This paper is a brief summary of recent developments in four key areas of practice relating to PIPA:
- “injury” as defined under the WorkCover Queensland Act (WQA) and the application of PIPA
- the transitional provisions and limitation periods
- Non responsive respondents
- Statute barred claims
Section 6 – PIPA And The WorkCover Queensland Act
S.9(1) of PIPA provides:
“Before starting a proceeding in a Court based on claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started.”
A “claim” is defined as:
“a claim, however described, for damages based on a liability for personal injury, whether the liability is based in tort or contract or in or on another form of action including breach of statutory duty and. For a fatal injury, includes a claim for the deceased’s dependants estate.”
By s.6(2), PIPA excludes from its operation:
(a) personal injury as defined under the Motor Accident Insurance Act 1994 and in relation to which that Act applies;
(b) injury as defined under the WorkCover Queensland Act 1996
By s.34 of the WQA “injury” is defined as:
… personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
Clearly, the reference in s.6(2)(b) of PIPA to “injury” as opposed to “a claim against an employer for damages under the WorkCover Queensland Act” will create problems unforeseen by the legislature. Certainly in the course of the close consultation with the government in negotiating the legislation, it was APLA’s understanding that the Act was not intended to have the consequence of excluding from its operation any claim for damages in respect of which the injury sustained might be one within the meaning of the WQA.
Take the example of a worker injured in the course of his employment as a labourer employed by a labour hire company. The worker is injured on 1 March 2000. His limitation period expires on 1 March 2003. The worker’s instructions are that he was employed by the labour hire organisation, working at a factory when he lifted a large object and sustained injury. Clearly, he has sustained an injury within the meaning of the WQA.
On its face, the effect of s.6(2)(b) of PIPA is clear and PIPA does not apply. Accordingly, one possible consequence is that the worker would be entitled to pursue a claim against the occupier of the factory without complying with PIPA and which claim would not be subject to the WQA. Of course, another possible consequence is that the rights of the worker, absent recovery against the employer, are extinguished.
The effect of s.6 was recently considered by the Supreme Court in a matter of Devlin -v- South Molle Island Resort (Supreme Court Brisbane No. 10988 of 2002, Philippides J.). In that case, the claimant, Mr Devlin, had sustained injury in a workplace accident on 12 October 1999. Mr Devlin was the skipper of a vessel that had travelled to South Molle Island. Whilst moored at the island, Mr Devlin sustained injury when a porter threw a bag onto the deck of his vessel striking his knee. The porter was employed by the respondent. Mr Devlin was not employed by the respondent.
The relevant chronology of events was as follows:
12/10/99 date of injury
19/09/02 PIPA Notice of Claim delivered
27/09/02 respondent’s solicitors respond to Notice pursuant to s.10(2) requesting further information and raising issues as to the adequacy of the information contained in the Notice and requesting clarification of the status of the claimant’s WorkCover claim
30/09/02 claimant’s solicitors forward copy of WorkCover NOCD and address PIPA Notice requisitions
12/10/02 limitation period expires
31/10/02 respondent states that PIPA does not apply to claim on the basis of s.34 of the WQA
21/01/03 claimant applies to Supreme Court for a declaration that PIPA applies to the claim
The thrust of the claimant’s argument was:
- the respondent had permitted the limitation period to pass before asserting the non application of PIPA
- as against the respondent, the claimant’s injury was not one falling within s.34(1) of the WQA
- the applicant had different causes of action against different parties, citing De Innocentis -v- Brisbane City Council (2002) 2 Qd. R. 349
- the intention of the legislature could not have been to exclude a claim such as the claimant’s from PIPA and thus free the claimant to pursue his common law claim, unfettered by legislative restriction
- a purposive approach to the interpretation of the statute must be adopted – the “mischief” PIPA designed to remedy being unregulated claims for damages for personal injuries.
As against this, the respondent argued:
- the claimant had sustained an injury within the meaning of the WQA
- claims for damages for personal injuries in Queensland are now governed by one of three statutory schemes – WQA, MAIA or PIPA.
- The purpose of PIPA was to “corral” claims into the appropriate scheme
- The specific difference between ss.6(2)(a) and 6(2)(b) (ie not including in sub(2)(b) the additional words “and in relation to which that Act applies”) reflected an intention on the part of the legislature to channel claims against the employer in the first instance and not against other persons whom it may be alleged are concurrently liable.
