DISTRICT COURT OF QUEENSLAND

Transcription

1 DISTRICT COURT OF QUEENSLAND CITATION: Ritchie v Ikea Pty Limited [2018] QDC 143 PARTIES: STEPHEN RITCHIE (applicant) v IKEA PTY LIMITED (respondent) FILE NO/S: 2587 of 2018 DIVISION: PROCEEDING: Civil Application DELIVERED ON: 3 August 2018 DELIVERED AT: Brisbane HEARING DATE: 30 July 2018 JUDGE: Rosengren DCJ ORDER: 1. The applicant be given leave to commence proceedings against the respondent pursuant to section 43(1) of the Personal Injuries Proceedings Act The respondent s cross-application be dismissed. 3. The respondent pay the applicant s costs of the applications. 4. I direct the parties to confer to provide a draft of agreed directions for the further conduct of the proceedings by 4pm today. CATCHWORDS: TORTS NEGLIGENCE STATUTES, REGULATIONS ETC- APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE where the applicant was injured in a workplace incident and claimed compensation pursuant to the Workers Compensation and Rehabilitation Act 2003 (Qld) where the applicant was placed on a return to work program hosted by the respondent where the applicant suffered further injury in the course of undertaking the return to work program with the respondent where the applicant made a further claim for compensation pursuant to the Workers Compensation and Rehabilitation Act 2003 (Qld) where the applicant s solicitors

2 2 served a notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) on the respondent whether a return to work host employer is an employer under the Workers Compensation and Rehabilitation Act 2003 (Qld) Personal Injuries Proceedings Act 2002 (Qld) ss 6(2)(c), 43 Workers Compensation and Rehabilitation Act 2003 (Qld) ss 10, 32, 35(1)(e), 228, 237, 239(2) Johnson v Laing O Rourke (BMC) Pty Ltd [2009] QDC 10, cited Wilkinson v Stevensam Pty Ltd & Ors [2006] QCA 88, cited COUNSEL: SOLICITORS: D L K Atkinson for the applicant N J Pearce for the respondent Richardson & Lyons for the applicant Clyde & Co for the respondent [1] Stephen Ritchie seeks damages for personal injury in relation to an accident that occurred on 4 August He has served a Notice of Claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) ( the PIP Act ). Expiry of the limitation period is imminent. [2] Proceedings cannot be commenced by Mr Ritchie because he is yet to comply with some of the requirements of the PIP Act. Notably, there is yet to be a conference between the parties as envisaged by s 36. There has been no exchange of mandatory final offers as required by s 39 of the PIP Act. [3] The court has the power under s 43 of the PIP Act to give leave to start the proceeding. The order giving leave may be made on conditions the court considers necessary or appropriate having regard to the circumstances of the case. [4] The respondent has filed a cross-application for an order that the applicant be precluded from continuing his claim under the PIP Act, having regard to section 6(2)(c) of that statute. The application seeks an abridgement of time for service of it and the supporting affidavit of Jacinta Frances Long. This is not opposed and is granted. [5] The reasoning behind the respondent s cross-application, is that if the PIP Act does not apply because the applicant s claim is regulated by Chapter 5 of the Workers Compensation and Rehabilitation Act 2003 (Qld) ( the Act ), the applicant cannot proceed to claim damages. This is because he has accepted an offer of lump sum compensation from WorkCover. [6] If the respondent s cross-application is unsuccessful, it does not oppose the granting of leave pursuant to s 43 of the PIP Act, subject to appropriate conditions and directions. [7] For the reasons that follow, I am satisfied that the PIP Act does apply and therefore that the granting of leave to commence proceedings is appropriate.

3 3 Background [8] Mr Ritchie commenced employment with Action James (Qld) Pty Ltd as an order picker and fork lift driver in about August He injured his neck and right shoulder on 1 July 2015, picking up a two kilogram box of Nudie juices. He applied for statutory compensation with WorkCover Queensland ( WorkCover ) under the Act. This was accepted by WorkCover on about 7 July [9] Around this time, WorkCover arranged for the applicant to participate in a return to work program with the respondent at its Logan premises. Mr Ritchie did not resign his employment with Action James (Qld) Pty Ltd. He did not sign an employment contract with the respondent. The placement with the respondent commenced on or about 17 July [10] Mr Ritchie was informed by WorkCover that the return to work program with the respondent was to involve light duties in the respondent s restaurant and kitchen. This is confirmed by the Recover At Work Agreement ( the Agreement ) between the respondent and WorkCover. It is noted that the Agreement was not executed by a representative of the respondent. It is nevertheless instructive as to the bases on which it was intended by WorkCover that Mr Ritchie was to perform his duties with the respondent. It states as follows: 1. The host will only require and permit the worker to perform the following duties: Assisting with food preparation tasks including making bacon and eggs, preparing cakes and pastries, scooping jelly and assisting in stacking the refrigerated cabinets with food as per suitable duties program. 2. The period of the Recover at Work program will be from 17 July 2015 to 22 September The Recover at Work Agreement may be terminated with immediate effect by WorkCover Queensland or IKEA Pty Limited by giving written notice of this intention. 3. WorkCover will pay compensation benefits to the worker during the period specified in clause 2 and in accordance with the Act. 4. The host will provide the worker with reasonable and adequate supervision, training and equipment to perform their prescribed duties in a safe and competent manner. 5. If the worker suffers injuries while performing the duties described in clause 1, WorkCover will compensate the worker and indemnify the host, for any compensation or damages, payable in accordance with the Act. WorkCover will pay any such compensation or damages as if the host was an employer and the worker was a worker for the purposes of the Act. 6. If the worker suffers injuries whilst performing duties that are different to those described in clause 1 or the injuries are caused or contributed to by the host in breach of clause 4, WorkCover will not indemnify a host for any compensation or damages payable as a result of those injuries. 7. The host is not obliged to employ the worker after the recover at work

