In the matter of Apelu v Lusty Tip Trailers Pty Ltd [2024] QCA 158, the appellant plaintiff, Mr Shem Apelu by his litigation guardian Caleb Apelu, commenced proceedings against the respondent defendant, Lusty Tip Trailers Pty Ltd, in relation to a workplace injury.

The respondent is a manufacturer of trailers. It previously employed the appellant as a boilermaker. On 19 January 2018, an accident occurred in the respondent’s workshop in which the appellant was hit on the back of the head by a large metal hook attached to a chain. He was rendered unconscious and sustained a head injury.

The appellant applied for and received workers’ compensation benefits. Whilst receiving those payments, the appellant saw various medical practitioners and was further diagnosed with a work-related Post-Traumatic Stress Disorder, (“PTSD”). Work capacity certificates were issued identifying both the head injury and the PTSD as work-related diagnoses.

The appellant was subsequently diagnosed with schizophrenia, which was said to be not work-related. That condition was not included on any work capacity certificates.

Although the appellant had not included any claim for psychological or psychiatric injury at all in his application for compensation, the respondent’s insurer, WorkCover Queensland (“WorkCover”) acted upon the work capacity certificates and treated his claim as being for both the physical injury to his head as well as his PTSD. In accordance with statutory pre-proceeding steps, WorkCover, formally accepted the appellant’s head injury and his “secondary psych injury” as injuries as defined by s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”). At no stage did it accept the appellant’s schizophrenia was such an injury.

The appellant subsequently commenced a proceeding against the respondent, seeking damages for the personal injuries he claims he sustained as a result of the respondent’s negligence. In addition to alleged physical injuries to his head and cervical spine, the appellant claims he sustained psychiatric injury in the form of PTSD and schizophrenia (or a chronic aggravation of a pre-existing mild schizophrenia).

The respondent admits that it was negligent. However, it pleads in its defence that, by operation of the WCRA, the appellant is precluded from seeking damages for any aggravation or development of schizophrenia because WorkCover has not decided that his schizophrenia is an “injury” under the WCRA, nor has it issued a notice of assessment with respect to that condition.

The appellant subsequently brought an application, seeking declaratory relief to the effect that his claim is not so limited, and an order to strike out the relevant paragraph of the respondent’s defence that asserted to the contrary. In short, his position was that he was not required to have a separate notice of assessment for his schizophrenia because, either:

(a) his claim was in respect of a single “psychiatric injury” and that necessarily incorporated either or both of his diagnosed conditions of PTSD and schizophrenia. The notice of assessment issued for his PTSD therefore extended to his schizophrenia; or

(b) his schizophrenia was “secondary” to his accepted physical injuries and/or his PTSD and therefore covered by the notices of assessment issued in respect of those injuries.

The primary judge rejected the appellant’s arguments and dismissed his application. Her Honour determined that, in the absence of a separate notice of assessment for his schizophrenia, the appellant was precluded from seeking damages in respect of that condition.

The Appeal

The appellant appeals the decision of the primary judge. He maintains that he was not required to have a separate notice of assessment in respect his schizophrenia before he could make a claim for damages for that condition. He says the primary judge erred in finding otherwise.

The appellant advances two separate grounds of appeal:

(i) Ground one, which asserts the primary judge erred in finding that the notices of assessment issued by WorkCover in respect of the accepted injuries did not also encompass an assessment of the appellant’s schizophrenia condition or otherwise entitle him to pursue damages for that condition.

(ii) Ground two, which asserts that the primary judge erred in finding that in order for the schizophrenia condition to be pursued at trial, on the basis that it was “secondary” to his physical injuries and/or his PTSD, the medical opinion to that affect must be the “overwhelming” view on the hearing of his application.

In its consideration regarding Ground 1, the Court of Appeal provided as follows:

In this case there is no such evidence suggesting that the appellant’s PTSD and schizophrenia are one and the same condition or disorder. In any event, the appellant’s argument solely concerns the construction of provisions of the WCRA [at 47].

