Percy v Central Control Financial Services P/L
[2001] QCA 226
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- Unreported Judgment
- Appeal Determined (QCA)
- Percy v Central Control Financial Services P/L[2001] QCA 226
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Percy v Central Control Financial Services P/L[2001] QCA 226
Reported at [2002] 1 Qd R 630
Percy v Central Control Financial Services P/L[2001] QCA 226
Reported at [2002] 1 Qd R 630
SUPREME COURT OF QUEENSLAND
CITATION: | Percy v Central Control Financial Services P/L [2001] QCA 226 |
PARTIES: | CHRISTOPHER WILLIAM PERCY (plaintiff/respondent) v CENTRAL CONTROL FINANCIAL SERVICES PTY LTD (ACN 010 948 875) (first defendant/appellant) JOHN BARRY CLARK and MERILYN MARGARET CLARK (second defendants) MERCIA THERESE DUNCAN (third defendant) NEIL LOUIS HARTLEY (fourth defendant) REGINALD JOHN SINNOTT (fifth defendant) |
FILE NO/S: | Appeal No 4697 of 2000 SC No 46 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Townsville |
DELIVERED ON: | 8 June 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 March 2001 |
JUDGES: | McMurdo P, Davies JA and Ambrose J Separate reasons for judgment of each member of the Court, each concurring as to the orders made. |
ORDER: | That the statement of claim be amended in accordance with a form of an amended statement of claim, agreed to by the parties, giving effect to the reasons below. Otherwise appeal dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – INDUSTRIAL SAFETY, HEALTH AND WELFARE – OTHER STATES AND TERRITORIES – QUEENSLAND – where respondent self-employed plumber injured falling off a roof – where respondent relied on breaches of s 10, s 11 and s 23 of the Workplace Health and Safety Act 1989 – where s 10 and s 11 found not to confer a right of action – where primary judge struck out paragraphs in statement of claim pleading breach of s 10 and s 11 – whether s 23 conferred a statutory right of action PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – AMENDMENT – where respondent failed to plead negligence in statement of claim – where application for leave to amend to plead negligence was made after the end of the relevant limitation period – where same or substantially the same factual basis for proposed negligence claim and claim already made – where appellant unlikely to have been prejudiced by the delay – whether respondent should have been permitted to amend statement of claim to plead negligence Construction Safety Act 1971 (Qld) (repealed), s 20(a), s 20(b)(ii), s 21(b)(ii) and s 22(b) Uniform Civil Procedure Rules 1999 (Qld), r 376(4) Workplace Health and Safety Act 1989 (Qld) (repealed), s 9, s 10, s 11 and s 23 Heil v Suncoast Fitness [2000] 2 QdR 23, followed Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] QCA 18, [23]; Appeal No 9640 of 1998, 11 February 2000, considered Schulz v Schmauser [2000] QCA 17; Appeal No 9022 of 1998, 11 February 2000, considered Sherras v Van der Maat & Ors [1989] 1 QdR 114, considered |
COUNSEL: | J J Clifford QC, with G T Riethmuller for appellant M A Drew for respondent |
SOLICITORS: | Hope & Associates (Mackay) for appellant McKay (Mackay) for respondent |
- McMURDO P: I agree with the reasons for judgment of Davies JA that sub-ss 23(a) and (c) Workplace Health & Safety Act 1989 do not confer a private right of action.
- Sub-sections 20(b)(ii), 21(b)(ii) and 22(b) Construction Safety Act 1971 (repealed) have been held to provide a statutory cause of action in respect of an employee injured on a construction site: see Sherras v Van der Maat & ors.[1] That Act was replaced by the Workplace Health & Safety Act 1989, which in turn was replaced by the Workplace Health & Safety Act 1995.[2] Section 9 of the former and s 28 of the latter continued to provide a statutory cause of action for employees who were injured in the workplace in certain circumstances: see Schiliro v Peppercorn Child Care Centres Pty Ltd[3] and Schulz v Schmauser.[4] The respondent/plaintiff in this case was not an employee but a self-employed plumber; s 9 Workplace Health & Safety Act 1989 therefore had no application to his case
- A consideration of that Act as a whole and its historical legislative context does not therefore support a conclusion that sub-ss 23(a) and (c) was intended to confer a private right of action.[5]
- I also agree with Davies JA that the learned primary judge did not err in permitting the amendments to the statement of claim. I agree with the course he proposes and with his suggested orders.
- DAVIES JA: This appeal involves two questions. The first is whether s 23 of the Workplace Health and Safety Act 1989, which has since been repealed, conferred a statutory right of action upon the respondent. The second is whether the respondent should have been permitted by the learned primary judge to amend his statement of claim to plead negligence against the first to fourth defendants in the action. The learned primary judge decided both of those questions in favour of the respondent. They arise in the following way.
