Liam Patrick Jones v Ronald Lloyd Walker and CTR Pacific Pty Limited (ACN 064 405 232) and Construction Control Act Pty Limited (ACN 089 635 218) and Tereel Pty Limited trading as Celtic Plastering Company (ABN 86
[2008] ACTSC 117
•31 October 2008
LIAM PATRICK JONES v RONALD LLOYD WALKER & CTR PACIFIC PTY LIMITED (ACN 064 405 232) & CONSTRUCTION CONTROL ACT PTY LIMITED (ACN 089 635 218) & TEREEL PTY LIMITED trading as CELTIC PLASTERING COMPANY (ABN 86 008 559 411)
[2008] ACTSC 117 (31 October 2008)
PRACTICE AND PROCEDURE – contribution between tortfeasors – joinder of parties – whether third party may claim contribution from plaintiff – whether existing party can be joined as a subsequent party
NEGLIGENCE – contribution between tortfeasors – whether third party may claim contribution from plaintiff
Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611
Barisic v Devenport & Ors [1978] 2 NSWLR 111
Donaldson v Canberra Tyre Service Pty Limited [2004] ACTSC 26
Andar Transport Pty Limited v Brambles Limited (2004) 217 CLR 424
Court Procedures Rules 2006, Part 2.5, r 302, 319, 322
Civil Law (Wrongs) Act 2002, Part 7.3, ss 21, 102
Insurance Contracts Act 1984 (Commonwealth), s 66
No. SC 699 of 2004
Judge: Master Harper
Supreme Court of the ACT
Date: 31 October 2008
IN THE SUPREME COURT OF THE )
) No. SC 699 of 2004
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:LIAM PATRICK JONES
Plaintiff
AND:RONALD WALKER
First Defendant
AND:CTR PACIFIC PTY LIMITED (ACN 064 405 232)
Second Defendant
AND:CONSTRUCTION CONTROL ACT PTY LIMITED (ACN 089 635 218)
Third Defendant
AND:TEREEL PTY LIMITED trading as CELTIC PLASTERING COMPANY (ABN 86 008 559 411)
Third Party
ORDER
Judge: Master Harper
Date: 31 October 2008
Place: Canberra
THE COURT ORDERS THAT:
The application by the third party to join the plaintiff as a fourth party be dismissed.
This is an application by the third party to join the plaintiff as a fourth party.
The plaintiff’s claim is for damages for personal injury occasioned on 1 March 2001 at a building site at Canberra Airport. The plaintiff commenced proceedings in February 2003 in the Magistrates Court against the first and second defendants. An order was made by a magistrate in May 2004 adding the third defendant as a party.
The plaintiff’s claim is pleaded in amended particulars of claim filed in the Magistrates Court in May 2004. The plaintiff asserts that on the day of his accident he was at the building site as a director and employee of Tereel Pty Limited, now the third party. Tereel was a subcontractor to the third defendant in respect of concrete plastering work. The third defendant was the head building contractor and had possession of the building site. The second defendant was engaged in bricklaying or block-laying work on the site, and the first defendant was an independent contractor delivering sand to the site.
The plaintiff alleges that the third defendant had erected scaffolding, or caused scaffolding to be erected, around a building under construction. The plaintiff was required to mount the scaffolding to attend to his work. The first defendant, Mr Walker, drove a truck into contact with the scaffolding. An unidentified employee of the second defendant was directing or guiding the first defendant at the time. That employee, it is pleaded, negligently directed the first defendant in such a way as to cause the collision between the truck and the scaffolding. The plaintiff asserts that the third defendant owed him a duty of care to provide a safe place of work and to supervise and control the site adequately. The impact between the truck and the scaffolding caused some damage to the scaffolding and pulled it out of alignment. The plaintiff, it is asserted, alighted from the scaffolding and asked the site foreman, employed by the third defendant, whether it was safe for him and other employees to continue to work from the scaffolding. The foreman directed the plaintiff that he and the other employees of Tereel Pty Limited should cease working from the scaffolding until it had been inspected. The plaintiff ascended the scaffolding to inform his fellow employees of that direction, and to retrieve tools and equipment. As he was descending, part of the scaffolding gave way. The plaintiff fell to the ground and was injured.
