| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MANGO HILL PTY LTD -v- THE MINISTER FOR EDUCATION [2002] WADC 73 CORAM : REGISTRAR KINGSLEY HEARD : 27 NOVEMBER 2001 DELIVERED : 16 APRIL 2002 FILE NO/S : CIV 789 of 2001 BETWEEN : MANGO HILL PTY LTD Plaintiff
AND
THE MINISTER FOR EDUCATION
Defendant
Catchwords: Practice - Striking out statement of claim - O 20 r 5C - Turns on own facts
Legislation: Workers' Compensation Act 1926
Workers' Compensation & Rehabilitation Act 1981
Result: Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr A Adam
Defendant : Mr L Chiat
Solicitors:
Plaintiff : Jackson McDonald
Defendant : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Dalgety Australia Ltd v Rubin (1984, unreported; Library No 5485)
John Holland (Constructions) Pty Ltd v Jordin (No 2) (1985) 36 NTR1
Lister v Romford Ice & Cold Storage Co Ltd [1957] AC at page 579 to 580
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd, (1985-1986) 160 CLR 626
Sydney City Council v Bosnich [1968] 3 NSWR 725
Case(s) also cited:
Nil
(Page 3)
1 REGISTRAR KINGSLEY: This is the defendant's application to strike the plaintiff's statement of claim on the basis that it fails to plead a valid cause of action or is so vague and embarrassing it ought to be struck out.
2 The plaintiff pleads that it entered into a contract in December 1997 or January 1998 with the defendant to provide cleaning services. In September 1998 one of the plaintiff's employees, a cleaner, was working at the Eddystone Primary School, a school under the control and occupied by the defendant. The plaintiff pleads that the school had had a problem with vandalism and the water fountains at the school had steel covers placed over them. These covers were locked each afternoon. In September 1998 the plaintiff's employee was instructed by the Principal of the school to put a cover on the water fountains. The cover weighed 10 kilograms and was awkward to carry. When the plaintiff's employee bent to pick up the cover for the water fountain and whilst picking it up she allegedly injured her lower back. The employee claimed compensation under the Workers' Compensation & Rehabilitation Act 1981 ("the 1981 Act"). The plaintiff paid to the employee a total amount of $70,641.16 excluding legal costs. 3 The plaintiff pleads the defendant owed the plaintiff a duty to take reasonable care that the plaintiff’s employees were not injured. The plaintiff goes on to plead that the accident was caused by the negligence of the defendant or by a breach of contract and particularises the breach. At par 16 as an alternative plea the plaintiff pleads that the accident, injuries, loss and damage were caused by the negligence and/or breach of contract and/or statutory duty of the defendant and again goes on to particularise the duty and breach. 4 The defendant's counsel submits that the plaintiff's amended statement of claim fails to set out a proper legal basis that would justify a finding that the defendant is liable to the plaintiff in damages. The defendant's counsel cites FlemingThe Law of Tort (9th Edition) at 196 where Professor Fleming states – "The law has considered itself fully extended by affording compensation only to persons immediately injured, such as the accident victim himself, without going to the length of compensating also third persons who secondarily incur expenses or lose their livelihood, support or expected benefits from their association with him."
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5 The defendant's counsel submits that the exception to the above paragraph relates only to the family of injured persons.
6 Further, the defendant’s counsel submits that the comments by Brennan J in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd, (1985-1986) 160 CLR 626 are relevant. At page 658 Brennan J commented that the existence of a cause of action in tort for damages representing the amount of compensation paid or payable to an injured third party was left undecided in Lister v Romford Ice & Cold Storage Co Ltd [1957] AC at page 579 to 580. Brennan J considered that in such a claim consideration had to be given to its elements, the evidence relevant to those elements and the necessary findings of fact to be made. Brennan J was of the opinion there was some unresolved questions of principle that must be judicially decided before the existence of such a cause of action can be confirmed. Thus the defendant’s counsel submits that the plaintiff's claim as framed can be summarised as – 7 The defendant's counsel submits that any right of recovery the plaintiff has against the defendant arises by virtue only of the statutory provisions contained in the 1981 Act. There is no pleading by the plaintiff of a claim under the 1981 Act. According to the defendant's counsel the plaintiff is seeking to recover workers compensation but is pleading it as an action per quod servitium amisit. 8 The defendant's application is an application for the striking of a pleading. To strike an action for no reasonable cause of action the pleaded case must be one which is not really arguable. The authorities indicate that great care must be exercised to ensure the plaintiff is not improperly deprived of the opportunity of trial by the appointed tribunal. In Dalgety Australia Ltd v Rubin (1984, unreported; Library No 5485) the court held that it is only in cases in which it can be seen from the outset that, however the facts are found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out.
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9 In Sydney City Council v Bosnich [1968] 3 NSWR 725 the action concerned the recoverability of damages in an action 'per quod'. Monies had also been paid by way of compensation under the Workers' Compensation Act 1926 ("the 1926 Act"). It was clear that the claim, as the District Court New South Wales was not a court of pleading, was one to recover the amount paid on account of wages as damages in an action 'per quod', and the amount paid as compensation under the 1926 Act. The President of the Court of Appeal and the Appeal Judge found that the claim could be made under both heads of damage.
10 In John Holland (Constructions) Pty Ltd v Jordin (No 2) (1985) 36 NTR1 Nader J stated at page 15 that "Workers' compensation payments that the law obliges the master to make to his injured servant are not, as such, a consequence or incident of the loss of the servant's service, they are paid by reason of injury suffered in circumstances specified in the Workers' Compensation Actand certain of those payments must be made whether or not service continues to be rendered …". Nader J goes on to comment that whilst the payments might be "some indication of the value of the servant's service, [they] are not a measure of the loss suffered because the loss would, or ought, in the ordinary case, be almost fully mitigated immediately by employing a replacement". Nader J states that this is not to say that all of the Workers' Compensation Act payments might not be recoverable, however they are not recoverable, qua workers compensation payments, in the action 'per quod'. 11 This area of law is not without some difficulty and in my opinion is not one which ought to be concluded as a pleading issue. Whilst there may well be some doubt as to the nature of the cause of action, that doubt in my opinion does not render this particular pleading so hopelessly unarguable to warrant it being struck out. Further, I am of the opinion that the manner of the pleading is not embarrassing to the defendant and may be pleaded by it. 12 Accordingly, the defendant's application is dismissed. I will hear counsel as to the form of orders and costs. |