Nicholls v Brisbane Slipways and Engineering Pty Ltd
[2003] QSC 193
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- Nicholls v Brisbane Slipways and Engineering Pty Ltd[2003] QSC 193
- Add to List
Nicholls v Brisbane Slipways and Engineering Pty Ltd[2003] QSC 193
Nicholls v Brisbane Slipways and Engineering Pty Ltd[2003] QSC 193
SUPREME COURT OF QUEENSLAND
CITATION: | Nicholls & Ors v Brisbane Slipways and Engineering P/L [2003] QSC 193 |
PARTIES: | CAMILLA ANN NICHOLLS |
FILE NO/S: | No 5358 of 2003 |
DIVISION: | Trial Division |
PROCEEDING: | Miscellaneous Application - Civil |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 26 June 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 June 2003 |
JUDGE: | White J |
ORDER: | 1.The applicants are authorised to proceed further with claims against the respondent in relation to the death of William Herschel Nicholls on 30 January 2000 (“the claim”), pursuant to s 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (“PIPA”) 2.The last mentioned authorisation is granted on conditions under s 18(2) of PIPA that, subject to any relaxation from the same which may subsequently be granted by a court- (a)a notice given, or purportedly given, under s 9(1) of PIPA be taken to have been given by the applicants to the respondent on 23 May 2003, being the original of the notice of claim exhibited to the Affidavit of David Curtain filed herein; (b) any proceedings commenced by the applicants pursuant to ss 77D(2)(a) and (3) of the PIPA be stayed until the applicants and respondent comply with- (i) s 9(7) of the PIPA (ii)so much of ss 10-20 inclusive of Division 1 of Pt 1 of Ch 2 of PIPA as is applicable to the claim; (iii)Division 2 of Pt 1 of Ch 2 of the PIPA; (iv)Division 4 of Pt 1 of ch 2 of the PIPA. or until further or other order of the court. 3.All necessary abridgments of time be granted for the making and hearing of this application 4.The costs of and incidental to this application be paid by the applicants 5.Each party have liberty to apply on three days notice in writing |
CATCHWORDS | LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where deceased was killed on a vessel off the coast of Western Australia – where dependency proceedings commenced in Victoria – where notice of claim delivered outside of three-year limitation period – whether leave should be granted to applicants to commence proceedings under the Personal Injuries Proceedings Act 2001 (Qld) Personal Injuries Proceedings Act 2001 (Qld), s 6, s 7, s 9, s 18 Dow Jones & Co. Inc v Gutnick [2002] HCA 56, 10 December 2002; (2002) 77 ALJR 255, considered |
COUNSEL: | K Holyoak for the applicants |
SOLICITORS: | Phillips Fox for the applicants |
- On 16 June 2003 I made orders giving the applicants leave to commence proceedings against the respondent pursuant to the provisions of the Personal Injuries Proceedings Act 2001 (“PIPA”) and now deliver my reasons for doing so. The applicants are the widow and dependent children of William Herschel Nicholls who died on the vessel Atlantic Dauphin some 310 nautical miles north east of Broome off the coast of Western Australian on 30 January 2000. The applicants are residents of Victoria. They are seeking orders pursuant to PIPA that they be authorised to proceed further with their claim against the respondent.
- The Atlantic Dauphin was owned by Bannister Quest Pty Ltd and used as a fishing vessel. The deceased was the captain of the ship and employed by the company. Between 5 and 19 January 2000 the respondent performed repair work on the vessel in Brisbane. The vessel left Brisbane on 19 January bound for Broome via northern Australian coastal waters. According to the Western Australian coroner’s report, on the morning of Sunday 30 January the deceased and the crew were preparing the anchor preparatory to coming into port at Broome. The anchor needed to be repositioned inside the fairlead from its temporary position on top. This involved dropping the anchor over the bow and winching it back through the fairlead.
