SUPREME COURT OF QUEENSLAND
CITATION:
Greenall & Anor v Amaca Pty Ltd [2023] QSC 137
PARTIES:
PHILIP NIGEL GREENALL as Legal Personal Representative for the Estate of the Late WALTER GREENALL
(First Plaintiff)
AUDREY GREENALL a person under a legal disability, by her Litigation Guardian PHILIP NIGEL GREENALL
(Second Plaintiff)
v
AMACA PTY LTD (formerly JAMES HARDIE & COY PTY LTD(Defendant)
WORKCOVER QUEENSLAND
(Third Party)
FILE NO:
BS 14063/21
DIVISION:
Trial Division
PROCEEDING:
Interlocutory Applications
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
8 September 2023
DELIVERED AT:
Brisbane
HEARING DATE:
15 June 2023
JUDGE:
Crowley J
ORDERS:
1. In respect of the Defendant’s strike out application:
pursuant to r 171 of the UCPR, paragraphs 19G and 22 of the First and Second Plaintiffs’ Further Amended Statement of Claim are struck out; (a)
pursuant to the Court’s inherent jurisdiction, the part of the First and Second Plaintiffs’ Amended Claim that relates to the claim for damages for loss of consortium is struck out; and(b)
the costs of and incidental to the application are reserved.(c)
In respect of the Third Party’s strike out application:2.
pursuant to r 171 of the UCPR, subparagraphs 4C(b), 19A(c) to 19A(d)3, paragraphs 19D to 19F and so much of the prayer for relief that relates to those paragraphs and subparagraphs of the First and Second Plaintiffs’ Further Amended Statement of Claim are struck out; and(a)
the First and Second Plaintiffs are to pay the Third Party’s costs of and incidental to the application.(b)
In respect of the Third Party’s application for decisions on separate questions:3.
pursuant to r 483(1) of the UCPR, each of Questions 1, 2 and 3 stated in the amended application filed with the Court’s leave on 15 June 2023 are to be decided separately and summarily before the trial of the proceedings;(a)
as to Question 1, the Court’s answer is ‘No’;(b)
as to Question 2, the Court’s answer is ‘Not necessary to answer’;(c)
as to Question 3, the Court’s answer is ‘Not necessary to answer’;(d)
pursuant to r 485 of the UCPR, judgment for the Third Party against the Defendant in the Third Party proceedings in respect of so much of the Third Party proceedings and the prayer for relief that relate to paragraphs 19D to 19F of the First and Second Plaintiffs’ Further Amended Statement of Claim; and(e)
the Defendant is to pay the Third Party’s costs of the judgment in respect of the Third Party proceeding referred to in order 3(e), including the costs of the r 483 application.(f)
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the deceased was employed by the defendant in 1972 – where the deceased died in 2022 as a result of malignant mesothelioma resulting from the inhalation of asbestos fibres during the course of his employment by the defendant…
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- AGLC
- Greenall v Amaca Pty Ltd [2023] QSC 137
- Case
- [2023] QSC 137
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiffs' claims for damages for loss of consortium and servitium were not maintainable. The court held that Mrs Greenall, the second plaintiff, did not have a right under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) to claim damages for loss of consortium or loss of servitium. The court concluded that Mrs Greenall was not entitled to damages at common law for loss of her husband’s consortium or servitium. As a result, the claim for damages for loss of consortium could not be maintained. The court also found that the claims for damages for loss of capacity to provide gratuitous domestic services and wrongful death were not maintainable due to statutory provisions that precluded such claims. Consequently, the court struck out the relevant paragraphs of the plaintiffs' claims as they disclosed no reasonable cause of action and should be struck out under rule 171 of the Uniform Civil Procedure Rules 1999 (Qld). Additionally, the court decided to separately determine certain questions before the trial of the proceedings, finding in favour of WorkCover and Amaca on the issues raised.
The court's orders included striking out specific paragraphs of the plaintiffs' claims, reserving costs, and directing that certain questions be decided separately before the trial. The court also granted judgment for WorkCover against Amaca in respect of certain claims related to loss of consortium, awarding costs to WorkCover.
Orders
Orders of the court
1. In respect of the Defendant’s strike out application:
pursuant to r 171 of the UCPR, paragraphs 19G and 22 of the First and Second Plaintiffs’ Further Amended Statement of Claim are struck out; (a)
pursuant to the Court’s inherent jurisdiction, the part of the First and Second Plaintiffs’ Amended Claim that relates to the claim for damages for loss of consortium is struck out; and(b)
the costs of and incidental to the application are reserved.(c)
In respect of the Third Party’s strike out application:2.
pursuant to r 171 of the UCPR, subparagraphs 4C(b), 19A(c) to 19A(d)3, paragraphs 19D to 19F and so much of the prayer for relief that relates to those paragraphs and subparagraphs of the First and Second Plaintiffs’ Further Amended Statement of Claim are struck out; and(a)
the First and Second Plaintiffs are to pay the Third Party’s costs of and incidental to the application.(b)
In respect of the Third Party’s application for decisions on separate questions:3.
