Percy v Central Control Financial Service Pty Ltd - [2000] QSC 129

SUPREME COURT OF QUEENSLAND

CITATION: Percy v Central Control Financial Service Pty Ltd & Ors [2000] QSC 129

PARTIES: CHRISTOPHER WILLIAM PERCY
(plaintiff)
v
CENTRAL CONTROL FINANCIAL SERVICES PTY LTD
(first defendant)
JOHN BARRY CLARK AND MERILYN MARGARET CLARK
(second defendant)
MERCIA THERESE DUNCAN
(third defendant)
NEIL LOUIS HARTLEY
(fourth defendant)
REGINALD JOHN SINNOT
(fifth defendant)

FILE NO: SC No 46 of 2000

DIVISION: Supreme Court at Townsville

PROCEEDING: Chamber application

DELIVERED ON:

DELIVERED AT: Townsville

HEARING DATE: 10 February 2000

JUDGE: Atkinson J

ORDER:

It is ordered:

(1) that the statement of claim delivered on 16 June 1997 be amended by:

(a)amending paragraph 1 by deleting the words “is a plumber by trade” and inserting in their place the words “was at all material times a plumber trading in a partnership known as CW and SJ Percy trading as Percy’s Plumbing Service;
(b)amending paragraph 2 by:-
(i)renumbering it (a) and (b) in accordance with paragraph 2 of the second amended statement of claim which is Exhibit DAB2 to the affidavit of David Anthony Bowen filed 9 February 2000; and

(ii)inserting the words “the Fourth Defendant”, after the words “their agent” and before the words “NEIL LOUIS HARTLEY”; and

(iii)inserting as paragraph 2(c):

“In the alternative to the facts set forth in paragraph 2(b) herein, the Plaintiff says the Fourth Defendant requested the Plaintiff to perform certain work in relation to the said block of flats, including the placement of the corrugated iron roof sheeting thereof, and agreed to pay the Plaintiff an hourly rate for his labour and also an hourly rate for the labour of his employee.”

(c)amending paragraph 3 by inserting the words “or in the alternative the Fourth Defendant” after the words “the First, Second and Third Defendants” wherever they appear.
(d)amending paragraph 5 by:
(i)renumbering it as paragraph 5(a); and

(ii)inserting the words “or in the alternative the Fourth Defendant” after the words “the First, Second and Third Defendants”; and

(iii)inserting as paragraph 5(b):
“(b)Furthermore, the First Defendant, the Second Defendant and the Third Defendant or in the alternative the Fourth Defendant, owed the Plaintiff a duty of care in the carrying out of the tasks for which they were paying him an hourly rate for his labour to ensure that he was not exposed to a risk of injury arising from the nature of the work he was engaged to perform.”

(e)amending paragraph 6 by:
(i)     inserting the words “or in the alternative the Fourth Defendant and furthermore were caused by the breach of duty on the part of the First, Second and Third Defendants or in the alternative the Fourth Defendant” after the words “First, Second and Third Defendants”; and
(ii)     inserting the words “BREACH OF STATUTORY DUTY” after the words “particulars whereof are as follows”; and
(iii)    deleting the number (a) in paragraph 6(a); and
(iv)    deleting paragraph 6(b); and
(v)     inserting after the words “did not contravene the provisions of the said Act”, the words:
“PARTICULARS OF NEGLIGENCE
(i)failing to provide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QSC 129
Decision Date: 10 February 2000

CaseChat Overview and Summary

Percy was an employee of Central Control Financial Service Pty Ltd, and during the course of his employment, he was injured while replacing roof sheeting. Percy brought an action against his employer alleging breach of statutory duty and negligence. The employer applied for summary judgment and the plaintiff applied for leave to amend his statement of claim. The court had to decide whether a breach of section 23 of the Workplace Health and Safety Act 1989 gives rise to a private cause of action and if the proposed amendments arose out of substantially similar facts.

The court considered that the breach of statutory duty claim was based on the proposition that section 23 of the Workplace Health and Safety Act 1989 gives rise to a private cause of action. The court held that there is no private cause of action in negligence that arises from a breach of statutory duty under the Workplace Health and Safety Act 1989. The court further held that the proposed amendments arose out of substantially similar facts to those pleaded in the original statement of claim.

The court found that the employer was not liable for the plaintiff's injuries, and the employer's application for summary judgment was granted. The court also found that the plaintiff's application for leave to amend his statement of claim was dismissed as the amendments did not arise out of substantially similar facts to those pleaded in the original statement of claim.

The court dismissed the plaintiff's action and granted the employer's application for summary judgment. The court also dismissed the plaintiff's application for leave to amend his statement of claim.

Orders