No place for semantics when determining entitlement to damages

A rose by any other name would smell as sweet –– William Shakespeare - Romeo and Juliet - Act II Scene I

The District Court at Brisbane has held that in those claims where there might be a “tension” between the injury that has been “assessed” in a Notice of Assessment and the injury that is to be “alleged” in the Notice of Claim - as long as it is clear that the Notice of Assessment and the Notice of Claim (or subsequent Statement of Claim) are referring to the same injury, differences in the seriousness and significance attributed to that injury are matters to be resolved on the merits at a trial.

In Berhane v Woolworths Ltd [2013] QDC 194 McGill DCJ considered this to be so clear now, based on both the wording of the legislation and the line of authority he identifies and refers to, that he has flagged awarding indemnity costs against an insurer for adopting a position raising this “tension” (between the injury “assessed” in the Notice of Assessment and the injury “alleged in the Notice of Claim) as an “entitlement”, “validity” or “compliance” issue.

However, if there are 2 events giving rise to 2 injuries (as in say Sayers v Hanson [2011] QSC 70 - first psych. injury - assessed - Plaintiff found dead body; second psych injury - not assessed - workplace harassment) then this may still raise legitimate entitlement issues as De Jersey CJ found in Sayers (and McGill DCJ does not challenge this in Berhane).

Relevantly, in Berhane, McGill DCJ found:

"

...

[2] On 8 January 2013 the applicant served on the respondent a notice of claim for damages under s 275 of the Act2 which at point 41, particulars of all injuries, identified as the part of the body injured the left shoulder, and as the nature of the injury, “aggravation of underlying constitutional degenerative changes”. The respondent‟s solicitors subsequently wrote to the applicant’s solicitors advising that the injury the subject of the notice of claim had not been assessed. The applicant has brought this proceeding seeking a declaration that the notice of claim was valid, on the basis that the injury the subject of the notice of claim is the same as the injury referred to in the respondent‟s notice of assessment.

[3] The basis on which the respondent resists that relief is that the notice of claim asserts that the injury arose over a period of time, whereas the notice of assessment, which in this respect was consistent with material provided earlier by the applicant,3 had the injury occurring on a particular date, 22 June 2011. At item 36 of the notice of claim the applicant stated that the event occurred over a period of time commencing in September 2010 and ceasing on 22 June 2011, the day on which symptoms commenced.

[4] The proposition that an injury is different because it is caused by a course of conduct extending over a period of some months rather than by something that happens on a particular day is a proposition which, in my view, needs merely to be stated in order to be rejected. Neither is a statement about the injury, but about what has caused the injury, at is apparent from the heading to items 35-39 in the notice of claim: “Details of the event resulting in the injury”. That is something different from the identity of the injury itself.
....

[24] There is no factor arising from either the structure and purpose of the legislation, as expounded in the authorities, or an analysis of the text of the relevant sections in those decisions, which provides any justification for a conclusion that a plaintiff or potential plaintiff is confined in the pursuit of a claim for damages by the precise semantic description of the injury in the notice of assessment. So long as it is clear that the notice of assessment and the notice of claim (or subsequent statement of claim) are referring to the same injury, differences in the seriousness and significance attributed to that injury are matters to be resolved on the merits at the trial. But that I think is not really the issue in the present case: it is whether a notice of assessment which by implication attributes the injury to a particular “event”, precludes a claimant from pursuing a claim for damages on the basis that the injury identified in the notice of assessment was caused by some different “event” within the meaning of those expressions in the Act. Once the issue in the present case is correctly identified in those terms, the respondent‟s proposition becomes, it seems to me, essentially unarguable, being supported neither by the terms of the legislation nor any of the authorities to which I have been referred” (my emphasis).

The decision of Berhane v Woolworths Ltd [2013] QDC 194 can be accessed here.