Grills v Leighton Contractors Limited

[2013] NSWSC 939

Supreme Court

New South Wales

Medium Neutral Citation:

Grills v Leighton Contractors Limited [2013] NSWSC 939

Hearing dates:

5/7/13

Decision date:

05 July 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

1. I grant leave to the plaintiff to file and serve a second amended statement of claim substantially in the form handed up today by Tuesday 9 July 2013.

2. Under section 79, Motor Accidents Compensation Act 1999, QBE Insurance (Australia) Limited is joined as the third defendant, and that joinder should be reflected in the amended statement of claim to be filed and served.

3. I direct the plaintiff to serve on QBE (Australia) Limited a copy of all existing pleadings and any witness statements exchanged between the parties, experts reports exchanged between the parties, and a copy of all medical reports served by any party on or before Friday 12 July 2013

Catchwords:

PRACTICE & PROCEDURE - application to amend statement of claim - application to join insurer as defendant - no question of principle

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:

Agar v Hyde [2000] HCA 41; 201 CLR 552
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; 54 MVR 111

Category:

Interlocutory applications

Parties:

Adam Lee Grills (plaintiff)
Leighton Contractors Pty Ltd (first defendant)
State of New South Wales (second defendant)
QBE Insurance (Australia) Limited (proposed third defendant)

Representation:

Counsel:
K Earl (plaintiff)
S Torrington (first defendant)
G Parker (second defendant)
D Ronzani (proposed third defendant)
Solicitors:
Baker & Edmunds (plaintiff)
Thompson Cooper Lawyers (first defendant)
Turks Legal (second defendant)

File Number(s):

2008/317603

EX TEMPORE Judgment

1. The plaintiff, a serving police officer, suffered serious injury on 25 February 2007 when he was providing an escort as part of the security measures taken for the visit of the then Vice President of the United States, Mr Dick Cheney. During that operation the motorcycle he was riding collided with a boom gate, which the plaintiff says was lowered unnecessarily, and unexpectedly from his standpoint.

1. The plaintiff has sued two defendants; Leighton Contractors, who were in control of the boom gate, and the State of New South Wales, on a principle analogous to the duty arising from the employment relationship.

1. The plaintiff now seeks to amend his statement of claim to raise averments, in the alternative to the relief claimed in the nature of work injury damages against the State, to the effect that the accident is one covered by the Motor Accidents Compensation Act 1999 (NSW). That Act was amended in 2011 by adding paragraph (d) to section 3A(1) to overcome the decision of the Court of Appeal in the case of Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; 54 MVR 111. The amendments have a retrospective operation.

1. The first and second defendants neither consent nor object provided the hearing date can be maintained. QBE Insurance (Australia) Limited argues that leave should be denied at this juncture, largely because it says the amendment is futile and cannot possibly succeed. It says, however, very clearly, that if I permit the amendment and it is joined as an additional defendant under s 79 of the Motor Accidents Compensation Act, it can be ready to participate in the hearing fixed for 5 August and subsequent days to argue that the Act does not extend to the circumstances of this accident. Mr Ronzani of counsel also puts forward powerful arguments from a case management point of view based upon Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 as to why in any event leave should be refused.

1. I have, speaking for myself, difficulty seeing how the new averments can succeed, but I am informed by Mr Earl of counsel, who appears for the plaintiff, that the amendment is being made on the advice of Mr Gross QC who has confidence in its prospects.

1. Applying an Agar v Hyde [2000] HCA 41; 201 CLR 552 approach to the question, I cannot be satisfied at this preliminary stage that the outcome of a case based upon that pleading is so certain that it should not be allowed to proceed; it looks to me to be untenable but I cannot say it is clearly untenable.

1. In the circumstances, given the difference in the measure of compensation provided between Part 5 of the Workers Compensation Act 1987 (NSW) and Chapter 5 of the Motor Accidents Compensation Act, the plaintiff ought to be allowed the opportunity of arguing this case.

1. As the matter can proceed on 5 August 2013, even allowing the amendment, I do not think that the case management considerations come in to play because nothing will be lost and something may be gained if permitting this amendment allows the real issues in dispute to be determined. I have said to Mr Earl that in my view there are some further amendments required to make the position advanced by the plaintiff clear, and I understand that those amendments will be made.

1. For these reasons, therefore, I make the following orders:

(1)   I grant leave to the plaintiff to file and serve a second amended statement of claim substantially in the form handed up today by Tuesday 9 July 2013.

(2) Under section 79, Motor Accidents Compensation Act 1999 (NSW), QBE Insurance (Australia) Limited is joined as the third defendant, and that joinder should be reflected in the amended statement of claim to be filed and served.

(3)   I direct the plaintiff to serve on QBE (Australia) Limited a copy of all existing pleadings and any witness statements exchanged between the parties, experts reports exchanged between the parties, and a copy of all medical reports served by any party on or before Friday 12 July 2013.

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Decision last updated: 15 July 2013