DISTRICT COURT OF QUEENSLAND
CITATION: Macdonald v Teys Australia Distribution Proprietary Limited
[2013] QDC 139
PARTIES: LAURIE DON MACDONALD
(Applicant) and
TEYS AUSTRALIA DISTRIBUTION PROPRIETARY LIMITED (Respondent) FILE NO/S: 1123/2013 DIVISION: PROCEEDING: Application ORIGINATING
COURT: District Court
DELIVERED ON: 19 June 2013 (ex tempore) DELIVERED AT: Brisbane
HEARING DATE: 19 June 2013
JUDGE: Samios DCJ
ORDER: 1. Order as per the draft.
2. Respondent to pay the applicant’s costs of the application to be assessed on the standard basis.
CATCHWORDS: WORKERS COMPENSATION – where the applicant sought an order that the respondent provide information pursuant to section 279 of the Workers’ Compensation and
Rehabilitation Act 2003 (Qld)- where the applicant sought an
order that documents be provided pursuant to section 279 of the Act - where the applicant sought an order for an
inspection of the subject premises- where the applicant sought a declaration he is entitled to seek damages pursuant to section 237 (1) (a) (i) of the Act for a back injury - where the applicant sought an order to strike out paragraph 22 of the defence pursuant to r 171 of the Uniform Civil Procedure
LEGISLATION
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
s 237 (1) (a) (i), 275, 279 (1) (a), 279 (1) (b), 279 (3), 318C
Uniform Civil Procedure Rules rr 171, 250.
CASES
Alavi-Moghaddam v Woolworths [2012] QDC 98 at 33 Bell v Australia Meat Holdings [2003] QCA 209 Ley v Woolworths Limited [2013] QSX 59
COUNSEL: Mr Cross for the applicant/plaintiff
Mr O’Driscoll for the defendant/respondent
SOLICITORS: Quinn & Scattini Lawyers for the applicant/plaintiff Bruce Thomas Lawyers for the defendant/respondent
[1] The application before me today is an application that the applicant seeks
orders that the respondent provide information pursuant to section 279 of the Workers’ Compensation and Rehabilitation Act 2003. There are specific
questions for which information is sought. The applicant had sought more
information than is being sought today. Some of the information that had
previously been sought has been provided by the respondent. In addition, the
applicant seeks documents to be provided pursuant to section 279 of the Act.
Further, the applicant seeks an inspection of the subject premises so that his
expert, presumably, can provide a report for the future conduct of the
proceedings. In addition to those three specific applications, the applicant seeks
a declaration that he is entitled to seek damages pursuant to section 237
subsection (1) paragraph (a)(i) of the Act for the back injury specified in the
an order, pursuant to the Uniform Civil Procedure Rules 171, that paragraph 22
of the defence be struck out.
[2] Briefly: in the first incident, the plaintiff claims he was required to pick up and
place cartons of meat from one palette onto another. He claims the workplace
area in which he was required to pick up the cartons was restricted, and the area
could only fit two palettes wide and three palettes long. As he picked a carton
up to place it onto another palette, from about 12 to 14 inches off the ground, to
place it to shoulder-height, which he had to perform quickly, he twisted himself
in the limited space and suffered pain in his back. He informed his employer of
that incident. His employer is a self-insurer. He lodged an application for
compensation. He claimed the injury was left-sided back. An incident report
was completed by the respondent, and the respondent obtained an injury
statement from the applicant. By correspondence dated 21st December 2011,
the respondent accepted the claimant for an injury to his left side of the back as
an episode of musculoligamentous strain to his left posterior chest wall.
[3] Regarding the second incident: the applicant again advised his supervisor that
he had hurt his back, again, when shrink-wrapping palettes of meat. The injury
was reported to the supervisor. The applicant attended his general practitioner,
and obtained a workers’ compensation medical certificate. On or about the
sixth of March 2012, the applicant lodged a further application for
compensation. The injury claimed for was a back injury. On or about the sixth
of March 2012, the applicant provided the respondent a statement. The injury
noted was left-sided back. The respondent completed an injury report form,
dated 7 March 2012, the respondent advised that the applicant’s claim was
accepted as an episode of soft tissue injury to your left posterior thoraco-lumbar
spine.
