Lappin v T J F Scaffolding Maintenance and Hire Pty Ltd and
[2011] VCC 498
•7 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-08-01936
| KRISTY LAPPIN | Plaintiff |
| (as Administrator of the Estate of the late MATTHEW LAPPIN) | |
| V | |
| T J F SCAFFOLDING MAINTENANCE & HIRE PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8, 11, 12, 13, 26 October, 16 December 2010 |
| DATE OF RULING: | 7 April 2011 |
| CASE MAY BE CITED AS: | Lappin v T J F Scaffolding Maintenance & Hire Pty Ltd and Victorian WorkCover Authority (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 498 |
RULING
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Catchwords: Finding for worker in personal injuries damages claim – death of worker after granting of serious injury application, but before issue of common law proceeding – issue of writ before grant of letters of administration to widow – s.29 Administration and Probate Act 1958 – whether writ null and void – entitlement of estate to costs – whether restrictions as to costs and interest as prescribed by Division 8A of PART IV of Accident Compensation Act 1985 apply.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with | Clark Toop & Taylor |
| Mr S Martin | ||
| For the Defendants | Mr S A Smith | Herbert Geer |
| HIS HONOUR: |
1 On 26 October 2010, I handed down my Reasons for Judgment in this common law industrial injury proceeding. Those Reasons disclosed that the worker, Matthew Lappin (“the worker”) suffered injury to his lower spine in the course of his employment with the first defendant (“the employer”) on 16 January 2002 (“the date of injury”) as a result of its negligence and breach of the relevant provisions of the Occupational Health and Safety Manual Handling Regulations 1999. I assessed both pain and suffering and pecuniary loss damages in the worker’s favour.
2 Before judgment could be entered and final orders made, an issue arose as to the appropriate form of the judgment and the interest and costs orders which ought to follow.
3 The proceeding was brought in the name of the worker’s widow, Kristy Passey, formerly Kristy Lappin (“Kristy”), as the worker had died in an unrelated motor vehicle accident on 16 March 2008. As at the date of the issue of the proceeding, 15 May 2008, a grant of letters of administration had not been made to Kristy.[1] Letters of Administration were granted to her on 30 December 2009.
[1] The worker died without leaving a will.
4 Generally, a proceeding brought in the name of a personal representative before a grant of letters of administration is a nullity.[2] While a proceeding may be maintained against a deceased person before a grant of letters of administration, a personal representative cannot be later substituted as plaintiff.[3]
[2] See Loxton v Moir (1914) 18 CLR 360 at 378 – 80; Re Pritchard (Deceased) [1963] Ch 502 at 517.
[3] Loxton v Moir (supra); re Pritchard (Deceased) (supra); ‘Wills, Probate and Administration Service (Vic)’ by Boaden & Ors, page 1112; ‘Halsbury’s Laws of England’ (4th ed), Vol 17, paragraph 737.
5 By Summons issued 21 January 2011, the solicitors for the plaintiff sought orders:
“(1)
State Trustees Limited be substituted as plaintiff in this proceeding from 15 May 2008 being the date the Writ herein was filed, until 30 December 2009, being the date of grant of Letters of Administration of the estate of Matthew Thomas Lappin.
(2)
Kristy Lappin (as Administrator of the Estate of the Late Matthew Lappin) be named as plaintiff in the proceeding on and from 30 December 2009.
(3) Such further or other order as the Court deems appropriate.”
6 By letter dated 15 December 2010, State Trustees Limited agreed to act as administrator of the estate over the relevant period.
7 Mr Ingram, on behalf of the plaintiff, relies upon Rule 36.01 of the County Court Civil Procedure Rules 2008. Order 36.01 states:
“(1) For the purpose of—
(a)
determining the real question in controversy between the parties to any proceeding; or
(b) correcting any defect or error in any proceeding; or (c) avoiding multiplicity of proceedings— the Court may, at any stage, order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
…
(4) A mistake in the name of a party may be corrected under paragraph (1) whether or not the effect is to substitute another person as a party … “
8 In Bridge Shipping Pty Ltd v Grand Shipping SA & Anor,[4] the High Court said:[5]
“Order 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit: … It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description.
… The rule imposes three limitations on a person's right to amend. First, there must be a mistake. Secondly, the mistake must be ‘in the name of a party’. Thirdly, the court may only make the order where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his or her claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. …”
[4] [1991] 173 CLR 231
[5] at page 261
9 Mr Ingram argues there is power in Rule 36.01 to amend the title to the proceeding as the plaintiff’s Summons requests. He submits the Rule be given the widest possible interpretation given its remedial nature.
10 Bridge Shipping was a case involving a mistake as to the identity of a party sued. It was thought, at the time of the issue of the writ, that a certain party was the owner of a particular ship. That turned out not to be the case.
