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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Murray v GBR Helicopters & Ors  QDC 158
JOHN GEOFFREY MURRAY
GBR HELICOPTERS PTY LTD (ACN 143 159 531)
ERGON ENERGY CORPORATION LIMITED
(First Third Party)
STATE OF QUEENSLAND
92/19 and 93/19
District Court at Cairns
23 August 2019
1 March 2019
Morzone QC DCJ
CIVIL PROCEDURE – APPLICATION – THIRD PARTY PROCEEDING – Application to strike out second third party proceeding – plaintiff sued defendant carrier for personal injuries pursuant to Civil Aviation (Carrier’s Liability) Act 1964 (Qld), and/or Civil Aviation (Carrier’s Liability) Act 1959 (Cth) – no notice of claim against employer or proceeding against employer – defendant issues third party proceeding against electricity authority – plaintiff’s proceeding settled – second third party proceeding issued against employer for economic loss from first third party claim – whether second third party/employer is “tortfeasor who … would if sued have been liable in respect of the same damage” – whether “co–ordinate liabilities” or “same liability” or a “common obligation” to found second third party claim – whether as a matter of law the cause of action for relief pursuant to the Law Reform Act 1995 (Qld).
Uniform Civil Procedure Rules 1999 (Qld), rr 171, 192.
Civil Aviation (Carriers Liability Act) 1965 (Qld), s28.
Workers’ Compensation Rehabilitation Act 2003 (Qld), ss. 295, 275, Part 5 Chapter 5.
Work Cover Queensland Act 1996 (Qld), ss.253, 262, 302.
Bonser v Melanacic & Anor  QCA 12
Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 1 ALR 201
Dyson v A-G  1 KB 410.
Hawthorne v Theiss Contractors Pty Ltd & Anor (2002) 2 Qd R 157
HIH Claims Support Limited v Insurance Australia Limited  HCA 31
Hong Kong Bank of Australia v Larobi (1991) 23 NSWLR 593
Mahoney v McManus (1981) 180 CLR 370
South West Helicopters Pty Ltd v Stephenson  NSWCA 312
Tanks v WorkCover Queensland  QCA 103
J. Trevino for the First Third Party
S. Williams QC for the Second Third Party
Miller Bou-Samra Lawyers for the First Third Party
Crown Law for the Second Third Party
- The applicant second third party (State) applies to strike out the third party proceeding commenced by the first third party (Ergon) on the grounds that the latter proceeding is unmaintainable in the plaintiff’s proceeding.
- I have considered all the material, detailed written outlines of argument, and further oral and written submissions. For the reasons that follow I will dismiss the application.
- The defendant owned and operated a helicopter business. On or about 25 May 2011 the defendant contracted the Department of Agriculture, Fisheries, and Forestry to carry State employees in the course of their work. On 1 June 2011 the defendant was carrying the plaintiff and other State employees for aerial weed surveillance and eradication in the course of their employment. The defendant’s helicopter collided with power lines, and as a consequence the plaintiff suffered injuries, loss and damage.
- The plaintiff applied to WorkCover Queensland for statutory compensation benefits. A notice of assessment was issued by WorkCover, and the plaintiff elected to accept WorkCover’s lump sum offer, and received a lump sum payment on 1 May 2013. However, the plaintiff did not, and nor was he required to, sue his employer. Instead, by the originating claim and statement of claim, the plaintiff sued the defendant carrier under Civil Aviation (Carrier’s Liability) Act 1964 (Qld), and/or s 28 of the Civil Aviation (Carrier’s Liability) Act 1959 (Cth) and/or for damages for personal injuries in a helicopter crash on 1 June 2011. The defendant’s liability arose without the need for the plaintiff to prove negligence.
- The plaintiff’s proceeding resolved with payment by the defendant of $380,000 inclusive of costs, however, the defendant looks to Ergon as the first third party for contribution or indemnity, and, in turn, Ergon seeks to maintain it’s second third party proceedings against the State.
First third party proceeding
- In its third party proceeding against Ergon, the defendant claims damages for the economic loss suffered as a result of the payment of settlement monies to the plaintiff in respect of the plaintiff’s action.
