Francis v Emijay Pty Ltd[2005] QSC 39

SUPREME COURT OF QUEENSLAND

CITATION:Francis v Emijay Pty Ltd [2005] QSC 039

PARTIES:RONALD JAMES FRANCIS

(Applicant)

v

 EMIJAY PTY LTD

(First Respondent)

and

WORKCOVER QUEENSLAND

(Second Respondent)

and

QBE Workers’ Compensation (NSW) LTD

(Third Respondent)

FILE NO:S458/2004

DIVISION:Trial Division

DELIVERED ON:4^th March 2005

DELIVERED AT:Rockhampton

HEARING DATES:26 November 2004

JUDGE: Dutney J

ORDERS:1)Declare that the substantive law applicable to the applicant’s claim and statement of claim is the law of the State of Queensland.

2)Declare that pursuant to section 155(1) of the Workers’ Compensation Act 1987 (NSW) the third respondent is required to indemnify the first respondent against any liability to the applicant arising from an incident on 26 November 2001.

3)Declare that by reason of section 11(2)(b) of the WorkCover Queensland Act 1996 (QLD) the second respondent is not obliged to indemnify the first respondent against liability to the applicant arising from an incident on 26 November 2001.

CATCHWORDS:STATUTES – STATUTORY CONSTRUCTION – whether Workers’ Compensation Act 1987 (NSW) requires employer to insure against injury – whether cover under WorkCover Queensland Act 1996 (QLD) excluded.

WORKERS’ COMPENSATION – CONSTRUCTION OF STATUTE – application of Workers’ Compensation Act 1987 (NSW) on WorkCover Queensland Act 1996 (QLD)

CONFLICT OF LAWS – CHOICE OF LAW-CONTRACTS – CHOICE OF LAW-TORTS – whether lex loci delicti in New South Wales or Queensland – whether contract of employment has most real and substantive connection with Queensland – whether Queensland or New South Wales law applies

Burrows v The Workers’ Compensation Board of Queensland [1997] QCA 182, applied.

Busst v Lotsib Nominees Pty Ltd [2003] 1 Qd R 477, followed.

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, applied.

Foster v Skilled Communication Services Pty Ltd & Ors [2003] QCA 363, considered.

John Pfeiffer Pty Ltd v Rogerson (2003) 203 CLR 503, considered.

WorkCover Queensland v Pelesic & Ors [2004] QDC 214, cited.

Workers Compensation Legislation Amendment Act 1995 (NSW)

WorkCover Queensland Act 1996 (QLD), s 11

Workers’ Compensation Act 1987 (NSW), s 155

COUNSEL:Mr D. V. McMeekin SC for the Applicant

Mr T. Matthews for the First Respondent

Mr J. A. McDougall for the Second Respondent

Mr R. D. Green for the Third Respondent

SOLICITORS:Macrossan & Amiet for Applicants

Bell Dixon Butler for First Respondent

McInnes Wilson for Second Respondent

Hunt and Hunt for Third Respondent

[1]The applicant, Mr Francis, was injured on 26 November 2001 at the premises of BHP Fine Wire Mill in Newcastle in New South Wales.

[2]Mr Francis was employed by the first respondent, Emijay Pty Ltd, as an interstate truck driver.

[3]Emijay is a company associated with Richers Transport Pty Ltd (“Richers”).  Richers carries on business from depots at Maryborough, Hervey Bay, Acacia Ridge, Bundaberg and Gympie.  From those depots it transports goods throughout Queensland and interstate.  Emijay employs all of Richers’ drivers

[4]Emijay Pty Ltd and Richers are companies with registered offices in Queensland.

[5]An action has been commenced by Mr Francis against Emijay seeking damages for breach of the contract of employment.  There is no claim by Mr Francis in tort. 

[6]In the statement of claim it is alleged that the contract of employment contained the following relevant terms by implication of law:

(a)Emijay would take all reasonable precautions for the safety of Mr Francis whilst he was carrying out his duties in the course of his employment;

(b)Emijay would not expose Mr Francis to a risk of damage or injury of which it knew or ought to have known;

(c)Emijay would provide for Mr Francis’ use reasonably safe and suitable plant, machinery and equipment to enable his duties to be carried out safely;

(d)Emijay would provide Mr Francis with a safe and proper system of work;

(e)Emijay would instruct Mr Francis in a safe and proper system of work;

(f)Emijay would comply with statutory duties concerning health and safety.

[7]For present purposes there is no dispute about the relevant facts.  Mr Francis lived at Hervey Bay in Queensland at all relevant times.  Mr Francis picked up a truck, trailer and “grocery gates” from the Richers’ depot at Maryborough.  A grocery gate is a metal barrier which attaches to the tray of the truck and is erected to contain a high load.  The grocery gates weighed about 30 kg each.

