Goodwin v La Macchia

[1999] NSWSC 1184

CITATION:	Goodwin v La Macchia & Ors [1999] NSWSC 1184
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	W200002/95
HEARING DATE(S):	11 October 1999
JUDGMENT DATE:	7 December 1999
PARTIES :	Williams Thomas John Easdown (2nd Defendant) Texole Pty Limited (3rd Defendant) Stephen Walker (4th Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	I. Mescher (2nd Defendant) S.J. Longhurst (3rd Defendant) F.S. Stevens (4th Defendant)
SOLICITORS:	Michell Sillar (2nd Defendant) Miller Harris (3rd Defendant) South and Geldard (4th Defendant)
CATCHWORDS:	CONTRACT; construction; meaning to be given to agreement to insure..."including insurance of all crew for personal injury and death"; relevant principles of construction considered; RECEIVER; whether personally liable on contract entered into within scope of and in course of his agency; EMPLOYER AND EMPLOYEE; employee liable in negligence to third party; claim for indemnity by employee against employer; action brought in New South Wales; application of law of Queensland; employee's claim to be indemnified by employer not maintainable.
ACTS CITED:	Corporations Law Jurisdiction of Courts (Cross Vesting) Act Employee's Liability Act, 1991
CASES CITED:	Hillas & Co. Limited v Arcos Limited [1932] 147 LT 503 Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 Council of the Upper Hunter County District v Australian Chilling and Freezing Co. Limited (1967) 118 CLR 429 Meehan v Jones (1982) 149 CLR 571 Gosling v Gaskell (1897) AC 575 re Vimbos Ltd (1900) 1 Ch 470 Cully v Parsons (1923) 2 Ch 512 Sheahan v Carrier Air Conditioning Pty Limited (1997) 189 CLR 407 Kendle v Melsom (1998) 193 CLR 46 Goodwin v La Macchia & Ors [1999] NSWSC 963 Lister v Romford Ice and Cold Storage Co. Limited (1957) AC 555 A.R. Griffiths & Sons Pty Limited v Richards [1996] QCA 417
DECISION:	See para 55

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Tuesday 7 December 1999

2/95 KERRY GOODWIN v B.A. LA MACCHIA & ORS

JUDGMENT

1   HIS HONOUR: On Monday 11 October the hearing on the outstanding claims was concluded. There are two remaining cross claims calling for the decision of the Court and these I now address.

1. The cross claim of the third defendant against the second defendant

2   The cross claim by the third defendant against the second defendant was expressed as being based in negligence and breach of contract.

3   The plaintiff failed to prove that the second defendant was negligent and the third defendant introduced no evidence on its cross claim against the second defendant directed to the issue of the second defendant’s negligence. It follows that I am not satisfied that the third defendant has proved that the second defendant was negligent in the circumstances in which the plaintiff was injured and, accordingly, the third defendant’s cross claim against the second defendant is not established in negligence.

4   The cross claim, to the extent that it is based in contract, is dependent upon the construction of the agreement which I find was entered into between the second defendant and the third defendant on 8 May 1991 (Exhibit K).

5   In my earlier judgment I identified the documents in consequence of which the second defendant became the receiver of the “Tagula Bay” (see Exhibits H and J). Exhibit K is the agreement governing the relationship between the second defendant as “the operator” of the “Tagula Bay” and the third defendant as “the skipper” of the vessel. The agreement recites the second defendant’s agreement to employ the third defendant “to fish the vessel” on the terms and conditions set out in the document. The document provides for the manner of supply of provisions and equipment required to operate the vessel and the remuneration of the third defendant by a share of the catch (see the schedule).

6   In clauses 3 and 4 there are a number of requirements imposed upon the third defendant concerning the operation and maintenance of the vessel. It is unnecessary to recite those requirements for present purposes, except for clause 3(b) which is important. Under this sub-paragraph the third defendant is charged with the responsibility of engaging the necessary fishermen to work the vessel. That sub-paragraph also imposes the requirement to pay those fishermen for their work upon the third defendant.

