Are “high level” allegations – without particulars of the components of alleged negligence and causation pertaining to an injury – sufficient to meet the requirements of a compliant workplace injury Notice of Claim for Damages?
This question recently arose for determination by Justice Graeme Crow in the Supreme Court at Rockhampton in relation to a prison officer’s injury at the Maryborough Correctional Centre.
About 18 months after starting there, David Graham was seconded in October 2019 into the correctional response team whose role was to be first responders to critical and acute prisoner situations.
From April 2020 he experienced psychiatric symptoms yet continued to work in the unit. Symptoms worsened and he eventually ceased work altogether in March 2022.
A Notice of Claim for Damages was provided to WorkCover in May 2022 in respect of an over period of time injury expressed to relate to the period from 1 November 2019 to 1 December 2020.
Graham’s answer to question 40 – which calls for a description of the details of the event resulting in the injury – merely noted that he had received inadequate training for his role and that there was no rotation in and out of the team.
The NOCD was accompanied by a report from psychiatrist Joe Mathew who referenced some of the violent episodes to which Graham had been exposed and the regular confrontation from prisoners with threats to his life and his family.
WorkCover refused to comply the notice, demanding that the answer to question 40 specify particulars of the “nature, duration and intensity” of the prison episodes he alleged to have contributed to his PTSD.
The claimant though had – by reason of impaired memory associated with his condition – difficulty with his recall and sought to avoid its potential aggravating by being required to record each and every incident from memory.
He offered to provide the particulars after the correctional centre disclosed the records of the incidents he attended in his role but insisted – regardless – his answer complied with the requirements of Workers’ Compensation and Rehabilitation Act section 279.
Solicitors for WCQ on the other hand insisted on what they declared was a claimant’s obligation under reg 120 to fully particularise all elements of the claim.
To resolve the stalemate, Graham filed an originating application seeking a declaration that he has complied with WCRA s 275 in September 2022.
In considering the contest, Justice Crow observed that the reg 120 requirement that the claimant provide his or her “description of the facts and circumstances surrounding the injury” was a substantially lesser obligation that that required under an earlier iteration of the regime in part because the details required were of the “injury” as opposed to the “event”.
The obligation to provide “full particulars of the negligence alleged” was though the same under reg 120 as it otherwise been.
In deciding whether sufficient particulars of negligence had been provided, his honour had recourse the High Court of Australia’s recent consideration of an employer’s duty to staff whose role necessitated exposure to extreme violence or trauma.
The HCA held in that case that “in certain cases an employee is able to demonstrate the very nature of the role taken by the employee carried with it an inherent and obvious risk of psychiatric harm”.
It had noted the employer’s duty in such case extended to providing intensive training and rotations in and out of the unit, both of which had been particularised by Graham in his answer.
Against that background and in the context the prolonged exposure over the period he had specified, the particulars of negligence were – according to Justice Crow – sufficient.
“The test is not to require a properly particularised statement of claim, but rather to satisfy the requirement of reg 120,” he ruled it making the next oration that the NOCD was compliant.