Kingsley v Williams[1999] QDC 253

[Before Dodds DCJ]

[Jennifer Kingsley v. Nicole Williams & Ors]

BETWEEN:

JENNIFER KINGSLEYPlaintiff

AND:

NICOLE WILLIAMSFirst Defendant

AND:

FAI GENERAL INSURANCE CO LTDSecond Defendant

AND:

MISTEARL PTY LTDThird Party

Judgment

Judgment delivered: 11 October 1999

Catchwords:

WORKERS' COMPENSATION - employer's indemnity - pl/employee struck by motor vehicle at 3^rd party/employer's service station - 2^nd deft licensed insurer of motor vehicle - issued 3^rd party notice claiming indemnity or contribution - who employer was liable to contribute pursuant to s.6(c) Law Reform Act

IN THE DISTRICT COURT

AT MAROOCHYDORE

QUEENSLAND

Plaint No. 71 of 1999

[Before Dodds DCJ]

[Jennifer Kingsley v. Nicole Williams & Ors]

BETWEEN:

JENNIFER KINGSLEYPlaintiff

AND:

NICOLE WILLIAMSFirst Defendant

AND:

FAI GENERAL INSURANCE CO LTDSecond Defendant

AND:

MISTEARL PTY LTDThird Party

Reasons for Judgment

This was an application by the third party for the third party notice to be struck out. At all material times the third party was the plaintiff's employer at its service station.

The plaintiff in the course of her employment by the third party at its service station was struck by a reversing motor vehicle driven by the first defendant. The second defendant was the licensed insurer of the motor vehicle. By plaint issued on 5 March 1999 the plaintiff sued the first defendant and the second defendant for damages for personal injury allegedly occasioned by the first defendant's driving of the motor vehicle. On 7 June 1999, the second defendant issued the third party notice claiming indemnity or contribution on the ground that the third party's breach of its duty of care to its employee and/or its breach of statutory duty caused or contributed to the injury causing incident. In doing so it relied upon s.6(c) of the Law Reform Act 1995, which provides that where damage is suffered by any person as a result of a tort, “any Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589 and to what was submitted was a general rule raising an estoppel when a party takes a step which is inconsistent with rights they wish to maintain.

It is sufficient to make two observations; firstly the defendant's material application before Forde DCJ was to separate the plaintiff's action against the defendants and the defendants' action against the third party. There is nothing inherently inconsistent in the third party wishing to have the two actions heard together if it emerged that the defendants had a legal right to claim contribution or indemnity based on section 6(c) of the Law Reform Act 1995 and later bringing an application to test whether the defendants had such legal right. Secondly, Anshun's case involved a claim made on an indemnity agreement between defendants after an action by a worker against both defendants, one of whom was the worker's employer, which resulted in judgment for the worker against both defendants and after contribution proceedings between the defendants as joint tortfeasors had been determined. It was held that there would not be an estoppel where a party failed to raise a defence in earlier proceedings:

If the application presently under consideration were to succeed there would be no material conflict between the order made as a consequence and the order Forde DCJ made. There is no estoppel.

The plaintiff made a claim for workers' compensation for injury done to her in the incident. The claim was for muscle and tissue damage to her lower back caused by the incident. I note her claim in her action against the first and second defendants alleges also a grade one left upper lumber pars fracture and psychological injury. In any event workers' compensation was paid. She was assessed to have a degree of permanent impairment and an amount of lump sum compensation was calculated for that. A notice of assessment was given to her containing an assessment of a five per cent permanent impairment stating that her injury was a non-certificate injury and making an offer of lump sum 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”.

The third party submitted that because of the provisions of the WorkCover Queensland Act 1996 (the Act) restricting a worker's ability to sue their employer and because the plaintiff accepted an amount of lump sum compensation, the third party cannot be regarded as a tortfeasor who would, if sued, have been liable in respect of the damage caused to the plaintiff.

The defendant's submitted otherwise. The defendant's also submitted that the third party is estopped from pursuing the present application by its conduct during an earlier application before Forde DCJ. That was an application by the plaintiff for summary judgment against the second defendant based upon an acceptance of 90 per cent of the liability for the incident by the second defendant in correspondence passing between the plaintiff and second defendant and further or alternatively for an order that the issues between the defendants and the third party be tried separately from the issues between the plaintiff and the defendants.

