SECTION 6(2)(b) – PIPA and WorkCover claims

Devlin v South Molle Island Resort [2003] QSC 020

The Issues

Justice Philippides considered the application of s.6(2)(b) of PIPA and whether the section operated to exclude an employee’s claim against an alleged concurrent tortfeasor. Philippides J also considered whether s.253(3) of the WorkCover Queensland Act 1996 abolishes a worker’s entitlement to sue a concurrent tortfeasor.

The Facts

Mr Devlin sustained injury on 12 October 1999. At the time he was employed as the skipper of a vessel. Whilst docked at South Molle Island he was struck on the leg by a piece of baggage thrown onto his boat by employee of the South Molle Island Resort. Mr Devlin was not employed by the resort.

The Respondent argued that the purpose of the statutory regime in Queensland in relation to personal injuries claims was to channel claims into one of three pieces of legislation, namely:-

a) The WorkCover Queensland Act;

b) The Motor Accident Insurance Act;

c) The Personal Injuries Proceedings Act.

The Respondent argued that the Plaintiff’s claim should be channelled as against the employer at first instance. Whilst the Respondent conceded that the injured persons rights may be abolished by adopting such an interpretation the Respondent argued that such abolition was not by virtue of the PIPA but rather as a consequence of s.253 of theWorkCover Queensland Act.

The Applicant argued against the Respondent’s contentions in relation to s.253 of the WorkCover Queensland Act and statements by McPherson JA in Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 QdR at 273.

The Applicant argued in reliance upon the decision of Dutney J inCampbell v CSR Limited & CSR Plane Creek Pty Ltd [2002] QSC at 266.

The Decision

Philiptides J concluded that no intention could be discerned on the part of the legislature to abolish, via the PIPA, the rights of an employee as contended for by the Respondent. Her Honour was of the opinion that the correct construction of s.6(2)(b) of the PIPA was to exclude from the ambit of PIPA injury claims under the WorkCover Queensland Act as against employers.

Her Honour was of the view that the views expressed by Dutney J in Campbell v CSR Limited were correct and that s.253(3) of the 1996 Act abolishes any entitlement of a person not mentioned in s.253(1) to seek damages for an injury.

The effect of the decision in Devlin is however that in circumstances where the injured person has sustained an injury within the meaning of the WorkCover Queensland Act, the injured person must have had their injuries assessed.

What is of significant concern arising out of Devlin is that if a claimant’s WorkCover statutory claim is rejected on a “no injury” basis that person would ostensibly have no claim under the PIPA against a concurrently liable tortfeasor. Quaere also whether an injured person, in a PIPA claim, is entitled to pursue damages for injuries not assessed. This issue has been raised by in argument by WorkCover.

The Legislative Response

The difficulties posed by s.6(2)(b) will hopefully be overcome by amendments to the PIPA contained in the Civil Liability Bill. Specifically, a redrafted s.6(2)(b) will provide:

However, This Act Does Not Apply To …

(b) injury as defined under the WorkCover Queensland Act 1996, but

only to the extent that an entitlement to seek damages, as defined

under that Act, for the injury is regulated by chapter 5 of that Act.

Example for paragraph (b)—

W, a worker, sustains an injury in the course of employment. The injury is

caused by a design fault in a machine. As a result of sustaining the injury,

W seeks damages against both E, W’s employer, and X Company, the

designer of the machine. Before starting a proceeding in a court for damages against E, W must comply with the pre-court procedures under the WorkCover Queensland Act 1996. Similarly, before starting a proceeding in a court for damages against X Company, W must comply with the pre-court procedures under this Act.

The proposed amendment should overcome the situation in Devlin. It should also overcome the “no injury” scenario.

SECTION 6(2)(A) – PIPA AND MOTOR ACCIDENT INSURANCE ACT CLAIMS

Bridgestone Australia Ltd v Walsh – (unreported) – Supreme Court No. 285 of 2003 – 31 January 2003

The Issues

Holmes J considered the application of s.6(2)(a) and claims involving the Motor Accident Insurance Act in Bridgestone Australia Ltd v Walsh – (unreported) – Supreme Court No. 285 of 2003 – 31 January 2003

The Facts

Mr Walsh sustained injury in July 2001 when the vehicle he was driving left the road and hit a tree. Mr Walsh alleged that the accident occurred as a result of a faulty steering arm that had come undone. He alleged that the fault arose out of work done to the vehicle at a Bridgestone service outlet. Mr Walsh delivered to the CTP insurer of his vehicle a Notice of Accident Claim Form. The response of the CTP insurer was a denial of liability.