[8]Any general instructions or training Mr Francis had ever been given in relation to his work had been given to him at Maryborough.  The instructions for the specific job which involved the visit to Newcastle had been given to him in Brisbane at Emijay’s Acacia Ridge depot.  It is alleged that no instructions or training relating to the lifting or manoeuvring of grocery gates had been provided.

[9]Mr Francis claims to have suffered a rotator cuff injury when he was manually lifting a grocery gate into position after his truck had been loaded at Newcastle.

[10]In his statement of claim Mr Francis alleges that his injury was caused by Emijay’s breaches of contract, the particulars of which breaches are given as follows:

(a)providing a gate of too great a weight to be safely lifted and manoeuvred  into position;

(b)failing to provide aluminium gates;

(c)failing to instruct him that it was unsafe for him to attempt to manually handle a grocery gate alone and unassisted;

(d)failing to reconfigure the trailer by removing the grocery panels entirely, reducing the size of the gates to one half their present size, or by providing a series of pillars along the side of the vehicle from which gates of a smaller size could be swung;

(e)failing to comply with its statutory duty to ensure the workplace health and safety of the plaintiff pursuant to the Workplace Health & Safety Act 1995.

[11]These alleged breaches pick up the recommendations contained in a report on the incident by a Mr Kahler from Intersafe.

[12]At the time of Mr Francis’ accident Emijay held policies of insurance under the WorkCover Queensland Act 1996 (QLD) (“the WorkCover Act”) with the first respondent, WorkCover Queensland, and under the Workers’ Compensation Act 1987 (NSW) (“the NSW Act”) with the second respondent, QBE Workers’ Compensation (NSW) Limited (“QBE”).

[13]Both WorkCover and QBE have refused to indemnify Emijay in relation to Mr Francis claim.  Both insurers submit that the obligation to indemnify Emijay rests on the other.

[14]The debate concerns the proper application of s 11(2)(b) of the WorkCover Act and s 155 of the NSW Act.

[15]The relevant parts of s 11 of the WorkCover Act are as follows:

“(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 damages to … the 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 –
   1. Another Act; or
   2. A law of another State, the Commonwealth or of another country.”

[16]The issue here is whether s 155 of the NSW Act is a law of another State under which the employer is required to make provision.  Section 155 of the NSW Act provides:

“(1) An employer … shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this Division for the full amount of the employer’s liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer’s liability independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury to such worker.”

[17]The principal issue is whether the exclusion of liability in the WorkCover Act is activated by a requirement that the employer maintain insurance under s 155 of the NSW Act.

[18]Mr Francis has brought his action only in contract.  There is no claim in tort.  In John Pfeiffer Pty Ltd v Rogerson^[1] the High Court held that in Australia the lex loci delicti would provide the governing law for actions in tort.  The decision did not consider the corresponding position in contract.  In determining the proper law of the contract it seems to me to be relevant that the contract of employment was made in Queensland.  The instructions for the trip on which Mr Francis was injured were given in Queensland.  The system of work was developed in Queensland.  The place from which Mr Francis’ employment was controlled and directed was in Queensland.  The place where Emijay could have made changes to the system of work (for example by giving proper instructions on the use of the grocery gates) was in Queensland. 

[19]If anything, the argument here that Queensland provides the proper law of the contract is stronger than it was in Busst v Lotsib Nominees Pty Ltd.^[2]  In Busst the Court of Appeal, at paragraph [9], the issue was to identify the system with which the contract had its closest and most real connection.  In that case, as here, that system was Queensland.

[20]The query raised in Busst by Williams JA at paragraph [19] as to whether the proper law of the contract and the proper law of the tort could be different does not arise here.  The breaches of contract, which are alleged to have given rise to the injury as set out in paragraph 7 of the statement of claim, may be summarised as being the provision of too heavy a gate, the failure to give proper safety instructions, the incorrect configuration of the trailer and the failure to provide a safe system of work.  If these are breaches of the contract of employment each breach had been committed by the time the truck left Richers’ Brisbane depot.  In Dow Jones & Co Inc v Gutnick^[3] in the majority judgment at page 606 (paragraph [43]) the Court rejected the idea that the place where the cause of action in tort arose was necessarily the place where injury was suffered:

“Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeaser 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 this is 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.”

[21]Applying this to the present case it is immediately obvious that the place where the injury was actually suffered was a mere geographical coincidence.  It could as likely have been suffered at any location on the trip where it became necessary to use or adjust the grocery gates.  Having regard to the breaches of contract alleged, breaches which would also found any allegation of negligence, had Mr Francis chosen to bring his action in tort, it is clear that any cause of action in tort would, in substance, have arisen in Queensland.