- The deceased was at the bow of the vessel standing on the port side next to a handrail with three other crew members standing on the starboard side securing the anchor. The anchor was sitting on a fluke. The deceased lifted the shank and as the crew began to manoeuvre the anchor the centre of gravity changed. As the anchor was about to drop the anchor chain slipped up on to the handrail and the anchor fell, pulling the chain along the handrail on the port side rather than through the fairlead. The chain slid back along the handrail on the port side trapping the deceased between the wave breaker, the handrail and the chain. The chain came back with great force knocking the deceased off his feet. A crew member who was standing next to the deceased was also pinned for a short time before he was able to free himself. The crew attempted to free the deceased but it was between five to eight minutes before they were able to do so and they were then unable to resuscitate him. The post-mortem examination established the cause of death as chest injury.
- On 4 August 2000 a report prepared for WorkSafe Western Australia into the death of the deceased concluded inter alia that:
“… the arrangement for deploying the anchor … at the time of the accident … was not satisfactory for a range of reasons including … the anchor was not readily available for deploying in the event of emergency.”
In the coroner’s report the following appears:
“It appears the anchor had been badly placed previously by crane”.
On 21 October 2002 Mr Peter Raymond, a marine engineer retained to prepare a report in relation to the cause of death, concluded that the death of the deceased was caused or contributed to by the placement of the anchor in a dangerous position in the course of performing work on the Atlantic Dauphin.
- It is the applicants’ contention that the defendant was the cause of the deceased’s injury and death. Mr D Atkinson, who appears on behalf of the respondent, concedes there is sufficient evidence to allow the claim to move forward, Thomas v Transpacific Industries Pty Ltd [2002] QCA 160; Appeal No 237 of 2002, 10 May 2002, [2003] 1 Qd R 328 at 334.
- On 20 December 2002 the applicant commenced dependency proceedings against the respondent in the Supreme Court of Victoria on her own behalf and on behalf of the dependent children of the deceased. Previous proceedings against Bannister Quest Pty Ltd were commenced and subsequently discontinued. In the Victorian proceedings the plaintiff claimed damages pursuant to the provisions of the Queensland Supreme Court Act 1995 where provisions relating to dependency claims have now been relocated from the Common Law Practice Act 1867. Those proceedings were served on the respondent on or about 20 January 2003. On 19 May 2003 the applicant served a Notice of Claim purportedly pursuant to PIPA on the respondent.
- The first step is to determine the relevant law to apply to the applicants’ claim. Although a proceeding for damages by dependents arising out of wrongful death is entirely dependent on statute for its existence such claims are characterised as tortious, Koop & Anor v Bebb (1951) 84 CLR 629 per McTiernan J at 648-9. See also Elliott v Bali Bungy Co [2002] NSWSC 906 where Young CJ in Eq sitting in the Common Law Division concluded after a review of authority that an action under the New South Wales Compensation to Relatives Act 1897 was to be characterised as an action in tort at [56]-[60].
- John Pfeiffer P/L v Rogerson [2000] HCA 36, 21 June 2000; (2000) 203 CLR 503 stated the test for determining the proper law of the tort which has diversity elements:
“Development of the common law to reflect the fact of federal jurisdiction and, also, the nature of the Australian federation requires that the double actionability rule now be discarded. The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws.” [102]
- The next matter to determine is the place of the wrong. In Dow Jones the High Court held, per Gleeson CJ, McHugh, Gummow and Hayne JJ at [43]:
“Reference to decisions such as Jackson v Spittall, Distillers Co (Biochemicals) Ltd v Thompson and Voth v Manildra Flour Mills Pty Ltd show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is “where in substance did this cause of action arise”? In cases, like trespass or negligence, where some quality of the defendant’s conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt.”
- It is not disputed by the respondent that the factual basis of the allegations of negligence supporting the dependency claim concern acts which occurred in Brisbane associated with the work done on the Atlantic Dauphin by the respondent. Accordingly the place with the most real connection with the loss is Queensland.
