Applicant’s Originating Application successful against WorkCover Queensland in respect of Compulsory Conference: Goodhew v WorkCover Queensland [2024] QSC 66
Background: Goodhew v WorkCover Queensland Workers’ Compensation Claim
The Applicant, Jason Goodhew, allegedly sustained personal injuries when passing roof sheeting to co-workers on a roof at a daycare centre in Cairns.
The Applicant made an application for assessment of permanent impairment in the absence of an application for compensation, pursuant to s 132A of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (‘the Act’). Thereafter, an assessment of his injuries was undertaken, with the Respondent, WorkCover Queensland, issuing a Notice of Assessment, wherein his degree of permanent impairment was expressed as twenty-two (22) percent. The Applicant then gave notice of his claim to the Respondent in accordance with s 275 of the Act.
In response to the Applicant’s Notice of Claim for Damages, the Respondent advised, pursuant to s 278 of the Act, that it accepted that the Applicant was entitled to seek damages. This was, however, qualified, with the Respondent reserving its rights in respect of “potential issues around [the Applicant’s] status as a ‘worker’”.
Various pieces of correspondence and documents were then exchanged, including from the Applicant’s solicitors pertaining to the ‘worker’ issue. The Respondent gave written notice pursuant to s 281 that it denied liability in respect of the subject incident, on the basis that the Applicant was not a ‘worker’ within the meaning of the Act. Instead, it submitted that he was a contractor and therefore not entitled to pursue damages pursuant to the Act.
Thereafter, the parties agreed to attend a Compulsory Conference. However, the day before Conference, the Respondent wrote to the Applicant’s solicitors, advising that it was not in a position to attend the Conference on the basis that it had reached a final view that the Applicant was not a “worker” under the Act. Its correspondence relevantly stated: –
“Given the WCRA policy does not respond (as Mr Goodhew was not a “worker”), the writer is not in a position to attend the compulsory conference because if WorkCover is not indemnifying ICS, WorkCover does not have the legal capacity to make an offer as the WCRA requires.”
The Applicant subsequently filed an application, seeking orders fixing a time and date for Compulsory Conference, pursuant to ss 287 and 289 of the Act. A cross-application was filed by the Respondent, seeking a declaration that the Application was not a “worker” pursuant to the Act, and therefore, that the Act did not apply to his claim for damages.
Decision
The Applicant’s application for orders fixing the time and place for the Compulsory Conference was granted. The Respondent’s cross-application was dismissed.
Henry J opined that the Respondent’s view that it held no legal obligation to the Application on the basis of the ‘worker’ issue did not preclude it from participating in a Compulsory Conference. His Honour noted that the language utilised by the Respondent in its correspondence preceding Conference was a clear attempt to invoke s 292(2) of the Act, which provides that: –
“If a claim is not settled at a compulsory conference, each party that has legal capacity to settle the claim must ensure that it makes a written final offer or written final offers at the conference to another or other parties at the conference that would dispose of the claim if the offer or offers were accepted.”
Henry J opined that the reference to ‘legal capacity’ was intended to be a reference to persons whom lack legal capacity on the basis of their personal circumstances, such as age or intellectual impairment, rather than a Respondent that had formed the view that it was not liable to indemnify a potentially liable Defendant, such as the Respondent to the Application.
As to the Respondent’s cross-application, the Court concluded that a declaration that the Applicant was, or was not, a “worker” within the meaning of the Act would be inappropriate. In the Court’s view, a declaration like the one sought by the Respondent would be at odds with the spirit of a pre-proceeding framework designed by the legislature to promote resolution of claims without court input. His Honour was unswayed by submissions made in respect of the risk that the Respondent would bear, should a declaration not be granted and it make a written final offer of nil, or little more than that, following Compulsory Conference. His Honour opined that the formulation of a written final offer is almost always done in the absence of any advance ruling of the court on discrete issues in the case. In this way, in the Court’s view, a written final offer is always informed by a legal practitioners’ professional judgment on the relative merits of an Applicant’s liability case, quantum, or other risks of litigation.
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