Ridley Agriproducts Pty Ltd v CMAS Consulting Pty Ltd
[2003] QDC 284
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- Unreported Judgment
- Ridley Agriproducts Pty Ltd v CMAS Consulting Pty Ltd[2003] QDC 284
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Ridley Agriproducts Pty Ltd v CMAS Consulting Pty Ltd[2003] QDC 284
Ridley Agriproducts Pty Ltd v CMAS Consulting Pty Ltd[2003] QDC 284
DISTRICT COURT OF QUEENSLAND
CITATION: | Ridley Agriproducts Pty Ltd v CMAS Consulting Pty Ltd [2003] QDC 284 |
PARTIES: | RIDLEY AGRIPRODUCTS PTY LTD (ACN 006 544 145) Applicant v CMAS CONSULTING PTY LTD (ACN 010 643 802) Respondent |
FILE NO/S: | 1092 of 2003 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 14 August 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 April 2003 |
JUDGE: | Shanahan DCJ |
ORDER: | The applicant is granted leave to join the respondent as a contributor to the claim made by Edgar Balbarais, the claimant |
CATCHWORDS: | PERSONAL INJURY – where claimant suffered an aggravation of a psychiatric injury in the course of his employment APPLICATION TO JOIN CONTRIBUTOR – s 16(2) Personal Injuries Proceeding Act 2002 (Qld) – where claimant employed by the respondent, a labour hire agency – where claimant working on the premises of the applicant pursuant to a labour hire agreement – where allegation that the respondent breached implied conditions of the labour hire agreement by failing to provide labourers suitable to the position and failing to inform the applicant of the claimant’s employment and medical history INTERACTION BETWEEN PERSONAL INJURIES PROCEEDING ACT 2002 AND WOKCOVER QUEENSLAND ACT 1996 – where WorkCover purported to provide indemnity to the respondent – whether claim for contribution under the Personal Injuries Proceeding Act was prohibited by s 253 of the WorkCover Queensland Act 1996 (Qld) – whether claim in respect of breach of implied terms was a claim for damages “for personal injury” – whether s 16 Personal Injuries Proceeding Act is restricted to claims for personal injury – in what circumstances concurrent actions can be maintained DELAY IN GIVING WRITTEN NOTICE TO THE RESPONDENT – whether there was an adequate explanation – whether any prejudice was suffered Cases cited – Cottee v Franklins Self Serve Pty Ltd [1997] 1 Qd R 469, cited Devlin v South Molle Island Resort [2003] QSC 020, followed Oxley County Council v MacDonald & Ors [1999] NSWCA 126 (2 July 1999), cited Statutes cited – Personal Injuries Proceeding Act 2002 (Qld) – ss 6, 9 and 16 WorkCover Queensland Act 1996 (Qld) – ss 253, 280(2)(b), 293 and 305 |
COUNSEL: | Mr K Holyoak for the applicant Mr S A McLeod for the respondent Mr J McDougall for WorkCover Queensland |
SOLICITORS: | Barry & Nilsson for the applicant Bradley & Co for the respondent WorkCover Queensland |
- [1]Pursuant to s 16(2) of the Personal Injuries Proceeding Act 2002 (“the Act”), the applicant seeks an order that leave be granted to join the respondent as a contributor to the notice of claim made by one Edgar Balbarais. The claimant does not oppose the application. The respondent opposes the order sought. WorkCover Queensland, insofar as it indemnifies the respondent, also opposes the application.
The background
- [2]The claimant claims he suffered personal injury while working at the premises of the applicant on or about 20 July 1999. The claimant was employed by the respondent, a labour hire agency, on the day of the incident. It is alleged that the claimant was working at the premises of the applicant pursuant to a labour hire agreement between the applicant and the respondent.
- [3]By District Court Claim and Statement of Claim filed 11 July 2002, the claimant alleges that he suffered personal injuries whilst carrying out various duties in the course of his employment. The named defendant to those proceedings is the present applicant. By letter dated 16 August 2002 the claimant’s solicitors forwarded a Notice of Claim to the applicant pursuant to s 9 of the Act. That Statement of Claim (Attachment “A”, Affidavit of W J Lewis) alleged that the applicant was the claimant’s employer and alleged that the claimant suffered injury as a result of the “negligence and/or breach of contract and/or breach of statutory duty” by the applicant. The particulars of that negligence relate primarily to alleged breaches of duties owed to the claimant by the applicant as an employer.
