Karalis v Curtis
[1995] QDC 100
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- Karalis v Curtis[1995] QDC 100
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Karalis v Curtis[1995] QDC 100
Karalis v Curtis[1995] QDC 100
DISTRICT COURT | No 2499 of 1993 |
CIVIL JURISDICTION
JUDGE BOULTON
JOHN KARALIS | Plaintiff |
and
RONALD KEITH CURTIS | Defendant |
BRISBANE
DATE 10/03/95
JUDGMENT
HIS HONOUR: The plaintiff was employed by milk vendors, Ronald Keith Curtis and Elma Blanch Curtis trading under the firm name “R K & E B Curtis”. On 24 September he was delivering milk when the milk truck, owned by Carl Cahill Pty Ltd, which was being used with the owner's permission by the defendants rolled backwards injuring the plaintiff.
The defendants, Ronald Keith Curtis and Elma Blanch Curtis, have joined FAI General Insurance Company as a third party. The third party contends that it is not liable to indemnify the defendants.
The third party, with the concurrence of the defendants, has brought an application on agreed facts to resolve the legal issue affecting the third party by special case.
This is a novel course in the District Court. However, there is provision under order 64 rules 1B and 1BB of the Rules of the Supreme Court and pursuant to rule 4(a) of the District Court Rules, there being no corresponding provision in the District Court Rules, that the District Court may have recourse to the Supreme Court Rules. (See F Jimminez v Jay Form Contracting Pty Ltd 1993 1 Queensland Reports 610 at 614 lines 1 to 15).
It seems expedient to resolve the issue and I therefore allowed the application to do so. The device of special case pursuant to order 38 of the Rules of the Supreme Court has been adopted and dispensation sought for compliance with order 38 rules 6, 7 and 9. There being agreement on the ultimate facts that seems a convenient course to follow. The plaintiff was served and was represented on the hearing of the application although no submissions were made on behalf of the plaintiff on the issue of law to be resolved.
The word “employer” used in section 8(1) of the Workers' Compensation Act has been given a wide meaning. This is perhaps unsurprising given the policy of that Act. In Glover v Politanski (1990) 2 Queensland Reports page 41 at 47 the Chief Justice said:
“Applying this definition to the wording of s 8, it can be seen that the defendants' firm was obliged to insure. It is hardly likely that all three entities, that is the firm and each of the two defendants were separately obliged to insure. The very purpose of providing that “employer” shall include firms as well as persons must surely be to provide a simple mechanism whereby a partnership, in response to a single obligation imposed upon it, shall be obliged to take out a single piece of insurance covering the partnership's legal liability in respect of injury to workers employed by it. This view is not in any way impaired by the consideration that under the general law a partnership has no separate existence in the way that a corporation has. This proposition may be stated in terms of the evident policy of the Act: firms as a matter of convenience are to provide themselves with a single insurance which if obtained shall be sufficient compliance.”
There was no obligation on the facts of that case on either or both of the defendants to take out separate insurance under the Workers' Compensations Acts.
On the facts of the present case of course there was no policy of insurance under the Workers' Compensation Acts taken out either by the partnership or by either of the partners. It is contended of course that there was an obligation on them to do so and that not having done so the Workers' Compensation Board will be able to pursue them if it is found ultimately liable.
It is necessary to consider the proviso to section 3(1) of the Motor Vehicles Insurance Act.
“Liability by way of damages referred to in the first paragraph of this subsection does not include the liability of an employer incurred on or after 22 September 1988 to pay damages on account of accidental bodily injury (fatal or non-fatal) caused by, through or in connection with a motor vehicle to his employee (being a worker within the meaning of the Workers' Compensation Act 1916-1988) in circumstances such as would give rise to an entitlement to the payment of compensation under that Act.”
It was pointed out by Fitzgerald President and McPherson Judge of Appeal in Jaye v. Grahame Allen Earthmoving Pty Ltd 1 Queensland Reports page 389 at 390 that:
“The purpose of the amendment was, it may be accepted, to restrict the ambit of the indemnity under the compulsory third party motor vehicle policy by ensuring that it was ‘not extended to matters which are rightly workers’ compensation ... claims'. The quotation, which is from the Minister's speech in support of the amending Bill in State Parliament, was invoked by the respondent to this appeal relying on s 14B(3)(f) and (g) of the Acts Interpretation Act 1954. However, as so often happens with extrinsic aids of this kind, the Ministerial statement is too imprecise to be of much assistance. It does not explain what are ‘rightly’ workers' compensation claims.”
