Williams v Mount Isa City Council
[2006] QDC 201
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- Unreported Judgment
- Williams v Mount Isa City Council[2006] QDC 201
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Williams v Mount Isa City Council[2006] QDC 201
Williams v Mount Isa City Council[2006] QDC 201
DISTRICT COURT OF QUEENSLAND
CITATION: | Williams v Mount Isa City Council & Suncorp Metway Insurance [2006] QDC 201 |
PARTIES: | David Vincent Williams (Applicant) v Mount Isa City Council (First Respondent) And Suncorp Metway Insurance Ltd (Second Respondent) |
FILE NO/S: | 1896/06 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 30.06.06 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30.06.06 |
JUDGE: | Forde DCJ |
ORDER: |
|
CATCHWORDS: | PERSONAL INJURY – application of exclusion provisions - Limitation of Actions Act 1974 Motor Accident Insurance Act 1994, schedule 1, ss 39, 51, 57, Uniform Civil Procedure Rules 1997, r 7 Best v ING Selkie Pty Ltd & Suncorp Metway Insurance (2003) QDC 559 Brew v WorkCover Queensland (2003) QCA 504 Hutton v Suncorp Metway Insurance, an unreported decision of Judge Dodds, 12 December 2003 Kondis v The State transport Authority (1984) 154 CLR 672 Palmer v Harkere Transport Services (2003) QCA 513 Purt v The State of Queensland (2004) 1QR 663 |
COUNSEL: | Mr Wessling-Smith for the Applicant Mr Craswell for the First and Second Respondents |
SOLICITORS: | Banks Lawyers for the Applicant Suncorp Metway for the First and second Respondents |
Orders
- The application is dismissed.
DISTRICT COURT
CIVIL JURISDICTION
JUDGE FORDE
No BD1896 of 2006
DAVID VINCENT WILLIAMS | Applicant |
and | |
MOUNT ISA CITY COUNCIL | First Respondent |
and | |
SUNCORP METWAY INSURANCE LIMITED | Second Respondent |
BRISBANE
DATE 30/06/2006
ORDER
HIS HONOUR: The applicant, David Vincent Williams, seeks orders which are, in effect, set out in the originating application as follows:
- That the time for service of this originating application be abridged pursuant to Rule 7 of the Uniform Civil Procedure Rules.
- A declaration that the Applicant's claim is one which relates to a personal injury caused by, through or in connection with a motor vehicle and that the Motor Accident Insurance Act 1994 applies to the claim.
- Pursuant to section 39(5)(c) of the Motor Accident Insurance Act 1994, the Applicant be given leave to pursue further proceedings based on the claim despite non compliance with Division 3 of Part 4 of the Motor Accident Insurance Act 1994.
- Pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994 ("the Act"), the Applicant be given leave to commence proceedings within 60 days of one of the following events occurring:
- (a) A conference being held pursuant to sections 51A and 51B of the Act and mandatory final offers being exchanged in accordance with section 51C of the Act; or
- (b) The date of agreement, if the parties dispense with the compulsory conference by agreement, pursuant to section 51D(4) of the Act; or
- (c) An order by the Court, pursuant to section 51A(5)(b) of the Act, dispensing with the compulsory conference.
- Within 28 days of this order the Applicant disclose to the Respondents all expert medical evidence in her possession upon which she intends to rely, or if such evidence has not yet been obtained, advises the doctor/s or other health professionals from whom she intends obtaining reports and/or expert evidence.
- Each party have liberty to apply by giving 3 business days notice in writing to the other party.
- There be no order as to costs.
On the 1st of July 2003 the applicant sustained an injury in the course of his employment with the first respondent, the Mount Isa City Council. It is alleged that he injured his lower back. The circumstances were that he was driving a water truck on some vacant land when the truck fell into a drain culvert.
The applicant says that:
"As I got over towards the fence line, I had to raise the hoist as the tank was nearly empty, as I was on my last run heading up towards Enid Street. The water truck I was driving seemed to have stalled and then fell sideways into a drainage culvert which had collapsed underneath the vehicle."