- [4]By letter dated 22 August 2002 the applicant advised the claimant’s solicitors that the District Court proceedings should be referred directly to the respondent. By letter dated 13 November 2002 the applicant advised the claimant’s solicitors that the Notice of Claim had been referred to their insurer WorkCover Queensland.
- [5]The claimant also delivered a Notice of Claim pursuant to the WorkCover Queensland Act 1996 (“the WorkCover Act”) and was granted leave pursuant to s 305 of that Act to commence proceedings against the respondent. By letter dated 7 October 2002 the claimant delivered to the respondent a Notice of Claim for Damages under s 280(2)(b) of the WorkCover Act. The WorkCover claim is currently awaiting completion of the s 293 conference pursuant to the WorkCover Act.
- [6]As noted above, the claimant was working at the premises of the applicant pursuant to a labour hire agreement between the applicant and the respondent. The injuries which the claimant allegedly suffered include an aggravation of a psychiatric injury. That is said to be a significant disabling condition in the notice given to the applicant under s 9 of the Act. It is alleged that it was an implied term of the labour hire agreement that the labourers provided by the respondent would be suitable for the position and have a sound employment record. It emerged from investigations conducted by WorkCover on behalf of the respondent that the claimant had a previous psychiatric history being under medical care and taking daily medication for a psychotic condition subsequent to an incident when working for a former employer in 1997.
- [7]WorkCover has, through its Tribunals and assessments, held that the psychiatric condition is not an “injury” within the meaning of the WorkCover Act. The claimant has been unable to pursue this aspect of his claim against WorkCover. The claim is however pursued against the applicant.
- [8]On or about 14 February 2003, the applicant forwarded a draft contribution notice to the respondent under the Act. The applicant seeks to have the respondent joined as a contributor pursuant to s 16 of the Act, alleging the breach of an implied term of the contract by failing to provide labourers suitable to the position and failing to inform the applicant of the claimant’s employment history and medical history.
- [9]By letter dated 17 February 2003, WorkCover advised the applicant that it was indemnifying the respondent with respect to this matter. The respondent was the “employer” of the claimant as defined under the WorkCover Act. It advised that the WorkCover Act regulated the claim against the respondent and that consequently the respondent had no obligation to respond to the contribution notice.
- [10]On or about 25 February 2003, the claimant’s solicitors agreed to allow the applicant to attend a s 293 conference held pursuant to the WorkCover Act. The conference did not proceed as the claimant failed to attend.
- [11]The applicant has now applied to add the respondent as a contributor pursuant to s 16 of the Act.
The Personal Injuries Proceedings Act 2002
- [12]Section 16 of the Act provides,
- (1)A respondent who receives a complying notice of claim may, within the time prescribed under a regulation, add someone else as a contributor for the purposes of this part by giving the person a written notice (‘Contribution Notice’) –
- (a)claiming an indemnity from, or contribution towards, the respondent’s liability; and
- (b)stating the grounds on which the respondent holds the person liable; and
- (c)stating any other information that may be prescribed under a regulation; and
- (d)accompanied by copies of documents about the claim given to or received from any other party under this Act.
- (2)If the time prescribed under subsection (1) for adding a contributor has ended, a respondent may add someone else as a contributor only with the person’s agreement and the agreement of the parties or with the court’s leave.”
- [13]As yet no regulation prescribing a time period has been made. As noted above the respondent does not agree to being added as a contributor and the court’s leave is sought pursuant to s 16(2). A point may well arise as to whether the court’s leave is required in the situation where no time period has yet been prescribed in relation to s 16(1). This point has not been taken on the application.
The applicant’s argument
- [14]The applicant has argued that the claim for contribution is a claim based on an implied term in the contract between the applicant and the respondent. It is argued that there could be little doubt that such an implied term would exist where labour is hired just as it is where chattels are hired (Cottee v Franklins Self Serve Pty Ltd [1997] 1 Qd R 469) or that work would be conducted in a safe and proper manner (Oxley County Council v MacDonald & Ors [1999] NSWCA 126 (2 July 1999)).
- [15]It is argued that the claim for contribution is not one prohibited by s 253 of the WorkCover Act because it is not a claim for damages “for personal injury” but a claim for damages for breach of contract, the nature of the damages being the economic loss to which the applicant has been exposed. The claim for damages for breach of contract for economic loss is not a claim based on or derived from any rights which the claimant has against the employer so as to be caught by the WorkCover Act.