[22]Having determined that the proper law of the contract and the proper law of the tort is Queensland it remains to consider whether the statutory provisions to which I have made reference are applicable.

[23]To be required to take out insurance under s. 155 of the NSW Act that provision has to be interpreted so as to require an employer under that act to insure against a liability arising under Queensland law.  The answer to this question, so far as I am concerned is to be found in the Court of Appeal decision in Burrows v The Workers’ Compensation Board of Queensland.^[4]  Fitzgerald P with whom Mackenzie and Helman JJ agreed said at p. 4:

“I cannot identify any reason for reading subsection 155(1) down so as to exclude from its ambit any work-related injury which occurs in New South Wales.  However, there might be other provisions in the New South Wales Act to which the attention of this Court has not been drawn which affect some limitations in some circumstances, and it is possible that, for example, subsection 155(1) of the New South Wales Act is inapplicable if an employee’s presence in New South Wales when he or she is injured in the course of his or her employment is fortuitous, fleeting or sufficiently unusual.  It is sufficient for present purposes to say that, in my opinion, subsection 155(1) of the New South Wales Act is not inapplicable merely because neither employer nor employee is resident or domiciled, based or located, whichever be thought most apposite, in New South Wales when an employee is injured, and that the subsection was applicable to the respondent’s then employer in respect of the work-related injury when the respondent suffered in New South Wales in the course of his employment which was the subject of the present action.”

[24]I do not consider Mr Francis’ presence in New South Wales at the time he was injured to be “fortuitous, fleeting or unusual” in the sense used by the Court in Burrows.  Mr Francis was on a specific trip to Newcastle.  Travel to and within New South Wales was a normal and regular activity carried out by Mr Francis in the course of his employment.  His injury there could be described as “fortuitous” only in the sense that the allegations against his employer in the statement of claim are such that the breach of contract or negligence had already occurred and the damage necessary to complete the cause of action could have been suffered on whatever route the driver was sent.  Because of the regularity of trips to New South Wales, injury there (as opposed to any other regular location) as a result of the alleged conduct of the employer in Queensland was always a significant risk.  In that sense it was not “fortuitous”.

[25]While there have been some changes to the wording of s. 155 of the NSW Act since Burrows was decided, those changes do not affect the decision in this case.  When Burrows was decided the words in brackets in s. 155(1) as set out above did not appear.  They were inserted by the Workers Compensation Legislation Amendment Act 1995 (NSW).  At the time relevant to the decision in Burrows, the words in brackets were, “being a liability under a law of New South Wales”.

[26]The effect of the change in the wording of the statutory provision has been to widen, rather than restrict the obligation to insure.  The requirement that the cause of action arose under New South Wales law no longer applies except in relation to claims for workers’ compensation.  This is not such a claim.  The explanatory notes to the amending act, the text of which was helpfully set out by McGill DCJ in WorkCover Queensland v Pelesic & Ors^[5] at paragraph [16] make it clear that the legislative intention was to extend the coverage of the Act.  In the circumstances, despite some reservations about the decision expressed by Williams JA in Foster v Skilled Communication Services Pty Ltd & Ors^[6] at paragraphs [17] and [18], I consider that the decision of the Court of Appeal in Burrows compels me to find that the provisions of s. 155(1) apply to Mr Francis’ claim.  Even without that authority I would still be of the opinion that on its proper construction s. 155(1) applied, subject only to some connection with New South Wales to give that State legislative power.  That connection is provided by the fact that Mr Francis was injured there.

[27]If Emijay is required to insure under the provisions of s. 155(1) of the NSW Act and has done so then it must follow that this injury is a liability for which it was required to provide under a law of another State.  Section 11(2) of the WorkCover Act thus operates to exclude liability under that Act. 

[28]In relation to the amended application filed 2 November 2004:

a.I declare that the substantive law applicable to the applicant’s claim and statement of claim is the law of the State of Queensland

b.I declare that pursuant to s. 155(1) of the Workers’ Compensation Act 1987 (NSW) the third respondent is required to indemnify the first respondent against any liability to the applicant arising from an incident on 26 November 2001.

c.I declare that by reason of s. 11(2)(b) of the WorkCover Queensland Act 1996 (QLD) the second respondent is not obliged to indemnify the first respondent against liability to the applicant arising from an incident on 26 November 2001.

[29]I will receive submissions on costs up until Friday 11 March 2005.  I will not accept any submission which does not reach me by that date.  Subject to any submissions, I am minded to order the third respondent to pay the costs of each of the other parties on the basis that the issue which brought the parties before me was whether the second or third respondent was required to indemnify the first respondent against the applicant’s claim.  Since the third respondent lost on that issue it would ordinarily be liable for the costs of the other parties.