Dukker v Challenge Recruitment Limited - [2011] QDC 108

DISTRICT COURT OF QUEENSLAND

CITATION:

Dukker v Challenge Recruitment Limited [2011] QDC 108

PARTIES:
Lauren Dukker
(Plaintiff)
v

Challenge Recruitment Limited
(Defendant)

FILE NO/S:

2083 of 2010

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

23 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 18 March 2011

JUDGE:

A/Judge Farr SC, DCJ

ORDER:

1. The plaintiff’s claim is dismissed.

CATCHWORDS:

INSURANCE – THE POLICY – insurance benefit – total and permanent disablement benefit – whether the plaintiff’s disability became total and permanent while she was engaged in regular remunerative work for the defendant or within six months of the cessation of that regular remunerative work – plaintiff failed to establish that her disability became total and permanent within the terms of the policy

INSURANCE – THE POLICY – insurance benefit – total and permanent disablement benefit – whether AMP would have paid out on the total and permanent disability policy if the relevant form had been submitted promptly by the employer – plaintiff failed to establish AMP would have paid out on the claim

TORTS – NEGLIGENCE – ESSENTIALS FOR ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – WHERE ECONOMIC OR FINANCIAL LOSS – whether defendant employer breached duty of care to plaintiff employee to not cause financial loss to the plaintiff – where the defendant’s delay in submitting questionnaire to AMP was a failure to act reasonably and financial loss to the plaintiff was foreseeable, however the defendant’s actions did not in fact cause financial loss to the plaintiff

Kilvington v Grigg & Ors [2010] QDC 496 at [58] – [60] per McGill J, cited

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at [104] per McHugh J, cited

Fortuna Seafoods Pty Ltd v The Ship ‘External Wind’ [2008] 1 Qd R 429 at 437 [6] per McMurdo P, cited

Perre v Apand Pty Ltd (1999) 198 CLR 180, cited

Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [74] per McHugh J, cited

United Superannuation Pty Ltd v Harrison [2001] FCA 1468 at [49] – [50] per Wilcox J, followed

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY - whether there is an implied term of the contract between the plaintiff employee and the defendant employer that the defendant will act in good faith and not in a manner such as to damage the relationship of confidence and trust between employer and employee – the authorities lean to the existence of such an implied term in a contract of employment – the defendant may owe a duty to the plaintiff pursuant to an implied term to promptly forward forms to AMP for the purpose of arranging insurance cover –however dishonest conduct on the part of the plaintiff in giving false answers offends the implied term that the parties act in good faith in a relationship of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QDC 108
Decision Date: 23 June 2011

CaseChat Overview and Summary

In the case of Dukker v Challenge Recruitment Limited, the plaintiff sought to claim a total and permanent disablement benefit under an insurance policy, as well as to hold the defendant employer liable for negligence in failing to submit a relevant form to the insurer in a timely manner. The case was heard and determined in the District Court of Queensland. The central dispute was whether the plaintiff's disability became total and permanent within the stipulated timeframe under the insurance policy and whether the defendant employer was negligent in its handling of the claim process, thereby causing the plaintiff financial loss.

The court was tasked with deciding whether the plaintiff's disability met the criteria for a total and permanent disablement benefit under the policy, specifically whether the disability became total and permanent while she was engaged in regular remunerative work for the defendant or within six months of the cessation of that work. Additionally, the court needed to determine if the defendant employer breached its duty of care by delaying the submission of the relevant form to the insurer, thereby potentially causing the plaintiff financial loss.

The court found that the plaintiff did not establish that her disability became total and permanent within the terms of the insurance policy. Furthermore, the court held that while the defendant's delay in submitting the questionnaire to the insurer was a failure to act reasonably and the financial loss to the plaintiff was foreseeable, the delay did not in fact cause the financial loss to the plaintiff. Consequently, the plaintiff's claim was dismissed. The court was satisfied that the defendant's actions did not result in the plaintiff suffering the financial loss she sought to recover.

The court concluded that the plaintiff's claim is dismissed and indicated that submissions on costs would be heard.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Conclusion The plaintiff’s claim is dismissed. I shall hear submissions as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:		Dukker v Challenge Recruitment Limited [2011] QDC 108
PARTIES:		Lauren Dukker (Plaintiff) v Challenge Recruitment Limited (Defendant)
FILE NO/S:		2083 of 2010
DIVISION:		Trial
PROCEEDING:		Trial
ORIGINATING COURT:		District Court, Brisbane
DELIVERED ON:		23 June 2011
DELIVERED AT:		Brisbane
HEARING DATE:		17 and 18 March 2011
JUDGE:		A/Judge Farr SC, DCJ
ORDER:		1. The plaintiff’s claim is dismissed.
CATCHWORDS:		INSURANCE – THE POLICY – insurance benefit – total and permanent disablement benefit – whether the plaintiff’s disability became total and permanent while she was engaged in regular remunerative work for the defendant or within six months of the cessation of that regular remunerative work – plaintiff failed to establish that her disability became total and permanent within the terms of the policy INSURANCE – THE POLICY – insurance benefit – total and permanent disablement benefit – whether AMP would have paid out on the total and permanent disability policy if the relevant form had been submitted promptly by the employer – plaintiff failed to establish AMP would have paid out on the claim TORTS – NEGLIGENCE – ESSENTIALS FOR ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – WHERE ECONOMIC OR FINANCIAL LOSS – whether defendant employer breached duty of care to plaintiff employee to not cause financial loss to the plaintiff – where the defendant’s delay in submitting questionnaire to AMP was a failure to act reasonably and financial loss to the plaintiff was foreseeable, however the defendant’s actions did not in fact cause financial loss to the plaintiff Kilvington v Grigg & Ors [2010] QDC 496 at [58] – [60] per McGill J, cited Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at [104] per McHugh J, cited Fortuna Seafoods Pty Ltd v The Ship ‘External Wind’ [2008] 1 Qd R 429 at 437 [6] per McMurdo P, cited Perre v Apand Pty Ltd (1999) 198 CLR 180, cited Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [74] per McHugh J, cited United Superannuation Pty Ltd v Harrison [2001] FCA 1468 at [49] – [50] per Wilcox J, followed CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY - whether there is an implied term of the contract between the plaintiff employee and the defendant employer that the defendant will act in good faith and not in a manner such as to damage the relationship of confidence and trust between employer and employee – the authorities lean to the existence of such an implied term in a contract of employment – the defendant may owe a duty to the plaintiff pursuant to an implied term to promptly forward forms to AMP for the purpose of arranging insurance cover –however dishonest conduct on the part of the plaintiff in giving false answers offends the implied term that the parties act in good faith in a relationship of…