- Alternatively, a claim such as the claimant’s might be completely unregulated (which, the respondent argued, could not possibly have been the intention of the legislature)
- The analogy of s.253 of the WQA and the effect of the decisions in Hawthorne -v- Thiess Contractors Pty Ltd and Karanfilov -v- Inghams Enterprises Pty Ltd resulted in the conclusion that PIPA was an intended codification of the laws relating to the bringing of personal injuries claims (other than in master servant and motor vehicle claims) hence if a claim was excluded from PIPA, it could otherwise not be maintained unless it was capable of being “corralled” into the WQA or MAIA
- In the present case a concurrent liability in respondent and employer had to be assumed in light of the delivery of a s.280 Notice
- The potential abolition of the right of recovery against a concurrently liable party is not effected by PIPA but rather by the proper construction of s.253 WQA.
- The applicant’s right to seek damages was not lost – that right lay via the WQA.
Phillipides J has reserved her decision.
There is however a significant prospect of s.6(2)(b) of PIPA being amended retrospectively to limit the exclusion from PIPA to claims where there is an entitlement to damages under the WQA. What would be the effect of such a retrospective amendment?
S.253 of the WQA imposes limitations upon the entitlement “to seek damages for an injury sustained by a worker”. The question as to whether reference to seeking damages is limited to damages pursuant to the Act or damages at large is yet to be judicially determined.
S.11 of the WQA provides that “damages” is damages for injury sustained by a worker in
circumstances creating, independently of the Act, a legal liability in the worker’s employer to pay the damages to the worker.
In the hypothetical labour hire worker scenario (assuming a retrospective amendment to the legislation outlined above), it is doubtful in a factual sense that the employer (ie the labour hire company) would have a legal liability to pay damages to the worker. As such, the claim would fall within PIPA. It is however possible that a labour hire company could be liable for injury sustained by a worker. For example, the labour hire company may have received prior complaints as to unsafe work practices at the factory or have knowledge as to previous injuries sustained at the factory which could impose an obligation on the company to ascertain the safety or otherwise of the premises. In these circumstances, a legal liability on the part of the labour hire company could be found in which case the WQA would apply and the operation of PIPA would be excluded.
These problems invite legislative intervention to cure any uncertainty in relation to the intended effect of the legislation.
Accordingly, in the hypothetical scenario, prudence would dictate compliance with both PIPA and the WQA.
PIPA Transitional Provisions And Limitation Periods
Assuming that in the hypothetical scenario outlined above, PIPA applies to the claim, given the imminent expiration of the limitation period, what is to be done?
The transitional provision relevant to the alteration of the limitation period is s.77D that applies to claims in relation to which:
a. proceedings were not commenced prior to 1 July 2002; and
b. the limitation period expires between 18 June 2002 and 18 December 2003.
It is useful to set out s.77D in full:
77D Alteration of limitation period for personal injury arising out of
an incident happening before 18 June 2002
(1) This section applies in relation to a personal injury arising out of an incident happening before 18 June 2002 if—
(a) the period of limitation for a proceeding based on a claim for the
personal injury ends during the period starting 18 June 2002 and
ending at the end of 18 December 2003; and
(b) a proceeding based on the claim has not been started in a court,
including in a court outside Queensland or Australia.
(2) If the period of limitation has ended, the claimant may start a proceeding in a court based on the claim—
(a) if a complying notice of claim is given before 18 June 2003; or
(b) at a later time, not more than 6 months after the complying notice
of claim is given and not later than the end of 18 December 2003,
with the court’s leave.
(3) If a proceeding is started under subsection (2) without the claimant having complied with chapter 2, part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.
(4) This section does not limit section 43.
Section 77D does not yet apply to the hypothetical scenario as the claim is not yet statute barred.
On an initial reading of the section, one is entitled to assume in the hypothetical scenario (absent a s.43 application) that, providing a complying Notice of Claim is delivered by 18 June 2003, the claimant’s limitation period is indefinitely suspended subject of course to s.42 (the time for starting proceedings). Some commentators have questioned the correctness of this interpretation.
