Jamieson v Vox Retail Group Limited

[2001] QSC 422

SUPREME COURT OF QUEENSLAND

CITATION:

Jamieson v Vox Retail Group Limited [2001] QSC 422

PARTIES:

IAN ARCHIBALD JAMIESON
(plaintiff)
v
VOX RETAIL GROUP LIMITED (ACN 006 388 594)
(defendant)

FILE NO/S:

S 10037 of 1999

DIVISION:

Trial Division

DELIVERED ON:

9 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2001

JUDGE:

Douglas J

ORDER:

Judgment for the defendant against the plaintiff.

CATCHWORDS:

SUPERANNUATION – PRIVATE SECTOR SCHEMES – COMPANY SUPERANNUATION FUNDS – whether the defendant company gave negligent advice to the plaintiff with respect to disability insurance.

TORTS – NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – whether the defendant company was negligent in failing to advise the plaintiff of his disability insurance rights under the company superannuation scheme.

TORTS – NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ADVICE, STATEMENTS AND NON-DISCLOSURE – GENERALLY.

Fair Trading Act 1989 (Qld)
Limitation of Actions Act 1974 (Qld), s 10
Trade Practices Act 1974 (Cth), s 52

COUNSEL:

G R Mullins for plaintiff
G C Martin SC for defendant

SOLICITORS:

Macgillivrays for plaintiff
Clayton Utz for defendant

1. DOUGLAS J:  The plaintiff commenced employment with the defendant as marketing manager for Errol Stewarts in Queensland on 21 August 1990.  His package was renegotiated with effect from 1 July 1992 on a new salary of $50,000 per annum, plus bonuses and a fully maintained motor vehicle.  On 10 November of that year he was approached by a member of the administrative staff and asked to fill out a form in respect of the Vox Superannuation Fund.  He did so, quickly and without much regard to its overall meaning or the cover which it provided.

1. On 29 January 1993 he was admitted to hospital for abdominal problems unassociated with his work.  He left hospital on 28 March 1993 and returned to work on approximately 14 April 1993 at Kedron.

1. In May 1993 he tendered his resignation to one Flannagan, the General Manager in Queensland, and says that also in that month he was advised by one Wayne Reid that he, Reid, would undertake investigations to determine whether the plaintiff was entitled to any disability or other payments.  In the same month he alleges a conversation occurred with one Bromilow in respect of disability payments.  On 21 May 1993 the plaintiff left the employment of the defendant.  Many years later, in December 1998, the plaintiff was watching a television program and apprehended a possible entitlement to disability payments under an insurance policy which may have been  attached to the benefits under the Vox Superannuation Fund which he had entered on or about 10 November 1992.  In fact, he made a claim, and began to receive total and temporary disablement benefits from about 8 June 1999.  This claim is brought in respect of the amounts of such entitlements which would have been paid between 21 May 1993 and 8 June 1999, together with increments from time to time during that period which was set at the base level for the future.

1. The outcome of the action depends upon the terms of the conversations between the plaintiff and Reid and the plaintiff and Bromilow.  The conversations were alleged to have been held in or about May 1993.  By that time the company had carried the plaintiff to the extent that he had, due to his lengthy period of convalescence, exhausted his accrued sick leave and other annual leave entitlements.  Notwithstanding that, the defendant continued to pay him the same amount as if he had been at work or otherwise entitled to payment.

1. The plaintiff says that in the conversation with Reid, following the tendering of his resignation to Flannagan, Reid said that the company would be able to carry him through for a short period of time, to which the plaintiff said: “its just no good, Wayne, I’ve got to go”.  He further said: “I can’t see me getting better for a long time”, to which he says Reid replied: “Well, lets see if we can – if you are eligible, if we can organise some disability payments or entitlements of some kind and help you out, hey.”

1. He did not hear again from Reid in respect of this but did receive a telephone call from Bromilow rather soon after.  There was a person named Saunders with him in the office at the time who heard the conversation.  Mr Saunders gave evidence which generally accorded with the plaintiffs but it did not assist me in reaching a conclusion in this case because Saunders did not know the context in which the conversation was being held.  The upshot of the conversation with Bromilow was that the plaintiff says that Bromilow said to him: “Look, unfortunately you are not eligible for any entitlements or disability payments or anything of that nature ... I am sorry, we are unable to help you out on this matter, but if I can do anything for you on a personal level, please just let me know."

1. I have accepted the plaintiff’s account of the conversation but not their context.

1. I find that at this time the plaintiff had not remembered signing the application to join the Vox Superannuation Fund back in November 1992.  His mind was not directed to any insurance or other benefits which may have been available under that fund.   Nor did he ever seek to find out before the alleged conversations with Reid and Bromilow.  There is some doubt that the conversation with Reid ever occurred, but I am prepared to accept that it did.  However, it seems to me that what the conversations bore out was that the plaintiff was being informed by Bromilow that the company was not able to assist him any further.  There was no representation made, and I so find, with respect to any entitlements the plaintiff may have had under the Vox Superannuation Fund.  In my view the context of the conversations between the plaintiff, Reid and Bomilow was with respect to the prospect of the defendant paying ex gratia so to speak, payments out of its own pocket in order to assist the plaintiff during any period of recuperation or, perhaps in an endeavour to encourage him to remain at work.  This is particularly so in the case of the plaintiff’s alleged conversation with Reid. 

1. It was submitted on behalf of the plaintiff that Bromilow, as Human Resources Manager, knowing that the plaintiff had been sick and knowing that he was leaving the employment with Vox because of ill health, must have assumed that benefits of different kinds had been paid to him during his period of ill health, including sickness benefits, holiday leave and, ultimately, ex gratia payments.  The submission goes that some of these benefits were available from the defendant, and the disability benefits were available from the Vox Superannuation Fund.  That may well be so but, as I found, the context of the conversation was solely with respect to any payments that the defendant was prepared to make to the plaintiff, not with respect to any benefits which may have become, or would become, available under the Vox Superannuation Fund.

1. I find that the plaintiff’s memory was jogged by the television program in 1998 and that this caused him to look back to the provisions of the Vox Superannuation Fund, for the first time recalling that he had signed and entered that Fund in November 1992.  The request made by the plaintiff was a very broad one and extracted a broad reply from Reid.  There is, with respect to the argument, nothing to suggest that Bromilow knew that the plaintiff was looking for some source of funds or disability benefits to “replace” his wages into the future other than from the defendant.

1. It follows then that there was no statement made by anyone on the part of the defendant which could be considered misleading or deceptive in the circumstances. In the context of what he was being asked Bromilow gave a truthful and accurate answer to the question or enquiry posed by the plaintiff. It follows then that the plaintiff’s action must fail and it is not necessary to consider the interesting questions of whether or not, in the circumstances such as these, an action can be successfully brought pursuant to the provisions of s 52 of the Trade Practices Act 1974 (Cth) or the equivalent provisions in the Fair Trading Act 1989 (Qld) or the Limitation of Actions Act 1974 (Qld).

1. Had I found the plaintiff’s case had been made out, I would have assessed damages in accordance with Exhibit 9 totalling $372,136 being Past Loss from September 1993 to 31 August 1999 and Future Loss from 1 September 1999 to 1 April 2024.

1. I give judgment for the defendant against the plaintiff.  I shall hear arguments as to costs.