The Supreme Court of Queensland clarifies the level of detail required for a compliant Notice of Claim in common law workers' compensation claims

In brief - The recent decision of Graham v State of Queensland [2022] QSC 228 confirms that detailed particulars of an alleged event causing injury are not required to achieve compliance for a Notice of Claim for Damages served under Queensland's workers' compensation framework

Background 

On 3 May 2022, David Philip Graham (applicant) gave his employer, the State of Queensland (respondent), a Notice of Claim for Damages pursuant to s 275 of the Workers' Compensation Act 2003 (Qld) (WCRA) alleging psychiatric injury arising out of his employment. 

The applicant was employed as a response officer in the correctional response team at Maryborough Correctional Centre from 16 October 2019 to 21 March 2022. He began suffering psychiatric symptoms on 2 April 2020 and was subsequently diagnosed with post-traumatic stress disorder and severe major depressive disorder with melancholic features. 

The applicant nominated the "event” causing the injury as occurring over a period of time from 1 November 2019 to 1 December 2020. The applicant then described the details of the event in Question 40 of the Notice as follows:

"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."

A number of documents were enclosed with the Notice, including a report from Dr Joseph Mathew, psychiatrist, who noted the applicant described being exposed to different traumatic incidents at the prison during his employment. Such details were not included in the Notice and the respondent sought to rely on this disparity as a basis for its argument that the Notice was non-compliant. 

The applicant's solicitors considered it unnecessary that the Notice detail isolated incidents when the applicant's injury was caused by the totality of his role as a tactical response officer. Yet the applicant's solicitors advised the respondent that further particulars of the relevant incidents would be provided once it received the respondent's disclosure of each and every tactical response incident involving the applicant. The respondent was not prepared to resile from its position and therefore the applicant sought orders from the court to declare the Notice of Claim compliant. 

The law

Section 275(3) of the WCRA provides that a Notice of Claim for Damages must include the particulars prescribed under the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) (WCRR). Regulation 120 of the WCRR states that a Notice must include the:

1. the date, time and place of the event (an "event" being defined under s 31(2) of the WCRA as including continuous or repeated exposure to substantially the same conditions that results in an injury to a worker); and 
2. the claimant's description of the facts of the circumstances surrounding the worker's injury. 

Section 275(8) of the WCRA then goes on to state that the Notice must be accompanied by all documents supporting the claim including medical and financial records. 

Findings and discussion

The principal issue before Crow J was whether the Notice contained the particulars required by s 120 of the WCRR to be compliant under s 275 of the WCRA. 

The respondent relied on the decision of Douglas J in Scott v K & S Freighters [1999] QSC 427 where His Honour stated that the workers' compensation scheme is designed to facilitate the settlement of claims rather than prolong compensation by unnecessary recourse to the courts. However, Crow J did not agree with the respondent's use of this judgment in its argument and considered it important to observe the disparity between the extent of particulars required under the WCRR, and those which needed to be provided under the then WorkCover Queensland Regulation 1997 (Qld) (WQR) (the regulation subject of the court's analysis in Scott). 

While s 120(b) of the WCRR requires the claimant to provide his "description" of the facts and circumstances surrounding his injury, s 74(1)(b) of the WQR requires "full particulars" of the event resulting in the subject injury. 

Crow J found:

1. the particulars required in a Notice under Queensland's workers' compensation framework are much less onerous than those required in formal pleadings. On this point, Crow J cited the matter of Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44, where the High Court held that reference must be made to specific incidents in order to fully describe the duties alleged to have subjected the worker to stress, and "signs" that the employee was not coping; 
2. the applicant's description of the event in his Notice made it sufficiently clear that he was claiming damages for continued or repeated exposure to the same conditions as a result of his employment as a tactical response officer, and this was adequate for the respondent to understand the applicant's case regarding foreseeability given the obvious and inherent risk of psychiatric harm associated with his occupation: Kozarov v State of Victoria [2022] HCA 12; 
3. the further details of events contained in Dr Mathew's report could not be used by the respondent to demonstrate that the Notice was non-compliant because the applicant's requirement to provide information in the Notice on the one hand, and accompanying documents on the other, were two separate compliance issues. 

It was held that the applicant had provided the particulars required under s 120 of the WCRR and the Notice was therefore deemed compliant with s 275 of the WCRA.

Decision confirms that workers' compensation claimants are not required to provide detailed particulars of an alleged incident or event causing injury in order for a Notice of Claim to be deemed compliant

However, an object of the WCRA is to promote cooperation between the parties for the just and expeditious resolution of the claim. So, how is this achievable when claimants are not required to fully particularise his or her allegations to allow a respondent to meaningfully respond to the claim?

Section 279 of the WCRA provides a mechanism for a respondent to request particulars from the claimant about "the circumstances of the event resulting in the injury". The applicant in this case was prepared to provide such particulars to the best of his ability if asked by the respondent, provided the respondent firstly disclosed all documents regarding tactical incidents involving the claimant. This no doubt appeared to be a "fishing expedition" to the respondent, which resulted in its entrenched position regarding compliance. 

However, Crow J disagreed that such wide disclosure was required given the claimant did not claim that a single incident or group of incidents caused his injury and therefore those matters were not relevant to his claim. This is somewhat of a contentious view as it would mean the respondent would be relieved of disclosing documents regarding any critical incidents, of which the nature of those matters formed the foundation of the applicant's decompensation and injury.