Munns v Lindsay Brothers Management
[2005] QSC 169
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.
- Unreported Judgment
- Munns v Lindsay Brothers Management[2005] QSC 169
- Add to List
Munns v Lindsay Brothers Management[2005] QSC 169
Munns v Lindsay Brothers Management[2005] QSC 169
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
DELIVERED ON: | 21 June 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 March 2005 |
JUDGE: | Philippides J |
ORDER: | Applications dismissed |
CATCHWORDS: | WORKERS’ COMPENSATION – ENTITLEMENT TO AND LIABILITY FOR COMPENSATION – where plaintiff brought proceedings by leave pursuant to the Personal Injuries Proceedings Act 2002 – application that proceedings be struck out as a nullity – whether the plaintiff employee’s entitlement to damages abolished by s 253 of the WorkCover Queensland Act 1996 – where dispute as to whether claim was for “damages” within the meaning of s 11(1) of the WorkCover Queensland Act 1996 – where dispute as to whether the defendant employer’s liability was one against which the employer is required to provide under a law of another State within the meaning of s 11(2) of the WorkCover Queensland Act 1996 Accident Compensation (WorkCover Insurance) Act 1993 (Vic) Personal Injuries Proceedings Act 2002 (Qld), s 6, s 9, s 10, s 43 WorkCover Queensland Act 1996 (Qld), s 11, s 253, s 280, s 285 Glenco Manufacturing Pty Ltd v Ferrari [2005] QSC 005 Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157 Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273 Tanks v WorkCover Queensland [2001] QCA 103 |
COUNSEL: | M Grant-Taylor SC for the applicant D C Rangiah for the respondent |
SOLICITORS: | BCI Law for the applicant Maurice Blackburn Cashman for the respondent |
[1] PHILIPPIDES J: Lindsay Brothers Management brings the present applications seeking orders in respect of a proceeding brought against it by Mr Munns, as plaintiff, for damages for personal injuries. That proceeding (BS 10530/04) was commenced upon leave being granted on 30 November 2004 pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) (“the PIPA”). For convenience sake, I shall refer to Mr Munns, hereafter as the plaintiff and Lindsay Brothers Management as the defendant.
[2] In the statement of claim filed by the plaintiff in the PIPA proceedings, it is alleged that on 2 December 2001, the plaintiff sustained injuries in the course of his employment with the defendant. It is pleaded that the plaintiff, who was employed by the defendant as a truck driver, drove a truck and two refrigerated trailers owned by the defendant to the Footscray markets in Melbourne. (The pallets had been loaded with produce by the defendant’s employees.) It is alleged that the plaintiff sustained injury when, in the course of unloading the pallets, he slipped on loose produce on the floor of the trailer that had become damp with condensation. It is alleged that the produce was strewn on the floor as a result of the pallets shifting during the trip due to their not being properly secured
[3] In December 2001, the plaintiff made an application for worker’s compensation to WorkCover Queensland. That application for statutory WorkCover benefits was accepted.
[4] On 12 November 2002, a Notice of Claim for Damages was served pursuant to s 280(2) of the WorkCover Queensland Act 1996 (“the Act”).
[5] On 9 May 2003, the solicitors for WorkCover advised that WorkCover was not obliged to indemnify the defendant in the circumstances of the case, because any liability on the part of the employer was a liability against which the employer was required to provide under the Accident Compensation (WorkCover Insurance) Act 1993 (Vic). Accordingly, it was asserted that by virtue of s 11 of the Act, the claim was not one for damages “under the Act” and that the procedures in Chapter 5, in particular those preliminary to the bringing of a proceeding did not apply. On 5 February 2004, a notice pursuant to s 285(4) of the Act was forwarded to the plaintiff’s solicitors reiterating this position.
[6] In response to the approach taken by WorkCover, on 29 March 2004 the plaintiff delivered a Notice of Claim to the respondent pursuant to s 9(3) of the PIPA. As I have mentioned, on 30 November 2004, the plaintiff sought, and was granted, leave to commence proceedings for damages against the defendant. The order made on that occasion provided that those proceedings be stayed until the plaintiff had complied with Ch 2, Pt 1 of the PIPA and that the defendant be at liberty to apply for an order in respect of the application of the PIPA to the plaintiff’s claim.