S.77D(2)(a) seems, at first glance, relatively straightforward – provided a complying notice of claim is given before 18 June 2003, proceedings may be commenced after the expiration of the limitation period. Note however the wording of the subsection:
“If the period of limitation has ended…”
There is a suggestion that the section is restricted to claims where the limitation period had ended as at the date of the relevant amendment to the Act inserting the transitional provisions ie 29 August 2002. Some respondents are arguing that in claims where the limitation period had not ended as at 29 August 2002, the extended limitation period under s.77D is not activated. Clearly this interpretation conflicts fundamentally with s.77D(1)(a).
There is however some uncertainty as to the effect, or indeed intention, of s.77D(2)(b) which applies to claims in which a complying notice is not provided before 18 June 2003. The subsection refers to “a later time”. The section may be unhappily drafted and the question is, what is being referred to at the “later time” – the commencement of proceedings or the giving of a notice?
The Explanatory Notes to the amending Bill provide:
“New section 77D alters the period of limitation applying to injuries arising out of incidents that happened before 18 June 2002 which would otherwise end during the period starting on 18 June 2002 and ending at the end of 18 December 2003 and a proceeding based on the claim has not been started in a court. The section extends the limitation period to 18 December 2003 (underlining added), provided that a complying notice of claim is given before 18 June 2003 or at a later time, not more than 6 months after the complying notice of claim is given and not later than the end of 18 December 2003, with the court’s leave.”
Was the intention of the legislature to impose an absolute 18 December 2003 time limit on claims the subject of the transitional provisions? If so, the section does not reflect this. The issues are:
- Is there an “extension” of the limitation period?
- When do proceedings need to be commenced?
- When can proceedings be commenced as of right?
- When is the leave of the Court required to commence proceedings
There are a number of possible interpretations of s.77D(2):
- If a complying Notice is given before 18 June 2003, proceedings may be commenced at any time as the limitation period is open ended – inconsistent with Explanatory Notes that refer to the limitation period being extended to 18 December 2003
- If a complying Notice is given before 18 June 2003, proceedings can be commenced prior to 18 June 2003 without the leave of the Court
- If a complying notice is given before 18 June 2003 and proceedings are not commenced prior to 18 June 2003, then proceedings must be commenced, with the leave of the Court, not more than 6 months after the delivery of the compliant Notice and not later than the end of 18 December 2003
- If a complying notice is given after 18 June 2003, then proceedings must be commenced, with the leave of the Court, not later than the end of 18 December 2003
Appropriate legislative amendment would assist to clarify just what was intended by the provisions.
From a practical perspective practitioners must not be dismissive of what might otherwise appear to be statute barred claims. The transitional provisions provide an extended grace period allowing claims where the cause of action accrued as far back as 18 June 1999 to be brought within PIPA.
Non Responsive Respondents
What can be done where a respondent simply ignores or otherwise fails to respond to a Notice? Is the Notice deemed compliant?
It is useful to set out s.13 of the Act in its entirety:
13. Consequences for respondent of failure to respond to notice of a claim
If a claimant gives notice of a claim under this division or purportedly under this division to a person against whom a proceeding is proposed to be started, and the person does not respond to the notice under section 12 (underlining added) within the prescribed period under that section, the person is conclusively presumed to be satisfied the notice is a complying notice of claim.
12. Respondent’s response to the notice of a claim
(1) This section applies to a person (“respondent“) to whom a notice of
a claim is given under this division or purportedly under this division and
(a) considers himself, herself or itself to be a proper respondent to
the claim; or
(b) is given notice under section 10(2)(b) or (4)(b) that the claimant
considers the person to be a proper respondent to the claim.
S.12 is clearly premised upon a response under s.10 being one of the following:
- S.10(1)(a) a respondent advises it is a proper respondent
- S.10(2)(b) a respondent (after requesting further information from a claimant) is advised by the claimant that it is a proper respondent
- S.10(3)(a) a respondent, after being provided with further information, advises that it is a proper respondent
- S.10(4)(b) a respondent who, after advising that it is not a proper respondent despite further information, is advised by the claimant that it is a proper respondent
What s.13 does not contemplate is the total absence of an initial response pursuant to s.10. There is clearly a defect in the legislation, particularly when one has regard to the explanatory notes:
“Clause 13 provides that if the respondent does not respond within the prescribed time they are conclusively presumed to be satisfied the notice is a complying notice of claim.”
