Section 237 of the Workers Compensation and Rehabilitation
Act 2003 (and its predecessor) has been the subject of much
scrutiny over the years, and for good reason. This so called
"gateway" section prevents an individual from seeking
common law damages against an employer unless they fall within
certain nominated exceptions. One of these exceptions is where an
application for no fault compensation has not
previously been lodged.
Ms Jacobs sought damages for a right shoulder injury sustained
during the course of her employment with Woolworths. Woolworths, a
self insurer under the Act, rejected her notice of claim for
damages on the basis that she had previously lodged an application
for no fault compensation which it had rejected as being out of
Ms Jacobs had failed to lodge the application for no fault
compensation within six months of sustaining her injury and
Woolworths was not prepared to waive that time period, as it could
The question for determination by his Honour Justice Jones was
whether the rejected application for no fault compensation was an
"application" for the purposes of s237(1)(d) of the Act.
If it was, Ms Jacobs would have been precluded from seeking damages
(unless QComp/the Court later determined that the application
should have been allowed).
Justice Jones was referred to a number of previous decisions
which had flirted with the interpretation of s237(1)(d) (and its
identical predecessor). His Honour found that these decisions did
not directly address the question in dispute.
Ultimately he determined that the application for compensation
was not an "application" for the purpose of s237(1)(d).
In reaching this decision, his Honour had regard to section 131 of
the Act which places an emphasis on an application being
valid and enforceable only if the application is
lodged within six months. Here the application was effectively not
a valid application.
The decision in this claim should hardly be surprising. As a
matter of statutory interpretation, a court should be reluctant to
exclude a common law right unless clear words are used. Here the
words used, when read in conjunction with s131, were not clear.
Furthermore, had his Honour reached an opposite conclusion, it
would have created something of an oddity. It would have meant that
Ms Jacobs was better off not lodging an application than testing
the preparedness of Woolworths to waive the six month time limit.
This would have also frustrated the purpose of s131(5).
It is submitted that an application for compensation which is
rejected by an insurer on the basis of it not being:
in the approved form; and/or
accompanied by an approved medical certificate,
would likewise be treated as not an "application" for
the purposes of s237(1)(d). Perhaps, this is the next application
we will see?
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Australia for 2009 by The Australian.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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