- By its amended statement of claim filed 14 February 2017, the defendant pleads against Ergon that:
- (a)On 25 May 2011, the defendant entered into an agreement for the provision of helicopter services to the Department of the Agriculture, Fisheries and Forestry for the carriage of the plaintiff and other persons for the purpose of conducting aerial spotting of weeds (paras 6);
- (b)During the course of the charter for the spotting of weeds on 1 June 2011, the defendant’s helicopter came into contact with Ergon’s power line (paras 7 – 10);
- (c)As a result of the helicopter’s contact with the power line, the plaintiff suffered injuries, loss and damage (para 11);
- (d)Ergon knew or ought to have known that there was a risk that defendant as operator of the helicopter would become liable to passengers pursuant to the strict liability provisions of the Carrier’s Liability Acts (para 13);
- (e)Ergon owed the defendant a duty to exercise reasonable care to prevent or avoid the helicopter coming into collision with the power line (para 15);
- (f)Ergon breached its duty to the defendant (para 15.1);
- (g)As a result of Ergon’s breach of duty, GBR suffered a loss of $380,000.00 for its liability to the Plaintiff pursuant to the Carrier’s Liability Acts (paras 16 and 17); and
- (h)“Ergon is liable to the defendant; for damages in the sum of $380,000.00 or alternatively equitable contribution” para .
Second third party proceeding
- In turn, Ergon brought third party proceedings against the State alleging it breached its duty of care owed to the defendant.
- By its amended statement of claim, Ergon pleads to the State that:
- (a)The State undertook aerial weed surveillance and eradication through the department (para 3);
- (b)The State owed a non-delegable duty of care to the Plaintiff to provide the Plaintiff with a safe system of work (para 4);
- (c)The defendant entered into an agreement for the provision of helicopter services to the State for the carriage of the plaintiff and other persons for the purpose of conducting aerial weed surveillance and eradication (para 6);
- (d)The State was or should have been aware of the risk to pilots and passengers, that helicopters when engaged in aerial weed surveillance and eradication it commissioned could or would: (a) operate in the vicinity of power lines; (b) engage in low level flying operations in the vicinity of power lines, of which those pilots and passengers were unaware (para 10);
- (e)The State was aware or ought to have known that its employees who were undertaking the weed surveillance in the helicopters it commissioned were at risk of harm from a collision with obstacles if the helicopter flew at such a height and at such a speed that there was insufficient margins to enable detection of obstructions and avoidance of collision (para 11);
- (f)The State’s failure to enforce area surveillance initially not below 500 feet exposed its employees to risk of injury or death which the State was aware or ought to have been aware (para 12);
- (g)The State failed to have in place any procedures or measures to ensure its employees engaged in the weed surveillance were aware of the existence of or had records of, amongst other things, the power lines (para 13);
- (h)The plaintiff alleges that the injuries sustained in the accident were injuries covered by the respective Carrier’s Liability Acts for which the defendant was liable (para 15);
- (i)The defendant compromised the plaintiff’s claim (para 16);
- (j)The State owed the defendant a duty of care (para 18);
- (k)The plaintiff’s injuries were caused by the State’s negligence in failing to properly and adequately plan or prepare for the operations and flight during which the helicopter flew into the power line and failing to properly execute or conduct the operations and flight during which the helicopter flew into a power line (para 19 para).
- The State now applies to strike out Ergon’s second third party proceeding on the grounds that it cannot be maintainable as a matter of law.
- Rule 171 provides for the power to strike out as follows:
“171 Striking out pleadings
- This rule applies if a pleading or part of a pleading —
- discloses no reasonable cause of action or defence; or
- has a tendency to prejudice or delay the fair trial of the proceeding; or
- is unnecessary or scandalous; or
- is frivolous or vexatious; or
- is otherwise an abuse of the process of the court
- The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
- On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.”
- The determinative question is whether Ergon’s third party proceeding is maintainable as a matter of law.
Ergon’s right to third party claim against the plaintiff’s employer
- Relevantly here, s 6(c) of the Law Reform Act 1995 (Qld) provides for entitlement to recover contribution between joint tortfeasors, as follows:
“6 Proceedings against, and contribution between, joint and several tortfeasors
Where damage is suffered by any person as a result of a tort (whether a crime or not) the following apply—
- any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.”
- By virtue of s 6(c), Ergon’s entitlement to seek contribution only arises if the State is a “tortfeasor who is, or would if sued have been liable in respect of the same damage”. This third party procedure is one which avoids multiple actions in respect of the same damage, which usually has it’s genesis in the plaintiff’s claim.
- Part 6 of Chapter 6 of the Uniform Civil Procedure Rules 1999 (UCPR)facilitates a third party procedure started by a third party notice being filed in a proceeding started by claim, as if the defendant making the third party claim were a plaintiff and the third party were a defendant.
- Pursuant to rule 192(a) of the UCPR a defendant may file a third party notice if it wants to “claim against a person who is not already a party to the proceeding a contribution or indemnity.” The effect of service on third party is provided by rule 196 UCPR as follows:
“On being served with a third party notice, the third party becomes a party to the proceeding with the same rights in relation to the third party’s defence to a claim made against the third party in the notice as the third party would have if sued in the ordinary way by the defendant.”