4 4 program has ended however, if they do so, they are entitled to a sixmonth claim cost exemption. This means that any statutory benefits or damages payable under the Workers Compensation and Rehabilitation Act 2003 for any aggravation of the injury to which the worker s claim relates that are sustained in the six months immediately after the completion of this recover at work program will not be included in the host s future premium calculations. 8. The host will not disclose any information about the claim or the worker to any person unless required or authorised by law. [11] The return to work program did not play out as was initially envisaged by the Agreement. This is because Mr Ritchie was wearing a culturally sensitive greenstone necklace, which precluded him from working in the restaurant and kitchen. For this reason, he was transferred to the respondent s recovery department. This change was reflected in the Proposed Recover at Work Plan dated 20 July [12] Over the relevant period, it was recommended by Mr Ritchie s medical care team that he not lift any weight of more than 10 to 15 kilograms bilaterally. There was a more general return to work plan which may have permitted weights of up to 20 kilograms. [13] It is claimed by Mr Ritchie, that on 4 August 2015, while undertaking duties for the respondent in the recovery department in the course of his return to work program, he was involved in sticking labels on stock and other similarly light jobs. He was then directed by a staff member of the respondent to lift flat packs of furniture weighing 23 kilograms and to extract certain timber from within. He claims to not have been provided with supervision or assistance. In the course of performing these duties over a period of some one to two hours, he injured his left shoulder. [14] On 16 September 2015, Mr Ritchie applied for statutory compensation with WorkCover for a left shoulder injury caused by this event and a further incident having occurred on 27 August 2015, while Mr Ritchie was still participating in the return to work program with the respondent. This was accepted by WorkCover. On 13 October 2016, WorkCover issued Mr Ritchie with a Notice of Assessment pursuant to section 185 of the Act. The degree of permanent impairment in relation to his left shoulder had been assessed as 2%. He was offered $6, as lump sum compensation. [15] Section 239(2) of the Act provides that if a worker is offered a payment of lump sum compensation in the Notice of Assessment, the worker is not entitled to both payment of the lump sum and damages for the injury. In late January 2017, Mr Ritchie accepted the offer of lump sum compensation. [16] On 1 March 2017, Mr Ritchie s solicitors, on his behalf, issued and served a Notice of Claim pursuant to the PIP Act. Whether claim excluded [17] Section 6 of the PIP Act deals with the application of that legislation. Relevantly 6(2)(c) provides that the PIP Act does not apply to:

5 5 injury within the meaning of the Workers Compensation and Rehabilitation Act 2003 and in relation to which that Act applies, but only to the extent that an entitlement to seek damages within the meaning of that Act for the injury is regulated by chapter 5 of that Act [18] Turning to the Act, Chapter 1 Part 4 contains the meaning of various basic concepts. For the purposes of this application, the following definition provisions are relevant: (i) (ii) s 10 provides: Meaning of damages (1) Damages is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker s employer to pay damages to (a) the worker; or (b) if the injury results in the worker s death a dependant of the deceased worker. s 11 provides: Who is a worker (1) A worker is a person who - (a) works under a contract; and (b) in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5. (2) Also, schedule 2, part 1 sets out who is a worker in particular circumstances. (3) However, schedule 2, part 2 sets out who is not a worker in particular circumstances. (4) Only an individual can be a worker for this Act. 1 (iii) s 30 provides: Who is an employer (1) An employer is a person who engages a worker to perform work. (2) (3) To remove doubt, a reference to an employer of a worker who sustains an injury is a reference to the employer out of whose employment, or in the course of whose employment, the injury arose. (iv) s 32 provides: Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if (a) for an injury other than a psychiatric or psychological disorder the employment is a significant contributing factor to the injury. [19] There are two distinct claims available to a worker injured in the course of employment under the Act. There is a claim for compensation and associated injury management which can be found in Chapters 3 and 4 of the Act. Section 108 identifies the entitlement to compensation and provides that it is payable for an injury sustained by a worker. Division 3 deals with the notification of assessment of permanent impairment and offers of lump sum compensation. 1 None of the exclusions in Schedule 2 apply.