- [16]Section 16 of the Personal Injuries Proceedings Act 2002 (“PIPA”) allows for the adding of a contributor, and it is argued that the grounds of liability of a contributor are not restricted to claims for personal injury. All that must be stated are the grounds on which the proposed contributor is said to be liable. The restrictions on the application of the Act contained in s 6 do not apply to proposed contributors. The restriction contained in s 6(2)(b) of the Act that the Act does not apply to an injury defined under the WorkCover Act, is argued not to be relevant to the proposed addition of a contributor pursuant to s 16.
- [17]It is argued that neither the WorkCover Act nor the PIPA abolishes concurrent rights in a claimant arising outside of either Act (Devlin v South Molle Island Resort [2003] QSC 020). Such a claimant can sue concurrent liable entities and is not precluded by the legislation from that course where one of the entities is the claimant’s employer.
- [18]It is further submitted that the delay in issuing the contributor notice is adequately explained by affidavit material (W J Lewis and P M Murdoch) as to the confusion engendered by the two separate actions commenced by the claimant and that once the applicant’s public liability insurer became aware of the PIPA notice and completed its investigations, notice was promptly given to the respondent. It was further submitted that the respondent suffers no prejudice as a result of the joinder as a contributor. The multiplicity of proceedings is a consequence of the different legislative schemes. In any event, the respondent could have been joined as a third party to any common law proceedings which could have been pursued against the applicant by the claimant in the absence of the PIPA.
The respondent’s arguments
- [19]It was argued that s 4 PIPA sets out the main purposes of that Act. One of those purposes is to provide a procedure for the speedy resolution of claims for damages for personal injury to which the Act applies. Section 6 of the Act provides that the Act applies in relation to all personal injury arising out of an incident happening before, on or after 18 June 2002. Section 6(2)(b) provides that the Act does not apply to injury as defined under the WorkCover Act.
- [20]It was thus submitted that the Act does not apply to an injury defined under the WorkCover Act. The claim by the claimant was clearly an injury as defined under the WorkCover Act. The respondent was the employer of the claimant. It is submitted that the PIPA has no application to the claim.
- [21]It was argued that the applicant fell into error by maintaining that the PIPA proceedings should apply to the claim against it and by responding to the Notice of Claim. If the application was to be allowed, the respondent would need to partake in two separate pre-court schemes and would be exposed to extra costs in pursuing its obligations. The appropriate scheme to be followed here should be the WorkCover proceedings. The claimant has commenced a procedure under PIPA which he should not have, and, it was submitted, to join the respondent as a contributor would be to perpetuate the error.
WorkCover’s position
- [22]It was submitted that the claim for contribution against the respondent was not a claim for personal injuries pursuant to PIPA. Section 6(2)(b) of the Act provided that the Act did not apply to injuries as defined under the WorkCover Act. The claim for damages by the claimant against the respondent must be a claim for damages pursuant to the WorkCover Act. It is thus excluded from the application of PIPA. The applicant’s claim against the respondent was not a claim under the provisions of the WorkCover Act and could only be a claim for economic loss for breach of contract to which PIPA does not apply.
- [23]It was argued that Devlin v South Molle Island Resort (above) could be distinguished as that matter was dealing with an application by a claimant and that the claim under the WorkCover Act and the claim under PIPA were both claims for personal injury.
- [24]It is thus submitted that the application should be dismissed.
The claimant’s action
- [25]In my view the crucial question here is whether the claimant could properly bring an action against the applicant under PIPA. It is clear that neither the WorkCover Act nor the PIPA prohibit a claimant suing concurrent liable parties (Devlin v South Molle Island Resort (above)). As Philippides J noted,
- “[25]Section 253(3) of the 1996 Act abolishes any entitlement of a person not mentioned in s 253(1) to seek damages for an injury sustained by a worker. The present applicant is a person mentioned in s 253(1) of the 1996 Act. It is accepted that he is a ‘worker’ within the meaning of that term as defined in the 1996 Act. He has been issued with the relevant notice of assessment. Section 253(3) does not concern such a person’s rights and does not abolish such a person’s concurrent rights.
