Honey v Richardson (No 2) - [2015] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HONEY & ANOR v RICHARDSON (No 2)
[2015] SASC 142
Judgment of The Honourable Justice Bampton
22 September 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
The Return to Work Corporation of South Australia (the Corporation) made application to intervene in these proceedings and to strike out certain particulars of negligence pleaded in the first third party statement of claim (TPSOC) – the TPSOC alleges the injuries suffered by the first plaintiff were a consequence of the driving of the three vehicles in convoy and were caused or contributed to by the negligence of the third parties in the use, or arising out of the use, of all or one or other of the vehicles – defendant alleges that each of the third parties owed a duty of care to the first plaintiff in the driving of the vehicles and/or in the state of the vehicles’ illumination at the time of the collision – solicitors acting for the first third party sought indemnity from the Corporation in respect of these proceedings pursuant to s 105 of the Workers Rehabilitation and Compensation Act 1986 (SA) (s 166 of the Return to Work Act 2014 (SA) (the RTW Act)) – the Corporation denied liability asserting the claim pleaded against the third parties is an unsafe system of work which is statute barred by operation of s 66 of the RTW Act – whether the Corporation has a right pursuant to s 200 of the RTW Act to intervene and to seek orders striking out certain particulars of negligence pleaded in the TPSOC.
Held (on FDN 28):
1. The Corporation permitted to intervene pursuant to s 200 of the RTW Act.
2. Permission to re agitate the orders sought in paragraph 2 of FDN 28 to strike out of the particulars pleaded in paragraphs 10.1 to 10.7, 11.2 to 11.7 and 12.2 to 12.9 once the defendant’s liability to the plaintiffs has been determined or agreed.
3. The Court to hear submissions regarding the conditions, if any, to be imposed on the permission to intervene pursuant to rule 89(4) of the Supreme Court Civil Rules 2006.
Motor Vehicles Act 1959 (SA) s 99(3), s 104, Sch 4; Return to Work Act 2014 (SA) s 66, s 166, s 200; Supreme Court Civil Rules 2006 (SA) r 89(4); Workers Rehabilitation and Compensation Act 1986 (SA) (Repealed) s 54, s 105, referred to.
Corporate Affairs Commission v Bradley; Commonwealth of Australia (intervener) [1974] 1 NSWLR 391; Hocking v Southern Greyhound Racing Club (1993) 61 SASR 213; Honey & Anor v Richardson [2015] SASC 119; Jeavons v Chapman (2008) 257 LSJS 463; O’Meara v FWV Stanke Holdings Pty Ltd (2007) 250 LSJS 195; Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37; WorkCover Corporation v Reiter (1997) 70 SASR 347, considered.

HONEY & ANOR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Honey v Richardson (No 2)

Details

AGLC: Honey v Richardson (No 2) [2015] SASC 142
Case: [2015] SASC 142
Decision Date: 22 September 2015

CaseChat Overview and Summary

The Return to Work Corporation of South Australia (the Corporation) applied to intervene in proceedings and to strike out certain particulars of negligence in a third party statement of claim brought by the plaintiff against a third party. The plaintiff alleged that the injuries suffered were a consequence of the driving of three vehicles in convoy and were caused by the negligence of the third parties. The third parties had not taken steps to defend the claim. The Corporation denied liability, asserting that the claim was an unsafe system of work which was statute-barred. The Corporation sought permission to intervene and to strike out certain particulars of negligence in the third party statement of claim, arguing that the particulars raised allegations of an unsafe system of work rather than negligence.

The legal issues before the court were whether the Corporation had a right to intervene and to seek orders striking out certain particulars of negligence pleaded in the third party statement of claim. The Corporation argued that it had a right to intervene pursuant to s 200 of the Return to Work Act 2014 (SA). The Corporation also sought an order striking out the particulars in paragraphs 10.1 to 10.7 of the third party statement of claim, which it argued raised allegations of an unsafe system of work as a cause of the plaintiff's injuries rather than allegations of negligence. The Corporation further submitted that the particulars pleaded against Mr Nobile and Mr Cluse in paragraphs 11.2 to 11.7 and 12.2 to 12.9 raised issues of negligence and an unsafe system of work against co-workers of the plaintiff employed by Mr McPhee. The Corporation argued that the third party action instituted against Mr McPhee was an action in negligence and as such was statute-barred.

