Gateway 237 – when an application is not an application25 February 2010 Topics: Insurance
Jacobs v Woolworths Limited  QSC 24, Jones J
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 time.
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 have done.
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?