The plaintiff asserts that each of the three defendants was negligent, and in addition that the third defendant committed a breach of duty under scaffolding and lifts legislation.
In November 2004 the third defendant joined Tereel Pty Limited as a third party, asserting that Tereel failed to respond to the third defendant’s directions as to site safety, and failed to ensure that persons on site, including its own employees, “were not exposed to a risk of injury of which the third party knew or ought to have known may have existed”. Particulars of the third party’s negligence were provided as: failing to supervise its employees, including the plaintiff; failing to comply with a direction from the site foreman that its employees were not to use the scaffold in its damaged condition; failing to take steps to prevent its employees from doing so; and failing to instruct its employees, including the plaintiff, not to go back on to the scaffold after it had been damaged. The third party notice was later amended to add as particulars of negligence: failing to prevent its employees (including the plaintiff) from descending from the scaffold through an area which the third party knew or ought to have known was at risk of being damaged or unsafe; and failing to provide instructions to its employees that they should not descend from the scaffolding through such an area.
The third party now seeks leave to join the plaintiff as a fourth party to the proceedings.
The proposed fourth party claim asserts that the fourth party was employed by the third party, and was responsible for directing the activities of the third party, including all its employees, in relation to the works at the airport. It is said that the third party relied on the fourth party to ensure that its duties and obligations to its employees were complied with, and that the site was safe and fit for use by the employees. In the circumstances, the fourth party owed a duty of care to the third party to ensure that work practices were conducted with due care and having regard to the safety of the employees on site. The fourth party notice then pleads that if the third defendant succeeds in its claim against the third party, then any liability incurred by the third party was incurred by breach of duty of care by the fourth party. The notice further pleads a breach of a term of the contract of employment between the third and fourth party, in that the fourth party failed to exercise reasonable care for his own safety.
Before proceedings were commenced, the solicitors for the plaintiff notified the solicitors for the present third party that it was their intention to commence proceedings against the present third party, Tereel Pty Limited, as trustee for the Jones family settlement. The solicitors for the present third party, instructed, I infer, by its workers compensation insurer, drew the attention of the plaintiff’s solicitors to the decision of the High Court of Australia in Nicol v Allyacht Spars Pty Limited (1987) 163 CLR 611. They asserted that the plaintiff was the site supervisor for the third party, and was responsible for devising and enforcing the system of work. In those circumstances, they asserted that the plaintiff could not succeed in negligence against his employer. They foreshadowed a claim for indemnity costs if the plaintiff brought such a claim and failed.
Third and subsequent party proceedings are governed by Part 2.5 of the Court Procedures Rules 2006. The part is framed generally to deal with claims by a defendant against a third party, but rule 322 permits a third party to join a fourth party, and provides that Part 2.5 applies with necessary changes as if the third party were a defendant and the fourth party were a third party.
The primary rule about third party notices is rule 302, which provides as follows:
302 Third-party proceeding—when available
A defendant may file a third-party notice if the defendant wants to—
(a)claim a contribution or indemnity against a person who is not already a party to the proceeding; or
(b)claim relief against a person who is not already a party to the proceeding that—
(i)relates to or is connected with the original subject matter of the proceeding; and
(ii)is substantially the same as some relief claimed by the plaintiff; or
(c)require an issue relating to or connected with the original subject matter of the proceeding to be decided not only as between the plaintiff and defendant but also between either of them and a person not already a party to the proceeding.
By virtue of rule 322, rule 302 is to be read, for present purposes, as permitting a third party to file a fourth party notice in the specified circumstances. It will be noted, however, that the procedure is available only for the purpose of joining a person who is not already a party to the proceeding. In the present case the plaintiff is already a party to the proceeding.
