed impact.
The statutory question may arise where the insurer has not accepted or decided that the later injury was sustained. The judgment’s construction of s 239A(4) makes that decision important where the worker relies on s 237(1)(a)(ii) rather than an assessment for the injury claimed [60]–[62]. The Court did not determine how that requirement would apply to materially different procedural histories or claim descriptions.
The case is not a determination that the psychiatric injury was or was not medically caused by the back injury. The Court addressed the statutory gateway on the assumed pleaded facts, rather than deciding the medical dispute at trial [64]. Nor did it determine whether the appellant could later satisfy s 239A(4) or whether an amended pleading could remain in place in circumstances where that prospect was established [66].
The judgment is dated 14 April 2026 and the supplied text contains no account of decisions after it. Its treatment by later courts therefore cannot be established from this source.
The judgment itself discusses earlier decisions. It distinguishes Barraclough v WorkCover Queensland [2012] QDC 321 on the basis that the case concerned a description that covered progression of symptoms and did not involve indicia of two separate injuries, one caused by the other [36], [47]. Doyle JA considered Apelu v Lusty Tip Trailers Pty Ltd [2024] QCA 158. In Apelu, the Court had rejected arguments that an assessment for head injury and PTSD covered schizophrenia, and had upheld a finding that the evidence did not establish schizophrenia as a secondary consequence [48]–[51]. Sawtell says Apelu did not decide the general correctness or scope of Barraclough’s approach. It also treats a sentence in Apelu suggesting that a secondary-injury argument might be advanced at trial as obiter and not as establishing that such an argument would succeed [51].
The Court cites Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 when discussing the effect of a statutory precondition and the possibility that a pleading need not necessarily be struck out merely because the claim is not presently available [62], [66]. It also refers to State Government Insurance Commission v Oakley and Caltex Tanker Co (Aust) Pty Ltd v Kerr on causation, but concludes that those authorities do not assist with the statutory entitlement question in this appeal [52]–[53].
The judgment leaves several matters unresolved. It does not decide what evidence or process will be sufficient for an insurer to make the decision required by s 239A(4), or how that decision interacts with a contested medical opinion. It records that Sawtell had no insurer decision accepting the psychiatric injury but does not determine what the insurer should decide on the evidence [62].
It does not determine when a description of an assessed injury is broad enough to include a related impact. The Court recognises that a general description can sometimes capture associated effects, while holding that “lower back injury” did not capture this separately pleaded psychiatric injury [36]–[38], [46]. The boundary is fact-sensitive and was not comprehensively defined.
The Court did not decide whether s 295 independently barred adding a damages claim by amendment, because it considered it unnecessary to do so after its conclusion on s 239A(4) [63]. Nor did it decide whether, on a fuller argument or different evidence about the likelihood of satisfying the insurer-decision requirement, the r 171 discretion should be exercised differently [66].
Finally, the decision does not determine whether Sawtell’s psychiatric conditions were caused by the workplace event, the extent of any loss, or the outcome of any future statutory process. Its holding concerns the statutory conditions for seeking damages and the particular basis on which the strike-out decision was challenged.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Sawtell v State of Queensland [2026] QCA 62
PARTIES: KERRI ANN SAWTELL / (applicant) / v / STATE OF QUEENSLAND / (respondent)
FILE NO/S: Appeal No 4748 of 2025 / DC No 31 of 2023
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Civil)
ORIGINATING COURT: District Court at Rockhampton – [2025] QDC 134 (Clarke DCJ)
DELIVERED ON: 14 April 2026
DELIVERED AT: Brisbane
HEARING DATE: 7 April 2026
JUDGES: Mullins P, Doyle JA, Henry J
ORDERS: Leave to appeal is granted. The appeal is dismissed. The appellant pay the respondent’s costs of the appeal.