7   It is clause 5 which represents the foundation of the third defendant’s cross claim. I set the terms of the clause out in full:

“5. (a) The Operator [that is, the second defendant] shall at its expense:-
(i) Supply the fuel for the vessel, cartons for the product, and attend to payment of all freight charges and commission on product sales;
(ii) Effect any necessary structural alterations and major repairs to the vessel which cannot be effected in the course of operations by the Skipper [that is, the third defendant];
(iii) Insure the vessel during the voyage including insurance of all crew for personal injury and death..
(b) The Skipper shall at his expense supply the provisions and equipment (if any) specified in Item 6(b) of the Schedule.”

8   It is to be observed that in the above clause is to be found the expression of obligations imposed upon the second defendant. The second defendant was to supply the fuel for the vessel and cartons for the catch. It was also to pay any relevant freight charges and commission and it was also required to carry out any necessary alterations and repairs to the vessel that the third defendant could not effect in the course of the fishing operations. The second defendant also had the obligation to insure under clause 5(a)(iii). For its part, the third defendant had the responsibility to pay for such supplies, provisions and equipment as were contemplated in the schedule, namely:

“A proportionate part of ship’s stores and provisions together with all usual and necessary personal navigational aids.”

9   Mr Longhurst submitted that the obligation to insure imposed upon the second defendant under clause 5(a)(iii) is to be read as imposing a contractual obligation on the second defendant to arrange insurance to cover the third defendant against its liability to crew members in circumstances such as have occurred regarding the plaintiff in this case. This submission involves construing the insurance provision in or to the following effect:

“The operator shall at its own expense:-

Effect insurance to indemnify the third defendant in respect of any liability to crew for personal injury and death caused during the operation of the vessel.”

10   Mr Mescher submitted that the document cannot be so construed, and that where the meaning is uncertain the document should be construed against the third defendant, since it is the third defendant which contends for a broad interpretation of the insurance provision.

11   Neither the second defendant nor the third defendant called evidence as to the execution of the agreement and no oral evidence was sought to be introduced by either party in relation to it. Mr Mescher did however tender the backsheet to the agreement. The document when first tendered as Exhibit K had no backsheet to indicate its author, but the backsheet, when added to the document by Mr Mescher’s tender, is in a form commonly seen. It bears the date, it identifies the parties, it carries the description “Agreement”, and then at its foot there is typed:

“MacDonnells,
Solicitors,
Level 6,
National Mutual Tower,
15 Lake Street,
CAIRNS. QLD. 4870”

12   I note also that in the schedule to the agreement the third defendant is described:

“Texole Pty Limited
c/- MacDonnells
Solicitors
15 Lake Street,
Cairns”

13   The inference I draw is that MacDonnells were the solicitors who prepared the agreement, and I draw the further inference from the schedule that MacDonnells were the solicitors acting for the third defendant.

14   Counsel did not refer to authority as to how I should construe the document but I must, of course, consider the construction of the clause in question in accordance with settled principles.

15   In the much cited passage from the judgment of Lord Wright in Hillas & Co. Limited v Arcos Limited [1932] 147 LT 503 at 514. Lord Wright stated that commercial contracts should be construed “fairly and broadly, without being too astute or subtle in finding defects.” That principle is not to be limited to cases where documents are drawn by businessmen without legal assistance, and applies to the construction of this document even though it was apparently prepared by a solicitor: see the dicta of Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109-110.

16   In Contract Law in Australia - Carter and Harland, 3rd ed., at para 260 is to be found the following statement of principle apposite to the task which I face:

“ [260] Difficulty of interpretation distinguished from absence of meaning . It has frequently been said that the courts will interpret the language used broadly and fairly (especially when approaching a document drafted by laymen) (see Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 at 514; Cohen v Mason [1961] Qd R 518) and that it is their duty to place a reasonable meaning on that language unless this is ‘utterly impossible’ (Brown v Gould [1972] Ch 53 at 57; Hammond v Vam Ltd [1972] 2 NSWLR 16 at 18. See also Murphy v Wright (1992) NSW Conv R 55-652 at 59733). While it may be questioned whether the courts do in fact always avoid the temptation ‘to repose on the easy pillow of saying that the whole is void for uncertainty’ (In re Roberts (1881) 19 Ch D 520 at 529, discussed in Brown v Gould [1972] Ch 53 at 57) (alternatively described by Goff LJ as ‘a counsel of despair’) (Nea Agrax SA v Baltic Shipping Co Ltd [1976] 1 QB 933 at 948), the prevailing approach is one of upholding agreements wherever possible.”