Mr Walsh’s solicitors then proceeded to deliver to Bridgestone Australia Ltd a PIPA Notice of Claim. The insurer for the Respondent responded to the notice by asserting that Mr Walsh’s claim was clearly one governed by the provisions of the Motor Accident Insurance Act 1994and was therefore excluded from the operation of PIPA.

The Decision

Holmes J agreed that the description of the accident and its causes was properly categorised as a case of personal injury within the meaning of s.5(1) of the Motor Accident Insurance Act 1994.

Mr Walsh argued before the Court that circumstances could be envisaged whereby his claim was outside the ambit of the Motor Accident Insurance Act. He argued that it was possible that he may have a claim against Bridgestone Australia for a failure to warn and as such would take his claim, at least to some extent, outside of the ambit of the Motor Accident Insurance Act. Mr Walsh strenuously argued that it was possible that:

“here are factual circumstances within the realms of possibility which might not constitute a defect (in the vehicle)”.

Holmes J was unpersuaded by such arguments. Her Honour took the view that whilst Mr Walsh might argue that there were other forms of negligence that could only be determined when all the evidence was available she could only look at the existing claim as to whether it had been properly made out. Her Honour formed the view that on the evidence before her the claim was clearly one within the Motor Accident Insurance Act and that it was not appropriate for her to speculate that there could be another claim to be made out by Mr Walsh.

In ordering that the claim was not one to which the PIPA applied Her Honour considered the arguments on the part of Bridgestone that indemnity costs ought be ordered. Her Honour was satisfied that it was new legislation and that Mr Walsh’s solicitors had acted out of anxiety to preserve their client’s rights in an uncertain area.

As to another case involving a single vehicle accident caused by a tyre blow out and the application of the MAIA see Gough v Pacific Dunlop Tyres Pty Ltd & Ors – (unreported) District Court no. 3827 of 1998 per Noud DCJ – 07.06.99

SECTIONS 10, 12 AND 13 – NON RESPONSIVE RESPONDENTS

Lagos v TPA Shows Operations Pty Ltd & Royal National Agricultural & Industrial Association of Queensland – District Court (unreported) no.660 of 2003 – 18.3.2003.

The Issues

What to do when a respondent either fails to respond to a Notice or the response does not satisfy the requirements of s.10? The difficulties posed by the drafting of s.13 of the Act were considered by Robin DCJ in Lagos v TPA Shows Operations Pty Ltd & Royal National Agricultural & Industrial Association of Queensland – District Court (unreported) no.660 of 2003 – 18.3.2003.

The Facts

The Applicant was an infant who sustained injury on a show ride at the Brisbane Exhibition in 2002. In November 2002 the Applicant forward by post to the Respondent (the operator of the ride) the Notice of Claim. A Notice was also given to the RNA. The Respondent denied liability however failed to respond in accordance with s.10 of the Act – ie there was no acknowledgment that they were a proper Respondent.

The Applicant sought an order pursuant to s.35 of the Act compelling the Respondent to provide a response as required by ss.10 and 12.

The Decision

Robin DCJ expressed particular concern at the situation faced by lay persons as respondents when confronted with a Notice of Claim and the requirements of the PIPA.

His Honour considered in the course of argument whether he had the power to make a declaration that the Notice of Claim complied with s.9. His Honour considered that the PIPA did not empower him to make such a declaration. His Honour equally was of the opinion that he could not avail himself of the powers under s.69 of the District Court Act(presumably on the basis that proceedings had not been commenced and therefore there was no “personal action” on foot). In this regard note the decision of McGill DCJ in Warner v GTA Human Resources Limited(unreported) District Court 02.03.00.

Robin RCJ acknowledged the unfortunate drafting of s.13 of the PIPA. His Honour also acknowledged that there was an inherent danger in relying upon s.13 in circumstances where the response did not clearly satisfy s.10.

His Honour ordered that the pursuant to s.35 the Respondent be required to provide written notice pursuant to ss.10 and 12 of the Act within thirty one (31) days of the date of service of the order. His Honour also made a self-executing order in accordance with s.13 in the absence of a “complying written notice” from the Respondent.

Some of His Honour’s observations in the course of argument make interesting reading:-

§ “It is funny isn’t with ….courts stomping on people who want to administer interrogatories and so on and Parliament is saying that you can’t sue someone without answering…..fifty four questions.”