CATCHWORDS: WORKERS’ COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF – ACTION FOR DAMAGES AGAINST EMPLOYER – where the appellant was an employee of the respondent – where the appellant sustained a back injury in the course of performing her duties as a depositions clerk – where a Notice of Assessment was issued in respect of the back injury assessing the appellant’s degree of permanent impairment at zero – where the appellant gave a Notice of Claim for Damages in respect of the back injury – where the appellant commenced proceedings against the respondent claiming damages for the back injury – where the appellant filed a Further Amended Statement of Claim pleading at paragraph 8A that she suffered a psychiatric injury as a consequence of the back injury – where the appellant contended she was entitled under s 237(1)(a)(i) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) to seek damages for that psychiatric injury because it was consequential upon the back injury – where no Notice of Assessment has been issued in respect of the psychiatric injury and WorkCover had not accepted the appellant had sustained that injury – where the appellant has an entitlement to seek damages for the psychiatric injury under s 237(1)(a)(ii) of the Act because a Notice of Assessment for the back injury had been issued and she has made an election to seek damages for an assessed injury – where that entitlement is subject to s 239A(4) of the Act – where the respondent contends that the appellant has not satisfied the requirements of s 239A(4) of the Act to allow her to seek damages for the psychiatric injury and is thus precluded from doing so by s 295(a) – whether each of the back injury and the psychiatric injury is an injury within the meaning of the Act – whether s 239A(4) of the Act requires that the insurer had decided that the claimant has sustained the non-assessed injury before the worker can seek damages for that injury / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the respondent brought an application to strike out the appellant’s claim for damages for the psychiatric injury – where the appellant defended the application on the basis that she had complied with the statutory regime in relation to back injury and that that was sufficient in order for her to seek damages for consequential psychiatric injury – where the primary judge struck out paragraph 8A and the references to consequential injury in paragraphs 11 and 12 of the Further Amended Statement of Claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (UCPR) – whether the primary judge erred in exercising the discretion in r 171 of the UCPR / Uniform Civil Procedure Rules 1999 (Qld), r 171 / Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 5(2)(b), s 32, s 108(1), s 139, s 140, s 178(1), s 179, s 185, s 186, s 189, s 233, s 237, s 239, s 239A, s 273, s 275, s 279, s 282, s 288, s 289, s 290, s 291, s 292, s 295, s 305D, s 312(2) / Apelu v Lusty Tip Trailers Pty Ltd (2024) 333 IR 413; [2024] QCA 158, considered / Barraclough v WorkCover Queensland [2012] QDC 321, considered / Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115, cited / Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130, cited / State Government Insurance Commission v Oakley (1990) Aust Torts Reports 81-003; [1990] WASC 13, cited
COUNSEL: J M Sorbello for the applicant / P W Telford for the respondent
SOLICITORS: Morton & Morton for the applicant / C E Christensen, Crown Solicitor for the respondent
MULLINS P: I agree with Doyle JA.
DOYLE JA: This is an application for leave to appeal a decision of a Judge of the District Court striking out various allegations in the Further Amended Statement of Claim. It raises an important question as to the meaning of scope of operation of sections 237 and 239A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) and, aligned to that, the scope of the references in those sections to “an injury” or “the injury”.
For that reason this is an appropriate case, in my view, for the grant of that leave.
Background
The appellant was an employee of the State of Queensland, engaged in the Department of Justice and Attorney-General.
At about noon on 12 May 2021 whilst at work with the State she sustained an injury described in the Further Amended Statement of Claim as a “soft tissue injury to the lumbar spine” and in the pleading called “the injury”: paragraph 8. The event giving rise to the injury was her performance of the duties of depositions clerk in a Magistrates Court, which involved her turning and twisting reaching upward behind her handing files to the Magistrate or taking files from the Magistrate.
The relevant amendment made in the Further Amended Statement of Claim was to introduce, on 22 April 2025, a plea as follows:
“As a consequence of the injury, the plaintiff suffered consequential injury, namely a psychiatric injury (‘the consequential injury’).”
Between suffering the lower back injury and the making of amendments a number of relevant steps occurred.
First, the appellant made a claim on WorkCover Queensland for compensation in which, when asked to identify the “injury location and nature”, the response was:
“Lower back, Trauma to muscles/tendon unspecified”.
This was accompanied, as required by s 132, by a ‘Work capacity certificate – workers’ compensation’ signed by a medical practitioner describing the injuries as “LS paravertebral muscle strain”.
The appellant then received workers’ compensation payments for some period and was slowly reintroduced to the workplace, though this did not persist.
On 11 April 2022 a notice of assessment of the appellant’s degree of permanent impairment (“DPI”) was issued by WorkCover under s 185 assessing her DPI at zero.