- The next matter for determination is the application of PIPA as the proper law to be applied. By s 7 provisions in the Act concerning the kinds of damage and the amounts which may be recovered are provisions of substantive not procedural law. See also Pfeiffer v Rogerson. A number of exceptions to the operation of the Act are set out in s 6. It is of retrospective effect. “Personal injury” is defined to include fatal injury in the dictionary schedule to the Act. The provisions of the WorkCover Queensland Act 1996 as defined in s 6(2)(b) do not apply here. Neither do ss 77A, and E concerning transitional provisions. The jurisdiction of the Queensland Courts to entertain a personal injury matter is not limited as to location on the face of the section. The Acts Interpretation Act 1954 provides that a reference in an Act to a locality, jurisdiction or other thing is a reference to such a locality, jurisdiction or other thing “in and of Queensland”. The incident which gave rise to the personal injury to the deceased was “an incident” which arose out of an act or omission alleged against the defendant which occurred in Brisbane. A relevant nexus has been established with Queensland for the purposes of PIPA.
- The three year limitation period in respect of the subject matter of the claim expired on 30 January 2003. As mentioned, on 20 December 2002 litigation was commenced in the Supreme Court of Victoria. Section 9 of PIPA provides that before starting a proceeding in a court based on a claim a claimant must give written notice of the claim in the approved form to the person against whom the proceeding is proposed to be started. A notice of claim was not delivered until 23 May 2003. There is no indication so far as to whether it is regarded by the respondent as compliant. The Court of Appeal in Horinack v Suncorp Metway Insurance Ltd [2000] QCA 441, Appeal No 2641 of 2000, 27 October 2000; [2001] 2 Qd R 266 at [22] concluded that proceedings commenced in the face of such a statutory prohibition are incompetent and a nullity. Accordingly the proceedings commenced in the Supreme Court of Victoria are of no effect. The consequence of that conclusion is that s 77D of PIPA applies because the personal injury arose out of an incident which happened before 18 June 2002 and the period of limitation expired between 18 June 2002 and 18 December 2003 and a proceeding based on the claim has not been started in a court. Accordingly since the period of limitation has ended the plaintiff may start a proceeding in a court based on the claim if a complying notice of claim is given on or before 18 June 2003 or at a later time not more than six months after the complying notice of claim is given and not later than 18 December 2003 with the court’s leave. However since it is unknown if the notice is a complying notice of claim the extension of time provision in s 77D(2)(a) cannot avail the applicants.
- By s 18(1) a claimant’s failure to give a complying Part 1 notice of claim prevents the claimant from proceeding further with the claim unless a claimant falls within certain specified preconditions. Here the claimant falls within s 18(1)(c)(ii) where the court on an application by the claimant may authorise the claimant to proceed further with the claim despite non-compliance. By ss(2) such an order may be made on conditions to minimise prejudice to the respondent from the claimant’s failure to comply with the precourt proceedings processes. The claimant proposes that leave be given and that any further progress of the proceedings be stayed pending compliance with these provisions.
- The order which I made on 16 June 2003 in the following terms satisfies these requirements.
- The applicants are authorised to proceed further with claims against the respondent in relation to the death of William Herschel Nicholls on 30 January 2000 (“the claim”), pursuant to s 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (“PIPA”).
- The last mentioned authorisation is granted on conditions under s 18(2) of PIPA that, subject to any relaxation from the same which may subsequently be granted by a court-
(a)a notice given, or purportedly given, under s 9(1) of PIPA be taken to have been given by the applicants to the respondent on 23 May 2003, being the original of the notice of claim exhibited to the Affidavit of David Curtain filed herein;
(b)any proceedings commenced by the applicants pursuant to ss 77D(2)(a) and (3) of the PIPA be stayed until the applicants and the respondent comply with-
(i)s 9(7) of PIPA;
(ii) so much of ss 10-20 inclusive of Division 1 of Pt 1 of Ch 2 of PIPA as is applicable to the claim;
(iii)Division 2 of Pt 1 of Ch 2 of PIPA;
(iv)Division 4 of Pt 1 of Ch 2 of PIPA.
or until further or other order of the court.
- All necessary abridgments of time be granted for the making and hearing of this application.
- The costs of and incidental to this application be paid by the applicants.
- Each party have liberty to apply on three days notice in writing.