17   That the task of construction should not be approached too narrowly was emphasised by Barwick CJ in the Council of the Upper Hunter County District v Australian Chilling and Freezing Co. Limited (1967) 118 CLR 429 where the former Chief Justice said at 436-437:

“But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. Lord Tomlin`s words in this connexion in Hillas & Co. Ltd. v. Arcos Ltd. (1932) 147 LT 503, at p 512 ought to be kept in mind. So long as the language employed by the parties, to use Lord Wright`s words in Scammell (G.) & Nephew Ltd. v. Ouston (1941) AC 251 is not "so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.”

18   See also Meehan v Jones (1982) 149 CLR 571 and in particular the judgment of Gibbs CJ at 578.

19   I am considerably assisted in examining the insurance provision here by the dicta of Gibbs J in the Australian Broadcasting Commission case (supra) at 109-110:

“It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate', to use the words from earlier authority cited in Locke v Dunlop, (1888) 39 Ch D 387 at 393, which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley’s case (1880) 16 Ch D 681 at 686. Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas & Co. Ltd v Arcos Ltd (1932) 147 LT 503 at 514 that the court should construct commercial contracts 'fairly and broadly, without being too astute or subtle in finding defects', should not, in my opinion, be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v Australian Chilling and Freezing Co. Ltd (1968) 118 CLR 429 at 437."

20   With the above statements of principle in mind, I return to the subject agreement. This was an agreement in contemplation of the operation of this vessel for fishing purposes and it sought to define who was to undertake the various obligations perceived to be relevant in the fishing operation. Amongst these matters was the recognition of the need to insure and plainly it was perceived that there was a need for appropriate insurance not only against loss or damage to the vessel itself but against liability for injury or death to the crew. It seems to me that the parties to this agreement must have intended to make effective provision to insure, not the crew members directly, but against liability to compensate crew members for harm that befell them in the course of the operation of the vessel.

21   It was the third defendant which had the responsibility of engaging crew members and it was the third defendant which had the day to day control of the operation of the vessel. It is plain that by reason of those circumstances the third defendant was to be exposed in the performance of the agreement to the risk of liability for any harm that might come to a crew member by reason of breach of the duty of care which the third defendant inevitably owed to those who sailed under its control.

22   It seems to me, looking at the whole of the document and considering its objective, there is to be found in clause 5(a)(iii) an intention that the second defendant was to effect insurance cover of the kind for which Mr Longhurst contends, namely that the second defendant was to effect insurance which did afford indemnity to the third defendant in respect of any liability of the third defendant to compensate members of the crew in damages for personal injury or death occurring during the operation and use of the vessel for the purposes of the agreement.

23   Having defined the contractual obligation, the next question is whether there was a breach of this obligation. Mr Mescher submitted that this has not been proved. He submitted that the third defendant has not proved that the second defendant failed to arrange insurance cover such as I have found was required by the clause.

24   Mr Longhurst tendered in his case insurance documents (Exhibit 9) and a further file of flagged documents (Exhibit 10). The transcript reads that these various documents were produced at the trial by Mr Mescher (T 124). This was done after a call had been made for the production of all current policies. I refer to the transcript at T 99:

“KING: I would like to call upon Mr Mescher pursuant to a notice, to produce all policies of insurance for personal injury current in relation to ‘Tagula Bay’ as at 10 January 1992.
MESCHER: My understanding is that those documents were produced under subpoena, and they have been available for inspection. However, in light of that call I will make some inquiries.”

25   Exhibit 9 contains the following:

(i) A document entitled “Entry Form for Protection and Indemnity”. This is a request document addressed to the insurer, the Shipowners’ Mutual Protection and Indemnity Association. The document requests the entry for insurance of the Tagula Bay identifying the applicant as “W.T.J. Easdown as Receiver for B.A. La Macchia Pty Limited (Receiver and Manager Appointed).” The entry date is 23 February 1991.

