Sproull v Boral Bricks (Qld) Limited
[2002] QDC 316
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- Sproull v Boral Bricks (Qld) Limited[2002] QDC 316
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Sproull v Boral Bricks (Qld) Limited[2002] QDC 316
Sproull v Boral Bricks (Qld) Limited[2002] QDC 316
DISTRICT COURT | No D2647 of 2000 |
CIVIL JURISDICTION
JUDGE ROBIN QC
MATTHEW THOMAS SPROULL | Plaintiff |
and
BORAL BRICKS (QLD) LIMITED ACN 009 658 593 | Defendant |
and
No D434 of 2002
MATTHEW THOMAS SPROULL | Applicant |
And
WORKCOVER QUEENSLAND | Respondent |
BRISBANE
DATE 30/10/2002
CATCHWORDS:
UCPR rule 69 - Application for joinder of WorkCover as defendant - plaintiff employed in the same brickworks for 30 years from 1969, but with identity of employer changing - successive “Brittains” companies replaced in 1979 by Boral companies - assertion of general work practices prior to 1979 leading to claim against Boral Bricks Qld Limited or variant of it - Brittains companies no longer registered - plaintiff, now accepting no claim existed against defendant, wished to establish that WorkCover was the proper defendant - plaintiff hoping to use current proceedings to alleviate limitations difficulties - plaintiff not to be placed in any better position than if commenced against WorkCover on same date as current claim - s 80 Supreme Court of Queensland Act condition added - liability of WorkCover under s 601AG Corporations Law an issue in the action, but not decided on current application.
UCPR rule 171 - application by defendant to strike out plaintiff's proceedings for failure to show reasonable cause of action - limitation period not running due to pre-litigation procedures - application conceded by plaintiff-plaintiff's statement of claim struck out with leave given to replead against WorkCover.
HIS HONOUR: The history of this complicated pair of applications goes back to 5th November last year when the defendant Boral Bricks (Queensland) Limited filed an application seeking that the plaintiff's proceedings be struck out for failing to reveal a reasonable cause of action pursuant to rule 171 of the UCPR, alternatively, for a judgment for the defendant under rule 293.
Discussions have taken place between the parties over the months which haven't resolved the matter. The application is now before the Court and also a separate originating application by the plaintiff Matthew Thomas Sproull which in form seeks leave of the Court under section 601AG of the Corporations Act 2001 for an order that the applicant have leave to institute proceedings against WorkCover Queensland for damages for personal injuries caused by negligence and/or breach of contract of employment and of statutory duty of Brittains Brickworks Pty Ltd and Brittains Bricks and Pipes Limited between 19th December 1966 and 30th June 1979.
There are always questions whether the District Court has jurisdiction under Corporations legislation but, in fact, the application by Mr Sproull is one under rule 69 of the UCPR for joinder of WorkCover as a defendant in the action. Perusal of the claim and statement of claim leaves the impression that the litigation is somewhat courageous.
Mr Sproull worked from the 19th December 1966 when he apparently abandoned his trade as a brick maker at a brickworks at Harcourt Street, Darra, but for a succession of employers. After the 30th June 1979, the employer was, it seems, one or other emanation of the Boral group.
The statement of claim, speaking generally, tells a story of Mr Sproull engaged in an unskilled capacity doing work which required bending, twisting and lifting heavy bricks with the consequence that he was left with a very bad back. I understand that there was a particular incident in the employment in about April 1999 which led to Mr Sproull's having time off work through injury and then returning on light duties, but unsuccessfully.
That incident, I am told, is likely to lead to proceedings in a Court and I am further told that the limitation period is not running because of things that have happened in the new compulsory prelitigation procedures. Failure to comply with those has led Mr Sproull and his legal advisers to accept that no claim can be brought in a Court in respect of matters arising from the mid-1990s.