Thereafter the appellant gave a “Notice of Claim for Damages” which is dated 19 October 2022. Relevant parts of that form state as follows:At item 40, where the form invited the appellant to “completely describe the details of the event resulting in the injury” she stated:
“While performing duties as a depositions clerk the claimant was required to sit at a desk in front of and below the Magistrate’s bench managing the court files for matters to be heard in the Maryborough Magistrates Court. The task involved the claimant turning and twisting reaching upwards and behind her seated position to hand up and to take from the Magistrate the various court files. During the course of performing the task the claimant suffered a lower back injury.”
At item 43, the particulars of “all injuries alleged to have been sustained” were completed by identifying the part of the body injured as “lumbar spine”, the nature of the injury as “soft tissue injury” and that a notice of assessment had been received;
Similarly, in item 45 the question was asked of the appellant:
“Has the worker sustained any personal injury/ies, illness/es, impairment/s or disability/ies of a medical, psychiatric or psychological nature, either before or since the event, that may affect the degree of permanent impairment resulting from the Injury to which the claim relates or may affect the amount of damages in any other way?”
The response given was “lower back injury” with details given of the doctors consulted.
There is further reference to “lower back injury” at items 45 and 46 and at item 47 it is stated “the claimant suffers from pain and loss of mobility in the lumbar spine exacerbated by lifting and movement”.
Importantly item 51 was answered “No” that question asking:
“Does the worker require any assistance with return to work or rehabilitation in relation to the injury/ies arising from the event and/or any other personal injury/ies, illness/es, impairment/s or disability/ies of a medical, psychiatric or psychological nature?”
Crown Law was then retained to act for the State. The material does not fully describe what occurred between then and when, possibly in July 2023, proceedings were commenced.
The progress of the proceedings thereafter is not detailed in the material save that in March 2025 a request for trial date was signed by the State which identifies that the parties have engaged in all interlocutory steps and attempted dispute resolution such that it was ready for trial. The Further Amended Statement of Claim was filed after that.
Medical Reports
In the course of the progress of the proceedings two medical reports have been obtained.
The first, dated 5 December 2024, is from Dr Mathew, retained on behalf of the appellant. In this report he identifies the appellant as suffering from:
“Diagnosis
Major Depressive Disorder
Panic Disorder”
“Ms Sawtell developed panic attacks following the physical injury. These resolved, but then subsequently returned. This was at its worst in the period after stopping work in June 2024. She suffered panic attacks and found herself overwhelmed by small things. Ms Sawtell experienced vomiting and diarrhoea. She remained very anxious. Panic attacks were now precipitated by thinking about work.
…
Ms Sawtell had an increased vulnerability to the development of anxiety.
There were several references in Ms Sawtell’s general practice records to previous psychiatric symptoms. Panic attacks were recorded in 2006, 2012 and 2014. There was, however, no reference to psychological issues for seven years prior to the recent workplace injury.
Ms Sawtell had a family history of anxiety and depression (father).
Before the recent injury, Ms Sawtell was a modest social drinker. The general practice records contained a single reference to binge drinking in 1997. She denied the use of illicit drugs.
Ms Sawtell denied any other significant medical conditions.
There was no history of developmental trauma and no evidence of underlying personality vulnerabilities…”
Dr Mathew concludes that the appellant is not expected ever to be able to return to her previous place of work and in relation to the specific question asked of him states that her “psychological injuries were caused by the workplace physical injury”.
The second report is that of Professor Whiteford, retained on behalf of the State, and is dated 28 February 2025. In summary, he concludes that:
“The back pain, when it occurred in 2021, caused a time-limited aggravation or relapse of [the appellant’s] previous panic disorder and depression.”
He concludes that this was short lived and at the time of his assessment of her she suffered no continuing psychiatric condition. He, however, states that “[s]he remains vulnerable to remerging panic attacks and depression at times of stress in her life”.
As already mentioned, the Further Amended Statement of Claim was filed 22 April 2025. There has been subsequent correspondence between the parties, and in particular in a letter of 22 May 2025, Crown Law adverted to what they contended to be an obstacle to the bringing of a claim for psychiatric illness which subsequently became the subject matter of the respondent’s application.
