Early Investigation and Your Business: How Contemporaneous Investigation Can Save You Headaches in the Future

On 20 October 2022, the Supreme Court in Rockhampton handed down a judgement in Graham v State of Queensland, finding an injured worker’s Notice of Claim for Damages (NOCD) to be compliant even when it had few details of how the injury was suffered.

Mr Graham worked as a Tactical Response Officer for the Department of Corrections from 16 October 2019 to on or about 2 April 2020 when he began to suffer psychiatric symptoms. Despite the symptoms, he continued to work until March 2022, when he ceased work due to his psychiatric symptoms.

Mr Graham then delivered a NOCD on 3 May 2022. The description of the event allegedly causing his injury was reported 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.”

Mr Graham could not indicate in his NOCD if the event which caused his injury was witnessed and reported he would confirm whether it was witnessed after he received disclosure from the employer.

WorkCover Queensland’s solicitors wrote to Mr Graham’s solicitors stating the description of the event in the NOCD was inadequate, as not enough particulars were given to enable the event to be investigated.

Mr Graham’s solicitors responded stating:

“… the answer is sufficiently particularised to allow your client to appreciate the claims made against it. In the fullness of time once your client has made proper disclosure then our client may be in a position to particularise the incidents (and will of course do so in any Court pleading) however our client’s Notice of Claim sufficiently explains the allegation of breach of duty against your client.”

Mr Graham alleged the totality of his role with the employer was potentially causative and could not recall specific incidents without receiving disclosure from the employer.

Mr Graham then brought an Application in the Rockhampton Supreme Court seeking an order that his answer was sufficient, so compliance could be granted within the limitation period and the matter could proceed.

The Court ultimately held despite the answer in the NOCD describing the event causing Mr Graham’s injury being well short of what would be expected for litigation and a Statement of Claim, the legislative requirements for answering the description of the event for the NOCD merely required the injured worker’s description of the facts and circumstances surrounding the injury, with the description not required to be a properly particularised Statement of Claim. The Notice of Claim for Damages was therefore compliant.

The decision highlights that even if the description in the NOCD of the event which caused the injury is lacking particulars, the NOCD can still be considered compliant for the purposes of the Workers’ Compensation and Rehabilitation Act 2003, although a subsequent request for particulars might clarify the circumstance of the event.

Employers should therefore investigate matters as soon as they are reported by injured workers to ensure adequate contemporaneous evidence is recorded. Such investigations could include, but are not limited to:

  • Obtaining, where possible, a signed statement from the injured worker as soon as possible after it had been reported;
  • Taking witness statements (if applicable);
  • Taking photographs and/or videos of relevant equipment involved in the event.

If such investigations are conducted, they may solve future issues if an injured worker commences a claim for damages where the description of the event is poorly particularised. This will allow those investigating the claim to have a preliminary understanding of what caused the worker’s alleged injury and provide further clarification of the surrounding circumstances.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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