Absent a response from the respondent, the Notice of Claim is ostensibly neither compliant nor non compliant. In these circumstances, note s.18 of the Act. Can a claimant avail themselves of s.18(c)? S.18 clearly contemplates a response by a respondent. Absent a response, the claim is not non compliant and thus an order pursuant to either ss.18(1)(c)(i) or (ii) cannot be made.
What remedies are available to the claimant? S. 35 of the Act provides:
35 Court’s power to enforce compliance with divs 1 and 2
(1) If a party fails to comply with a duty imposed under division 1 or 2,
the court may, on the application of another party to whom the duty is
owed, order the first party to take specified action to remedy the default
within a time specified by the court.
(2) The court may make consequential or ancillary orders, including
orders as to costs.
Accordingly, the appropriate course of action for an applicant faced with a non responsive respondent is to apply to the Court pursuant to s.35(1) for orders that the respondent respond to the Notice pursuant to s.10, thus enabling the claim to continue. Ideally a self executing order should be made thus obviating the need for a subsequent application to the Court in the absence of an appropriate response.
The importance of this loophole is evidence considering the practical application of the transitional provisions and the need, in applicable cases, to deliver a compliant Notice of Claim prior to 29 June 2003.
Statute Barred Claims And S.43 Applications
What does one do when faced with a statute barred claim in which it will be necessary to apply to the Court for an extension of the limitation period?
The implications of such a scenario are obvious when one considers s.31 of the Limitation of Actions Act (LAA) and the requirement to commence proceedings within 12 months of a material fact. Such was the scenario in Grimes -v-The Corporation of the Synod of the Diocese of Brisbane (S27/03 – unreported – Supreme Court Brisbane – Muir J)
The relevant chronology in Grimes was as follows:
02/04/54 claimant’s DOB
1968 to 1971 alleged assaults occurred
02/04/72 claimant turns 18
02/04/75 primary limitation period expires
09/01/02 alleged discovery by claimant of “material fact”
01/02 claimant first consults solicitors
26/07/02 claimant consults current solicitors
August 02 claimant retains current solicitors
06/12/02 NOC served
09/01/03 12 month period pursuant to s.31 LAA expires
The difficulty faced by the claimant was the need to file proceedings urgently to protect his position vis-à-vis the LAA. The claimant brought an application pursuant to s.43 to issue proceedings as a matter of urgency.
S.43 relevantly provides:
43 Need for urgent proceeding
(1) The court, on application by a claimant, may give leave to the
claimant to start a proceeding in the court for damages based on a liability
for personal injury despite noncompliance with this part if the court is
satisfied there is an urgent need to start the proceeding.
(2) The order giving leave to start the proceeding may be made on
conditions the court considers necessary or appropriate having regard to
the particular circumstances of the case.
(3) However, if leave is given, the proceeding started by leave is stayed
until the claimant complies with this part or the proceeding is discontinued
or otherwise ends.
The claimant initially sought to have the application heard ex parte which Muir J declined to do on the basis that the substantive rights of the respondent could be affected. The respondent argued against the application on two main grounds:
- Assuming the limitation period was extended there was no need to bring the application in view of the fact that the transitional provisions in s.77D would apply
- Otherwise the claimant had neither reasonable prospects of success in respect of the claim nor an adequate explanation for the delay in bringing the claim and thus the application should fail.
The respondent argued that there had been substantial delay in the giving of the NOC. Ostensibly, the claimant was unable to avail himself of the benefit of s.77A (the transitional provision extending the time for the giving of the NOC) in view of the fact that the limitation period in respect of his claim had ended (note s.77A(1)). PIPA does not however otherwise recognize the possibility of the commencement of statute barred claims in the circumstances faced by the claimant. The claimant could not have given a notice within 1 month of his first consulting a solicitor as PIPA had not been enacted. When then should the Notice have been given?
If the claimant ultimately did successfully extend the limitation period then his claim was clearly governed by PIPA and the s.43 application was necessary.
