Pukeroa v Berkeley Challenge Pty Limited
[2004] QDC 359
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- Unreported Judgment
- Appeal Determined (QCA)
- Pukeroa v Berkeley Challenge Pty Limited[2004] QDC 359
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Pukeroa v Berkeley Challenge Pty Limited[2004] QDC 359
Pukeroa v Berkeley Challenge Pty Limited[2004] QDC 359
DISTRICT COURT OF QUEENSLAND
CITATION: | Pukeroa v Berkeley Challenge Pty Limited [2004] QDC 359 |
PARTIES: | SHIREEN IRIS MARY PUKEROA (Plaintiff) And BERKELEY CHALLENGE PTY LIMITED(Defendant) And LEND LEASE PROPERTY MANAGEMENT (AUSTRALIA) PTY LTD (ACN 002 894 153) (First Third Party) And BRAMBLES AUSTRALIA LIMITED (ACN 000 164 938) (Second Third Party) |
FILE NO/S: | 148 of 2004 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 24 September 2004 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 6 August 2004 |
JUDGE: | Judge J.M. Robertson |
ORDER: |
|
CATCHWORDS: | Application to join third parties as defendants – first defendant is employer – where plaintiff has complied fully with pre-trial procedures of Workcover Queensland Act 1996 – where third parties are sued as occupier and supplier of allegedly defective equipment – whether plaintiff has to comply with Personal Injuries Proceedings Act 2002 before joining third parties as defendants. Cases cited: Inglis & Anor v Suncorp Metway Insurance Limited [2003] QDC 029 Devlin v South Molle Island Resort [2000] QSC 20 Legislation: Workcover Queensland Act 1996, s. 34 Workers Compensation Rehabilitation Act 2003, s. 32 Personal Injuries Proceedings Act 2002, s. 6(2)(b) |
COUNSEL: | Mr Grant-Taylor (for the plaintiff) Mr P Hastie (for the third parties) |
SOLICITORS: | Schultz Toomey O'Brien Lawyers (for the plaintiff) Moray & Agnew Solicitors (for the first third party) Blake Dawson Waldron Lawyers (for the second third party) |
- [1]The plaintiff commenced proceedings against her employer Berkley Challenge Pty Ltd on 28 April 2004. She alleges that on 6 August 2002 at about 9am she was employed as a cleaner and working at the Sunshine Plaza. As she walked through an area described as dock 7, near some industrial bins she slipped and fell and was injured. She alleges that her employer was negligent.
- [2]Berkley filed its defence on 12 May 2004, and at the same time joined Land Lease Property Management (Australia) Pty Ltd and Brambles Australia Limited as Third parties. The pleadings disclose that Lend Lease was the occupier of the Sunshine Plaza and that Brambles as Cleanaway supplied the industrial bins to Lend Lease.
- [3]On 22 July 2004 the plaintiff applied to this Court to join the third parties as defendants. At the hearing, Mr Grant-Taylor read and filed an affidavit of Mr Schultz, the plaintiff’s solicitor, to which is annexed copies of the proposed amended claim and statement of claim. In that pleading, the plaintiff maintains its particulars of negligence against Berkley and claims against Lend Lease and Brambles on the basis of negligence and/or (in the case of Brambles) breach of duty.
- [4]The plaintiff has in all respects, complied with the pre-claim procedures as required by the Workcover Queensland Act 1996. The plaintiff maintains that its proposed claim against Lend Lease and Brambles is not subject to the provisions of the Person Injuries Proceedings Act 2002 (“the PIPA”). The plaintiff relies on s. 6(2)(b) of the PIPA, s. 6 (relevantly) is in these terms
“(1) This Act applies in relation to all personal injury arising out of an incident whether happening
before, on or after 18 June 2002.
(2) However, this Act does not apply to:
(a) personal injury as defined under the Motor Accident Insurance Act 1994 and in relation to which that Act applies; or
(b) injury as defined under the Workers’ Compensation and Rehabilitation Act 2003, but only to the extent that an entitlement to seek damages, as defined under that Act, for the injury is regulated by chapter 5 of that Act.”
- [5]As the first part of his argument, Mr Grant-Taylor for the plaintiff relies upon the reasoning of Judge McGill QC in Inglis & Anor v Suncorp Metway Insurance Limited [2003] QDC 029. It is immediately obvious from His Honour’s reasons that he was dealing with a different scenario in that case in that the plaintiff’s claim was filed on 11 October 2001, and related to an injury alleged to have occurred in an incident on 7 April 2000. Another relevant difference is that the plaintiff’s original claim in Inglis was not against an employer and was subject to the restrictions imposed by the Motor Accident Insurance Act 1994. The plaintiff had applied to His Honour pursuant to rule 69(1) of the Uniform Civil Procedure Rules to join two further defendants, and the existing defendant argued that the further parties could not be joined as defendants because the PIPA applied and the requirements of that Act had to be complied with prior to commencing proceedings. His Honour construed s.6(3) as saying that the PIPA did not apply in relation to personal injury suffered by the plaintiff which is the subject of the existing proceeding, and therefore there was no impediment to joining additional defendants in the existing proceeding. Mr Grant-Taylor particularly relies on His Honour’s reasons at paragraph 20 on page 5 viz:
“The Act is not made inapplicable to the proceeding but made inapplicable to the injury…”
- [6]In his written submission, he left out the remainder of what His Honour said in that passage, namely:
“… provided that there is an injury in relation to which a proceeding was started in a Court before June 2002.”
