Greenall v Amaca Pty Ltd

Case [2023] QSC 137

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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Greenall v Amaca Pty Ltd [2023] QSC 137
Case
[2023] QSC 137
Decision Date

CaseChat Overview and Summary

Greenall v Amaca Pty Ltd involved applications to strike out certain claims in an amended statement of claim and further amended statement of claim. The deceased, Walter Greenall, died from malignant mesothelioma resulting from asbestos exposure during his employment with Amaca. The first plaintiff, the legal personal representative of the deceased, and the second plaintiff, the deceased's wife, brought claims against Amaca. Amaca and its insurer, WorkCover, sought to strike out several paragraphs of the plaintiffs' claims on the basis that the plaintiffs did not have an entitlement to the damages claimed due to the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The plaintiffs' claims included damages for loss of consortium and servitium, wrongful death, and loss of capacity to provide gratuitous domestic services. The court had to determine whether the claims were maintainable as a matter of law.

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

The Loss of Consortium Claim is pleaded in paragraphs 19G and 22 of the FASOC. Mrs Greenall seeks to recover damages of:(a)$30,000 for loss of consortium;(b)$239,765.76 for past loss of her husband’s servitium; and (c)$950,810 for future loss of her husband’s servitium.Background to the applications For the purposes of these applications, the parties have agreed upon the following facts:[1][1]As set out in the ‘List of Facts and Contentions Not in Dispute’, Exhibit 1.1.The deceased, Walter Greenall, died on 1 March 2022.2.The death of the deceased was caused by malignant mesothelioma resulting from the inhalation of asbestos fibres during the course of his employment by Amaca.3.The deceased died as a consequence of developing malignant mesothelioma.4.The development of the malignant mesothelioma, and the death of the deceased, were caused by the negligence of Amaca. This is admitted on the pleadings by both Amaca and the Third Party.5.The deceased and the Second Plaintiff, the wife of the deceased (“Mrs Greenall”), were each a “spouse” within the meaning of Part 10 of the Civil Proceedings Act 2011 (Qld) (“CPA”).6.Mrs Greenall is a person “under a legal disability” within the meaning of section 59(1A) of the Public Trustee Act 1978 (Qld) and is a person “under a legal incapacity” within the meaning of the UCPR as she suffers from Alzheimer’s disease. By its amended application, filed 29 May 2023, Amaca seeks to strike out paragraphs 19G and 22 of the FASOC pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (the ‘UCPR’). Those paragraphs of the FASOC concern the Loss of Consortium Claim. Amaca contends that because the Loss of Consortium Claim cannot be maintained as a matter of law, the impugned pleadings disclose no reasonable cause of action and ought to be struck out. For the same reason, Amaca also urges the Court to strike out those parts of the Amended Claim concerning the Loss of Consortium Claim, in the exercise of the Court’s inherent jurisdiction. By its further amended application, filed 19 May 2023, WorkCover seeks to strike out paragraphs 4C(b), 19A(c) to 19A(d)3 and paragraphs 19D to 19F of the FASOC, and so much of the prayer for relief that relates to those paragraphs, pursuant to r 171 of the UCPR. Those paragraphs of the FASOC concern the s 59A Damages Claim and the Wrongful Death Claim. WorkCover contends that because none of these claimed damages are recoverable as a matter of law, the impugned pleadings disclose no reasonable cause action and ought to be struck out. In its written submissions in support of its strike out application, Amaca adopted WorkCover’s submissions in respect of the s 59A Damages Claim and the Wrongful Death Claim. Rule 171 of the UCPR provides:171Striking out pleadings(1)This rule applies if a pleading or part of a pleading—(a) discloses no reasonable cause of action or defence; or(b) has a tendency to prejudice or delay the fair trial of the proceeding; or(c) is unnecessary or scandalous; or(d) is frivolous or vexatiouus; or(e) is otherwise an abuse of the process of the court.(2)The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.(3)On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 483 of the UCPR relevantly states:483Order for decision and statement of case for opinion(1)The court may make an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding.… Again, it is not necessary to discuss the relevant principles that apply to an application of this kind at any length. They are not in doubt. In that regard, I adopt and apply the principles conveniently summarised by Flanagan J (as his Honour then was) in Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3).[6] The ultimate question to be determined in respect of the r 483 Application is whether it is just and convenient to decide the stated questions summarily and before trial.[7] It is, of course, also relevant to have regard to the overriding obligations in r 5 of the UCPR when considering whether it is appropriate to separately determine the stated questions in the exercise of the wide discretion conferred by r 483.[8][6][2015] QSC 295, [44]–[46].[7]Ibid [44].