§ “(The form has) obviously (been) designed by the Government plus insurance companies.”

§ ” … but all this has got to fortify other people’s opinions that Queensland is a mad place, a bit bizarre really…”

The Legislative Response

The difficulties posed by the drafting of s.13 will be dealt with in the next raft of legislative amendments. Specifically, s.13 will provide:

13. Consequences for respondent of failure to respond to part 1 of a

notice of a claim

If a claimant gives part 1 of a 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 it under

section 10 or 12 within the prescribed period under the section, the person is

conclusively presumed to be satisfied it is a complying part 1 notice of

claim.

SECTION 22(1)(B) – INFORMATION “REASONABLY” REQUESTED BY A RESPONDENT

Haggett v Bamford – District Court no.455 of 2003 – 06.03.2003

The Issues

Just when does a respondent overstep the bounds of “reasonableness” in requesting information from a claimant pursuant to s.22(1)(b)? Is there any prohibition on interrogatories per se? These issues were considered by Boyce DCJ in Haggett v Bamford District Court no.455 of 2003 – 06.03.2003.

The Facts

Mr Bamford sustained injury in an incident in March 2002 when he fell from a ladder. In his Notice of Claim he stated that he was:

“About to start work as a sub-contractor roofer with ANA Wilson earning approximately $1,600.00 gross per week. However, as a result of the accident was unable to commence employment and has been unable to return to work since the accident. The Claimant has lost $1,600.00 for the past nineteen weeks and continues to lose wages.”

In answer to Question 51 the Claimant stated that he:

“…had planned to start work on the day after Easter with ANA Wilson Roofing in Sydney on a full time basis. The contact person to speak to is Aaron Wilson and his number is ……”

Pursuant to s.22(1)(b)(v) the respondent sought:-

a) details of the contract between the claimant and ANA Wilson;

b) if the contract was arranged by telephone the date or dates of each conversation and the substance or effect thereof;

c) the claimant’s telephone records relating to the period during which the contract was made.

The solicitors for the claimant supplied letters from Aaron Wilson and a letter from another proposed employer as to the claimant’s employment prospects/arrangements. The letters confirmed the same information as that set forth in the Notice of Claim. The respondent, dissatisfied with this, applied to the Court.

The Decision

Boyce DCJ held that the PIPA:-

” …does not in my opinion extend to the delivery of interrogatories to the claimant.”

His Honour was of the view that the information supplied by the claimant was in compliance with the claimant’s obligations under the Act and the respondent’s request was unreasonable, amounting to interrogatories.

A request for information that might be categorised as interrogatories is not necessarily unreasonable under the Motor Accident Insurance Act. It is interesting to contrast the comments of Boyce DCJ with those of Ambrose J in Ogilvie v Bowers & RACQ-GIO Insurance Ltd [2001] QSC 037. In Ogilvie, Ambrose J, with reference to s.45(1)(b) of the MAIA, held that there was nothing in the MAIA or regulations that limited the obtaining of information to a request only for particulars. His Honour found that no objection could be made to questions asked under the section on the ground that such questions may amount to interrogatories. It is also interesting to note that s.22(1)(b) PIPA largely mirrors s.45(1)(b) MAIA. There is no reference in the Haggett judgement to the decision in Ogilvie.

SECTION 77D – Alteration Of The Limitation Period For Personal Injury Arising Out Of Incidents Happening Before 18 June 2002

Lamb v State of Queensland & Ting [2003] QDC 003.

The Issues

• Just what does s.77D of the PIPA mean?
• 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?

His Honour Judge McGill considered s.77D and the application thereof in Lamb v State of Queensland & Ting [2003] QDC 003.

It is useful to set out s.77D in its entirety:-

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.

The Decision

McGill DCJ formed the view that s.77D(2)(a) could not have been intended to create an open ended limitation period – that is provided a complying Notice of Claim were given before 18 June 2003, the limitation period was suspended indefinitely.

His Honour was also of the view that in view of the fact that s.77D(2)(a) did not define a time for the commencement of proceedings sub paragraph (b) accordingly made no sense.

Accordingly, His Honour was of the opinion that between the words “given” and “before” in s.77D(2)(a) a comma ought be inserted.

In essence, His Honour was of the opinion that the effect of s.77D is that:

“…if a claim has not been started in a court at the time the limitation period ends, the Claimant may still commence a court proceeding provided that the complying Notice of Claim is given before 18 June 2003 or, with the court’s leave, before 18 December 2003 or six months after the Notice of Claim was given, whichever is earlier.”