- [7]That was the case in Inglis, but in this case, the proceeding was started on 28 April 2004. It follows that Inglis is distinguishable and does not assist the plaintiff in this case.
- [8]The second string to his bow refers to a proper construction of s. 6 (2)(b). If the “injury” is one “as defined under the Workcover Queensland Act 1996”, then the PIPA does not apply, irrespective of when proceedings were commenced. The Workcover Queensland Act 1996 is now the Workers Compensation Rehabilitation Act 2003 and “injury” is defined in s. 32 which is in the same terms as s. 34 of the Workcover Queensland Act 1996.
- [9]The term is defined, relevantly as follows:
“32. Meaning of Injury
(1) An “injury” is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury…”
- [10]In Devlin v South Molle Island Resort [2000] QSC 20, Phillipides J considered in a quite different context the application of PIPA to injuries as defined in the Workcover Queensland Act 1996. At paragraph 22 after referring to the definition of “injury”, Her Honour said:
“Given that definition of injury, and its context in the 1996 Act, which is concerned with claims against employees, s. 6(2)(b) of the PIPA, can only be construed as excluding, from the ambit of the PIPA, injury claims under the 1996 Act against employers, that is injury claims to which the 1996 Act applies.”
- [11]Mr Hastie for the proposed defendants submits that the claim by the plaintiff is that she did not receive a personal injury arising out of or in the course of employment, but that she received a personal injury arising from the occupation by Lend Lease of the premises, or the supply by Brambles of the industrial bins to those premises. Mr Grant-Taylor did not really address this issue in his written submissions. At paragraph 111 he makes reference to an observation of Judge McGill QC in Inglis at page 7 which refers to s. 6(3)(a) and not s. 6(2) as Mr Grant-Taylor suggests.
- [12]As a matter of construction, the words in s. 34 are to be given their ordinary meaning. An “injury” as defined in the Workcover Queensland Act 1996 “is a personal injury arising out of, or in the course of, employment, if the employment is a significant contributing factor to the injury”.
- [13]Giving those words their ordinary meaning, in this case, the plaintiff would not have sustained an injury had she not been engaged in her employment, so it clearly occurred in the course of the employment. As to the other limiting factor the question is whether the employment is “a significant contributing factor” to the injury. I do not think that the proposed defendants’ argument requires me to determine at this stage the degree to which the defendant and/or themselves may be responsible (by reason of negligence) for the injury.
- [14]I repeat that the plaintiff’s case is that she would not have been injured had she not been at work going about her duties. In that sense, the employment is a significant contributing factor to the injury.
- [15]In my view, the ordinary meaning construction of s. 32(1) which I favour does not fly in the face of the various purposes of the PIPA and Workers Compensation Rehabilitation Act 2003.
- [16]In a general sense, it was clearly contemplated by the legislature, that all injuries other than those arising out of motor vehicle accidents and employment, should be covered by the PIPA. The legislature has otherwise not seen fit to make clear provision for injuries that may arise out of a combination of any of these categories. In Devlin, the respondent unsuccessfully argued that the object of the PIPA was to ensure that as far as injuries covered by the Workcover Queensland Act 1996 are concerned that Act should be regarded as the sole avenue for personal injury claims, irrespective of who, on the plaintiff’s case may be concurrently liable for the injury. Phillipides J rejected that argument noting that such a change would involve “an important modification of the rights of an employee”, and there was nothing to suggest that in the PIPA, whether by express words or necessary implication.
- [17]In this case, the plaintiff has fully complied with the pre-trial procedures required by the Workcover Queensland Act 1996 and, although not relevant to my decision, the proposed defendants have been involved in those processes at the request of Workcover. The circumstances that arise here are not typical i.e. where an employee seeks to join in a claim against an employer other tortfeasors who may ultimately to some extent be found to be jointly responsible for the plaintiff’s injury.
- [18]The construction of s. 32(1) I favour does not detract from the submission made by Mr Hastie that in determining whether the PIPA applies, one looks at the nature of the claim. Given that he agrees that for the purposes of this application there is no need for me to make any preliminary estimate of the contribution of each of the alleged tortfeasors to the plaintiff’s injury; I think that what is required is that I look at the plaintiff’s claim in total not, as he suggests, as if there were separate distinct claims made against the third parties. With that in mind I am satisfied that her claim, is one covered by the Workcover Queensland Act 1996 and she does not have to comply with the requirements of the PIPA before joining the third parties as defendants.
- [19]The Plaintiff is entitled to have the orders sought in paragraphs 1 and 2 of the application filed on 22 July 2004 and I invite the parties to submit consent direction orders as to the progress of the litigation, and to make further submissions on costs.