Morgan v Edward[2011] QSC 165

SUPREME COURT OF QUEENSLAND

1. The plaintiff claims to have suffered personal injuries in the course of his employment on 19 September 2007. As at that date, the plaintiff:

1. was employed by the first defendants as a labourer, and

2. was a worker provided by the first defendant to the second defendant to perform duties in the second defendant’s work yard at Nebo.

2. In accordance with the requirements of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”) and the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”), the plaintiff served Notices of Claim dated
   16 September 2008 on each of the defendants.  A compulsory conference of the claims against each defendant was held on 14 August 2009.  The plaintiff’s claims were not settled at the compulsory conference.

3. On 18 September 2009, the plaintiff commenced the present proceeding by issuing a claim and statement of claim. The statement of claim alleged that the plaintiff was injured when, in the course of his employment at the second defendant’s premises, and while loading augers onto the tray of a truck, one auger rolled towards another, struck the plaintiff on the right leg and then pinned the plaintiff’s right leg between that and another auger.

4. The plaintiff alleged in paragraph 9 of the statement of claim that he suffered:

1. a crush injury to the right leg, and

2. a musculo-ligamentous injury to the lumbar spine.

5. The statement of claim then pleaded separate particulars of negligence against each of the defendants, alleged contravention of the relevant workplace safety legislation, and particularised the damage which the plaintiff claimed to have suffered. Somewhat idiosyncratically, however, the statement of claim conclude with the following plea:

“15.The plaintiff has complied with the provisions of the Workers’ Compensation and Rehabilitation Act 2003 and the Personal Injuries Proceedings Act 2002 and is entitle to commence these proceedings save for and except that the plaintiff has not entitlement to damages against the first defendant in relation to the lumbar spine injury referred to at subparagraph 9(b) herein.”

6. On 16 December 2009, the first defendants filed a Notice of Intention to Defend and Defence.

7. On 20 November 2009, the solicitors for WorkCover Queensland, the first defendants’ insurer, wrote to the plaintiff’s solicitors making “an offer to settle the Plaintiff’s claim against the First defendant only” for a stated sum clear of the WorkCover refund (nil) and inclusive of all other statutory refunds and charges.  The letter of offer continued:

“We had intended to make a joint offer with the Second Defendant to settle the Plaintiff’s claim against both Defendants.  However, the Second Defendant has not joined with us in making an offer.

Our offer is for an amount which we think is above the amount a Court would apportion against the First Defendant so that, should the Plaintiff accept the offer and discontinue against the First Defendant, it would be (with respect) ill advised for the Second Defendant to join the First Defendant as a Third Party to the claim because a Court would rule the first Defendant is not liable to pay any damages additional to the settlement.”

8. The letter enclosed a draft form of “Release and Discharge” which WorkCover required the plaintiff to execute if he accepted the offer.

9. On 26 November 2009, the plaintiff’s solicitor sent an email to the first defendants’ solicitors advising “... we have instructions to accept your offer ... to settle the claim as against WorkCover only”.  (These words were in bold and italics in the email).

10. The plaintiff’s solicitors subsequently forwarded the form of “Release and Discharge” which had been executed by the plaintiff on 9 December 2009. The document was expressed to be made between the plaintiff, the first defendants and WorkCover. The recitals stated:

“A.The Plaintiff allegedly sustained personal injuries in the course of his employment with HHH Contractors on 19 September 2007.

B.The Plaintiff commenced proceedings in the Supreme Court at Mackay by Claim and Statement of Claim number S146 of 2009 seeking damages in respect of those injuries (“the claim and proceedings”).

C.The parties have agreed to settle the claim and proceedings without any admission of liability, on the terms set out below (“the agreement”).”

11. The operative part then provided for payment of the settlement sum by WorkCover and consequential matters relating to deductions, clearances etc. Clauses 5 and 6 then provided:

“5Release and Indemnity

In consideration of payment of the settlement sum, the Plaintiff:

5.1Releases and discharges WorkCover and HHH Contractors from any liability howsoever arising out of the facts and circumstances the subject of the claim and proceedings;  and

5.2Indemnifies WorkCover and HHH Contractors against all claims which have arisen or which may arise in the future in relation to the facts and circumstances the subject of the claim and proceedings.

6Bar To Action

This agreement may be pleaded in bar to any actions, claims, demands or proceedings brought now or in future by the Plaintiff or on the Plaintiff’s behalf having arisen or which may arise in the future out of the facts and circumstances the subject of the claim and proceedings.”