[4] The applicant attended his general practitioner on 19 November 2011
complaining of severe left back pain, and there were further attendances
throughout December, January, and February. Then in February he attended
his general practitioner complaining of a re-occurrence of left-sided
musculoligamentous strain, thoraco-lumbar spine. To that general practitioner,
he reported the onset was whilst bending over wrapping palettes of cartons at
work. This attendance was on the 29th of February 2012. Thereafter, the
applicant was sent, and has been seen, by a number of medical practitioners,
who have provided reports.
[5] Dr Morris, orthopaedic surgeon, diagnosed an injury to the lower thoracic spine
and lower ribcage in the first incident. He diagnosed the applicant having
aggravated his thoracic spinal injury in the second incident. Dr Boyd diagnosed
the applicant as having a left thoracic musculoligamentous strain in the first
incident; he diagnosed the applicant as suffering a chronic thoracic
musculoligamentous strain in the second incident. The certificates provided by
the applicant to Q-COMP medical certificates dated 9 December and 23rd
December 2011 described his injury as musculoligamentous injury to the left
posterior chest wall, and musculoligamentous injury to the left posterior
thoraco-lumbar spine, respectively. In relation to the second incident, to
musculoligamentous injury to thoraco-lumbar spine – re-aggravation from
wrapping palette at work.
[6] The defendant self-insurer – and perhaps I have not been making a distinction
between the defendant employer and the defendant self-insurer, but in any
event, my meaning is plain – by correspondence dated 5 October 2012 provided
the claimant a notice of assessment for the injuries from the first incident, being
musculoligamentous injury to the left lower thoracic spine and left ribcage. An
assessment of nil was made. By further correspondence dated 5 October 2012,
the defendant self-insurer provided a further notice of assessment in regard to
the second incident. On this occasion, the injury was described as aggravation
of the thoracic musculo-ligamentous strain injury. Again, an assessment of nil
was made.
[7] On 26 October 2012, the applicant attended Dr Campbell, a neurosurgeon. Dr
Campbell assessed the applicant as suffering a chronic soft-tissue
musculoligamentous injury to the thoraco-lumbar spine in each incident. The
applicant claims he has been unable to return to work due to severe back pain.
Then on 15 October 2012, the applicant provided a notice of claim for damages
pursuant to section 275 of the Act. In regard to the first incident, the injury
claim was for a left posterior chest wall, which is the description of the injury
accepted by the defendant self-insurer by correspondence dated 21 December
2011. Also under the letter of 15 October 2012, the applicant submitted a
notice of claim in respect to the second incident. The injury claim was for a left
[8] The circumstances on each occasion have been detailed in these applications.
The solicitors for the respondent, by letter dated 27 November 2012, advised
the applicant’s solicitors that the notice of claim was compliant. Those
solicitors asked questions pursuant to section 279 of the Act, and those
questions were answered. Then there was disclosure in March 2013 by the respondent’s solicitors.
[9] The submissions made to me today on behalf of the applicant is that: no reason
was provided for why the defendant solicitors provided the information on 7
March 2013, in breach of section 279 subsection (3) of the Act, particularly in
light that the compulsory conference was set for 13 March 2013. Nevertheless,
liability has been denied. The matter did not resolve at the compulsory conference. Following the compulsory conference, the applicant’s solicitors
advised the defendant’s solicitors that they intended having an engineer inspect
the premises. This has been resisted. Nevertheless, today, Mr O’Driscoll of
counsel, who appears for the defendant, has informed me that there is no
opposition to an inspection. Nevertheless, the applicant has pursued the answer
to the information sought, and the further documents. And provision of that
information and documents is resisted.
[10] The declaration and the striking out are based on the same circumstances. The
effect of the defence, at this stage – that is, paragraph 22, which is sought to be
struck out – is that the defendant says that the plaintiff has not complied with
the requirements of the Act, and may not commence and maintain these
incident, and any back injury other than an injury to the thoracic spine sustained
in the alleged second incident.
[11] The evidence before me shows that there have been many descriptions given to
what has been ailing the applicant following each of these incidents. One thing
that seems to be consistent from the applicant is that he hurt his back. The
doctors, though, have given descriptions. Again, while these descriptions are
not necessarily consistent each with the other, there does appear to be a
consistent description of thoracic-lumbar spine injury. It seemed to me today that the respondent sought to submit that if the applicant’s injury were restricted
to a thoracic spinal injury, then any claim for something wider than a thoracic
spine injury would not be permitted to proceed, and therefore the pleading, by
section 22 in the defence, should be sustained, rather than struck out.