It was held in Jaye at page 391 that:
“Even if the word ‘employer’ in the Workers' Compensation Act is given the extended meaning contended for by the respondent, it affords no warrant for engrafting that extended meaning on to the word “employer” in the final paragraph of s 3(1) of the Motor Vehicles Insurance Act.”
It does not require an extended meaning of the term “employer” to fix the defendants with that description. Pursuant to sections 13 and 15 of the Partnership Act the liability of the partners or tortious acts committed in the ordinary course of business is joint and several. The somewhat unnecessary implication of a co-existing contractual duty of care does not alter this position (cf. Hawkins v Clayton (1987-1988) 164 CLR 539 at page 503).
If the defendants are employers in terms of section 3(1) of the Motor Vehicles Insurance Act and also authorised agents of the owner of the motor vehicle the position is precisely that described in Lorimer v Thatcher (1993) 2 Queensland Reports page 25:
“The phrase ‘liability’ by way of damages referred to in the first paragraph of this subsection in the third paragraph of s 3(1) is a reference to the legal liability by way of damages of the owner or any authorised agent of the owner (or the estate of either) referred to in that first paragraph; that is, it is the legal liability by way of damages of the owner or his authorised agent which in the third paragraph is expressed not to include the liability of an employer to pay damages in circumstances which would give rise to an entitlement to the payment of compensation under the Workers' Compensation Act 1916. The only legal liability of the first kind which would otherwise include liability of the second kind is liability of the owner or authorised agent as an employer, which requires that the owner or authorised agent also be the employer. It must be this that is referred to in the third paragraph of s 3(1).” section 3(1)”
Mr Boccabella for the defendant submits that the employer under section 3(1) is the partnership and that the individual partners are not employers in terms of this section.
Mr Boccabella refers to a number of practical instances. He cites the obligation that rests on a firm to issue group certificates to employees or collect group tax under the Income Tax Assessment Act. Similarly, he points to contracts between firms and employees under the Industrial Relations Act. I might mention that Mr Justice Macrossan said something similar concerning the obligation to ensure required under the Workers' Compensation Act in the passage to which I have referred earlier in these reasons.
Mr Boccabella also refers to a passage in Higgins v Fletcher on partnership, the 6th Edition at page 226:
“In this context, it is most important to bear in mind that the employees of the partnership have contracts with the firm, which entitle them to notice of termination, the extent of which may vary with the status of the employee. In such cases the dissolution of the partnership will constitute an actionable breach of the contract with the employee, unless the requisite contractual notice has been given and has expired before the dissolution.”
For reasons of convenience there are many instances such as the above where actions are required or permitted to be performed by a firm. Perhaps an even better known instance of these is the provision that exists in most Rules of Court enabling a firm to sue and be sued in the firm name. Those however are matters which are provided in the name of convenience.
This does not however affect the fundamental attribute of a partnership the identification of the partners with the firm. No legal distinction can be made between the firm and the partners in their capacity as employers. It follows that the answers to the questions posed in the special case are therefore as to answer (a) no.
In respect of costs, it would seem to me to be fairly obvious that the third party must get its costs against the defendant.
...
HIS HONOUR: The third party is not obliged to indemnify.
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HIS HONOUR: I give judgment then for the third party against the defendant in terms of its counterclaim. I order that the defendant pay the third parties costs of and incidental to the action, including the counterclaim, and of the special case to be taxed.
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HIS HONOUR: I make an order as per draft in respect of the draft handed up.
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HIS HONOUR: I have made reference to order 38 and I say, after referring to order 38, there being agreement on the ultimate facts that seems a convenient course to follow.
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HIS HONOUR: I order in respect of the special case application that the third party pay the plaintiff's costs of and incidental to that application to be taxed. I also order that in respect of such costs the defendant indemnify the third party in the amount of those costs.