The rules contemplate a claim for contribution or indemnity being made by a party against an existing party. Rule 319 permits a defendant to file a notice claiming contribution or indemnity against another defendant. Rule 322 applies to extend the operation of rule 319 to third parties as well as defendants. It does not on its face permit the making of a claim for contribution or indemnity by a third party against a plaintiff.
I am satisfied that the rules do not permit the joinder as a party (in the same capacity) of a person who is already a party. The position is almost certainly otherwise where a person is a party to a proceeding in two different capacities, for example as an individual and as a trustee, but no such consideration arises in the present matter.
It would be unfortunate if the rules precluded the bringing of a claim by the third party against the plaintiff available under the law in the present proceedings. The problem could perhaps be overcome by the institution by the third party of a separate action against the plaintiff, which could be consolidated with, or heard at the same time as, the present action. If such an action indeed lies, it would be preferable, having regard to considerations of efficiency and expense, that it be brought as part of the present proceedings if that can be done.
It becomes necessary to examine the proposed claim by the third party against the plaintiff. Counsel for the third party has provided the court with a draft fourth party notice and statement of claim.
The draft statement of claim asserts that the plaintiff was employed by the third party, and was responsible for directing its activities, including its employees at the site; the plaintiff owed a duty of care to the third party to ensure that all work practices on the site were conducted with due care and regard to the safety of employees on site; and the plaintiff committed a breach of that duty of care in failing to ensure that the scaffolding was safe, in mounting the scaffolding when it was unsafe to do so, and in failing to obey instructions of the head contractor.
The draft statement of claim also asserts a breach by the plaintiff of an implied term of his contract of employment with the third party, that he would exercise reasonable care for his own safety in the performance of his work.
The plaintiff, perhaps influenced by the letter before action from the third party’s solicitors, did not include the third party as a defendant. The third party is a party only because of the third party notice issued by the third defendant (the head contractor), claiming contribution or indemnity on the basis of the negligence of the third party. Although particulars of the alleged negligence of the third party are set out in the third party notice, it is not entirely clear whether the duty of care it is alleged to have breached is said to have been owed to the plaintiff or to the third defendant.
The right to recover contribution in tort is a statutory one, now found in section 21 of the Civil Law (Wrongs) Act 2002. That section provides as follows:
21 Right of contribution
(1)A person (the first person) who is liable for damage caused by a wrong can recover contribution from someone else (a contributory) who is also liable for the same damage.
(2)The contribution must be an amount that the court considers just and equitable having regard to the extent of the contributory’s responsibility for the damage.
(3)However, the first person is not entitled to contribution under this section if—
(a)the first person is liable to indemnify the contributory against the contributory’s liability for the damage; or
(b)the court exempts the contributory from liability to make contribution; or
(c)the court has directed that contribution to be recovered from a person for the damage is a complete indemnity for the damage.
It has not been submitted that the proposed claim by the third party against the plaintiff would be available in the absence of that statutory provision. The section permits recovery of contribution only from someone “who is also liable for the same damage”. Can the plaintiff be categorised as a person “who is also liable for” the damage for which the third defendant contends that the third party is liable?
The third defendant in its defence alleges contributory negligence on the part of the plaintiff.
If the plaintiff succeeds against the third defendant, but at the same time the third defendant establishes contributory negligence by the plaintiff, Part 7.3 of the Civil Law (Wrongs) Act will require the court to reduce the damages recoverable by the plaintiff against the third defendant to the extent the court considers just and equitable having regard to the plaintiff’s share in the responsibility for the damage: section 102.
The technique to be adopted in deciding a claim for damages for personal injury against a number of tortfeasors, where there is an allegation of contributory negligence against the plaintiff, was explained by the New South Wales Court of Appeal (Moffitt P, Hope and Samuels JJA) in Barisic v Devenport & Ors [1978] 2 NSWLR 111. The fault of the plaintiff should be compared with the combined fault of the defendants, viewed as a unit. The plaintiff should have judgment against each defendant found to have been negligent, for the full amount of the assessed damages, reduced by the appropriate percentage to reflect the plaintiff’s share in the responsibility for the damage. Only after that process has been completed should the court proceed to the next step, of assessing contribution between the unsuccessful defendants.