The Act
“237 General limitation on persons entitled to seek damages
The following are the only persons entitled to seek damages for an injury sustained by a worker—
the worker, if the worker—
has received a notice of assessment from the insurer for the injury; or
has not received a notice of assessment for the injury, but—
has received a notice of assessment for any injury resulting from the same event (the assessed injury); and
for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or
has a terminal condition;
…
The entitlement of a worker…to seek damages is subject to the provisions of this chapter and the provisions of chapter 4A, part 5.
Note—
See, for example, section 232V(3) which provides that a worker required under section 232V to elect to seek treatment, care and support damages for an injury who does not make the election is not entitled to seek treatment, care and support damages for the injury.
If a worker—
is required under section 239 to make an election to seek damages for an injury; and
has accepted an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury;
the worker is not entitled to seek damages.
However, subsection (3) does not prevent a worker from seeking damages under section 266.
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.
…
239A Worker with more than 1 injury from an event
This section applies to a claimant who is a worker mentioned in section 237(1)(a)(ii).
The claimant can not have, and the insurer can not decide to have, the injury assessed under chapter 3, part 10 to decide if the claimant has sustained a DPI.
The insurer can not decide the claimant’s notice of claim does not comply with section 275 only because the claimant has not received a notice of assessment for the injury.
However, the claimant may seek damages for the injury only if the insurer decides the claimant has sustained an injury.”
“295 Compliance necessary before starting proceeding
The claimant may start a proceeding in a court for damages only if the claimant has complied with—
the relevant division under part 2, to the extent the division imposes a requirement on the person; and
part 5, other than as provided by sections 297 and 298; and
part 6; and
section 296.”
“32 Meaning of injury
An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
Injury includes the following—
a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
a personal injury;
a disease;
a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
the worker’s expectation or perception of reasonable management action being taken against the worker;
action by the Regulator or an insurer in connection with the worker’s application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way—
action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment”
The Issues
At first instance, as on this appeal, the contest between the parties is relatively narrow. The appellant contends:that she has an entitlement to bring proceedings for her back injury which it is contended includes the consequential psychiatric illness which it caused; and that she has complied with the statutory preconditions to be able to bring that claim by satisfying s 237(1)(a)(i) such that her claim is not in any part precluded by s 237(5) of the Act.
The State, on the other hand, contends that the psychiatric injury is just that, a different injury from a back injury with the consequence that, while the appellant would have an entitlement to seek damages because of the operation of s 237(1)(a)(ii), given the steps taken by the appellant she has not satisfied the requirements of s 239A(4) to allow her to seek damages for that psychiatric impact and accordingly by force of s 295(a) may not do so.
In my view there are three steps to consider in dealing with the appeal. The first is to determine the significance, if any, of the contention that the psychiatric impact is consequential on the back impact in terms of the operation of s 237(1). Depending on the answer to that first step, the second step requires deciding whether as a consequence the appellant is precluded from bringing a claim for damages for the psychiatric impact. The third, which then follows, is whether any error was shown in the primary judge’s exercise of the power to strike out paragraph 8A and related parts of the Further Amended Statement of Claim.
The Primary Judge’s Reasons
“[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.
…
[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.” (emphasis added).
First Step – Identification of the “Injury”
It is pleaded that the event (the work-related activity which caused any injury) caused the back injury and “as a consequence of the injury” a “consequential injury” being the psychiatric injury: [8A]. To avoid the ambiguity or circularity of referring to the physical or mental consequences as “injury” I shall adopt where possible the neutral expression “impact”.
In my view the primary judge’s conclusion is correct and the respondent’s construction of the Act is to be preferred. It is consistent with the language of the Act and with the evident purposes or objects of the Act. The appellant’s construction to the contrary is inconsistent with the language used and thwarts rather than furthers the objects of the Act. This is for various reasons.
First, the Act, when discussing injuries and the entitlement to seek damages for injuries, nowhere identifies two categories of impacts: those which are immediate impacts; and those which are consequential impacts. The impact either is or is not an injury and the proximity of the emergence of the impact to the ‘event’ does not determine whether it is an injury.