(ii) The next document identifies the master and crew of the vessel. It bears dated 13 March 1991.

(iii) There is then a confirmation slip from Queenscorp, the broker, which bears date 18 March 1991 and refers to cover from 23 February 1991 to 14 February 1992. The insured under the cover are identified in this document as being:

“W.T.J. Easdown, acting as Receiver on behalf of the Commonwealth Bank of Australia as Mortgagee in possession of F V “Tagula Bay” and noting the interests of B.A. La Macchia, as owner, and Sanwa Australia Limited and Commonwealth Development Bank of Australia for their respective rights and interests.”

(iv) There is then a certificate of entry from the insurer and the schedule identifies the “member” as “Easdown, W.TJ. and Others”. It identifies the “Tagula Bay” as one of the vessels the subject of the policy and it then identifies the terms and conditions of insurance. It then fully identifies the insured for the vessel “Tagula Bay” as being:

“W.T.J. Easdown, acting as Receiver on behalf of the Commonwealth Bank of Australia as Mortgagee in possession of F V “Tagula Bay” and/or B.A. La Macchia, as owner, and Sanwa Australia Limited and Commonwealth Development Bank of Australia for their respective rights and interests.”

26   I note the correspondence of “insured” in this document with the earlier note from the broker (iii). The policy is expressed to be effective from 14 February 1991. I observe that one of the protections afforded (as defined in s 1) was against the following:

“(A) Liability to pay damages or compensation (excluding hospital, medical and funeral expenses) for personal injury, illness or death of any seaman of the insured vessel whether or not on board that vessel…”

27   Nowhere in Exhibit 9 is to be found any reference to the third defendant as a party insured, and of course the “entry” documents record an entry of 23 February 1991.

28   Exhibit 10 is to be found in a file. Mr Longhurst did not tender the complete file but only those documents which are flagged in it. One of the documents in Exhibit 10 is a letter from Price Waterhouse written by Mr Beasley. Mr Beasley gave evidence in the proceedings in Wollongong and explained that he worked with Mr Easdown in this receivership. He said of the roles of himself and Mr Easdown: “We sort of jointly did the receivership.” Mr Beasley wrote to the broker Queenscorp on 6 November 1991 informing the broker that Mr Walker was to become the skipper of “Tagula Bay” from 7 December 1991. I do not propose to describe the other documents to be found in Exhibit 10. In the main the documents are copies of insurance cover notifications which range over a period of time from February 1991 until August 1991.

29   Nowhere in either Exhibit 9 or Exhibit 10 is there to be found any document either requesting or recording the extension of cover concerning the “Tagula Bay” to the third defendant.

30   Notwithstanding Mr Mescher’s submission to the contrary, I draw the inference which Mr Longhurst has submitted should be drawn from this material, namely that the second defendant failed to arrange the insurance cover which I have decided it was obliged to arrange pursuant to clause 5(a)(iii) of the agreement, Exhibit K. I should add that Mr Mescher sought at the conclusion of the proceedings in Wollongong, and was granted, an adjournment to afford the second defendant the opportunity of introducing further evidence in Sydney in relation to the cross claims between the second defendant and the third defendant. Had the second defendant acted following the execution of the agreement of 8 May 1991 to obtain insurance cover for the third defendant, there was ample opportunity for the second defendant to introduce evidence to this effect before the conclusion of this hearing. Hence I have concluded from the documentary evidence introduced by Mr Longhurst that it is more probable than not that the second defendant failed to take appropriate action to meet its obligation under clause 5(a)(iii).

31   Mr Mescher has submitted that if, as I have found, there was an obligation to insure and there was a breach of this obligation, the second defendant is nevertheless not to be found liable to the third defendant. This submission is based upon the fact that the second defendant was acting as a receiver and accordingly is not to be held personally liable for contracts entered into within the scope of his agency.