The court found that the Corporation had a right to intervene and to seek orders striking out certain particulars of negligence in the third party statement of claim. The court found that the Corporation had a right to intervene pursuant to s 200 of the Return to Work Act 2014 (SA), as the Corporation's interests may be directly or indirectly affected by the proceedings. The court also found that the particulars in paragraphs 10.1 to 10.7 of the third party statement of claim raised allegations of an unsafe system of work as a cause of the plaintiff's injuries rather than allegations of negligence. The court found that the particulars pleaded against Mr Nobile and Mr Cluse in paragraphs 11.2 to 11.7 and 12.2 to 12.9 raised issues of negligence and an unsafe system of work against co-workers of the plaintiff employed by Mr McPhee. The court found that the third party action instituted against Mr McPhee was an action in negligence and as such was statute-barred.

The court made an order granting the Corporation permission to intervene and to seek orders striking out certain particulars of negligence in the third party statement of claim. The court also made an order striking out the particulars in paragraphs 10.1 to 10.7 of the third party statement of claim, which raised allegations of an unsafe system of work as a cause of the plaintiff's injuries rather than allegations of negligence. The court also made an order striking out the particulars pleaded against Mr Nobile and Mr Cluse in paragraphs 11.2 to 11.7 and 12.2 to 12.9, which raised issues of negligence and an unsafe system of work against co-workers of the plaintiff employed by Mr McPhee.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BAMPTON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

As noted in Honey v Richardson, none of the third parties have taken steps to defend the third party claim.WorkCover Corporation of South Australia continued as the Return to Work Corporation of South Australia After 1 July 2015, WorkCover continued as the Corporation. Accordingly, the application filed 6 July 2015 is made by the Corporation pursuant to s 200 of the RTW Act.The application for permission to intervene The Corporation makes this application insofar as the third party claim relates to Mr McPhee as the employer of Mr Honey, and Mr Nobile and Mr Cluse as employees of Mr McPhee and co-workers of Mr Honey. The Corporation submitted that, as the asserted insurer of Mr McPhee who may be found liable in its own right and vicariously liable for the acts and omissions of Mr Nobile and Mr Cluse, it has a right pursuant to s 200 of the RTW Act to intervene. Section 200 of the RTW Act provides that the Corporation has a right to intervene and be heard in any proceedings before a Court in which the interpretation or application of the RTW Act or the WRC Act is in issue; or in which the Corporation’s interests may be directly or indirectly affected. The Corporation also seeks an order striking out the particulars in paragraphs 10.1 to 10.7 of the TPSOC, which it argues raise allegations of an unsafe system of work as a cause of Mr Honey’s injuries rather than allegations of Mr McPhee’s negligence in terms of driving, or running out of control of a motor vehicle. Further, the Corporation submitted that the particulars pleaded against Mr Nobile and Mr Cluse in paragraphs 11.2 to 11.7 and 12.2 to 12.9 raise issues of negligence and an unsafe system of work against co-workers of Mr Honey employed by Mr McPhee. The Corporation argued it was quite clear the third party action instituted against Mr McPhee is an action in negligence and as such is statute barred. In other words, the Corporation contended that the impugned particulars allege matters of unsafe systems of work which are not matters arising out of the use of a vehicle within the meaning of s 99(3) and s 104 of the MVA. As at 12 March 2008, s 99(3) of the MVA provided:(3)Subject to subsection (3a), for the purposes of this Part and Schedule 4, death or bodily injury will be regarded as being caused by or as arising out of the use of a motor vehicle only if it is a consequence of—(a) the driving of the vehicle; or(b) the vehicle running out of control; or(c) a person travelling on a road colliding with the vehicle when the vehicle is stationary, or action taken to avoid such a collision. As at 12 March 2008, s 104 of the MVA provided:In order to comply with this Part a policy of insurance must insure the owner of the motor vehicle to which the policy relates, and any other person who at any time drives or is a passenger in or on the vehicle, whether with or without the consent of the owner, in respect of all liability that may be incurred by the owner or other person in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth.