Kane v Port Phillip City Council (Ruling)
[2013] VCC 1243
•19 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-05398
| KARINA KANE | Plaintiff |
| v | |
| PORT PHILLIP CITY COUNCIL | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2013 | |
DATE OF RULING: | 19 September 2013 | |
CASE MAY BE CITED AS: | Kane v Port Phillip City Council (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1243 | |
RULING
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Subject: JOINDER OF FURTHER DEFENDANT
Catchwords: Application of r9.06(b)(i) and (ii) County Court Civil Procedure Rules 2008 – whether there should be joinder of further defendant when proposed new defendant is employee of the first defendant acting in the course of her employment and within the scope of her employment – same allegations of negligence against the first defendant and proposed second defendant
Legislation Cited: Civil Procedure Act 2010; County Court Civil Procedure Rules 2008, r9.06; Accident Compensation Act 1985 (Vic); Occupational Health and Safety Act 2004 (Vic); Compensation (Fatal Injuries) Ordinance 1968
Cases Cited:Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 55; Canberra Formwork Pty Ltd v Civil & Civic Ltd & Anor (1982) 41 ACTR 1; Spotless Services Australia Ltd v Herbath (2009) 26 VR 373
Ruling: Summons dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Simpson | Henry Carus & Associates |
| For the Defendant | Mr R Kumar | Wisewould Mahoney Lawyers |
HIS HONOUR:
1 By way of Summons issued on 27 June 2012, the solicitors for the plaintiff seek, inter alia, the following orders:
(1) The defendant make and serve an affidavit of particular discovery in accordance with order 29.08 of the County Court Civil Procedure Rules 2008;
(2) The plaintiff be granted leave to amend its Statement of Claim so as to add Ros Pritchard as second defendant.
Background
2 The plaintiff is a thirty-seven-year-old woman who, at all material times, was employed by the defendant as a playground supervisor at premises owned and/or occupied by the Port Phillip City Council (“the defendant”). She alleges that during the course of such employment, she was required to perform “excessively heavy, repetitive and physically stressful work” and in particular, undertaking the painting of a storage shed on or about 22 November 2008, all of which was a cause of a low-back injury, stress and anxiety.
3 On 13 June 2012, she was granted a “Serious Injury Certificate” pursuant to s134AB(16)(a) of the Accident Compensation Act 1985 (Vic) permitting her to bring only a claim for “pain and suffering damages”.
4 The plaintiff alleges that her injuries were caused by the negligence of the defendant and/or a breach by the defendant of the statutory duties owed to the plaintiff pursuant to the provisions of the Occupational Health and Safety Act 2004 (Vic) and/or the Regulations made thereunder.
Affidavit material
5 The plaintiff relies on an affidavit of Henry John Carus (“Carus”), sworn on 6 August 2013 (“Carus’s affidavit”). Carus is the solicitor acting on behalf of the plaintiff.
6 The thrust of such affidavit is that on receipt of the defendant’s Affidavit of Documents, correspondence ensued between the respective solicitors as to the existence of further documents. In particular, reference was made to document 34 of the affidavit which purports to be a “record of conversations with Karina Kane” reported by Ros Pritchard, team leader, St Kilda Adventure Playground. As I understood the matter, there was no issue that any injury suffered by the plaintiff occurred at the St Kilda Adventure Playground.
7 Document 34 was annexed to Carus’s affidavit, and on the basis of that document, a request was made of the defendant to produce documents referred to in document 34. One of the exhibits referred to in Carus’s affidavit is a list of documents said to be documents referred to in document 34 and which had not been discovered. When this matter was first mentioned before me on 7 August 2013, the solicitor for the plaintiff pressed for an order that the defendant make and serve an affidavit of particular discovery in accordance with rule 29.08. There was also general comments from the bar table that if Ros Pritchard was joined as a defendant in the proceeding, the plaintiff can seek discovery from Ros Pritchard of such documents.
8 The matter was adjourned to 22 August 2013, on which date I was informed that many of the extra documents referred to in document 13 had now been discovered by the defendant. On that date, the solicitor for the plaintiff applied for the joinder of Ros Pritchard to the proceeding. I directed that I wanted argument about the appropriateness of such joinder and accordingly, the matter was adjourned to 6 September 2013.
9 On 22 August 2013, I also ordered that the solicitors for the plaintiff write to those acting on behalf of the defendant seeking further discovery in relation to certain documents which were enumerated, after which the defendant was to make a further affidavit setting out the extent of its knowledge in relation to those documents.
10 On 6 September 2013, I was informed during the course of the argument about the joinder of Ros Pritchard to the proceeding that there were no outstanding issues in relation to discovery.
The joinder of a party
11 Rule 9.06 of the County Court Civil Procedure Rules 2008 provides:
“At any stage of a proceeding the Court may order that—
(a)any person who is not a proper or necessary party, whether or not that person was one originally, cease to be party;
(b) any of the following persons be added as a party, namely—
(i)a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)a person between whom and any party to the proceeding there may exist a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
(c)a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies.”
12 Although no affidavit was provided by the plaintiff in support of this particular part of the relief sought in the summons, I was happy enough to proceed, as submissions were put by those acting on behalf of the plaintiff and the defendant.
13 In particular, the Proposed Amended Statement of Claim, which had been seen by the solicitors for the defendant, was handed to the Court. In particular, it is to be noted that the Statement of Claim was sought to be amended in the following ways:
(a) The addition of a new paragraph 1A to read:
“The Second Defendant is and was at all material times:
(a) an employee, servant or agent of the First Defendant;
(b)acting for or on behalf of the first defendant as the ‘Team Leader’ of the St Kilda Adventure Playground located at the premises referred to in paragraph 2 below;
(c)responsible for the supervising [of] the occupational health and safety of employees of the First Defendant, including but without limitation [to] the Plaintiff, working at the premises referred to in paragraph 2 below;
(d)responsible for supervising and maintaining the safety of the premises and the systems of work adopted at the premises as a workplace.”
(b) The addition of paragraph 4A, which states:
“At all relevant times the Plaintiff was required by the Second Defendant to carry out the work duties under her;
(a)supervision;
(b)management;
(c)control and direction;
by reason of which the Second Defendant owed the Plaintiff a duty to exercise reasonable care for her safety whilst performing her work duties at the premises.”
(c) The addition of paragraph 6, which states:
“The said injuries were caused by the negligence and/or breach of duty of:
(a)the First Defendant insofar as it failed to provide a proper and safe system of work for the Plaintiff, proper and safe plant and equipment to perform her work duties, a proper and safe system for conducting her work duties or efficient supervision of her work duties; and/or
(b)the Second Defendant insofar as she failed to provide a properly supervise, manage, control and/or direct the Plaintiff to perform safely her work duties at the premises.”
(d) The Particulars of Negligence annexed to the new paragraph 6 are to be added by the following Particulars:
“(j)Failing to see that the Plaintiff was in a position of stress caused by having to perform the work duties under the circumstances.
(k)Failing to warn the Plaintiff as to the potential risks or hazards in performing the work duties.
(l)Failing to take any or any adequate steps to prevent the Plaintiff from suffering injury.
(m)Failing to devise, manage or control a system for rotating the work duties performed by the Plaintiff so as to reduce her level of stress arising therefrom.”
14 There were also other small consequential amendments to the Statement of Claim, including an amendment to allege that the second defendant, together with the first defendant, breached statutory duties pursuant to the Occupational Health and Safety Regulations.
Submission on behalf of the Plaintiff
15 It was submitted on behalf of the plaintiff that:
(a) The plaintiff is “at large” to issue against any “entity” against who or which it is alleged there is a cause of action giving rise to an entitlement of damages;
(b) Clearly, the proposed defendant is a different entity to the defendant;
(c) The duty of care owed by the defendant to the plaintiff is one arising out of the employment relationship. Clearly enough, the duty of care as alleged by the plaintiff against the proposed defendant cannot be one arising from an employment relationship but rather one based on general negligence given the proximity of the plaintiff and the proposed defendant (being the supervisor of the plaintiff) and the foreseeability of injury being suffered by the plaintiff;
(d) In consideration of the aforesaid matters, it is not to the point that the proposed defendant was acting in the course of her employment with the defendant and that the defendant would be vicariously liable for the actions of the proposed defendant when she was acting within the scope of her employment.
16 It was submitted that there is “ample authority” for the proposition that a master is entitled to be indemnified by a servant whose negligence in the course of employment causes loss and damage to another servant for which the master is vicariously liable (see Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 55). In this respect, it was further submitted as a corollary of that proposition that a servant of a master may owe a duty of care to another servant of the same master for which a breach of such duty by the servant may sound in damages.