32   I am satisfied that the second defendant was indeed acting as an agent, having been appointed to do so by the Commonwealth Bank pursuant to its powers under the mortgage, Exhibit H. Under clause C2 of the mortgage the bank was authorised to appoint a receiver and in the event of such appointment the receiver was to be the agent of the mortgagor and the mortgagor alone was to be responsible for acts and defaults:

“2. At any time after the moneys hereby secured become payable or after this mortgage shall have become enforceable the Bank or an authorised officer of the Bank may appoint in writing any person to be a receiver of the mortgaged premises or any part thereof and may remove any such receiver and in case of the removal retirement or death of any such receiver may appoint another in his place and may fix the remuneration of any such receiver at such amount or at such rate as the Bank shall think fit PROVIDED ALWAYS that every such receiver shall be the agent of the Mortgagor and the Mortgagor alone shall be responsible for his acts and defaults…”

33   Although this issue of the liability of the receiver for his acts as receiver was addressed in submissions in Wollongong, there had been no formal pleading which addressed the issue until leave was granted on the second defendant’s application to amend the pleading on 11 October 1999. The issue is pleaded in paragraph 8 of the amended defence to the third defendant’s cross claim:

“In relation to the whole of the Cross-Claim, the Second Defendant says that he at all material time entered into the Agreement dated 8 May 1991 as agent for and on behalf of the First Defendant and cannot be found liable for any alleged breach of the said Agreement.”

34   The third defendant was given the opportunity of having the matter relisted should it wish to pursue any application either to reopen or to make further submissions, but no such application has been made by the third defendant, and no submissions have been placed before the Court to meet the submissions which Mr Mescher has based upon the status of the second defendant as receiver.

35   It is observed that in Exhibit K (the agreement upon which the cross claim in contract is based) the first recital discloses that the second defendant “has been appointed receiver and manager of the vessel”. Clause 10(ii)(b) makes provision for the termination of the agreement by the second defendant in the event of termination of his appointment as receiver and manager of the vessel. Then in the schedule he is described “as receiver and manager of the vessel”.

36   The status of the second defendant was thus disclosed in Exhibit K.

37   The failure to insure by the second defendant is a “default” under clause C2 of the relevant mortgage document.

38   Since the status upon which the second defendant was entering into the agreement, Exhibit K, was disclosed to the third defendant in the expression of the document itself, Mr Mescher submitted that the second defendant’s principal became liable under that agreement, rather than the second defendant.

39   I consider that submission is correct.

40   The law appears to be clear that, statute apart, a receiver is protected against personal liability in respect of any contract he enters into within the scope of, and in the course of, his agency: see Gosling v Gaskell (1897) AC 575; re Vimbos Ltd (1900) 1 Ch 470, and Cully v Parsons (1923) 2 Ch 512. See also O’Donovan: Company Receivers and Managers 2nd ed 11.270.

41   Mr Mescher has referred to two recent decisions in the High Court in which consideration was given to a clause for practical purposes identical to the clause in the mortgage that led to the second defendant’s appointment as receiver which I set out earlier.

42   Shehan v Carrier Air Conditioning Pty Limited (1997) 189 CLR 407 involved the appointment of a receiver by a bank, the appointment being made under powers conferred by the mortgage and, like Exhibit H, the mortgage empowered the appointment of a qualified person to be a receiver “provided always that every such receiver shall be the agent of the mortgagor and the mortgagor alone shall be responsible for his acts and defaults…”

43   There are dicta in the judgment of Brennan CJ at 419 and in the joint judgment of Dawson, Gaudron and Gummow JJ at 431-433 and in the judgment of Kirby J at 444 supportive of the proposition that a clause such as the one in the mortgage in Shehan and the one in the mortgage in this case was effective to render the mortgagor, not the receiver, liable.

44   Similarly, Kendle v Melsom (1998) 193 CLR 46 involved the appointment of a receiver under a power conferred in a mortgage and contained a proviso concerning receivers appointed in these words:

“Provided always that every such receiver shall be the agent of the mortgagor and the mortgagor alone shall be responsible for his acts and defaults.”

45   Commenting on the effect of the document, Gummow and Kirby JJ said at 64:

“With respect to dealings by the receivers with third parties, liability was imposed upon Velcrete [the mortgagor] rather than upon the bank or the receivers personally…”

46 Mr Longhurst has not sought to argue that liability attaches to the second defendant by reason of s 419 of the Corporations Law, or indeed any other provision of the statute.

