Ferguson v PJ and GR Kropp Pty Ltd

[2001] QDC 291

DISTRICT COURT OF QUEENSLAND

CITATION:	Ferguson v. PJ and GR Kropp Pty Ltd & Anor [2001] QDC 291
PARTIES:	ARTHUR GEORGE FERGUSON (Plaintiff) v. PJ AND GR KROPP PTY LTD (Defendant) And SUNCORP GENERAL INSURANCE LIMITED (Third Party)
FILE NO/S:	Plaint 174 of 1998
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	16 November 2001
DELIVERED AT:	Brisbane
HEARING DATE:	9 November 2001
JUDGE:	McGill DCJ
ORDER:	Plaint struck out
CATCHWORDS:	Evans v. Transit Australia Pty Ltd & Anor [2000] QCA 512 - followed Young v. Keong [1999] 2 Qd.R. 235 - followed Dey v. Victorian Railway Commissioners (1949) 78 CLR 62 - cited General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 - cited A v. Ipec Australia Ltd [1973] VR 39 – cited
COUNSEL:	P.C.P. Munro for the plaintiff K.F. Holyoak for the defendant
SOLICITORS:	Kevin McSweeney & Co for the plaintiff O’Mara’s Lawyers for the defendant

1. By plaint filed on 16 January 1998, the plaintiff claimed from the defendant $250,000 damages for negligence, breach of statutory duty and breach of contract of employment.  It was alleged that on or about 20 March 1995 the plaintiff, in the course of his employment with the defendant, while driving a semi-trailer suffered an exacerbation of a back condition and a further injury to his back, as a result of the breach of various obligations of the defendant as employer, and as a result of the breach of the defendant’s duty under the Workplace Health and Safety Act 1989. By a third party notice filed on 15 July 1998, the defendant sought from Suncorp General Insurance Limited an indemnity under a policy of insurance issued under and in accordance with the Motor Accident Insurance Act 1994 (“the MAI Act”) in respect of any liability to the plaintiff. On 19 January 2001 I ordered that the third party be granted leave to defend the plaintiff’s claim in the proceedings, and made various consequential orders in relation to the trial together of the plaintiff’s claim and the defendant’s claim against the third party.

1. The plaintiff provided further and better particulars of its claim on 23 March 1998, and further particulars on 25 August 1998[1].  On those particulars it is apparent that the plaintiff’s case is that he was employed by the defendant from about Christmas Day 1994 to 20 March 1995 to drive a milk truck which was required, in the course of its ordinary use, to travel over internal farm roads which were frequently rough.  The truck was fitted with a defective seat, which did not have the usual capacity for adjustment and was not properly sprung, so that when the truck was driven over rough roads the plaintiff received a rougher ride than he ought to have received, and this exacerbated the condition of his back which amounted to an injury.  The relevant injury therefore was not something which occurred on any particular occasion as a result of some specific incident on that occasion, but…