- The events which gave rise to the respondent's action against five defendants was an incident which occurred on 15 March 1993 when, as a self-employed plumber, he was injured falling off a roof. The first, second and third defendants were the registered proprietors of the property, a block of flats, on which the respondent was working. The fourth defendant was said to have engaged the respondent to perform the work and the fifth defendant, who was dismissed from the action by the learned primary judge, was a carpenter who was also working on the roof. The writ which was issued on 12 March 1996 claimed damages for personal injury for negligence and/or breach of statutory duty. However the statement of claim which was delivered in June the following year abandoned the claim in negligence and relied entirely on breaches of s 10, s 11 and s 23 of the Workplace Health and Safety Act. The defendants sought summary judgment in their favour and the respondent plaintiff then sought to amend his statement of claim to reintroduce allegations of negligence.
Whether a breach of those sections conferred a right of action
- The learned primary judge rightly held, relying on the decision of this Court in Heil v Suncoast Fitness,[6] that s 10 and s 11 did not confer a right of action and her Honour struck out those paragraphs of the statement of claim which pleaded breach of those sections. Section 23 is in the following terms:
"In respect of a project on which he or she is engaged, a principal contractor who –
- fails to ensure, except where it is not practicable for the principal contractor to do so, that every employer and every employee engaged in an occupation at a workplace complies with or, as the case may be, does not contravene the provisions of this Act; or
- fails to ensure the health and safety of members of the public on or near the workplace; or
- fails to provide such other safeguards and take such other safety measures as are prescribed;
commits an offence against this Act."
- A "project" is defined in s 6(1) of the Act to mean, relevantly:
"a workplace ... where any of the following classes of work are carried out – the construction, digging, filling, erection, installation, alteration, repair, maintenance, cleaning, painting, renewal, removal, dismantling or demolition of, or addition to, a building or structure ..."
And a "workplace" is defined in that section to mean, amongst other things, any premises where work is or is likely to be performed by employees or self-employed persons. It was not disputed before this Court that the work which the respondent was doing, which was the replacement of corrugated iron sheeting on a roof, was carried out at a workplace which was a project within the meaning of the Act.
- The respondent did not, in his statement of claim either as originally delivered or as proposed to be amended, rely on s 23(b). He alleged as particulars of par (a) and par (c) –
- failing as principal contractor to ensure that the fifth defendant Reg Sinnott and the plaintiff complied with or did not contravene the provisions of the said Act; and
- failing as principal contractor to provide instruction to the plaintiff with respect to the health and safety including construction in relation to scaffolding relevant to the work to be performed by the plaintiff supplied by reg 13 of the Regulations made pursuant to the Act.
- Regulation 13 applied only to a "notifiable project" and it was not argued by the respondent in this Court that the project here was a notifiable project. Accordingly that regulation has no application. However both before the learned primary judge and in this Court the respondent relied on reg 12 to identify specific safeguards and other safety measures referred to in par (c). Regulation 12 is in the following terms:
"For the purposes of section 23 of the Act, the following safeguards and safety measures are prescribed in respect of a project in relation to a building or structure on which a principal contractor is engaged–
- the provision of lighting in the workplace and areas giving access to the workplace;
- the provision of railings on stairs and landings and around floor and wall openings so as to secure safety;
- the provision of protection about the perimeter of floor areas;
- the provision of safe and protected means of entrance to the workplace and to every building or structure in the workplace;
- the provision of protection for members of the public on the workplace and every building or structure in the workplace;
- the maintenance of the workplace in a tidy condition;
- the provision of safeguards and the taking of precautions in respect of fire safety."
- The circumstances of the respondent's accident, as alleged by him, were uncomplicated. Whilst walking on the timber structure of an uncovered section of the roof he stood on a batten which gave way underneath him causing him to fall to the ground and suffer the injuries for which he sues.
- The learned primary judge set out a number of factors which she said a court will consider when determining whether a legislative provision is intended to give rise to a private right of action. Her Honour's analysis of those factors was not criticized by the appellant and it is unexceptionable. Her Honour then considered the historical legislative context, expressing the view that that suggested that a private right of action was intended. She went on to hold that s 23(a) and s 23(c) conferred such a right.