There are no pleadings before me at this stage. The Limitation of Actions Act expires on the 1st July 2006 or relevantly probably next Monday. The main allegation by the applicant is that the accident was caused by the failure of the respondent to provide a safe system of work, safe plant and equipment and adequate training.
The present application has been brought out of a matter of caution as a motor vehicle is involved in the accident and therefore, orders are sought in relation to the licensed insurer, Suncorp Metway Insurance Limited.
A notice of accident claim form was served on the 15th December 2003 on Suncorp Metway, who are the second respondent to this application and who are represented on this hearing. Pursuant to section 39, subsection 3, the insurer has 14 days after receiving the notice to respond. Otherwise it is conclusively presumed to be that the notice was given as required under this division.
There was no allegation of non-compliance within the 14 day period. Therefore, as submitted by counsel for the insurer, the provisions of section 57, subsections 1 and 2 are relevant.
Issue:
The real issue in the case is whether the exclusion provisions of the policy of insurance in the schedule to the Motor Accident Insurance Act apply to the present case:
3. Exclusions
(2) This policy does not insure an employer against a liability to pay damages for injury to an employee if -
- (a) the injury arises from the employer's failure to provide a safe system of work for the employee or the employer's breach of some other duty of care to the employee; and
- (b) neither the employer nor another employee of the employer was the driver of the motor vehicle at the time of the motor vehicle accident out of which the injury arose.
In relation to clause 3(2)(b) the applicant was the driver and so that aspect of the exclusion does apply. However, the question remains as whether the injury arises from the employer's failure to provide a safe system of work for the employee or the employer's breach of some other duty of care to the employee.
In the present case, it is difficult to discern a factual situation which may allow a pleader to go outside the safe system of work in relation to any allegations against the employer, the first respondent in the present case. Various scenarios have been discussed but I'm satisfied that this cause of action by the applicant would fall within the parameters of the exclusion in 3(2)(a).
Similar decisions have been made by two judges of this Court in Best v ING Selkie Proprietary Limited and Suncorp Metway Insurance, (2003) QDC 559 and Hutton and Suncorp Metway Insurance (an unreported decision of his Honour Judge Dodds of the 12th of December 2003). The amendment to the relevant schedule was made in October 2000 following such cases as Brew and WorkCover Queensland (2003) QCA 504 and Purt v The State of Queensland (2004) 1 Queensland Reports 663.
By way of precautionary measure, his Honour Judge McGill in Best's case, made consequential orders in the event that he was wrong and that the applicant was then not shut out from further procedures under the Motor Accident Insurance Act. In the present case it is not necessary to do that as there is a complying notice of claim and the applicant has further rights under section 57 of that Act if necessary to further progress the action.
On the case which has been put before me, it is unlikely that that would occur. The approach which was referred to in Palmer and Harker Transport Services (2003) QCA 513 paragraph 11 is apposite, namely that on no view of the facts alleged to date are the facts capable of falling outside the operation of the exclusions in the schedule and so the matter can be dealt with on this hearing. In other words a Court should not refrain from making an order where it is clear that no further findings of fact would be necessary in this case.
The applicant can plead his case against the employer based upon an unsafe system of work. It is a matter for the employer as to whether some aspect of negligence by the occupier of the land is established. That does not affect Suncorp Metway in its role as licensed insurer. As the duty owed by an employer to an employee is non-delegable, (see Kondis v the State Transport Authority, (1984) 154 CLR 672).
The applicant would be entitled at first instance to enforce any judgment against the employer, who may at a later point in time seek to join another party. That is something which does not concern me at this stage.
In relation to the questions of costs, this legislation is still being discussed frequently in the Courts and the subject of different rulings. This is an amendment in 2000, but cases on a factual basis still come before the Courts which provide difficulties for applicants. The insurer in this case is not a party at this stage to the action, but rather a respondent to an application. Counsel has provided helpful submissions in this respect. But in view of the still evolving nature of this legislation, I am not disposed to make an order for costs in this case. The order is that the application is dismissed.