His Honour held the view that provided a claimant came within s.77D(2) there was no requirement for an application for leave to commence urgent proceedings pursuant to s.43 of the Act. The jurisdiction under s.43:

“… may be exercised if the requirements of that section are satisfied in a situation where the urgent need arises pursuant to the operation of s.77D, or not withstanding the extension to the limitation period provided for in that section.”

Accordingly the situation could arise whereby a claimant who falls within s.77D will have to rely upon s.43 ie where the ultimate limitation date of 18 December 2003 is fast approaching and a claimant must file proceedings urgently.

The Legislative Response

The proposed legislative response now clarifies the legislature’s original intent. S.77D(2)(a) will provide (the amendments being highlighted):

(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 before or on 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.

Accordingly, where a claimant’s date of injury is between 18 June 1999 and 17 June 2000:

1. if a complying Notice of Claim is given before 18 June 2003; and
2. the period of limitation has ended;
3. proceedings may be commenced on or before 18 June 2003 without the leave of the Court;
4. if proceedings are commenced after 18 June 2003, the leave of the Court will be required; however
5. the proceedings must be commenced (with leave) not more than 6 months after the complying notice was given and not later than the end of 18 December 2003.

In respect of injuries post 17 June 2000, ie where the limitation period expires between 18 June 2003 and 18 December 2003:

1. proceedings must be commenced within 6 months after the delivery of a complying notice; and
2. not later than 18 December 2003.

Examples

A. Claimant is injured on 1 March 2000. Notice is complied 20 January 2003 (note s.20(2)(a) – when a complying notice is given). Limitation period expired 1 March 2003. Claimant can avail themselves of s.77D(2)(a) on the basis that the period of limitation has expired on or before 18 June 2003. Claimant can commence proceedings without leave on or before 18 June 2003.

B. The claimant in example A fails to commence proceedings on or before 18 June 2003. The claimant must commence proceedings on or before 20 July 2003 with the leave of the Court (s.77D(2)(b)).

C. Claimant is injured on 18 June 2000. Notice is complied 1 March 2003 (note s.20(2)(a) – when a complying notice is given). Limitation period expires 18 June 2003. Claimant cannot avail themselves of s.77D(2)(a) on the basis that the period of limitation will not have expired on or before 18 June 2003. Claimant must commence proceedings on or before 1 September 2003 with the leave of the Court (s.77D(2)(b)).

D. Claimant is injured on 1 October 2000. Notice is complied 1 August 2003. Limitation period expires 1 October 2003. Claimant must commence proceedings on or before 18 December 2003 with the leave of the Court (s.77D(2)(b)).

Joinder Of Parties To Existing Proceedings And The Requirement To Comply With PIPA

Legnoverde v Lenard’s Kenmore & Ors (unreported) Brisbane District Court – no. 2635 of 2002 – 07.03.03.

The Issues

Whether a plaintiff is required to comply with the PIPA when joining a party to existing proceedings was considered by Boyce DCJ in Legnoverde v Lenard’s Kenmore & Ors (unreported) Brisbane District Court – no. 2635 of 2002 – 07.03.03.

The Facts

Mrs Legnoverde was injured in an accident on 18 April 2001 when she fell in a shopping centre. She sued the owner of the shopping centre and the owner of the store outside of which she fell. She filed proceedings prior to the commencement of PIPA.

One of the Defendants joined the cleaners at the shopping centre as a third party. Mrs Legnoverde then sought to join the third party as a defendant.

The third party argued that an order to join it as a defendant could not be made until the Plaintiff complied with the provisions of the PIPA.

Boyce DCJ had due regard to the provisions of s.77A(4). His Honour also considered the explanatory notes to the Bill and the second reading speech. His Honour considered the explanatory notes compelling with the reference to the fact that the Bill ” … does not interfere with any accrued right”. His Honour considered that a broader interpretation of the statute, as contended for by the third party, would result in an expansion of the retrospective application of the Act and that such an expansion was without legislative intent.

His Honour also considered that to accept the third party’s arguments would result in the inconvenience of the delays under the PIPA balanced against the requirements under the UCPR to expeditiously dispose of litigation. His Honour felt that it would most inconvenient for the litigation to be suspended pending compliance with the PIPA.

Accordingly His Honour declared that the PIPA other than ss.58 and 77 (the abolition of jury trial) did not apply in respect of the joinder of a defendant to an existing action.