6 6 [20] There is also claims for common law damages under Chapter 5 of the Act. Section 237 identifies the categories of persons entitled to seek damages, as defined by the Act. One category involves a worker who has received a Notice of Assessment from the insurer for the injury the subject of the claim for damages. 2 Mr Ritchie falls into this category. [21] As to the definition of damages in section 10 of the Act, section 46 provides that the legislation does not impose any legal liability on an employer for damages for injuries sustained by a worker. A claim for damages arises by reference to the common law and is therefore independent of the Act. It is regulated by the Act in the sense that Chapter 5 Part 8 contains provisions which modify and supplement the applicable common law principles to claims for damages for an injury sustained by a worker. Further, Part 9 contains provisions which clarify and modify applicable general law principles in so far as they relate to the assessment of damages [22] The pivotal issue here is whether the respondent was Mr Ritchie s employer, such as to satisfy the abovementioned definition of damages and trigger the exclusion provision in section 6(2)(c) of the PIP Act. [23] It was submitted on behalf of Mr Ritchie that there is insufficient material before the Court for this issue to be resolved. I do not agree. Rather, I consider there is sufficient uncontentious factual background which permits its proper resolution. I am satisfied that the respondent was not Mr Ritchie s employer for the following reasons. [24] First, Chapter 4 Part 3 of the Act provides for an insurer s responsibility for a worker s rehabilitation. Section 228 of the Act provides that an employer has an obligation to assist or provide rehabilitation to a worker. Pursuant to subsection 3, if an employer considers it is not practicable to provide the worker with suitable duties, the employer must give WorkCover written evidence of this. WorkCover is then required to refer the worker to one of its accredited return to work programs, unless WorkCover is satisfied that the worker will not be able to participate in the program. An accredited return to work program is defined to mean a return to work program managed by the insurer that is accredited by the Regulator. Examples provided of such a program include host employment. 3 [25] Although it is not the subject of direct evidence, it can be inferred from the relevant provisions in Chapter 4 Part 3 of the Act together with the Agreement, that the duties that Mr Ritchie was performing at the time of the subject incident were in accordance with WorkCover s accredited return to work program for the purposes of the rehabilitation and early return to suitable duties of Mr Ritchie. [26] Second, Clause 3 of the Agreement provides that WorkCover will pay compensation benefits to the worker during the period of the return to work program with the respondent as the host employer. The respondent did not pay any wages to Mr Ritchie during the course of his participation in the program. [27] Third, Clause 7 of the Agreement lends further support to the conclusion that the respondent was not Mr Ritchie s employer at the time of the subject incident. This clause 2 Subsection (1). 3 Section 220 of the Act.

7 7 expressly contemplates the circumstance of the respondent entering into an employment relationship with Mr Ritchie following completion of the return to work program. [28] Fourth, pursuant to section 228 of the Act, Action James (Qld) Pty Ltd remained Mr Ritchie s employer. It can be inferred that this company was not in a position to provide Mr Ritchie with suitable duties and it was in these circumstances that WorkCover referred him to the respondent to participate in an accredited return to work program. This is consistent with the affidavit evidence to the effect that Mr Ritchie did not resign his employment with Action James (Qld) Pty Ltd and did not sign an employment contract with the respondent. 4 Further, in the Incident Report Form, it indicates that Mr Ritchie was injured as a visitor with Procare (injury management). His position is described as WRKCOVER in the recovery department. [29] It is contended for on behalf of the respondent that to properly characterise Mr Ritchie s right under section 237(1)(a)(i) and to make any sense of the Notice of Assessment and his election to accept the lump sum, the respondent was Mr Ritchie s employer. 5 I am not persuaded by this process of reasoning. It is misconceived to approach the entitlement to compensation and the right to pursue damages as anything other than distinct claims. This means that there is the possibility of different outcomes from a claim for compensation under Chapter 3 of the Act when compared to a claim for damages under Chapter 5 of the Act. [30] For example, a finding by WorkCover in the context of Mr Ritchie s application for statutory compensation that he sustained an injury, while necessary to enable him to receive both compensation and also to make a claim for damages, was for a limited purpose. This does not preclude it being disputed in the claim for damages that he was injured as that term is defined in the Act. Indeed, the fact of an injury must be established in claims for damages. 6 Equally it could not be said that Parliament intended determinations in the statutory phase that a person is a worker or someone is an employer, to be conclusive of such issues in a claim for damages. [31] I am not persuaded that the respondent was Mr Ritchie s employer in relation to his claim for damages for the injuries claimed to have been suffered in the subject incident. Conclusion [32] For the reasons above, I am not satisfied that the applicant ought to be precluded from continuing his claim under the PIP Act. In these circumstances, the respondent does not oppose the applicant being given leave pursuant to s 43 of the PIP Act to start proceedings, subject to appropriate conditions and directions. I am satisfied on the material before the court that the making of such an order is appropriate. [33] Counsel for the respondent appropriately conceded that costs should follow the event. Given my conclusions above, I order that the respondent pay the applicant s costs of the applications. [34] I will direct the parties to confer with a view to providing a draft of agreed directions as to the further conduct of the proceedings by 4.00pm today. 4 Affidavit Frances Maree Bertram filed 27 July 2018, paragraph Respondent s Outline of Argument, paragraphs Wilkinson v Stevensam Pty Ltd & Ors [2006] QCA 88 at [51].