11 The situation is somewhat different in the present proceeding. There was no basis upon which Kristy had the right or entitlement to issue the proceeding, as letters of administration had not been granted. Prima facie, the Writ is a nullity. I have reservations about whether, in those circumstances, the remedial effect of Rule 36.01 has application.
12 However, Mr Smith, on behalf of the defendant, did not oppose the application. I bear in mind that were I to find the Writ was a nullity, then the whole proceeding would be abandoned and it would be necessary for a new writ to be issued, and, in theory at least, a whole new hearing be undertaken. That would result in substantial costs and a significant delay.
13 In those circumstances, and giving to Rule 36.01 the widest possible interpretation, I shall grant leave to the plaintiff to file the summons, and shall make orders substituting State Trustees as the plaintiff to the proceeding from the date of issue, 15 May 2008, up until 30 December 2009, and thereafter substitute Kristy as the administrator of her late husband’s estate, as plaintiff.
14 In purported compliance with s.134AB(12)(b) of the Accident Compensation Act (“the AC Act”) the Victorian WorkCover Authority (“the Authority”) through its solicitors, made a “statutory offer” of $150,000 dated 17 March 2008 (“the Authority’s offer”).
15 In response, pursuant to s.134AB(12)(c), the worker’s solicitors made a “statutory counteroffer” of $225,000, plus retention of compensation paid, dated 31 March 2008. The document is signed “Kristy Lappin as
administrator of the Estate of the Late Matthew Thomas Lappin, or as the
person entitled to apply for a grant of Letters of Administration” (“the worker’s
offer”).16 By letter dated 11 October 2010, the solicitors for the worker wrote to the solicitors for the defendant, offering to accept $300,000 plus retention of payments made, plus costs. This letter was said to be sent in accordance with the principles of Calderbank v Calderbank[6] (“the Calderbank offer”).
[6] [1975] 3 All ER 333
17 The plaintiff’s argument is as follows:
•
The worker, before his death, obtained leave, pursuant to S134AB, to bring common law proceedings by order of her Honour Judge Lawson made 21 December 2007.
•
Thus, before his death, the worker had vested in him a cause of action against the employer for the injuries sustained in the course of his employment.
•
The worker died before commencing any such action, and the cause of action, pursuant to s.29 of the Administration and Probate Act 1958 (“the A and P Act”) survived for the benefit of his estate.
•
Thus, at the time of commencement of the proceeding, there was no “worker” to which the various provisions of s.134AB of the AC Act applied.
•
Section 134AB did not create a cause of action, but rather precluded its issue until the “serious injury” process set forth in s.134AB(1)–(10) was complied with. Later sub-sections of s.134AB regulate the manner in which the proceeding is to be undertaken after the gateway is passed, and restricts the entitlement of the worker inter alia, to damages, costs and interest. In particular, sub-s.12 provides for the parties to comply with the statutory offer process.
•
Section 134AB has no application because the proceeding was not commenced by “a worker” as the various sub-sections refer. Rather, it was commenced by the estate of a worker.[7]
• Thus, the provisions of the AC Act as to: [7] See s.29 of the A and P Act
ƒ the statutory offer and counteroffer process (s.134AB(12)-(14)); ƒ interest (s.134AB(34); ƒ costs (s.134AG); have no application and the plaintiff is entitled to interest and costs under general common law principles. Further, given the Calderbank offer, costs ought to be awarded to the plaintiff on an indemnity basis.
• Section 134AB neither by its specific language, nor its terms, made reference to “the estate of the worker”. 18 The defendant’s argument in reply is as follows:
• The plaintiff’s argument is misconceived. •
Section 29 of the A and P Act does not create a right to bring a cause of action, but rather enables the cause of action to “survive for the benefit of the [the deceased worker’s] estate”.
•
It would be illogical and contrary to the language of the section if the estate of a deceased worker received a significant advantage upon the conclusion of a proceeding by not being restricted as to costs, interest, and the like, as would another proceeding where the worker was alive.
•
At common law the right of a person to bring an action for damages for injuries suffered, dies with that person. Section 29 of the A and P Act provides relief from that rule. There is no reference in the A and P Act as to any basis upon which a proceeding may be maintained by the estate of an injured worker outside the provisions of s.134AB.
•
Any reference to a “worker” in s.134AB can be conveniently read as “the legal personal representative of the worker”.
•
The worker’s offer was in fact made by Kristy and was, as such, invalid as, at the time it was made, she had no power nor authority to make the offer. That authority lay with the State Trustees until 30 December 2009 when Letters of Administration were granted. Thus no statutory counteroffer was made and pursuant s.134AB(14), the deceased’s estate is deemed to have made a counteroffer of the maximum of damages that can be awarded under s.134AB(22)(a) and (b).