Second, the Act does not require for its operation that each event be treated as giving rise to only one impact. Quite the reverse; it contemplates one event might give rise to more than one injury.The definition of ‘event’ in s 31(4) provides that “[i]f multiple injuries result from an event, they are taken to have happened in 1 event”.Section 32, which denotes “injury” is to be construed, unless the context otherwise requires, so as to comprehend the plural as well as the singular: see s 32C of the Acts Interpretation Act 1954 (Qld).Section 108(1) provides that “[c]ompensation is payable under this Act for an injury sustained by a worker”. There is nothing in the context to take that to mean other than that compensation is payable for any and every such injury.Chapter 3 Part 6 explicitly applies to one or multiple injuries sustained by a worker in any one event: s 139. Provision is made as to the maximum amount of the compensation payable: s 140.The entitlement to apply for assessment of the DPI is expressed as being as to whether there was sustained a DPI “from injury” which is apt to capture any and all injury: see s 178(1); and s 179(1) which merely refers to the “worker’s injury”. This is made clear from s 179(5) and also from s 185(2) of the Act which provides:
“To remove any doubt, it is declared that if a worker sustains multiple injuries in an event, the insurer must give the notice only after the worker’s DPI for all injuries has been decided.”
The objects of Chapter 4, which deals with “Injury Management”, by s 208(c) are “to ensure… workers who have sustained physical injuries and who are at risk of sustaining a psychiatric or psychological injury arising from the physical injury received services to minimise the risk”. These objects show that Parliament recognised that a psychiatric or psychological injury which is consequential upon the physical injury is nonetheless an injury itself.
As discussed below, s 239A explicitly contemplates more than one impact from the one event.
Third, the Act leaves the description of “injury” to be governed largely by the normal meaning of the word (as connoting harm to the person).1 Section 32(1) identifies “injury” to be “personal injury” with the requisite nexus with the employment. Otherwise the section identifies impacts which are to be included (or excluded) as an injury. In many sections of the Act reference is made to “an injury” or “the injury” or the like, and those expressions (whether in any particular context they might mean the same thing) require identification of the thing which is the injury.
Fourth, the Act, when referring to something as an “injury”, is not directing attention to its cause at all (as immediate or consequential) though it must have the nexus required by s 32(1) with employment. Rather it is the description of something as an impact on the person. An impact is an injury whether or not some other impact also results from the event, and indeed whether the two impacts are such that one can be described as consequential upon the other. The substance of the construction urged by the appellant is premised on the proposition that if the one incident produces two impacts, the bodily impact and the consequential psychological impact, they can (or perhaps can only) be described as the one “injury” for the purposes of the Act. That assumes a relevance of the directness of the causal connection to the event which plays no part in the description of the impact as an injury.
I accept that the description of an impact or impacts can be made at varying levels of generality, with the consequence that a general description, in some situations, may be sufficient to identify the same group of impacts which could be described by a more complete or particularised description. A generalised description will likely be sufficient to capture the usual or expected (even if less frequently encountered) ancillary impacts. This would appear to be what the primary judge had in mind in the phrase I have emphasised in R [38] extracted above when referring to the symptoms of the claimed injury. That may be the way to best understand the decision in Barraclough v WorkCover Queensland [2012] QDC 321 to which the primary judge referred.
But merely because some descriptions would be sufficient to encompass accompanying aspects of the impact it does not follow that any identification of the physical impact will perforce of that description incorporate all consequential impacts no matter how infrequently they occur, how remotely experienced or how removed from the description employed in identifying the physical impact.
As a matter of the normal use of language, a mental illness, however caused, cannot readily be described as “lower back injury” or by any similar expression.
Relevant Authorities
Two decisions were urged on this Court as relevant to the construction issue discussed above. The first is a District Court decision of Barraclough to which I have referred. It is of no assistance to the appellant. The primary judge in that case found that the description of the injury was such as would include the “progression of symptomology” (at [56]) and, in effect, that there were no indicia of more than one separate injury. It is not a decision directed to consideration of two injuries where one is caused by the other.
