The plaintiff commenced a claim against the defendant for common law damages. In pre-litigation stage, the plaintiff described the injury as arising on a specific day, 26 November 2020 – his Notice of Assessment reflected same.
In his statement of claim he alleged the injury arose either then or because of events over a period of time leading up to that date, or a combination of both.
The defendant applied to strike out part of the pleadings contending that the plaintiff was prevented by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’) from pursuing the part of his claim that he alleged was caused by events over a period of time.
Application dismissed. Cash J, decision delivered 27 October 2023
The distinction between “injury” and “event” as defined in the WCRA was highlighted. The court noted that whilst it was necessary for a worker to have a Notice of Assessment for the injury said to give rise to an entitlement to damages, section 237 does not depend on the identification of the event or events that resulted in the injury.
It was considered that here, as in Andersen v Aged Care Employers Self Insurance, there had been a confusion between the concepts of “injury” and “event” as defined.
The relevant paragraph objected to by the defendant addressed the means by which the damage was inflicted but did not plead a new or different injury to that identified in the Notice of Assessment.
It was considered that the issue of whether the injury was one caused solely by the event on 26 November 2020 or over a period of time was a matter for resolution at trial.
Ultimately, it was held that the defendant had not shown that the parts of the statement of claim objected to pleaded a different injury to the one identified in the Notice of Assessment and the application was dismissed.