Callum Constructions v Anderson
[2011] QCAT 37
•2 February 2011
| CITATION: | Callum Constructions v Anderson [2011] QCAT 37 |
| PARTIES: | Callum Constructions Pty Ltd |
| v | |
| Mr Greg Anderson |
| APPLICATION NUMBER: | BDL271-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 2 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Anne Forbes, Member |
| DELIVERED ON: | 2 February 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
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| CATCHWORDS : | Queensland Civil and Administrative Tribunal Act 2009 s 47 – whether claim against employed engineer an arguable cause of action – application under s 47 dismissed. |
APPEARANCES and REPRESENTATION (if any):
| The application was determined on the papers by the Tribunal. No parties were present at the determination. |
REASONS FOR DECISION
On 9 August 2010 Callum Constructions Pty Ltd (“Callum”) filed an application (“the initial application”) under the Queensland Building Services Authority Act 1991 (“the BSA Act”) seeking payment by the Respondent Gregory Lloyd Anderson “of an amount owing to the BSA, $6,250 for “defective engineering documentation which has led to timber beam deflection”. The claim has since been increased to $8,615.00: Applicant’s submissions filed 9 December 2010, paragraph 1.
The Tribunal has jurisdiction in “building disputes” under s 77 of the BSA Act. According to s 75(1)(f) of that Act, “tribunal work” includes “the preparation of plans, specifications or bills of quantity for the carrying out of tribunal work” and according to s 75(4), a person carries out tribunal work by providing advisory services relating to tribunal work.
From 13 January 2003 to 15 May 2005 the Respondent was employed as a civil engineer by Warren Brown and Associates Pty Ltd (“the Brown company”), and in that period the company was engaged by Kyco Developments to prepare and draft a design for a building at 14-16 Musgrave Terrace, Alderley (“the Alderley building”).
Copies of that design, tendered by each party, bear the signature “G Anderson FIEAUST RPEQ 1359” followed by a wavy line and the printed name, “Warren Brown”. At all material times Warren Brown was a director of Warren Brown and Associates Pty Ltd. (I understand that the letters “FIE” mean “Fellow of the Institute of Engineers” and “RPEQ”, “Registered Professional Engineer Queensland”.)
Anderson says that he “did not personally undertake the structural design of the framing in question” but concedes that he signed a relevant drawing “as an employee of Warren Brown and Associates Pty Ltd for Warren Brown in his absence and on his instructions”: affidavit of Gregory Lloyd Anderson sworn 30 November 2010.
Copy of an Employment Contract between Brown and the Respondent, dated 13 January 2003, and tendered by the Respondent, records that it “shall create the relationship of employer and employee [and that] it is not [the parties’] intention to create any other relationship and, in particular, the relationship of principal and contractor or the relationship of partners”.
It appears that about 4 years after the implementation of the subject design, the Building Services Authority found that a timber beam in the Alderley building was inadequate for its purpose. Subsequently the Authority accepted an insurance claim by the owner of the building and exercised its right to recover from Callum the amount paid to the building owner, namely $8,615.00: letter, BSA to Applicant, 10 June 2010; submissions of applicant filed 9 December 2010; BSA Act s 71.
It is clear that the Applicant has a relevant contractual relationship with Warren Brown and Associates Pty Ltd; however, for reasons that have not been made clear, it is not proceeding against the company, but only against Anderson in person.
The Interlocutory Application
The Respondent submits that this question must be answered in the negative. On 9 December 2010 he filed an application (“the interlocutory application”) submitting, in substance, that: (1) he is not a proper respondent to the initial application, because he was at all material times merely an employee of the Brown company; and (2) the Tribunal has no jurisdiction to make an order in favour of a non-party, namely the BSA.
[10] On those bases the Respondent contends that the initial application should be dismissed as one that is misconceived and lacking in substance within the meaning of s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).
Order for Non-Party?
[11] The initial application is inartificially drawn, as are many other documents in this jurisdiction. Clearly, if the Applicant is entitled to any relief, it must be granted to the Applicant itself. However, the Applicant has since made it clear that it “is ... requesting the monies are not paid to a third party but directly to Callum Constructions Pty Ltd”: Applicant’s submissions filed 9 December 2010 paragraph 1.
[12] I see no substance in the Respondent’s submission (1 December 2010 page 2) that “the Tribunal does not have jurisdiction to [order] ... payment to a third party”. I would allow the Applicant to make any appropriate and consequential amendments to the initial application.
Respondent not a proper respondent?
[13] It is clear that there is no contractual relationship between the Applicant and the Respondent in person. The person engaged by the Applicant to design the Alderley premises was Warren Brown and Associates Pty Ltd.
[14] The Applicant is not entitled to an indemnity from the company or its employees merely because the Applicant incurred a statutory liability to the BSA. As against the Respondent the Applicant can only succeed by establishing a breach of legal duty. May an employed professional engineer who signs plans (albeit over the printed name of another engineer, a director of the designing company) owe a duty of skill and care to the person who engaged the company’s services?
[15] Professional responsibility as an engineer can attach only to natural persons; companies are not eligible for registration: Professional Engineers Act 2002 s 8(1). Under the same Act “unsatisfactory professional conduct”, for any registered professional engineer, includes conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgement or care, in the practice of engineering.
[16] An employed doctor owes a duty of care not only to his employer, but also to his patient, irrespective of any contract between doctor and patient: Thomsen v Davison [1975] Qd R 93 (W B Campbell J) (Regimental MO and soldier). It is at least arguable, in my opinion, that an employed engineer’s position is similar. That appears to be the situation in the United States: Harwell T A “Professional Responsibility and the Employed Engineer” Mineral Law Institute, LSU Law Center, Denver, Colorado 1977; Dulaney v Fruge 250 So (2d) 827 at 830 (1972).
[17] I am not persuaded that Callum’s application is frivolous, misconceived or lacking in substance within the meaning of s 47 of the QCAT Act.
[18] The interlocutory application is dismissed. The Applicant is at liberty to amend the initial application to indicate the full amount claimed, and that it seeks an order for payment of that amount to it, not to the BSA.
[19] There will be no order as to costs.
Limits of this ruling
[20] The nature and limits of the present ruling must be clearly understood. It is not a decision that the Applicant is entitled to recover any or all of the amount claimed. It is merely a decision that the Applicant has a reasonably arguable case which is entitled to go to trial. The precise nature of the relationship between the Applicant and the Respondent, the Respondent’s role in relation to the subject design, the existence or non-existence of a legal duty arising from that relationship, and the adequacy or otherwise of that design are matters for the member presiding at the trial, and I express no opinion upon them.
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