Although the appellant submitted that various cases dealing with the interpretation of s 32 established principles that supported his argument, that is not the case [at 48].

The appellant ultimately sought to draw support for his interpretation of the meaning of “injury” in s 32 by reference to s 179. He submitted that the use in s 179(4) of the singular phrases of “a psychiatric or psychological injury” and “the” psychiatric or psychological injury”, in contrast to the plural term “injuries” in respect of other injuries, bears out his argument that an injury by reason of a psychiatric or psychological disorder constitutes a single injury to the mind as that is the sole body part affected, whereas there may be multiple physical injuries sustained as they may affect multiple systems or parts of the body [at 54].

I reject the appellant’s argument. Aside from the limited support that may be gained from a superficial reading of certain phrases used in s 179(4), his argument is neither supported by a reading of the full text of the provision and understanding its purpose, nor by reading the provision within context of the WCRA as a whole, nor when regard is had to the objects and intent of the legislation. Furthermore, there is a fundamental difficulty, in my view, in attempting to construe an exhaustive definitional provision of general application that applies to an entire Act, such as s 32, by reference to the terms of a specific provision with a limited scope and purpose, such as s 179 [at 55].

Quite aside from the textual analysis I have undertaken, s 32C of the Acts Interpretation Act 1954 (Qld), which states that in an Act “words in the singular include the plural”, provides a complete answer of itself to the appellant’s construction argument. The appellant was unable to articulate any convincing argument why s 32C would not apply to the interpretation of s 179 and s 32 of the WCRA [at 62].

I would also add that the appellant’s construction argument appears to me to be contrary to the objects and intent of the scheme created by the WCRA. Section 5(4) of the WCRA makes plain that it is intended that the legislative scheme should maintain a balance between, amongst other things, “providing fair and appropriate benefits for injured workers” and “ensuring reasonable cost levels for employers”; that it should “ensure that injured workers or dependants are treated fairly by insurers”; and that it will provide for “the protection of employers’ interests in relation to claims for damages for workers’ injuries”. The pre-proceeding steps required by the WCRA seek to give effect to these objects by enabling an injured worker to have their injuries independently assessed and to be offered payment of a commensurate lump sum amount of compensation, which they may accept in lieu of pursuing a claim for damages. If the appellant’s argument was correct, it would not be necessary for all psychological or psychiatric conditions allegedly sustained by an injured worker in the one event to be assessed, or to be the subject of a notice of assessment, with an accompanying offer of compensation, before a claim for damages could be commenced. That seems to me to run counter to the intent of a legislative scheme that regulates access to damages, which is designed to reduce costs by providing for mandatory steps to avoid litigation costs and to achieve earlier resolution of claims and payment of appropriate amounts of compensation [at 63].

In my opinion, the terms of s 179(4) do not support the appellant’s argument in respect of the proper construction of the meaning of “injury” in s 32 [at 64].

The primary judge was correct to find that the only psychiatric injury assessed by the MAT was PTSD and the only psychiatric injury that has been the subject of a notice of assessment is PTSD [at 65].

In my view the first ground of appeal therefore fails [at 66].

In its consideration regarding Ground 2, the Court of Appeal provided as follows:

It is clear that, for the purposes of deciding the application before her Honour, the primary judge accepted the correctness of the general principle referred to in Barraclough but considered the appellant’s case was distinguishable from the circumstances that pertained in Barraclough. In short, the primary judge was simply not satisfied on the evidence before her that the appellant’s schizophrenia could be regarded as a secondary consequence of the injury described in either of the issued notices of assessment. Such a finding does not preclude the appellant advancing his secondary injury argument at trial, albeit I note that at present he has not pleaded that his schizophrenia is a secondary consequence of his PTSD [at 75].

In my view, the primary judge did not err as the appellant contends. The second ground of appeal fails [at 76].

Ultimately, on 30 August 2024, the Queensland Court of Appeal ordered as follows:

  1. The appeal is dismissed.
  2. The appellant is to pay the respondent’s costs.

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