The other decision is Apelu v Lusty Tip Trailers Pty Ltd [2024] QCA 158. In that case a worker was hit on the head by a large metal hook attached to a chain and lost consciousness. He suffered a head injury and PTSD. These were made the subject of his application for compensation and work capacity certificates were issued for both. The insurer (Workcover) acted on those certificates. The worker later developed schizophrenia, which had not been included in his application and the insurer at no stage accepted it as an injury. Workcover in its defence asserted that the worker was precluded from seeking damages for the schizophrenia because it had not accepted it as an injury under the Act. The worker applied to strike out that defence and failed. He then appealed on two bases: first, that properly construed the notice of assessment for the head injury and PTSD also encompassed the schizophrenia; and second that the schizophrenia was secondary to the primary head injury and PTSD and as a consequence could be pursued.
In rejecting both grounds Crowley J (with whom Bond and Boddice JJA agreed) at [46] observed:
“… To my mind, the fact that s 32(1) speaks of alternatives of ‘psychiatric or psychological disorder’ strongly suggests that either kind of disorder may constitute an injury. It would logically follow then, in my view, that an injured worker who develops a psychiatric disorder and a psychological disorder, as a result of the one work-related event, will have sustained two injuries. Much of course would depend on the evidence concerning the particular conditions experienced by an injured worker in a given case.”
“… In short, the primary judge was simply not satisfied on the evidence before her that the appellant’s schizophrenia could be regarded as a secondary consequence of the injury described in either of the issued notices of assessment. Such a finding does not preclude the appellant advancing his secondary injury argument at trial, albeit I note that at present he has not pleaded that his schizophrenia is a secondary consequence of his PTSD.”
The Causation Contentions
“…
In my opinion, where the negligence of a defendant causes an injury, and the plaintiff subsequently suffers a further injury the position is as follows:
where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
Conclusion
Second Step – The Effect on the Damages Claim
It is necessary then to consider what this means for paragraph 8A of the Further Amended Statement of Claim.
Chapter 5 makes provisions concerning the access to damages which are substantive provisions which prevail over any inconsistent rule of law: s 235. The entitlement to seek damages for an injury to a worker is limited by the chapter. It is expressed in s 237(1) by way of identifying the “person” who may make the claim rather than the nature of the claims in respect of which proceedings may be brought. Then s 237(5) clarifies that the Act “abolishes any entitlement of a person not mentioned in [subsection (1)] to seek damages for an injury sustained by a worker”. For a worker this must operate in an ambulatory way; a claim is only available if and once the worker satisfied the requirements of subsection (1).
By s 237(1)(a)(i) a worker is only entitled to seek damages for “an injury” if the worker has received a notice of assessment for “the injury”. The use of the definite article in s 237(1)(a)(i) in my view is to be understood as referring back to that injury for which the damages may be sought. That is, that “the injury” is the same as “an injury” which is referred to in the chapeau to the section, each being able to be construed to include the plural. In that context, the worker is only a person entitled to seek damages for an injury (one or more injuries) if the worker has received a notice of assessment for the same injury or injuries. By this proposition, the appellant cannot bring herself within this provision so as to seek damages for the psychiatric injury given my view as to the meaning of what constitutes an injury as discussed above.
Section 237(1)(a)(ii) however needs to be considered. The appellant is also entitled to seek damages for an injury where she has not received a notice of assessment for the injury. The subsection however contemplates that the appellant will fall within this subsection where she has not received a notice of assessment for “the injury” but has received a notice of assessment for any injury resulting from the same event (called the assessed injury), and, relevantly under s 239 elected to seek damages. Accordingly, it is right to describe a worker as not having a notice of assessment for “the injury” even where some (other) injury arising from the same event has been the subject of a notice of assessment.
The respondent urged that the references to “an injury” in the chapeau to s 237(1) and “the injury” in subsection (a)(ii) are not to be taken to refer to the same thing. But in my view that is not the correct construction (though possibly nothing turns on it in this appeal).When in s 237(1)(a)(i) and (ii) reference is made to “the injury”, in each case the only thing capable of being referred to is the injury for which the worker is to be entitled to seek damages as mentioned in the chapeau to subsection (1).Moreover, s 237(a)(i) and (ii) appear to cover the field of outcomes. The worker either has or does not have a notice of assessment for “the injury”.What s 237(1)(a)(ii) contemplates is that an entitlement to seek damages for the injury will arise if a notice of assessment (under s 185) for some other injury (the assessed injury) has issued and (relevantly) an election is made to seek damages for that injury. In that event the worker has an entitlement to seek damages for the injury not assessed.