[12] The authorities have been cited to me today. It seems to me that Bell v Australia Meat Holdings [2003] QCA 209 is the one of most assistance. There,
it was found that the plaintiff had in his relevant documentation, and in his
claim, a claim for the same injury as that which had been assessed, and notified
in the notice of assessment, and which was then claimed. Here, there is no
suggestion that the applicant has suffered more than one injury. Clearly, there
may be arguments about the nature, extent, and cause of his injury, but they are
more appropriately dealt with at trial. I consider that was the approach that the
Justice North took in Ley v Woolworths Limited [2013] QSC 59.
[13] If I need to say it, the applicant has given a consistent version of events, and the
claimed a back injury, in light of the descriptions given by the doctors. I
consider he has not limited himself, nor, necessarily, have the doctors limited him to a thoracic spine injury, as can be seen from the doctors’ reports. There
is a wide description given, which I consider is encompassed by a back injury.
I also consider that despite the descriptions given by the defendant self-insurer,
they are not conclusive as to the injury that can be claimed for.
[14] Therefore, dealing, perhaps with last matters first, I do consider that pursuant to
the Uniform Civil Procedure Rules, rule 171, that paragraph 22 of the defence
should be struck out. I consider it would delay and embarrass the continuation
of these proceedings. I also consider, in the circumstances, on the evidence
before me, that a declaration should be made that the applicant plaintiff is
entitled to seek damages pursuant to section 237 paragraph (1) subparagraph
(a)(i) of the Act for the back injury specified in the notices of claim for
damages dated 13 July 2012.
[15] I have also examined the questions, and I have come to the view that section
279 of the Act is wide enough to require answers to be given. That is, I
consider the authorities show there is a broad duty to cooperate. In any event, I
consider that rule 250 of the Uniform Civil Procedure Rules is also a basis for
the ordering of that information to be provided. I do consider the provision of
that information is necessary to decide issues in these proceedings. I accept Judge Farr’s approach in Alavi-Moghaddam v Woolworths Limited [2012]
Queensland District Court 98 at 33, that an issue could be a factual or a legal
the requests, and I do consider they are appropriate, and necessary that they be
answered in this case.
[16] In addition, I consider the documents sought should also be provided. I again
proceed under section 279 subrule (1) paragraph (a). If that is not wide enough,
then I would proceed under paragraph (b), giving it a broad definition. I
consider that on a statutory construction basis. The obligation is upon the
parties to cooperate in relation to a claim, and it is not limited to what is set out
in subparagraphs (a) and (b), because the section says in particular by those
matters mentioned in subparagraphs (a) and (b). I am also of the view that it is
appropriate, as has been conceded, that there be a inspection.
[17] Therefore, for all those reasons, I have the draft order before me.
[18] So there will be an order as per draft, initialled by me and left with the papers.
[19] There were five matters that were the subject of the application before me
today. There was the provision of the information, the provision of the
documents, the inspection, the declaration, and finally, the striking out of
paragraph 22 of the defence. Clearly, the respondents cooperated by not
opposing the making of orders in relation to the inspection, and also withdrew
the application to adjourn the application, because the declaration that was
sought was notified only very recently, certainly not allowing the two clear
days. Notwithstanding that cooperation, I am of the view that the respondent
has caused this application to be made and pursued, and the application has
[20] That is, that I accept the submissions made by the applicant in relation to costs.
Clearly, the respondent has not responded as I have found it should have in
relation to the requests for information, documents, the inspection, and has
ranged in its defence some time ago this allegation that I have found is against
the weight of the evidence – that is paragraph 22 of the defence, in my view,
had to be struck out, otherwise it was going to delay the further prosecution of
this claim, and unreasonably so, and lead to unnecessary costs.
[21] Therefore, I assume I have power under section 318C of the Act, and act under
that section, to order the applicant’s costs be paid by the defendant on the
standard basis. If I am wrong about that, then I certainly would take the view
that I have a discretion, and in this case, the costs should follow the event, and
despite the concessions made by the defendant at the commencement of this
application, nevertheless, this application had to be brought by the applicant to
gain the outcome that the applicant has gained today. Bluntly, the respondent
was not going to go easy, and while those concessions were made, nevertheless,
the application was resisted, and the respondent failed. And on that basis, that
is why I say costs would follow the event. Therefore, I order the respondent to pay the plaintiff’s costs of the application, to be assessed on the standard basis.
[22] Therefore, the respondent to pay the applicant’s costs of the application, to be