[8]Ibid. Given that all relevant material facts are agreed and the matters raised for consideration by the stated questions concern discrete matters of law, I am satisfied that the issues are ripe for separate and preliminary determination. As both the Strike Out Applications and the r 483 Application concern the same subject matter, issues and contentions, it follows that the answers to the separate questions will depend upon whether the Contested Damages Claims may be maintained as a matter of law. Issues For the purposes of these applications, the specific issues for consideration are outlined in a ‘List of Issues’[9]. They are reproduced below.[9]Marked for identification ‘A’.GENERALLY1.Should paragraphs 19A(c) to 19A(d)(3) of the Plaintiffs’ Further Amended Statement of Claim (“FASOC”) be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), requiring consideration of:(a)whether the First Plaintiff is entitled to maintain a claim for damages for gratuitous care that would have been provided by the deceased to his wife, Mrs Audrey Greenall, pursuant to section 59A of the Civil Liability Act 2003 (“CLA”); and(b)whether the First Plaintiff’s claim for section 59A damages is precluded by section 5 of the CLA.2.Should paragraphs 19D to 19F of the FASOC be struck out pursuant to r 171 of the UCPR, requiring consideration of:(a) whether the First Plaintiff is entitled to maintain a claim of loss of dependency on behalf of the deceased’s wife, Mrs Audrey Greenall, pursuant to the Civil Proceedings Act 2011 (Qld); and(b) whether the claim for loss of dependency is precluded by section 237 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”).3.Should paragraph 19G of the FASOC be struck out pursuant to r 171 of the UCPR requiring consideration of:(a) whether the Second Plaintiff is entitled to maintain a claim for loss of consortium and servitium; and(b) whether a claim for loss of consortium and servitium is precluded by section 306A of the WCRA.THE ESTATE CLAIM – SECTION 59A DAMAGES4.Was the deceased’s injury “defined under” the Workers’ Compensation Act 1916 (Qld) (the “1916 Act”) or the WCRA? In that regard:(a) What is the effect of section 36A of the WCRA in relation to the deceased’s claim in respect of a latent onset injury?(b) Is section 603 of the WCRA displaced by the operation of section 36A(6) of the WCRA?(c) What is the effect of section 36A(4) of the WCRA in relation to the deceased’s claim (maintained pursuant to section 66 of the SA 81 by the legal personal representative of the deceased, the First Plaintiff) and, in particular, whether it has the effect that, in deeming the injury which was sustained to have a date of the doctor’s diagnosis on 5 August 2021, the latent onset injury is then an injury “defined under” the WCRA:(i) Under, and within the meaning of, section 32 of the WCRA; or(ii) Under, and within the meaning of, section 36A of the WCRA.5.Whether the version of section 5 of the CLA as it stood prior to 6 November 2006 (Reprint 2) applies or whether the version of section 5 of the CLA, as it stood on 5 August 2021 (the current version) applies?6.What is the effect of the section 59A damages provisions introduced by the Civil Liability and other Legislation Amendment Act 2010 (Qld) (“the 2010 amendments”)? In particular what is the effect of section 85 of the CLA, having regard to the definition of “section 59A damages provisions” in section 85(5) of the CLA? In that respect, is the effect of section 85(1) of the CLA, when read with the definition of “section 59A damages provisions” in section 85(5) of the CLA, to give retrospective effect to section 5 as it stood and then as amended or inserted, by the amending legislation in 2010, including section 5(1)(b) of the CLA as it then stood?THE WRONGFUL DEATH (SERVICES CLAIM)7.As the Second Plaintiff is not a “dependant” within the meaning of section 27 [of the WCRA] can the Plaintiff, nonetheless, claim damages, pursuant to Part 10 of the Civil Proceedings Act 2011 (Qld) (“CPA”), unregulated by the WCRA against the employer of the deceased, the Defendant?8.Should the answer to Question 1 of the UCPR 483 application be answered “no”?9.If a claim by the Second Plaintiff under Part 10 of the CPA is maintainable, because it is not a claim for “damages” under the CPA, is the Third Party required to indemnify the Defendant pursuant to sections 8, 10, and 48 of the WCRA?10.Whether Question 3 of the UCPR 483 application is unnecessary to answer or should be answer [sic] “no”?LOSS OF SERVITIUM (CONSORTIUM) CLAIM11.What is the effect of section 306A of the WCRA in relation to section 306M of the WCRA?12.Does the Second Plaintiff enjoy a right to make a claim for loss of servitium if the neglect, default or breach of duty occurred before 1 January 1985?UCPR 483 APPLICATION – QUESTION 213.Can the Plaintiff claim the section 59A damages (if maintainable) and loss of services in the dependency claim (if maintainable) and the loss of consortium claim (if maintainable)?14.If not, whether the section 59A damages ought be disallowed, inter alia, because it compensates the same loss of services (claimed by the same measure) which the deceased was unable to provide or lost because of his injury and then death either by section 59B(4) or section 59D of the CLA, or because, as pleaded, it contravenes the rule against double recovery?15.Whether Question 2 of the UCPR 483 application is unnecessary to answer or should be answered “no”?

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.