Third Step – The Strike Out Application
For the purposes of assessing the competing contentions on the appeal (and on the application to strike out parts of the Further Amended Statement of Claim) the pleaded facts should be assumed to be able to be made out. That is unless they can be shown to be without foundation, but that is not this case. The primary judge proceeded on that basis.
As already mentioned, the primary judge correctly identified that the discretion conferred by r 171 UCPR ought to be reserved for clear and obvious cases. His Honour concluded that this was just such a case and struck out the relevant pleadings. The submissions for the appellant challenge the exercise of the discretion only on one basis namely:
“The primary judge erred in finding that the paragraphs of the applicant’s Statement of Claim which plead a psychiatric injury are defective and offend rule 171 of the Uniform Civil Procedure Rules 1999 (‘UCPR’) in that they disclose no reasonable cause of action as, assuming the applicant can establish ‘as a consequence of the [back] injury, the plaintiff suffered a consequential injury, namely a psychiatric injury’, there is no preclusion to the applicant advancing a claim for damages for the psychiatric injury.”
Given the conclusion I have reached as to the appellant’s construction of the Act being wrong, this sole basis of challenging the exercise of the discretion is not made out. The claim for damages for the psychiatric injury is not one presently available to the appellant to pursue because of s 239A(4) of the Act. It does not follow that in such a case the offending paragraphs of the statement of claim or claim necessarily must be struck out: see Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 per Keane JA at [22] and [27]. If it had been proved that the appellant was seeking to and would likely be able to satisfy the requirements to be able to seek damages for the psychiatric injury it might have been open to exercise the discretion not to have struck out paragraph 8A of the Further Amended Statement of Claim and related references. But that did not arise for consideration below or on this appeal.
It was accepted and indeed urged by the appellant that she had sustained two injuries: the physical and the psychiatric. The Further Amended Statement of Claim pleads them as two injuries and Dr Mathews identifies them as such. That is consistent with my view as to the normal meaning of the word “injury”. This is not a case where it is pleaded, proved or submitted that the description of an injury as a lower back injury, albeit a generalised one, incorporated or captured a psychiatric illness. Nor, as mentioned, was there any pleaded case or evidence that the appellant would seek, and would be likely be able, to satisfy the requirements to be able to seek damages for the psychiatric injury at any time.
In my view the discretion to strike out was correctly exercised.
Summary
Leave to appeal is granted.
The appeal is dismissed.
The appellant pay the respondent’s costs of the appeal.
Injury is defined in the Macquarie Dictionary as “harm of any kind done or sustained” and “a particular form or instance of harm”. The Australian Oxford Dictionary defines “injury” as “physical harm or damage”. ↩
This section was introduced by amendment in 2015 at the same time as s 237 was inserted reinstating workers’ rights to seek damages. ↩
Sawtell
State of Queensland [2026] QCA 62
(2024) 333 IR 413
Leave to appeal was granted. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs of the appeal. [69]
Fifth, one of the objects of the Act is to regulate access to damages: s 5(2)(b). This, along with other provisions, assists in achieving the balance referred to in s 5. As a part of that, the Act provides for compensation but limits entitlements to make claims for damages. This is the function of s 237 and its related provisions.
Ahead of the operation of s 237, the Act provides for the seeking and the making of an assessment of the worker’s DPI: s 179. Then provision is made for seeking and the provision of a notice of assessment: s 185.
The level of that assessment can in some situations be disputed: s 186. The Act provides for advice to be given for the worker to elect to accept an offer of lump sum compensation (if made) or seek damages: s 189.
These steps have as their evident purpose the identification of the impacts on the worker of the event and some assessment to be made of the magnitude of those impacts long term. An aspect of that assessment is to facilitate the making of an offer of lump sum compensation which, if one is made and accepted, is treated as an election not to sue for damages. The fulfilment of these purposes would be thwarted to a real extent if the assessment could be undertaken, not for all impacts, but for only one or some of the impacts of the event.
Aligned with the purposes of the Act*,* the provisions of Chapter 5 Part 5 do not lend support for the appellant’s construction. It generally employs language referring to the “claimant”: see for example s 275. Section 233 defines that term as meaning for Chapter 5 “a person entitled to seek damages”.
