Background

Notice of Claim for Damages

The Applicant, David Philip Graham, alleged that he sustained psychological injuries through the course of his employment as a corrective services officer at Maryborough Prison.

On 3 May 2022, the Applicant gave a Notice of Claim (‘Notice’) for Damages pursuant to s 275 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (‘the WCRA’) to his employer, the State of Queensland, along with its insurer, WorkCover Queensland.

The Notice stated that the event that caused the injury as occurring over a period of time from 1 November 2019 to 1 December 2020. The Applicant provided the following description of the event that gave rise to the injury: –

“The claimant was a member of the correctional response team on a permanent basis. The claimant transferred into the correctional response team on or about 16th October 2019. The role of the correctional response team is to be the first responders to critical and acute prisoner situations. There was no rotation in and out of the correctional response team. Prior to the commencements [sic] of his role as a tactical response officer the claimant received approximately 3 days training primarily in physical fitness.”

Accompanying the Notice was a number of documents, including a report of psychiatrist, Dr Joseph Mathews, which noted that the Applicant had observed a number of confronting or traumatic incidents throughout the course of his employment.

In response to a question contained within the Notice pertaining to whether the event was witnessed, the Applicant answered in the affirmative, and advised that the identity of the witness was “to be advised after disclosure”.

As to the Applicant’s allegations of negligence, the Applicant alleged as follows: –

“The employer was negligent in:

  1. Failing to rotate the claimant out of the correctional response team on a timely basis to avoid chronic stress loading;
  2. Failing to provide psychological debriefing after each conflict situation;
  3. Failing to implement a system of monitoring the claimant’s exposure to conflict and subsequent stress reactions;
  4. Failing to train or adequately train the claimant in relation to his duties in the response team; and
  5. Failing to train or adequately train the claimant in relation to recognising and reporting symptoms and reactions to chronic stress loads.”

Compliance Response

On 6 May 2022, a letter was delivered to the solicitors for the Applicant by the Respondent’s solicitors. Relevantly, the letter advised that the Respondent’s solicitors did not consider that the contents of the Notice complied with the relevant requirements pursuant to the Workers’ Compensation and Rehabilitation Regulation 2014 (‘WCRR’) and WCRA. Specifically, the Respondent asserted that the Applicant had not provided adequate particulars of the events that gave rise to the alleged injury, nor properly disclosed income generated from self-employment.

Soon thereafter, information was provided by the Applicant in respect of his income generated from self-employment. However, with respect to the alleged deficiency insofar as the particulars of the events of the subject incident/s, the Applicant’s solicitors submitted to the Respondent’s solicitors that the event: 

“[W]as sufficiently particularised to allow your client to appreciate the claims made against it. In the fullness of time once your client has made proper disclosure then our client may be in a position to particularise the incidents (and will of course do so in any Court pleading) however our client’s Notice of Claim sufficiently explains the allegation of breach of duty against your client.

A protracted back and forth between the solicitors for the parties occurred thereafter. Seemingly in an attempt to resolve the stalemate, an Originating Application was filed on behalf of the Applicant on 6 September 2022, seeking a declaration that the Applicant had complied with s 275 of the WCRA in respect of an over period of time injury sustained between 1 November 2019 and 1 December 2020, whilst under the employ of the Respondent.

Decision

His Honour Crow J found in favour of the Applicant, opining that the Applicant had provided the particulars required under r 120 of the WCRR, and as such, the Notice had been given pursuant to s 275 of the WCRA.

His Honour opined that reg 120(b) of the WCRR does not impose upon a Claimant the requirement to provide the same level of “care and particularisation” of the circumstances of an allegedly negligent act or omission as would be required in a formal statement of claim. Instead, it need only be the Claimant’s description of the facts and circumstances surrounding the injury which is relevant.

In the circumstances, his Honour considered the Applicant’s description of the event as being sufficiently clear to communicate to the Respondent that the Applicant’s claim was one for damages arising from continued or repeated exposure to the same conditions; an ‘over period of time’ claim. Further, in his Honour’s view, the description adequately identified the facts and circumstances surrounding the injury by “identifying his work as a member of the correction response team in attending as a first responder to critical and acute prisoner situations, without proper training and without rotation of duties, as the cause of his injury”.

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