Muir J saw fit to treat the application as a de facto limitation extension application. This was despite the claimant’s submission that all he was required to show was a need for urgent proceedings. The claimant argued that he was not required to establish a prima facie case. In applications for leave to proceed despite non compliance under s.39 MAIA, it has been held:
“There is nothing in the Act to suggest that, to be successful, an applicant must
establish that he or she has a prima facie case…In suggesting that the applicant needed to establish a prima facie case of negligence against the respondent, his Honour raised the bar too high and further erred in concluding that on the material before him there was no fact which could point to liability in the employer”
(Per Wilson J – Thomas v Transpacific Industries P/L & Anor  QCA 160)
Although note the comments of Davies JA in Thomas:
“The absence of anything to indicate liability in a respondent is in my opinion a relevant factor in the exercise of the discretion under s 39(5)(c), as indeed would be some indication that the applicant had a strong case against the respondent in negligence.”
It is however important to consider these comments, and the other relevant authorities in relation to s.39(5) MAIA, in the context of the relevant legislative provisions. S.39(5) MAIA is effectively mirrored in s.18(1) PIPA. The MAIA does not contain an equivalent of s.43 PIPA. It is also important to note s.43(3) PIPA:
“However, if leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.”
S.39(5) MAIA and s.18(1) PIPA are designed to enable a claim to be propelled through the pre court procedures in the event of non compliance with some aspect of the notice provisions. S.43 achieves quite a different purpose – to enable proceedings to be filed urgently to thus protect a claim so that the pre court procedures, including issues as to the compliance with the notice provisions, can be dealt with.
Further, as the explanatory notes to the Bill state:
“The Bill does not limit access to the Courts by individuals”
Muir J insisted that the claimant put before him evidence in support his claim and specifically the material fact the claimant intended to rely upon. Not only does this requirement appear to go beyond the principals stated in the s.39(5) MAIA authorities, it does not seem sit with the apparent object of s.43 and the distinction to be drawn between s.43 and s.18(1) PIPA and s.39(5) MAIA. S.43 only requires the claimant to show an urgent need to commence proceedings.
Note however s.305 WQA that relevantly provides:
305 Court to have given leave despite noncompliance
(1) Subject to section 303, the claimant may start the proceeding if the
court, on application by the claimant, gives leave to bring the proceeding
despite noncompliance with the requirements of section 280.
(2)The order giving leave to bring the proceeding may be made on
conditions the court considers necessary or appropriate to minimise
prejudice to WorkCover from the claimant’s failure to comply with the
requirements of section 280.
The only obvious requirement for a s.305 application is the non compliance with the requirements of s.280 ie the absence of a compliant Notice of Claim for Damages. However note the comments of Shepherdson J when dismissing a s.305 application in Israel Antonio Quintanilla -v- The Minister for Education of Queensland  QSC 29:
In my view a person who seeks damages for an injury sustained by himself or herself and who has not lodged an application for compensation for the injury and seeks to prove entitlement within s253(1)(c) must, on an application under s305 provide evidence showing a prima facie causal nexus between the injury and the workplace in which it is said the injury was suffered as well as prima facie evidence of negligence or breach of statutory duty.
It is not the legislative intent of WorkCover Act that in the absence of such evidence
leave under s305 to begin a proceeding should be lightly given. At first blush Section 305 may appear to offer the possibility of starting an action when all the applicant has is a hope that perhaps by the time the action comes to trial, he or she will be in a position to prove on the balance of probabilities the causal nexus between the injury complained of and the work being performed by the applicant at the time of the injury as well as negligence or breach of statutory duty.
In my respectful view the present application is one where the applicant has nothing
The worker in Quintanilla was arguably in much the same position as a claimant is under PIPA who seeks to proceed under s.43 in the absence of a prima facie case.
In Grimes it was obviously in the interests of the claimant to be entitled to commence his proceedings, stop the limitation clock ticking, and make use of PIPA pre court procedures to endeavour, if not to negotiate a settlement of his claim, then to complete the steps that would otherwise have required the necessity of the formal steps in litigation ie disclosure etc.
Muir J allowed the application and the claimant is now proceeding through the PIPA pre court procedures.
Note a different outcome in Boddy -v- The Corporation of Trustees of the Roman Catholic Archdiocese of Brisbane (S10226/02 – unreported – Supreme Court Brisbane – De Jersey J) where it was ordered that the action and the PIPA claim be stayed pending a limitation extension application.
It does not appear that the intention of the legislature was to prevent the prosecution of statute barred claim. If the decisions in Grimes andBoddy are however indicative of the approach to be taken by the Courts, the bar may be significantly raised in respect of s.43 to the level required in s.39(5) MAIA and s.31 LAA applications.