47   In my opinion the agreement which was entered into between the second defendant and the third defendant was an agreement entered into by the second defendant within the scope of his agency as a receiver and his default in failing to arrange the appropriate insurance cover does not expose him to personal liability. Any action for breach of the agreement would have to be taken against the principal of the second defendant.

48   It follows that the cross claim brought by the third defendant against the second defendant fails.

The cross claim by the fourth defendant against the third defendant

49   When I delivered judgment in Goodwin v La Macchia & Ors [1999] NSWSC 963 I dealt with the cross claims of the fourth defendant, save for the claim against the third defendant. As to that, I afforded the fourth defendant the opportunity of applying to amend this cross claim. The fourth defendant availed himself of that opportunity and Mr Stevens, on 11 October 1999, filed in Court, without objection by Mr Longhurst for the third defendant, an amended cross claim. In that claim the fourth defendant sought “contribution and/or indemnity” by reason of:

“(i) By application of Section 11(1)(a) of the Jurisdiction of Courts (Cross Vesting) Act, 1987 and/or in the alternative,

(ii) By application of Section 3(1) of the Employees Liability Act, 1991 and/or in the alternative,

(iii) by application of Section 7 of the Law Reform (Vicarious Liability) Act, 1983 and/or in the alternative,

(iv) The Plaintiff relies on the common law doctrine of vicarious liability.”

50   It seems to me, having heard the matter argued, that this cross claim cannot succeed. In my earlier judgment I stated that I did not consider it correct to proceed on the basis that s 11(1) of the Jurisdiction of Courts (Cross Vesting) Act had been attracted in this case, for reasons set out at para 64. However, if contrary to the view I reached, s 11(1)(a) did apply, this Court, in exercising jurisdiction by reason of the statute, would be required to apply the law in force in New South Wales “(including choice of law rules)”. It seems to me however one approaches the jurisdiction of this Court, the principles in McKain (expressed in my earlier judgment at para 52) are applicable. Thus before the fourth defendant can maintain a cause of action based upon the statute as pleaded, he must prove that by the law of Queensland a civil liability arose of the kind which he here seeks to enforce.

51   Herein lies the fourth defendant’s difficulty, as Mr Stevens frankly conceded in the course of submissions.

52   The Court was informed that in Queensland there is no counterpart to the Employee’s Liability Act, 1991. Since there is no statutory right of indemnity in Queensland under which the fourth defendant could look to his employer in that State, he cannot rely upon the Employee’s Liability Act (New South Wales) to recover indemnity for the consequences of his own casual act of negligence.

53   Nor does the common law doctrine of vicarious liability avail him. The consequences of the decision in Lister v Romford Ice and Cold Storage Co. Limited (1957) AC 555 have not been altered by statute in Queensland: see A.R. Griffiths & Sons Pty Limited v Richards [1996] QCA 417; and at common law, following Lister, an employee cannot maintain an action against his employer seeking indemnity or contribution for the consequences of his own negligence, at least in the absence of some contractual basis. Since I have found the third defendant’s liability to the plaintiff to be based solely upon the fourth defendant’s casual act of negligence, no basis has been shown in tort for the recovery of indemnity or contribution by the fourth defendant against the third defendant. Nor does the evidence support any contractual right of redress by the fourth defendant against the third defendant. Indeed, such has not been claimed.

54   I have every sympathy for the fourth defendant who finds himself liable to the plaintiff, without recourse to his employer or to insurance in respect of such liability. Particularly is this so where the evidence has disclosed that the fourth defendant has not been paid for any of his service to the third defendant. Nevertheless, I must and I do conclude that his cross claim against the third defendant fails.

Formal orders

55   1. On the cross claim by the third defendant against the second defendant, judgment for the second defendant.

2. On the cross claim by the fourth defendant against the third defendant, judgment for the third defendant.

3. Costs on both cross claims are reserved and the matters may be relisted by arrangement with my associate for the purpose of argument as to costs.
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Last Modified: 12/08/1999