•
A judgment was obtained for less than 90 per cent of that maximum. Pursuant to s.134AB(28)(d), the appropriate costs order is that each party bear their respective costs.
19 In my view, the argument of the plaintiff is misconceived. There are various circumstances in which a proceeding is brought in a representative capacity. For example, where a litigation guardian is appointed for a person under a disability or a handicapped person.[8] Further, a representative or class action may be brought,[9] or an action may be brought by the administrator of an estate.[10] Further, partners may sue or be sued in the name of a business in which they were in partnership.[11]
[8] See Rule 15 of the County Court Rules of Civil Procedure 2008
[9] Rule 16.02
[10] See Rule 16.01
[11] See Rule 17
20 There is nothing in s.134AB nor in the AC Act generally to preclude such actions from being brought under the AC Act. The objects of the AC Act include”[12]
“To provide adequate and just compensation to injured workers.”
[12] Section 3(d)
21 In fact, s.5(4) of the AC Act provides as follows:
“(4) A reference in this Act to a worker who has been injured includes, where the worker is dead, a reference to the legal personal representative of the deceased worker.”
22 Thus, wherever appearing in s.134AB there is reference to “the worker”, there may be substituted “the legal personal representative of the deceased worker”.
23 The question then to be asked is whether, between 16 March 2008 and 30 December 2009, Kristy was the “legal personal representative” of her deceased husband. During that period, while undoubtedly a beneficiary of his estate, no letters of administration had been granted.
24 In Surman v Wharton,[13] the following was stated:
“… although, prima facie, legal personal representative means the executor or administrator, it may under certain circumstances mean the person beneficially entitled.”
[13] [1891] 1 QB 491, per Charles J, at 495
25 In that case, the phrase “legal personal representative” was said to include the person who on the death of the person spoken of, became entitled to the property in question.
26 It has been said that the primary meaning of “legal personal representatives” means executors or administrators in their official capacity.[14] However, it has further been held that the meaning of “legal personal representative” may be controlled by the context in which it is stated. It has been held that a gift to nephews and nieces living on the happening of a particular event “or their legal personal representatives share and share alike” meant the next of kin of those nephews and nieces.[15] Further, some authorities have considered “legal representatives” and like phrases as generally meaning next of kin rather than executors or administrators when those individuals indicated are to take beneficially.[16]
[14] See Price v Strange (1820) 6 Madd 159; Saberton v Skeels 1 Russ & My 587; Hinchcliffe v Westwood (1848) 17 LJ Ch 167; Smith v Barneby (1846) 2 Coll 728; Stockdale v Nicholson (1867) LR(4)Eq 359
[15] King v Cleaveland 28 LJ Ch 835
[16] See Bridge v Abbott 3 Bro CC 224; Cotton v Cotton 8 LJ Ch 349; Briggs v Upton 7 Ch 376
27 In Atherton v Crowther,[17] the gift to a class of persons and their “personal representatives” was held to exclude the concept that the executors or administrators were to take and that “personal representatives” meant descendants.
[17] (1854) 19 Beav 448
28 In my view, regard should be had to the context of the phrase “legal personal representative” in the light of the AC Act. The objects of the Act, as stated, include “to provide adequate and just compensation to injured workers”. By reason of the definition of “worker” as contained in s.5(4), in my view, Parliament intended that the adequate and just compensation to be provided to injured workers included that that compensation, in appropriate circumstances including the death of the worker, be provided to the next of kin or family of that deceased worker. Section 5(4) could not have been included for the purposes of providing compensation to which a deceased worker would have been entitled, to that worker’s executors or administrators. I conclude that the phrase “legal personal representative” in s.5(4) was intended to include the next of kin, or family of the worker. Kristy fell into that category. Therefore, that phrase ought to be given a wider meaning and include Kristy.
29 In coming to this conclusion, I bear in mind that s.5 of the A & P Act defines “personal representative” to mean “… the executor original or by
representation or administrator for the time being of a deceased person”.
However, the meaning of “legal personal representative” in s.5(4) of the AC Act must be determined in the context of that Act, including in the light of its objects, rather than in the context of the A & P Act.
30 It follows that Kristy, as legal personal representative, had the power and capacity to make the worker’s offer of 31 March 2008. That offer, therefor, complies with the provisions of s.134AB(12). Likewise, the restriction as to the payment of interest (s.134AB(34)) and costs (s.134AG)) has application. In summary the proceeding and the judgment are governed by Division 8A of PART IV of the AC Act.
31 Thus the plaintiff’s contention fails. The defendant’s contention that the worker’s offer was invalid also fails.
32 I shall hear from the parties further as to the appropriate orders upon judgment.
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