Elms v Ansell Ltd

[2007] NSWSC 618

CITATION:	Elms v Ansell Ltd [2007] NSWSC 618
HEARING DATE(S):	15/06/2007
JUDGMENT DATE :	20 June 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	I order that paragraphs 7-9 of the Statement of Claim be struck out. The plaintiff is to pay the costs of the Notice of Motion.
CATCHWORDS:	Relief sought pursuant to Trade Practices Act - application to strike out - plaintiff entitled to workers' compensation - statutory construction - definition of "acquire" - summary relief
LEGISLATION CITED:	Trade Practices Act 1974 (Cth)
CASES CITED:	Klease v Brownbuilt Pty Ltd [2002] QSC 226 Lanza v Codemo Management Pty Ltd t/a Yoogali Engineering Co [2001] NSWSC 72
PARTIES:	Susan Mary Elms Ansell Ltd
FILE NUMBER(S):	SC 20418/06
COUNSEL:	Mr A.J. Bartley SC / Mr S. J. Longhurst (Pl) Mr R. A. Cavanagh (Def)
SOLICITORS:	Russel McLelland Brown (Pl) Carroll & O'Dea (Def)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

20 JUNE 2007

20418/06 Susan Mary Elms v Ansell Ltd

JUDGMENT

1 HIS HONOUR: The plaintiff has been employed as an enrolled nurse. In or about August 1999, she commenced employment with what is now known as South Eastern Sydney and Illawarra Area Health Service (the employer).

2 The plaintiff’s evidentiary statement contains, inter alia, the following:-

“5 In the time that the plaintiff was employed by the Health Service she was constantly and continually exposed to products which contain latex. These products included latex gloves.
6 The latex gloves were made available by the Health Service for use by all Hospital staff. The gloves were contained in a dispenser box.”

3 The defendant was the manufacturer and distributor of latex gloves (the gloves) sold to the employer. The plaintiff claims to have suffered injury on or about 20 October 2003 as a result of exposure to the gloves.

4 On 20 October 2006, the plaintiff filed a Statement of Claim in this Court. It purports to allege four causes of action.

5 The first is founded on negligence. It is pleaded in paragraph 6 of the Statement of Claim.

6 The second is founded on s75AD of the Trade Practices Act 1974 (Cth) (the Act). It is pleaded in paragraph 7 of the Statement of Claim.

7 The third is founded on s74B of the Act. It is pleaded in paragraphs 8 and 9 of the Statement of Claim.

8 The fourth is founded on s52 of the Act. It is pleaded in paragraph 10 of the Statement of Claim.

9 On 6 June 2007, the defendant filed a Notice of Motion. The hearing of that Notice of Motion took place on 15 June 2007.

10 The relief pressed by the defendant at the hearing was the striking out of paragraphs 7-9 of the Statement of Claim.

11 It is common ground that the plaintiff has suffered what is described as a workplace injury and that she is receiving workers’ compensation.

12 The defendant says that neither s75AD or s 74B of the Act provide any remedy to the plaintiff.

13 In respect of the claim advanced pursuant to s75AD, it is said that s75AI provides a defence to her claim.

14 Section 75AI relevantly provides that s75AD does not apply to a loss in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that; relates to workers’ compensation.

15 The question that is now being argued before me has been decided in Lanza v Codemo Management Pty Ltd t/a Yoogali Engineering Co [2001] NSWSC 72. In that case what was said by Wood CJ at CL supports the argument advanced by the defendant. What was said in that case was followed in Klease v Brownbuilt Pty Ltd [2002] QSC 226.

16 It seems to me, at least as a matter of judicial comity, that I should follow these decisions.

17 The plaintiff accepts that this may be the case. All that is then put is that there may be some uncertainty as the question has not been considered by an Appellate Court and that paragraph 7 of the Statement of Claim should not be struck out until that has taken place. I do not accept that submission.

18 In respect of the purported cause of action founded on s75B, the defendant says that as a matter of statutory construction it cannot be maintained.

19 For present purposes, the relevant provisions of s74B are as follows:-

“74B Actions in respect of unsuitable goods

(1) Where:

(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;

(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
…

the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.”

20 The interpretation provisions of the Act (s4) provide a definition of “acquiring”. It is defined as follows:-

“acquire includes:

(a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase; and

(b) in relation to services—accept.”

21 There was no issue that the purported cause of action could not be maintained pursuant to (a) of subs (1). The issue (if that is not putting the position too high) is whether or not it is maintainable pursuant to (b) thereof.

22 What is pleaded by the plaintiff is, inter alia, that she was a “consumer” and that the latex gloves were acquired for a particular purpose.

23 The submission made by the defendant is put in the following terms:-

“12. Irrespective of the merits of the balance of the allegations under s.74B and s.74D, those sections only apply where the manufacturer supplies goods to a consumer or supplies goods to a person who acquires the goods for re-supply to consumers. As set out in s.74B and s.75D, a remedy is only available to the consumer, where the consumer acquires the goods or derives title to the goods from either the manufacturer or some other person.

13. Supply in relation to goods is defined to mean (including re-supply) by way of sale, exchange, lease, hire or hire purchase. “Acquire” is defined to mean acquired by way of purchase, exchange or taking on lease, on hire or on hire purchase. The Plaintiff was using her employer’s goods, ie gloves. The Plaintiff did not acquire the gloves and the goods were not supplied to her within the definitions in the TPA. Whilst the definition may not be exclusive, there is no interpretation available and no authority which supports the proposition that the Plaintiff has acquired the gloves merely by taking them from some sort of dispensary on her employer’s premises. As such, the Plaintiff does not have a remedy under s.74B and s.74D and paragraphs 8 and 9 should be struck out.”

24 In essence, the real matter argued concerned the construction of the definition of “acquire”. The definition is clearly inclusive only (and not exhaustive). The plaintiff contends that arguably what happened in this case may fall within the definition. I do not accept that argument.

25 The definition has not been the subject of judicial scrutiny. The Court was taken to editorial comment to the effect that the inclusive definition was not limited to acquisition by way of purchase. In my view, that comment is not helpful in the present case.

26 It seems to me that the inclusive elements enumerated in the definition have a commonality. It may be described as a commercial characteristic. I consider that whatever else may have been intended to be encompassed by the definition would require that commonality. I do not consider that the circumstances of this case fall within the definition.

27 The plaintiff has argued that these questions are better left to trial. I do not accept that argument. It is in the interest of the parties that hopeless causes of action be removed from the arena expeditiously. Questions of law are properly dealt with in claims for summary relief.

28 As this is an application for summary relief, the authorities demonstrate that relief should be granted only in what might be described as clear cases. In my view, that onus has been discharged by the defendant.

29 I order that paragraphs 7-9 of the Statement of Claim be struck out. The plaintiff is to pay the costs of the Notice of Motion.

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