17 In particular, reference was made to Canberra Formwork Pty Ltd v Civil & Civic Ltd & Anor (1982) 41 ACTR 1, and in particular, at paragraphs [11] – [13]. In that matter the first defendant was a building construction company who employed the second defendant as its site manager for works undertaken on a building in Canberra. The plaintiff was a formwork contractor which entered into a written contract with the first defendant by which the plaintiff was to construct formwork for the concrete to be used in constructing the building. The plaintiff employed a person named Gil, who died as a result of a fall during the course of his employment with the plaintiff.
18 Gil’s widow brought an action against the plaintiff and the first defendant under the Compensation (Fatal Injuries) Ordinance 1968 and judgment was entered in such action against the plaintiff only for a certain sum.
19 Such sum was not satisfied and Mrs Gil then brought an action against the insurer of the plaintiff claiming the amount for which the plaintiff had been liable, and in this action, judgment was entered for Mrs Gil for the sum originally awarded.
20 The plaintiff sought contribution or indemnity from each of the first defendant (the building construction company) and the second defendant (the site engineer employed by the building construction company). In the contract between the first defendant and the plaintiff, there was a clause relating to the provision of indemnity by the plaintiff to the first defendant against liability that may occur through the carrying on of the work.
21 When discussing the liability of the second defendant (the employee of the first defendant), Blackburn CJ stated:
“I now turn to the question whether Michielsen, the second defendant, could have been liable to Mrs Gil. It is clear that he would not have been liable either as an employer, or as an occupier, or under the Scaffolding and Lifts Regulations. The question is whether he could have been liable under the widest principle of negligence. Did he fail in any way to take a reasonable step to prevent injury to Gil which he could reasonably foresee?”
22 Later in the judgment, Blackburn CJ stated:
“The negligence of the second defendant entails that the first defendant would also have been vicariously liable as the second defendant’s employer.
This finding of negligence against the second defendant prompts the question, what circumstances made the second defendant liable when a mere casual observer, not having any responsibility for the work, or relationship to the parties, who nevertheless perceived the danger as clearly, and as repeatedly, as the second defendant did, would probably have been held not liable? If it be said that such a person had no duty to Gil the answer might be ‘why not?’ since foreseeability is the test of duty. Perhaps the answer is that it would not have been reasonable to require the casual observer to take the steps which the second defendant has been held liable for not taking. The liability of the second defendant, therefore, must be accepted as in part depending on the fact that he was a servant — in an appropriate category — of the first defendant, and as such his responsibilities included the making of decisions which affected the safety of the persons in the position of Gil. I am content to accept this analysis.
Counsel for the second defendant also relied on s 365 of the Companies Ordinance 1962. Sub-section (1) reads as follows:—
…
The second defendant was an employee of the first defendant and therefore a person to whom the section applies (see the definition of ‘officer’ in s 5 of the Ordinance).
So far as counsel’s or my researches have shown, there is no precedent for the application of this section to facts like those before me in this case. The answer to the argument is, in my opinion, that this action is not a proceeding against a person for negligence, default, breach of duty or breach of trust, within the meaning of the sub-section, but a claim for contribution. But whatever the sub-section means, I do not believe that it relieves a defendant in these circumstances who has the good fortune to be an officer of a corporation in circumstances in which were he the servant of a natural person he would be liable.”
23 Counsel for the plaintiff also referred to orders made by Associate Justice Mukhtar made on 2 August 2013 and orders made by her Honour Judge Campton on 1 August 2013, where leave was given to join an employee of a first defendant to be an added defendant in circumstances not dissimilar to the subject proceeding. I was informed that there was some argument in relation to such joinder but no written reasons were given by either Judge.
The submissions of the Defendant
24 The defendant submitted that as the pleadings now stand, the plaintiff has sued the defendant, which operates through its agents and servants, one of whom was the proposed defendant, Ros Pritchard. It is the actions or non actions of such agents and servants which form the basis of the cause of action by the plaintiff against the defendant.
25 The defendant accepted that the relationship between the plaintiff and the defendant gives rise to a duty of care based on the employment relationship, whereas any duty of care said to be owed by the proposed defendant to the plaintiff could not arise out of an employment relationship, but rather on general principles of negligence. However, it was submitted that the content of the duty was effectively the same, given the Proposed Particulars of Negligence against the defendant and the proposed defendant.