- The State asserts that Ergon should be precluded from commencing any proceedings against the State because it is not a “tortfeasor” within the meaning of that provision as a consequence of s 295 of the Workers’ Compensation Rehabilitation Act 2003 (Qld), and therefore, there is an absence of mutuality between the relevant claims.
- Section 295 of the Workers’ Compensation Rehabilitation Act 2003 (Qld) regulates a claimant’s entitlement to commence a proceeding in a Court for damages, in terms:
“The claimant may start a proceeding in a court for damages only if the claimant has complied with—
- the relevant division under part 2, to the extent the division imposes a requirement on the person; and
- part 5 , other than as provided by sections 297 and 298 ; and
- part 6 ; and
- section 296.”
- However, since the plaintiff did not elect to sue the State, he did not, and nor was he required to, serve a Notice of Claim upon the State pursuant to s 275 of the Workers’ Compensation Rehabilitation Act 2003 (Qld). Therefore, the pre-requisite provisions in Chapter 5 of the Act were not engaged, which leaves no entitlement to sue the State. In that sense, the legal liability of the State vis-à-vis its employee plaintiff was never enlivened.
- In Bonser v Melanacic & Anor, the Court of Appeal considered s 302 of the repealed WorkCover Queensland Act 1996 (Qld), which is in similar (but not the same) terms as s 295 of the current Act. The case concerned an injured plaintiff who did not receive a notice of assessment and, thus, did not have an “entitlement to seek damages” within the meaning of s 253 of the repealed Act. The Court held at :
“We should therefore accept the respondent employer's submission that the combined effect of the scheme introduced by the WorkCover Act (with particular reference to s 253, s 262 and s 302) effectively abolishes any entitlement on the part of an injured worker to commence proceedings against the employer and that such a right comes into existence only upon compliance with the prescribed steps. Those steps in the present case would include the obtaining of an assessment, followed by an election (assuming that the assessment was of more than a nil disability) either to accept lump sum compensation or to seek damages. Comparison may again be drawn with the s 45 election under the Comcare Act where the need for a specific identifiable election is recognised before rights of action are obtained.” (References omitted)
- The court concluded that a party was precluded from pursuing contribution from the injured plaintiff’s employer where the injured plaintiff did not have a right to commence a proceeding until such time as there was compliance with the prescribed steps under the (then) WorkCover Act.
- Likewise, the State argues that the plaintiff did not have an entitlement to sue the State as his employer because, inter alia, of a failure to satisfy Part 5 of Chapter 5 of the Workers’ Compensation Rehabilitation Act 2003 (Qld). Accordingly, as the argument goes, the State is not, and could not, be adjudged as someone who is a “tortfeasor who … would if sued have been liable in respect of the same damage”. In those premises, the State maintains that as a matter of law the cause of action for relief pursuant to the Law Reform Act 1995 (Qld) is not maintainable.
- In contrast, Ergon emphasises it’s prayer of relief in paragraph 20, which claims for contribution against the State in respect of the loss claimed by the defendant against Ergon, being for economic loss (as distinct from damages for personal injury of the plaintiff). It argues that pursuant to rule 192(a) UCPR, an entitlement to claim a contribution from the State employer, who owed a non-delegable duty to the plaintiff but not a party to the proceeding, in respect of the relief sought against it by the defendant for the economic loss of $380,000.00 suffered for its liability to the plaintiff under the Carrier’s Liability Act.
- Ergon seeks analogous support from the New South Wales case of South West Helicopters Pty Ltd v Stephenson. In that case, Parkes Shire Council engaged South West Helicopters to provide a helicopter and pilot for the purposes of an aerial noxious weed survey. Two council employees were engaged to conduct the survey from the helicopter. On 2 February 2006, the helicopter struck a power line owned by Essential Energy. The helicopter crashed killing both of the council employees and the pilot. The New South Wales Court of Appeal found that:
- (b)“As between the Council and South West and Country Connection, the duty owed by the Council is not the stringent duty owed to an employee and thus should bear a lower share of responsibility for the safety of the aircraft, which may be assessed at 20%.”
- Ergon submits that the role of the State in these proceedings is analogous to that of Parkes Shire Council in that breached a duty owed to the defendant by failing to (amongst other things):
- (a)properly and adequately plan or prepare for the operations and flight during which the helicopter flew into a power line; and
- (b)properly and adequately execute and conduct the operations and flight during which the helicopter flew into the power line.