12. Consistent with this settlement between the plaintiff and the first defendants, their respective solicitors executed a Notice of Discontinuance against the first defendants in early December 2009. That Notice of Discontinuance was subsequently filed in the Registry.

13. In the meantime, the solicitors for the plaintiff and the solicitors for the second defendant consented to an order, the effect of which was to substitute the present named second defendant for the entity which had originally been named as second defendant. That consent order was made on 24 December 2009. The plaintiff then filed an amended claim and statement of claim correcting the name of the second defendant. Otherwise, the statement of claim was identical to that which had originally been filed.

14. On 9 February 2010, the second defendant filed its Notice of Intention to Defend and Defence, and on 12 February 2010 the plaintiff filed a Reply.

15. In November 2010, the second defendant filed an application seeking the following orders:

“1.An order pursuant to UCPR 293, that the second defendant have judgment against the plaintiff on the grounds that:-

(a)the plaintiff has no real prospect of succeeding on all or part of his claim;  and

(b)there is no need for a trial of the claim or any part of the claim.”

2. Further or alternatively, within the inherent jurisdiction of the Court, the plaintiff’s action be dismissed or otherwise struck out by virtue of the Release and Discharge executed by the plaintiff on 9^th December 2009, whereby the maintenance of the action is both frivolous and vexatious, and constitutes an abuse of process of the Court.”

16. The supporting affidavit by the second defendant’s solicitor recited the history of the claim, referred to the terms of the “Release and Discharge” which the plaintiff had executed and concluded:

“10.The within claim is expressly excluded by the bar.  The plaintiff’s action is one commenced against joint tortfeasors and the release to one operates as a discharge of the other.  The plaintiff’s claim is not maintainable, it has no prospects of success, there is no need for the trail [sic] of the action or any part thereof and the second defendant is entitled to judgment against the plaintiff.  Further, the plaintiff’s claim is frivolous, vexatious and an abuse of the process of the Court and should be struck out.”

17. The second defendant’s submission before me was that release of the first defendants had effected a release of the second defendant as a joint tortfeasor.

18. It is unnecessary to set out details of the arguments which counsel for the plaintiff advanced. Unfortunately, when the matter was argued before me the authority on which the second defendant principally relied, and to which the plaintiff’s counsel addressed his argument, was the judgment of the Full Federal Court in
    Thompson v Australian Capital Television Pty Ltd.^[1]  It was only some time after the oral argument that it was drawn to my attention (quite properly by counsel for the second defendant) that this judgment had been reversed by the High Court in Thompson v Australian Capital Television Pty Ltd.^[2]

19. That case concerned, inter alia, the Australian Capital Territory counterpart of s 6(a) of the Law Reform Act 1995 (Qld).  That section relevantly provides:

“Where damage is suffered by any person as a result of a tort (whether a crime or not) the following apply -

1. judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;”

20. It is sufficient for present purposes to refer to the joint judgment of Brennan CJ, Dawson and Toohey JJ, in which their Honours noted the common law rule that where there was a joint tort there could be only one action and one judgment for the whole amount of the damages to which the plaintiff was entitled. Their Honours said, at 581, that this was the basis of the rule in Brinsmead v Harrison^[3] that a judgment obtained against one tortfeasor was a bar to an action against the others on the same cause of action.  It was also the basis for the common law rule that the release of one joint tortfeasor released all the others.  Their Honours referred in this regard to Duck v Mayer ^[4] (on which the second defendant also relied in the present application).

21. Their Honours held, however, that the effect of the ACT equivalent of s 6(a) is that the cause of action against joint tortfeasors is no longer one and indivisible, and said at 584:

“The concept of a single wrong and a single cause of action having gone, the rule that a release given by one joint tortfeasor releases any others must have gone with it, for that rule is nothing more than another aspect of the same think, namely, that there is only one cause of action against all tortfeasors in respect of the one tort.  In other words, once the cause of action is by statute no longer one and indivisible, there is no conceptual basis for the rule that the release of one joint tortfeasor releases the others.  The rule must therefore be taken to have been impliedly abolished by the statute.”

See also Gummow J (with whom Gaudron J agreed) at 613-614.

22. This authority is a complete answer to the contentions advanced by the second defendant in support of the application. It is unnecessary for me to descend into the arguments advanced before me as to whether the claims against the first defendants and the second defendant were completely joint or whether there were particular several claims against each. Even if they were joint tortfeasors, and despite what may have been the position at common law, the effect of s 6(a) of the Law Reform Act 1995 (Qld) is that the release of the first defendants did not result in a release of the second defendant.

23. The application will therefore be dismissed with costs.