- Her Honour held that s 23(a) and s 23(c) were in similar terms to earlier construction safety legislation which had been construed as conferring a private right of action. She referred in particular to s 20(a) of the Construction Safety Act 1971 which obliged a constructor to ensure that the provisions of the Act were complied with or, as the case may be, were not contravened on the site. However that provision had to be construed in the context of s 20 as a whole which appeared to impose obligations on a constructor to do certain specific things for the safety of employees on a work site. Section 23 is, in my view, not so restricted. Paragraph (b) is the clearest indication of this. But there is nothing in par (c), which also imposes a primary obligation, which restricts the duty to one owed to employees or any other class of persons. On the contrary, reg 12(e) refers to the provision of protection for members of the public and none of the other paragraphs of that regulation appear to be for the benefit of any particular class of persons.
- The learned primary judge also thought that the section was cast in the language of duty and was in similar terms to s 9 of the Act. But s 9, unlike s 23, imposes a duty on an employer for the health and safety at work of his or her employees. Section 23 cannot, I think, be construed as imposing a duty limited to a duty to employees.
- Paragraph (a) of s 23 appears on its face to be a provision penalizing principal contractors who fail to ensure, except where practicable, that those whom he or she engages and that person's employees comply with or do not contravene the provisions of the Act. In other words it is a provision making a principal contractor vicariously liable for a failure to comply with, or a contravention of, provisions of the Act by another; it imposes liability for breaches of others but does not impose any new primary obligations.
- For different reasons therefore neither of these provisions, in my opinion, confers a private right of action. Paragraph (a) does not because it is not a provision which on its face imposes any primary liability but imposes a secondary vicarious liability for the acts or omissions of another. And para (c) does not because, though it confers a primary liability, it is one which cannot be said to be for the benefit of any specific class. For those reasons, in my opinion the learned primary judge erred in concluding that, by s 23(a) and s 23(c) the legislature intended to add an action for breach of statutory duty to the common law duty of care for the safety of employees.
Whether her Honour erred in permitting the amendments
- It was not disputed by the respondent that, by failing to plead negligence in his statement of claim and by failing to seek damages in that statement of claim for negligence he abandoned that claim. Nor was it disputed that the application for leave to amend to plead negligence was made after the end of the relevant limitation period. However the learned primary judge concluded that it was appropriate to permit the amendment and that the new cause of action arose out of the same facts or substantially the same facts as the cause of action for which relief had already been claimed in the proceedings.[7]
- Mr Clifford QC for the appellant quite properly conceded that the factual basis of the proposed negligence claim is very much the same as the claim which had already been made in the statement of claim. But he submitted that the breaches of the duty of care which were alleged in the proposed amended statement of claim were different and that the appellant would now be required to investigate, for the first time, whether those breaches occurred in 1993. In the meantime, memories no doubt have faded and, as was pointed out to her Honour, year diaries for the relevant period had since disappeared. Yet understandably he could not point to any evidence which would have been relevant to the negligence action which was not also relevant to the one based on breach of statutory duty.
- The respondent's case was always and remains, a very simple one; he stepped on a roof batten which broke and he fell. It may well be that his cause of action does not look promising but, on the other hand, it is difficult to see how the appellant have been prejudiced by the delay.
- Mr Clifford acknowledged the difficulty of an appeal against an exercise of discretion by a primary judge on a matter of practice and procedure. However he submitted that, in saying that there was no reason not to exercise her discretion in favour of allowing the amendments which she allowed, she reversed the onus. I do not think that is correct. Her Honour was saying no more than that, in her opinion, it was an appropriate case in which to give leave to make the amendments which she allowed.
- In my opinion no error was shown in her Honour's reasoning in this respect. It follows, in my opinion, that the appeal against her Honour's orders permitting amendments to the statement of claim must be dismissed. But it also follows from my earlier reasoning that those parts of the statement of claim which allege breaches of statutory duty should be struck out.
- It would be possible to mould an order striking out those parts of the existing amended statement of claim which plead breach of statutory duty. But that would involve striking out parts of paragraphs and sentences. A more sensible course, in my opinion would be to invite the parties to agree upon the form of an amended statement of claim which gives effect to these reasons. I would then order that the statement of claim be amended in accordance with that document and otherwise dismiss the appeal. I would make no order with respect to the costs of the appeal.
- AMBROSE J: I agree.
Footnotes
[1] [1989] 1 QdR 114.
[2] Those Acts have now been replaced by the WorkCover Queensland Act 1996 which establishes a compensation scheme for workers injured in their employment and encourages improved health and safety performance by employers (s 54).
[3] [2000] QCA 18, [23].
[4] [2000] QCA 17.
[5] Australian Iron & Steel Ltd v Ryan (1956-57) 97 CLR 89, 98.
[6][2000] 2 QdR 23.
[7]Rule 376(4) of the Uniform Civil Procedure Rules 1999.