- [26]Further, to accept the respondent’s contentions would result in injustices which it cannot be accepted the legislature intended. It would mean that an employee would only have recourse against concurrent tortfeasors where it had been determined that there was no civil liability in an employer. However, it is not difficult to envisage that in many cases an employee could well be placed in a situation where, by the time of the determination of the employer’s liability, any action against a concurrent tortfeasor had become time barred. Consequently, if the respondent’s submissions were accepted, an employee might well be left with no ability to pursue another tortfeasor. Furthermore, the respondent’s contentions have the illogical consequence, as pointed out by the applicant, that while an applicant could not pursue concurrent tortfeasors, such persons could still be indirectly involved through contribution proceedings at the instigation of the respondent.”
- [26]Such concurrent liability is usually founded on alternative bases such as occupier’s liability. In Devlin’s case the applicant was seeking a declaration that the PIPA applied in respect of an injury suffered by him alleged to have been caused by the respondent’s negligence. The applicant in that case sought to pursue a claim against his employer under the 1996 Act and a claim against the respondent under PIPA. The facts were that the applicant was acting as the skipper/engineer of a vessel which travelled to South Molle Island for the purpose of loading baggage. While the vessel was docked there, an employee of the respondent threw a bag onto the deck of the vessel striking the applicant and thereby causing injury. Philippides J held that s 6(2)(b) PIPA did not have the effect of excluding the applicant’s claim against the respondent from the ambit of PIPA and made the declaration sought.
- [27]That decision cannot be distinguished on the basis of the argument raised by WorkCover that the claims by the claimant in that case were both claims for personal injury and that the contribution here sought is for an alleged breach of contract. Here the claims by the claimant are both claims for personal injury. One is against the respondent, his employer, pursuant to the WorkCover Act. One is against the applicant sought to be brought pursuant to the PIPA. While it is clear that such a concurrent action is not abolished by the 1996 Act, as noted above, the basis of liability is usually on some other basis (such as occupier’s liability) rather than on the breach of duty owed by an employer to an employee. In Devlin’s case it was based on the negligent act of a third person. Here, as noted in paragraph [5], the claim against the applicant relates primarily to alleged breaches of duties owed to the claimant by the applicant as an employer and, to a lesser extent, on other bases. On the basis of Devlin v South Molle Island Resort, such an action can be brought pursuant to PIPA. Once Notice under that Act had been given to the applicant in this case, the procedures pursuant to PIPA commenced. The applicant was then entitled to apply for leave to add a contributor pursuant to s 16 of the Act. In any event, if the action brought by the claimant against the respondent was excluded from the operation of the PIPA by s 6(2)(b), the action would still lie independent of that scheme and the applicant could issue third party proceedings against the respondent.
- [28]The fact that the ground of liability sought to be established against the respondent as a contributor is in relation to a breach of contract is, in my view, irrelevant to the right of the applicant to add a contributor under the PIPA scheme. That adding such a contributor is permissible (and desirable) can be seen in the cases mentioned above in paragraph [14]. Section 16 of the Act does not confine the ability to add, or seek leave to add, a contributor to circumstances where the grounds on which the proposed contributor is said to be liable must be in relation to a claim for personal injury. The primary action under PIPA must relate to personal injury. However, in my view, s 16 of the Act does not confine potential contributors to only those against whom a claim in relation to personal injury can be made. If the legislature wished to so limit contributors it should have said so explicitly. In any event, such a limitation would have been against some of the purposes of the Act aimed at the speedy resolution of claims and minimising costs (s 6(2)(a) and (e)). If a contributor, who would otherwise be relevant to a full resolution of the matter, could not be added, the consequence would be a separate action between the alleged contributors at a different time. Such a consequence is obviously not desirable. Such issues should all be resolved at the one trial.
- [29]In any event I am of the view that the present applicant should not be disadvantaged by not being able to add a relevant contributor because the claimant has brought concurrent actions one of which is against an employer. The applicant remains liable in the proceedings commenced against it pursuant to PIPA and should be permitted to add a relevant contributor.
- [30]I am also satisfied by the explanation by the applicant as to any delay in giving the written notice to the respondent pursuant to s 16. Any delay was a factor of the appropriate investigations which were conducted. That the respondent will be subject to two separate schemes is a consequence of the legislation. I am not satisfied that any prejudice to the respondent would justify refusing the application. In any event, the respondent will benefit from the procedures of disclosure, tight timeframes and compulsory conference pursuant to the PIPA regime.
- [31]The application for leave is allowed.
Order
- [32]The applicant is granted leave to join the respondent as a contributor to the claim made by Edgar Balbarais, the claimant. I will hear the parties as to costs.