Flinn v Maryborough Sugar Factory Ltd

[2001] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION:

Flinn v Maryborough Sugar Factory Ltd [2001] QSC 170

PARTIES:

NEVILLE KEITH FLINN
(plaintiff)
v
THE MARYBOROUGH SUGAR FACTORY LIMITED
ACN 009 658 708
(defendant)

FILE NO:

S 25 of 2000

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Maryborough

DELIVERED ON:

25 May 2001

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2001

JUDGE:

Muir J

ORDER:

1.   That the application be dismissed.

2.   That two thirds of the respondent’s costs of and incidental to the application to be assessed be the respondent’s costs in the cause.

3.   That the respondent have leave to amend his reply in order to withdraw the admission of the allegations in paragraph 8.2 of the defence.

4.   That the respondent pay the applicant’s costs to be assessed on a standard basis thrown away by the amendment

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS - Application to strike out paragraphs of Statement of Claim – Whether appropriate to determine summary issue where trial is inevitable – Where possibility of appeal may further delay action.

Uniform Civil Procedure Rules 1999 (Qld), r171
WorkCover Queensland Act 1996 (Qld), s317

COUNSEL:

T Matthews for the applicant
M Grant-Taylor SC for the respondent

SOLICITORS:

Bell Dixon Butler for the applicant
Carwwell & Company for the respondent

1. The applicant/defendant brings an applicant pursuant to rule 171 of the Uniform Civil Procedure Rules for an order striking out paragraphs 7(b), 7(e), 10 and 12 of the respondent plaintiff’s statement of claim, insofar as those paragraphs relate to a claim for damages for future economic loss and/or diminution of future earning capacity.

1. The plaintiff’s claim in the action is for damages for personal injuries. A notice of assessment was issued to the respondent on 14 April 1999 quantifying his work related injury at 0%.

1. In an amended defence the applicant alleged –

“8.2. The plaintiff’s WRI in respect of his admitted injuries assessed in accordance with the Act was 0% and is contained in the notice of assessment dated 14 April 1999.
8.3. The plaintiff on 16 April 1999 failed to disagree, as he was entitled so to do, with the said WRI so assessed.

1. Those allegations are admitted in the respondent’s amended reply.

1. The applicant submits that by virtue of section 317 of the WorkCover Queensland Act 1996 as it stood at material times, the court has no power to make an award for future economic loss or damages for diminution of future earning capacity. Section 317 provides –

“317. A court may award damages for future economic loss or damages for diminution of future earning capacity only if the claimant satisfies the court that, because of the percentage of WRI resulting from the injury sustained, there is at least a 51% likelihood that the claimant will sustain the future economic loss or diminution of future earning capacity.”

1. The respondent opposes the application on a number of grounds. Apart from disputing the applicant’s construction of section 317, the respondent raises a question as to the proper construction of the notice of assessment and alleges that the applicant is estopped from relying on any assessment of work-related injury. He also applies for leave to withdraw the admission of the allegations in paragraph 8.2 of the defence. It is common ground that success by the applicant on this application will not conclude the action. Even if the question of construction of the notice of assessment is decided in the applicant’s favour, the matter must go to trial on the estoppel point.

1. In my view, in these circumstances, it is singularly undesirable that I determine the point the applicant seeks to have determined. If it fails in its application there is a distinct possibility that it will appeal and the trial of the action will be delayed in consequence. If the applicant succeeds, the trial has to go ahead in any event but the respondent may be put to the additional expense of an appeal, which appeal might also serve to prevent the timely determination of the action.  The claim is relatively small and since the matter was argued before me the parties have consented to the proceedings being remitted to the District Court. 

1. I order that the application be dismissed and that two thirds of the respondent’s costs of and incidental to the application to be assessed on the standard basis be the respondent’s costs in the cause.

1. It is further ordered that the respondent have leave to amend his reply in order to withdraw the admission of the allegations in paragraph 8.2 of the defence and that the respondent pay the applicant’s costs to be assessed on a standard basis thrown away by the amendment.