The object of Chapter 5 Part 5 is stated to be “to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense”: s 273. The procedures which follow include requiring the claimant, before starting proceedings in court, to notify the insurer and employer, provide authorities for the insurer to obtain all relevant medical information and be accompanied by various medical and other documents relevant to the quantum of the claim: s 275. There are other procedures or steps to follow, including: a general obligation to cooperate to provide information and documents: s 279; to endeavour to resolve a claim as quickly as possible: s 281; the undergoing of medical examinations: s 282; to conduct a compulsory conference with offers made to seek to settle the claim: s 288 to s 291; followed by final offers to settle which may have costs consequences thereafter: s 292.
The utility of these steps is diminished if they are able to be conducted, and completed, by reference to a physical impact but not the consequential psychiatric impact, while leaving the latter to be advanced at the trial. As was submitted by the respondent, this might expose an insurer to a risk of indemnity cost where it rejects a claimant’s final offer which was made by reference to only one impact, where it was later confronted at trial with claims for other consequential impacts: s 312(2).
For these reasons, in my view each of the lower back injury and the psychiatric injury sustained by the appellant is an injury, even if the latter is also to be described as consequential on the former. This is not a case where, in my view, the description of the injury in the various ways mentioned, in the documents set out in the discussion of the Background above, as lower back injury or the like is apt to also describe the psychiatric impacts as well.
On this approach, the appellant can bring herself within s 237(1)(a)(ii); and this is accepted by the respondent. She has an entitlement to seek damages for the psychiatric injury because a notice of assessment for the back injury has issued and (relevantly) she has made an election to seek damages for assessed injury. In that event, prima facie, the appellant has an entitlement to seek damages for the injury not assessed.
But this is subject to s 239A.2 By subsection (1), s 239A is stated to apply to a claimant who is a worker who falls within s 237(1)(a)(ii). On the view I have taken the appellant is such a worker. Importantly s 239A(4) then provides that “the claimant may seek damages for the injury only if the insurer decides the claimant has sustained an injury.” There is a degree of uncertainty about the scope of this provision. Section 239A(4) can mean either: that the worker can seek damages for the non-assessed injury but only if the insurer decides the claimant has sustained an injury (the assessed injury identified in s 237(1)(a)(ii)); or that the worker can seek damages for the non-assessed injury but only if the insurer decides the claimant has sustained the non-assessed injury. There are factors which point in favour of the latter and against the former construction.In order to fall within s 237(1)(a)(ii) in the first place there must be injuries, one of which has received a notice of assessment for an injury and one which has not. Section 239A(4) would be otiose if the former construction was adopted for it.Section 239A(4) is expressed prospectively, that the insurer decides, as distinct from having already decided (as will have been the case for the assessed injury).The purposes of the Act do not appear to be advanced by the former construction which would entitle a worker to seek damages for a second injury which has not been the subject of any of the statutory processes merely because those procedures have been followed for a different injury. The latter construction recognises that because the statutory processes have not been followed for the non-assessed injury there needs to be some regulation on conferring an entitlement to seek damages for that injury and this is afforded by s 239A(4).Consistently with this prospective approach, the section then goes on to make provision for the insurer to make that decision by reference, inter alia, to the date of the claimant giving a notice of claim. The purpose of providing for the insurer to make a decision in relation to the non-assessed injury is to allow for the circumstance that hitherto it has not been subjected to analysis under the mechanism and limitations of the Act. If dissatisfied with the outcome a right of review is then provided for: s 239A(5) to (8).
The appellant falls within the scope of s 237(1)(a)(ii) but not, with respect to her psychiatric injury, s 239A(4). The result in my view is that she may not seek damages for that injury without the insurer deciding that she has sustained it: see by analogy Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 at [17]-[19] per Keane JA (Muir J agreeing). It is not clear that the primary judge based his decision on the operation of s 239A(4), though the result his Honour reached was to the same effect: R [46].
The respondent, however, relied for this conclusion on s 295. Given the view I have reached it is unnecessary to consider further the possible operation of this section to preclude, not the commencement of the proceedings, but the addition by amendment of damages of a kind for which separate proceedings could not have been commenced.