[7] Section 6(1) of the PIPA states that that Act applies “to all personal injury arising out of an incident happening before or after 18 June 2002”. Section 6(2) of the PIPA, provides that that Act “does not apply to injury as defined under the WorkCover Queensland Act 1996”.[1] Counsel for the plaintiff argued that on one interpretation of s 6(2) of the PIPA, that Act may not apply to the claim brought by the plaintiff, but that the plaintiff has sought to comply with the provisions of that Act out of an abundance of caution.
[8] The defendant now brings applications[2] seeking the following orders:
(a) A declaration that the defendant was not an appropriate respondent to the plaintiff’s claim in proceedings BS 10530/04;
(b) A declaration that any cause of action which the plaintiff may have had on account of his suffering the injuries referred to in the statement of claim in the proceedings brought pursuant to the PIPA had been abolished by s 253 of the Act;
(c) An order that those proceedings be struck out as a nullity.
[9] The plaintiff correctly points out that, insofar as the defendant seeks a declaration that any cause of action that the plaintiff may have had pursuant to the PIPA has been abolished by s 253 of the Act, it is misconceived, in that no “cause of action” arises under the PIPA, nor is s 253 concerned with abolishing “any cause of action”, but rather with abolishing “an entitlement to seek damages”. The issue sought to be raised by the application is therefore whether any entitlement to damages as claimed by the plaintiff against the defendant for the injury allegedly sustained by him has been abolished by s 253 of the Act. There is no dispute that the plaintiff falls within the definition of “worker” within the meaning of that term in the Act, nor that the plaintiff’s claim is for an “injury” as defined under the Act.
[10] A threshold issue arises as to whether the claim asserted by the plaintiff is one for damages for injury in circumstances creating a legal liability in the defendant to pay damages within the meaning of s 11(1) of the Act or whether the defendant’s liability is one against which it is required to provide under the Victorian Statute, so as to attract s 11(2) of the Act.
[11] Section 11 of the Act provides:
“(1) “Damages” is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay the damages to –
(a) the worker; or
(b) if the injury results in the worker’s death – a dependant of the deceased worker.
(2) A reference in subsection (1) to the liability of an employer does not include a liability against which the employer is required to provide under –
(a) another Act; or
(b) a law of another State, the Commonwealth or of another country.
(3) Also, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages for loss of consortium resulting from injury sustained by a worker.”
[12] The defendant concedes that, if, contrary to the view taken by WorkCover, WorkCover is obliged to indemnify the defendant because s 11(2) of the Act does not apply, the plaintiff’s claim falls within the Act and the plaintiff remains entitled to pursue a claim pursuant to the Act, on compliance with the procedures specified by the Act. But it maintains that if, as contended by WorkCover, s 11(2) of the Act is attracted, the plaintiff is not only unable to pursue any entitlement against the defendant under the Act, but that there no other entitlement to claim against the defendant remains, it having being abolished by s 253 of the Act.
[13] In making that submission, the defendant relies on s 253(1) of the Act, which specifies that the persons enumerated therein are “the only persons entitled to seek damages for an injury sustained by a worker” and on s 253(5) of the Act, which states: “To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.” The defendant also points to Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157 and Glenco Manufacturing Pty Ltd v Ferrari [2005] QSC 005, in support of its contention that there is no residual category of common law claims for damages for personal injury in favour of an employee claimant who fails to come within s 253(1) of the Act. The defendant also relies on Bonser v Melnacis [2002] 1 Qd R 1 at [41] to support its contentions.
[14] As mentioned, the plaintiff disputes the contention that any liability of the defendant for damages as claimed by him is one to which s 11(2) of the Act applies and disputes the view that his claim is not one for “damages” under that Act. However, the plaintiff argues that, in the event that WorkCover’s contention as to the applicability of s 11(2) of the Act proves to be correct, the plaintiff’s claim would in that case not be one for “damages” within s 11(1) of the Act so that s 253 would not operate to abolish his entitlement to seek damages.
[15] The plaintiff contends that the term “damages” in s 253 of the Act had the same meaning as in s 11. The plaintiff’s submission is that a claim for damages for injury sustained by a worker, in circumstances in which s 11(2) applies (where the liability of an employer is one against which the employer is required to provide under a law of another State) is excluded from the reach of the Act, because s 11(2)(b) excludes such claims from the definition of “damages” in s 11(1) of the Act.