The decision turned on the construction of the then applicable New South Wales legislation dealing with contributory negligence by a plaintiff and with contribution between tortfeasors. It has, however, been followed with approval in this court as applicable to the equivalent provisions of the Civil Law (Wrongs) Act: Donaldson v Canberra Tyre Service Pty Limited [2004] ACTSC 26 per Crispin J.
Counsel for the applicant third party referred in submissions to Nicol v Allyacht Spars Pty Limited, to which I have previously adverted. The injured plaintiff in that case had been employed by the defendant company, of which he was a director. The plaintiff failed at first instance and before the Queensland Full Court, on the basis that the unsafe system of work which had resulted in his injury was a system he had designed himself. The High Court allowed the appeal, holding that on the evidence in the case the plaintiff was not prevented from succeeding on the basis of an unsafe system of work because he had devised the system. The court, by majority, found that the plaintiff had been guilty of contributory negligence in acquiescing in the use of the system and helping to put it into operation: his damages were reduced by 40%.
Andar Transport Pty Limited v Brambles Limited (2004) 317 CLR 424 was another case in which the injured employee plaintiff was a director of the sub-contractor company and was responsible for its performance of its duty of care at common law to himself as an employee. The High Court approved Nicol v Allyacht Spars and held that the sub-contractor was not excused from liability to its employee. The capacity of the sub-contractor was distinct from that of its director, and the duty of care of the sub-contractor was an independent personal obligation separate and distinct from any duty owed by its director-employee.
The employee’s damages had been reduced at first instance by 35% for contributory negligence. The High Court made it clear that the calculation of a percentage figure for contributory negligence in those circumstances was a quite separate exercise from the apportionment of liability, in proceedings for contribution between the sub-contractor company and the principal contractor.
It does not seem to me that either of these two decisions assists me in determining the present application. The principles will undoubtedly be applicable at the trial of the action, including the determination of the issues between the third defendant and the third party.
Conceptually it is a little difficult to see how in fairness the plaintiff, assuming that he is found guilty of contributory negligence, could find that not only is his award of damages reduced on that account, but that additionally he is liable to make some further contribution towards the liability of the third party. It is not, however, necessary for me to deal with that concept for the purpose of determining the application. It is sufficient, it seems to me, that the applicant cannot show that it has any right to claim contribution under section 21 of the Civil Law (Wrongs) Act. The “damage caused by a wrong” referred to in the section must be the injury to the plaintiff. The plaintiff cannot be liable to himself.
It is no doubt for this reason that the Court Procedures Rules do not permit the joinder of a plaintiff as a subsequent party, or the making of a claim for contribution or indemnity by a defendant or subsequent party against a plaintiff.
I should also make brief reference, although it was not referred to by counsel for any of the parties, to section 66 of the Insurance Contracts Act 1984 (Commonwealth). That section provides as follows:
66 Subrogation to rights against employees
Where:
(a)the rights of an insured under a contract of general insurance in respect of a loss are exercisable against a person who is the insured’s employee; and
(b)the conduct of the employee that gave rise to the loss occurred in the course of or arose out of the employment and was not serious or wilful misconduct;
the insurer does not have the right to be subrogated to the rights of the insured against the employee.
Although I have been able to determine the application other than by reliance on that section, it seems to me that it would in any event have proscribed the course of action proposed by the third party.
The application will be dismissed. I shall hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 31 October 2008
Counsel for the plaintiff: Mr RL Crowe SC
Solicitors for the plaintiff: Elrington Boardman Allport
Counsel for the second defendant: Mr DV Rosen
Solicitors for the second defendant: Boyd House & Partners by their Canberra agents Goldrick Farrell Mullan
Counsel for the third defendant: Mr DA Stretton
Solicitors for the third defendant: Mallesons Stephen Jaques
Counsel for the third party: Mr AR Muller
Solicitors for the third party: Moray & Agnew
Date of hearing: 22 August 2008
Date of judgment: 31 October 2008
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