26 The defendant stressed that the proposed amended pleading makes no allegation that Pritchard was acting outside the scope of her employment but rather, was acting in the course of her employment, performing her duties as a supervisor. In such circumstances, it must follow that the defendant would be vicariously liable for the acts of the proposed added defendant. If of course, it was alleged that the proposed added defendant was acting outside the scope of employment, different considerations would apply.
27 In particular, unless the plaintiff can show that there is a distinct cause of action by the plaintiff against the proposed added defendant which is peculiar to the added defendant and not encompassed by the present cause of action, the addition of Ros Pritchard would amount to essentially a duplication.
28 The defendant also submitted that the practice in this State has been that a claim for damages brought by an employee for injuries suffered during the course of their employment with their employer has been to issue proceedings against the employer. Obviously, in cases where there are, for example building sites, it may be that the employee will also issue against the head contractor on the building site, or various other subcontractors working on the site. Each of these entities are not vicariously liable to each other (subject to any contractual agreement).
29 To take a contrary view to the past practice would logically lead to the situation whereby an employee would not only issue proceedings against his or her employer – for example a corporate entity – but also against one or more directors perhaps, the general manager, the foreman, and/or the leading hand, all of whom it would be alleged that a general duty pursuant to the principles of negligence was established and breached, giving rise to a claim for damages, notwithstanding that each of these persons would be acting in the course of their employment with the employer.
30 When queried by the Court, Counsel for the plaintiff could not indicate a circumstance where it could be contemplated that the plaintiff could succeed against the added defendant, Ros Pritchard, and fail against the present defendant. Of course, such a concession is appropriate, bearing in mind that if Pritchard was acting in the course of her employment, it must follow that the present defendant would be vicariously liable for her actions. Furthermore, Counsel again, appropriately in my view, accepted that the potential amount of damages could not be affected by the addition of Pritchard as an added defendant.
31 Passing reference was made by Counsel for the plaintiff of Spotless Services Australia Ltd v Herbath (2009) 26 VR 373, wherein it was suggested that there may be cost advantages to a plaintiff who issues against a non-employer defendant and potentially escapes the strictures of the cost regime set out in s134AB of the Act. Whether this be right or wrong, I certainly do not consider such a situation is the basis of the joinder of any added defendant.
32 After considering the various submissions, I have come to the view that it is inappropriate to allow the joinder of the added defendant as sought by the plaintiff. I have come to such view for the following reasons:
(a) When one turns to rule 9.06(b)(i), there is no basis to say that Ros Pritchard “ought to have been joined as a party” or “whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined …”. In this respect, I have formed the view that the same issues arise in relation to the cause of action by the plaintiff against the defendant as would a cause of action against the proposed added defendant;
(b) Furthermore, I am not satisfied that the requirements of rule 9.06(b)(ii) are made out, in that there exists “a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between that person and that party …”, as well as between the parties to the proceeding. It is to be stressed that there is no suggestion by the present defendant that it would seek contribution from its then employee if there be a finding of negligence against the defendant;
(c) I am also conscious of s7(1) of the Civil Procedure Act 2010, which states:
“The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.”
I also refer to s9 of that Act, which directs that, in making any order in a civil proceeding, a court shall further the overarching purpose by having regard to, amongst other things, the efficient conduct of the business of the court and the efficient use of judicial and administrative resources;
(d) Given that it is difficult to imagine where a claim would succeed against the proposed second defendant but fail against the present defendant, the presence of the two defendants would in no way entitle the plaintiff to any further damages, and that given the nature of the pleadings, there would be essentially a duplication of the allegations made by the plaintiff against the defendant if the proposed defendant was added to the proceeding. I am not persuaded that the proposed joinder of the added defendant by the plaintiff facilitates the just, efficient, timely and cost-effective resolution of the real issues in dispute between the defendant and the plaintiff.
33 In making such ruling, I do accept that depending on the evidence led, that there may well have been a duty of care owed by Pritchard to the plaintiff consistent with the ruling of Blackburn CJ in Canberra Formwork Pty Ltd v Civil & Civic Ltd & Anor (op cit). However, I am not satisfied that fact alone in the circumstances of this matter gives rise to a proper basis to the joinder of the proposed defendant pursuant to rule 9.06 of the County Court Civil Procedure Rules 2008. Furthermore, the nature of the proceeding in the Canberra Formwork Case is vastly different to the subject proceeding.
Conclusion
34 Accordingly, I dismiss the Summons.
35 I will hear the parties on the question of costs.
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