[16] The plaintiff bases his submission that the term “damages” in s 253 of the Act takes its meaning from s 11 of the Act, citing decisions such as Karanfilov v Inghams Enterprises Pty Ltd [2001] 2 Qd R 273 and Tanks v WorkCover Queensland [2001] QCA 103. The plaintiff argues that there are a number of factors which indicate that s 253 should not be interpreted as abolishing any entitlement of a worker to sue an employer for damages in circumstances where the worker is not seeking “damages” within the meaning of that expression in sections 11 and 253 of the Act. It is submitted that legislation restricting the right of access to courts must be read strictly (Neuss v Roche Bros Pty Ltd [2001] 2 Qd R 487) and that the language of s 253(1) and (5) does not evince an intention to abolish an entitlement to damages not falling within s 11.
[17] The plaintiff argues that the decisions in Hawthorne and Glenco do not affect the present case, since they merely decided that there is no residual category of common law claims for “damages” as defined in s 11 for personal injury in favour of workers who fail to obtain a certificate as required by the Act.
[18] It is contended that the Act only seeks to regulate claims against employers who are also insured under the statutory fund (Campbell v CSR Ltd & Anor [2002] QSC 266) and it is unlikely that the legislature intended that a worker should be deprived of an entitlement to seek common law damages merely because the employment involves an interstate element that requires insurance to be taken out under the law of more than one State, thereby giving a windfall to interstate and overseas insurers.
[19] It is also submitted that s 6(2)(b) of PIPA envisages that a worker may bring a proceeding in circumstances where the worker seeks “damages” as defined under the Act.
[20] As to the defendant’s assertion in respect of s 10(1)(c) of the PIPA that it is not a proper defendant to the claim, the plaintiff also submitted that Zannata v Netpro Employees Pty Ltd [2004] QSC 131 does not assist the defendant and is irrelevant to the present case. The plaintiff argues that the present case differs from that case in that the substantive law to be applied in the present case is the law of Queensland. That is said to follow because the proper law of contract is the law of Queensland (see Busst v Lotsirb Nominees Pty Ltd [2003] 1 Qd R 477 and Francis v Emijay Pty Ltd [2005] QSC 39). Further, it is contended that it is strongly arguable that the negligence occurred in substance in Queensland, so that the law of Queensland also applies to the cause of action. Those issues remain to be determined.
[21] It is also yet to be determined whether the plaintiff’s claim for damages for personal injuries is one in respect of which the defendant’s liability was required to provide under the Victorian Statute, so as to attract s 11(2)(b) of the Act. There is nothing before the Court which would permit a determination of that issue.
[22] In those circumstances, I do not consider that it is appropriate to proceed to determine the further issue, which may become hypothetical, as to whether the Act abolishes an entitlement to damages in respect of an employer’s liability, where that liability is one against which it is required to provide under the law of another State in accordance with s 11(2).
[23] Having said that, the plaintiff’s submission that, in the event that s 11(2) of the Act is attracted in the present case, s 253 does not abolish the plaintiff’s entitlement to damages, is entirely arguable such that the proceeding ought not be struck out. The plaintiff’s argument that s 253 only applies to “damages” as defined in s 11 of the Act is supported by decisions such as Karanfilov and Tanks.
[24] The present case is very different from the situation considered in Hawthorn on which the defendant placed reliance. That case determined that the Act did not exclude from its reach a case where an employee’s employment materially contributed to the injury suffered, but was nevertheless not the major significant factor causing it within the meaning of s 34(1) of that Act. A claimant who thus failed to obtain a certificate because the injury did not fall within s 34(1) was still held as a result of s 253(1) and (5) to be precluded from seeking damages against an employer. In Glenco, it was held that the PIPA did not alter that position.
[25] Given that the threshold issue of the application of s 11(2) is yet to be determined and that the proceeding remains stayed, I do not consider it appropriate at this stage to strike out the proceeding. Nor is it appropriate at this stage to make the other declarations sought. I do not consider that the plaintiff’s submissions as to s 11 and 253 of the Act can be said to be so untenable that the proceedings ought to be struck out at this stage.
[26] I dismiss the applications and will hear submissions as to costs.
Footnotes
[1] Section 6(2)(b) was amended by the Civil Liability Amendment Act 2003 (Qld) to provide that the PIPA does not apply to injury as defined under the WorkCover Queensland Act 1996 (Qld), “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.” That amendment is not contended to apply in the present case.
[2] The defendant brought two applications in similar terms, one in the proceedings BS 10462/04 being the proceedings by way of originating application for leave to commence proceedings under the PIPA and the other in BS 10530/04 being the proceedings commenced by claim and statement of claim filed pursuant to leave and which were stayed.