- So rather than equating its third party claim with that of the plaintiff’s claim, Ergon contends that, in the context of its second third party claim, the defendant’s claim is the relevant focal point. That is, the defendant is said to be the relevant injured who suffered “damage” in the species of economic loss by reason of its payment of the settlement monies in respect of the plaintiff’s Carrier’s Liability Act action. If the court finds Ergon and the State both owed a duty to the defendant then it is open for there to be a co-ordinate liability between the State and Ergon to consider the risks that are associated with low-flying helicopters and the risk to the pilot and passengers of aerial surveying if it can be found that the procedures and precautions taken were inadequate. And, in that context Ergon is entitled to recover contribution from the State as another tortfeasor, who if sued by the defendant, would have been “liable in respect of the damage”.
- This is not ideally clear on the face of the pleading. It seems that the premise of the second third party claim is that expressed in a letter of Ergon’s solicitors dated 13 July 2018 (p.6, 1st para) as:
“It is appropriate that the State which owed the injured a non-delegable duty of care to provide a safe system of work should bear primary responsibility for damages sustained by its employee as a result of its failure to properly plan and prepare and execute aerial operations giving rise to the charter flight.”
- The State criticises that formulation, and the pleaded claim, as ignoring the principles for such relief considered against the attended facts and, and has no prospect of success. The State asserts that it is not established (and nor can it be) that there were, or are, “co-ordinate liabilities” or the “same liability” or a “common obligation” in so far as the State is concerned because:
- First, the plaintiff did not sue the State and did not have a right to commence any such proceeding, for the reasons detailed above as to why the claim for contribution must fail;
- Second, the defendant did not sue the State;
- Third, the State could not have any liability to the plaintiff for the reasons which are identified above, nor to the defendant or Ergon, because the same reasoning applies;
- Fourth, absent the defendant having sued the State, Ergon cannot unilaterally assert a duty of care owed by the State to the defendant, or that the State has a liability to the defendant, because neither in truth exists; and
- Fifth, the pleading itself does not plead material facts establishing a prima facie existence of a “co-ordinate liability”, the “same liability”, or a “common obligation”, and no such liability or obligation can exist failing the plaintiff having sued the State for common law damages.
- In consequence, where there is an absence of mutuality, the claim for equitable contribution must fail.
- In my view, these matters are not so plain or obvious to exclude no real issue to be tried or established in relation to fact or law. I think there is merit in Ergon’s argument with its focal point on the co-ordinate liability vis-à-vis the defendant in circumstances where the plaintiff’s claim has ended. At this stage, even though Ergon’s statement of claim needs refinement, I am not persuaded that the proceeding discloses no reasonable cause of action to warrant being struck out.
- For these reasons, I will dismiss the application and make the following orders:
- Application filed on 12 December 2018 is dismissed.
- Unless either party applies for, or the parties otherwise agree on, a different costs order, within 14 days of this order, the second third party will pay the first third party’s costs of the application to be assessed on the standard basis.
Judge Dean P Morzone QC
 Twigg affidavit, paras 2, 9(a).
 Twigg affidavit, paras 9(c) & (d).
 Second Third Party Statement of Claim, para 16.
Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 1 ALR 201.
 Dyson v A-G  1 KB 410.
 Uniform Civil Procedure Rule (1999,) s 191.
 Twigg affidavit, paras 9(e) and (f).
 Being ‘substantive law’ pursuant to s 235 of the Workers’ Compensation Rehabilitation Act 2003 (Qld).
 Workers’ Compensation Rehabilitation Act 2003 (Qld), s 295; Tanks v WorkCover Queensland  QCA 103 per Williams JA at .
 Bonser v Melanacic & Anor  QCA 12 (Jersey CJ, Thomas JA and Helman J).
 Tanks v WorkCover Queensland  QCA 103 per Williams JA at ,  and .
Hawthorne v Theiss Contractors Pty Ltd & Anor (2002) 2 Qd R 157.
Bonser v Melanacic & Anor  QCA 12 (Jersey CJ, Thomas JA and Helman J).
 Bonser v Melanacic & Anor  QCA 12, at -, , -.
South West Helicopters Pty Ltd v Stephenson  NSWCA 312.
 South West Helicopters v Stephenson  NSWCA 312 at [214 – 221], ,  and .
South West Helicopters v Stephenson  NSWCA 312 at .
South West Helicopters Pty Ltd v Stephenson  NSWCA 312  NSWCA 312 at .
 Cf. HIH Claims Support Limited v Insurance Australia Limited  HCA 31 (Gummow ACJ, Hayne, Crennan and Kiefel JJ) at  – ; Mahoney v McManus (1981) 180 CLR 370; Hong Kong Bank of Australia v Larobi (1991) 23 NSWLR 593.
- Published Case Name:
Murray v GBR Helicopters & Ors
- Shortened Case Name:
Murray v GBR Helicopters
 QDC 158
23 Aug 2019