pursuant to r 483(1) of the UCPR, each of Questions 1, 2 and 3 stated in the amended application filed with the Court’s leave on 15 June 2023 are to be decided separately and summarily before the trial of the proceedings;(a)
as to Question 1, the Court’s answer is ‘No’;(b)
as to Question 2, the Court’s answer is ‘Not necessary to answer’;(c)
as to Question 3, the Court’s answer is ‘Not necessary to answer’;(d)
pursuant to r 485 of the UCPR, judgment for the Third Party against the Defendant in the Third Party proceedings in respect of so much of the Third Party proceedings and the prayer for relief that relate to paragraphs 19D to 19F of the First and Second Plaintiffs’ Further Amended Statement of Claim; and(e)
the Defendant is to pay the Third Party’s costs of the judgment in respect of the Third Party proceeding referred to in order 3(e), including the costs of the r 483 application.(f)
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
WorkCover points out that to the extent that the submissions of Mrs Greenall or Amaca suggest that an ‘entitlement’ to damages for loss of consortium arises under the WCRA, that is not correct. It again reiterates that, pursuant to s 10(1) of the WCRA, any such right must arise from a legal liability to pay damages created independently of the WCRA.Consideration Mrs Greenall does not have a right under the WCRA to claim damages for loss of consortium or loss of servitium. None of the provisions of the WCRA upon which Mrs Greenall relies create an independent cause of action in this regard. As previously canvassed, so much is clear from s 10(1) of the WCRA, which defines damages narrowly to only include damages for a liability created ‘independently of this Act’. Therefore, for her claim to succeed, Mrs Greenall would need to establish a basis for an entitlement to damages arising outside the WCRA. In my view, it is patently clear that s 13 of LRA does not confer such a cause of action upon Mrs Greenall. It is admitted by paragraph 4B of the FASOC that the wrongful act, neglect or default that caused Mr Greenall’s injury occurred in 1972. As such, s 14(1)(b) of the LRA precludes any claim for damages under s 13. As archaic and offensive as it is to modern values, Mrs Greenall is not entitled to damages at common law for loss of her husband’s consortium or servitium. It follows that, irrespective of s 306A of the WCRA, the claim for damages for loss of consortium cannot be maintained. In those circumstances, I do not consider it necessary to resolve the disputed interpretation of s 306A.Conclusion None of the Contested Damages Claims can be maintained as a matter of law. With respect to each of the Strike Out Applications by Amaca and WorkCover, I am satisfied that the impugned paragraphs of the FASOC are clearly untenable and manifestly hopeless. They disclose no reasonable cause of action and they should be struck out pursuant to r 171 of the UCPR. Further, insofar as the Contested Damages Claims are pursued by the Amended Claim, those parts of the Amended Claim should also be struck out for the same reasons in the exercise of the Court’s inherent jurisdiction. Again, they are so clearly untenable and manifestly groundless that it would be an abuse of the Court’s process to allow them continue. With respect to WorkCover’s r 483 application, I am satisfied that it is appropriate to summarily determine the stated questions at this stage of the proceedings and that they should be decided in favour of WorkCover and Amaca. That being so, it will also be appropriate to order judgment for WorkCover against Amaca in respect of the relevant parts of the 3PASOC in the Third Party proceeding that concern the Loss of Consortium Claim. Orders The orders of the Court are:1.In respect of the Defendant’s strike out application:(a) pursuant to r 171 of the UCPR, paragraphs 19G and 22 of the First and Second Plaintiffs’ Further Amended Statement of Claim are struck out; (b) pursuant to the Court’s inherent jurisdiction, the part of the First and Second Plaintiffs’ Amended Claim that relates to the claim for damages for loss of consortium is struck out; and(c) the costs of and incidental to the application are reserved.2.In respect of the Third Party’s strike out application:(a) pursuant to r 171 of the UCPR, subparagraphs 4C(b), 19A(c) to 19A(d)3, paragraphs 19D to 19F and so much of the prayer for relief that relates to those paragraphs and subparagraphs of the First and Second Plaintiffs’ Further Amended Statement of Claim are struck out; and(b) the First and Second Plaintiffs are to pay the Third Party’s costs of and incidental to the application.3.In respect of the Third Party’s application for decisions on separate questions:(a) pursuant to r 483(1) of the UCPR, each of Questions 1, 2 and 3 stated in the amended application filed with the Court’s leave on 15 June 2023 are to be decided separately and summarily before the trial of the proceedings;(b) as to Question 1, the Court’s answer is ‘No’;(c) as to Question 2, the Court’s answer is ‘Not necessary to answer’;(d) as to Question 3, the Court’s answer is ‘Not necessary to answer’;(e) pursuant to r 485 of the UCPR, judgment for the Third Party against the Defendant in the Third Party proceedings in respect of so much of the Third Party proceedings and the prayer for relief that relate to paragraphs 19D to 19F of the First and Second Plaintiffs’ Further Amended Statement of Claim; and(f) the Defendant is to pay the Third Party’s costs of the judgment in respect of the Third Party proceeding referred to in order 3(e), including the costs of the r 483 application.