The solicitor for the third party gave evidence in the application before me. The application before Forde DCJ was filed on 23 July 1999 and heard on 5 August 1999. On 3 August 1999, the solicitor for the third party was contacted and received instructions in the matter from WorkCover. He was not at that time provided with the statutory claim file by WorkCover. That did not reach him until 1 September 1999. On 5 August 1999 before the matter was heard by Forde DCJ, counsel for the defendants raised with him cases dealing with the issue whether the employer could be joined as a third party in an action of this kind if the plaintiff had not complied with pre-litigation requirements of the workers' compensation legislation. The cases mentioned were Bonser v. Melnacis & Anor (District Court 19/4/99 Dodds DCJ) and Air Services Australia v. Austral Pacific Group Ltd & Anor (1998) 157 ALR 125. Not having a complete knowledge of the file, he indicated that if it emerged there had not been compliance with the pre-litigation requirements of the workers' compensation legislation and there were authorities supporting the proposition that in those circumstances the employer could not be joined as a third party an application would be made to strike out the third party action. Subsequently before Forde DCJ he agreed with the position taken by the defendants resisting the plaintiff's application. At that stage he wished to keep everything in one action rather than in two believing it would be simpler to deal with. Forde DCJ refused both applications. This had the effect that the plaintiff's action against the defendant and the defendant's action against the third party would be heard together unless subsequent events wrought a change.

The defendants submitted the matter presently in issue could and should have been raised in the proceeding before Forde DCJ. They referred to Port of compensation. The notice of assessment appears to have been given under and to comply with s.203 of the Act. It is not clear from the material whether s.207 of the Act was also complied with by providing the plaintiff with a copy of the sections of the Act referred to therein. However the plaintiff agreed with the assessment of permanent impairment and elected to accept the offer of lump sum compensation. In accepting the offer she acknowledged she could not seek damages for the injury.

Chapter 5 of the Act is entitled “Access to Damages”. It contains provisions that bear upon a worker's entitlement to sue for damages. Section 253(1) limits the persons who are entitled to seek damages for an injury sustained by a worker. The plaintiff is a person referred to in s.253(1)(a)(ii) and thus a person entitled to sue for damages, because she is a worker who has received a notice of assessment from WorkCover stating that she has sustained a non-certificate injury.

Section 259(2) of the Act provides that if in a notice of assessment received by a worker from WorkCover an offer of payment of lump sum compensation is made for an injury, a worker such as the plaintiff, is not entitled to both payment of lump sum compensation and damages.

Section 207 of the Act applies to a worker who has a non-certificate injury and an entitlement to lump sum compensation the plaintiff. WorkCover is required when giving the worker the notice of assessment to give the worker a copy of various sections of the Act which make clear the potential consequences of refusing an offer of lump sum compensation and instead suing for damages. WorkCover is also required to advise the worker that he or she must make an irrevocable election about whether the worker accepts the offer of payment of lump sum compensation or seeks damages for the injury. This decision is binding except in the circumstances provided for in Division 7 of Part 2 of Chapter 5 of the Act: see sections 273 & 274. In the circumstances there provided for, the worker may seek damages for the injury despite accepting an offer of lump sum compensation.

Bonser v. Melnacis & Anor involved an application by the defendants to an action by a plaintiff for personal injury alleged to have been caused when he was struck by a motor vehicle driven by the first defendant, for leave to issue a third party notice to the plaintiff's employer. The matter was argued on the basis that the plaintiff worker did not come within any of the categories of persons set out in s.253(1). For that reason the employers civil liability was held to be non-existent or abolished and it was thus not another tortfeasor “who is or would if sued have been liable in respect of the damage to the plaintiff. In coming to that view reference was made to the decision of the Court of Appeal in Air Services Australia v. Austral Pacific Group Ltd (1998) 157 ALR 125 and Short v. Michaliczac & Galaxy Investment Pty Ltd (unreported McMurdo DCJ (as she then was) District Court Brisbane 3/4/98) and Commonwealth of Australia v. Flaviano (1996) 40 NSWLR 199.

In the present case the plaintiff is a person referred to in s.253 (1). Once she received a notice of assessment stating that she had sustained a non-certificate injury she became a person entitled to seek damages for injury sustained by her as a worker. By subsequently accepting an offer of lump sum compensation the plaintiff disentitled herself from suing for damages. Such a disentitlement is not necessarily final. If ss.273 & 274 of the Act applies, a worker who has accepted an amount of lump sum compensation may sue for damages.

Section 6(c) empowers a tortfeasor to recover contribution from any other tortfeasor who is liable or who would if sued have been liable for the damage suffered by the plaintiff (my emphasis). The third party, the plaintiff's employer, is plainly a potential tortfeasor who would if sued have been liable for the damage to the plaintiff. It does not seem to me to be to the point that the plaintiff chose not to sue the third party by accepting an amount of lump sum compensation.

It is pertinent to note that s.278 of the Act which provides for WorkCover to have a charge on damages to the extent of workers' compensation already paid contains an enlarged definition of damages such that a charge will attach whether the damages were payable by the employer or some other person.

The application is dismissed. I order the third party pay the first and second defendant's costs of the application, such costs not to be assessed until the conclusion of the action.