So far as the present defendant is concerned, it is now conceded on behalf of Mr Sproull that there is no cause of action. My understanding, which may not be perfect, is that this is to do with the defendant's not bearing responsibility for the way in which the Brittains companies conducted activities in relation to employment of Mr Sproull.
It may also have to do with Mr Sproull's difficulties in establishing that the system of work instituted by the defendant led to damage to his back or alternatively that it constituted a breach of the employer's various statutory and common law and contractual obligations.
It is appropriate then to accede to the application filed on the 5th November last year, but there is the matter of the order of things: it is convenient, I think, to deal first with the joinder application in respect of WorkCover. What the plaintiff hopes to achieve is ability to use the existing proceedings and not to have to start new ones and perhaps, more importantly, some protection against limitations problems.
Mr Holyoak, appearing for both the Boral company and WorkCover, has properly advocated unless any outcome today that deprives WorkCover (which will assume and, at least, for the foreseeable future, retain the role of defendant) of limitations arguments.
The Court has no intention of placing Mr Sproull in any more favourable position than if he had proceeded against WorkCover on the 29th June 2000 when he proceeded against the company. I think it is open to the Court under section 80 of the Supreme Court Act of 1991 to write a condition into its order to clarify and give effect to its limited intention.
I think there is a philosophy of allowing proper indulgences to employees who through no fault of their own are left in uncertainty or confusion as to who is the employer who ought to be sued in respect of work injuries.
An incidence of this is Greguric v Department of Works, Queensland (1988) 2 QdR 545. I think Mr Sproull ought to receive a similar, and in this case, I acknowledge it is a greater, indulgence. I think it is consistent with the interests of justice to excuse him from suffering fatal consequences because of the misjudgment which led to Boral Brick Queensland Limited being sued.
I think he ought to have the opportunity of proceeding instead against WorkCover Queensland. It has been assumed today that it is the proper successor of whatever similar entity ought to have been proceeded against. It has to be made perfectly clear that there are difficulties in determining that WorkCover truly comes under the liability sought to be sheeted home to it under section 601AG, which is the current version of a provision permitting direct recourse against an insurer where the true employer ceases to exist as a registered company or corporation.
In Pagnon v WorkCover Queensland (2001) 2 Queensland Reports 492, McPherson JA at page 499, paragraph 16 expressed the view that for what might be called technical reasons WorkCover, having regard to relevant statutory arrangements, was not in the situation of an ordinary insurer. Thomas JA agreed with his Honour's reasons.
Part of the last eleven months has been devoted to investigations by Mr Sproull's solicitor into what happened in respect of the two Brittains companies. At this stage the information available seems incomplete and I am not sure whether it can be improved. At all events, I am not prepared today on the state of the material before the Court to express a conclusion as to whether or not WorkCover is under any liability to the plaintiff, assuming he could establish one against either of the Brittains employers or both. Whether he can do that indeed seems to me problematic. As well that involves questions for another day.
The limitations issues that are lurking here which led Mr Holyoak to place reliance on Kinzett v McCourt (1999) 46 New South Wales Law Reports 32 are, I think, not in the picture for the moment, although perhaps it may be anticipated that WorkCover will raise limitations points. It may be Mr Sproull seeks to meet them on the basis that his cause of action didn't become complete until some time after the 1999 accident, when he may have received information or alternatively suffered consequences flowing from events 20 years or more before.
Rule 69(2)(g) gives the Court a wide discretion in this matter which I think the interests of justice point to my exercising favourably to the defendant. So, the Court will order that WorkCover Queensland Limited be added as a defendant in the action and on the condition that it is free to raise all limitations points that would have been open on the basis that proceedings against it were not commenced in the Court until 29th of June 2000.
The plaintiff's statement of claim against the original defendant will be struck out and the plaintiff given leave to replead against the new defendant only.
...
HIS HONOUR: Well, I will not give judgment then. I will just order that the statement of claim against Boral Bricks Queensland Limited be struck out and that the plaintiff pay its costs of the application and action to be taxed. In the other application, I will order that costs be costs in the cause.