Perino v Hall
[2017] NFSC 5
•17 October 2017
SUPREME COURT OF NORFOLK ISLAND
Perino v Hall [2017] NFSC 5
File number: SC 4 of 2016 Judge: BESANKO CJ Date of judgment: 17 October 2017 Catchwords: PRACTICE AND PROCEDURE – Consideration of an application for an order under r 40 of the Court Procedure Rules 2006 (ACT) or the Court’s inherent power that the plaintiff’s Statement of Claim be set aside – in the alternative, an order under r 425(1) of the Rules that the Statement of Claim be struck out – in the alternative, an order under r 425(3) that the proceeding be dismissed – whether the plaintiff’s claim is barred or prohibited by the common law principle of res judicata – whether the plaintiff’s action is barred by s 43 of the Employment Act 1988 (NI) – whether there is an estoppel based on the fact of previous proceedings before the Employment Tribunal and delay – whether the proceeding is an abuse of process – where it is not unarguable in the relevant sense that s 43 of the Employment Act does not bar the plaintiff’s claims against the defendants – where the plaintiff has commenced her action within time.
PRACTICE AND PROCEDURE – Consideration of an application for leave to amend pleadings – where the plaintiff seeks to include a further cause of action – where the plaintiff seeks to join another defendant to the proceedings – where the Court is not satisfied that the plaintiff’s proposed causes of action are so weak that the proposed amendments and joinder should not be allowed – where the plaintiff is well within the time limit for instituting a proceeding against the proposed defendant.
Legislation: Court Procedure Rules 2006 (ACT) rr 40, 425
Employment Act 1988 (NI) ss 26, 27, 28, 37, 39A, 43, 65
Law of Negligence and Limitation of Liability Act 2008 (NI) s 49
Limitations of Actions Act 2008 (NI) s 38
Supreme Court Act 1960 (NI) s 19
Cases cited: Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways and Others (NSW) (1964) 112 CLR 125
Mahony v J Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522
Meyers v The Director of National Parks [2006] NFSC 2
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589
Date of hearing: 21 June 2017 Category: Catchwords Number of paragraphs: 65 Counsel for the Plaintiff: Mr E Romaniuk SC with Ms E Groote Solicitor for the Plaintiff: Luke Clarke Solicitor Counsel for the First Defendants: The First Defendants did not appear Counsel for the Second Defendant: Ms V Thomas Solicitor for the Second Defendant: Ashurst Australia ORDERS
SC 4 of 2016 BETWEEN: JENNIFER VALDI PERINO
Plaintiff
AND: RAYMOND HALL & NICHOLA HALL
First Defendant
NORFOLK ISLAND HEALTH & RESIDENTIAL AGED CARE SERVICE (NIHRACS) FORMERLY NORFOLK ISLAND HOSPITAL ENTERPRISE
Second Defendant
JUDGE:
BESANKO CJ
DATE OF ORDER:
17 OCTOBER 2017
THE COURT ORDERS THAT:
1.The plaintiff file and serve draft minutes of order reflecting the conclusions expressed in these reasons within seven days.
2.The applications in a proceeding dated 6 March 2017 and 28 March 2017 respectively be adjourned to a date to be fixed.
REASONS FOR JUDGMENT
BESANKO CJ:
INTRODUCTION
The plaintiff in this proceeding is Ms Jennifer Perino and she has brought an Originating claim against Mr Raymond Hall and Ms Nichola Hall (the Halls) who are described as the first defendant, and Norfolk Island Health and Residential Aged Care Service formerly Norfolk Island Hospital Enterprise (Norfolk Island Health) which is described as the second defendant. The Originating claim is in the form of Form 2.1 of the Court Procedure Rules 2006 (ACT) (the Rules) which Rules apply in Norfolk Island by reason of s 19(4) of the Supreme Court Act 1960 (NI). The Originating claim was accompanied by a Statement of Claim which is in the form of Form 2.4 of the Rules. The Statement of Claim announces itself as a Statement of Claim with respect to “employment, death or personal injury”. Neither defendant has yet filed a defence.
Norfolk Island Health has brought an application in the proceeding in which it seeks various orders. First, it seeks an order under r 40 of the Rules or the inherent power of the Court that the plaintiff’s Statement of Claim be set aside. Secondly, and in the alternative, it seeks an order under r 425(1) of the Rules or the inherent power of the Court that the Statement of Claim be struck out. Thirdly, and in the alternative, it seeks an order under r 425(3) of the Rules or the inherent power of the Court that the proceeding be dismissed. The grounds of the application are that the proceeding, either generally or as against Norfolk Island Health, is barred or prohibited by one or more of the following:
(1)section 43 of the Employment Act 1988 (NI) (Employment Act);
(2)section 49 of the Law of Negligence and Limitation of Liability Act 2008 (NI) (Negligence Act)
(3)the common law principles of res judicata or issue estoppel or Anshun estoppel.
In the alternative, Norfolk Island Health seeks an order that the plaintiff’s claim against it for her past and future medical costs is barred or prohibited by the common law principle of res judicata.
The plaintiff’s claim as it presently stands relates to an accident which occurred on 18 December 2013. There is no dispute that on that day, the plaintiff went to close a window in the lounge room of a premises in which she worked as a counsellor when the window pane fell from the frame, clipped the plaintiff’s left wrist and sliced into her lower left leg. There is no dispute that the plaintiff was taken immediately to the emergency room in the Norfolk Island Hospital and treated by Dr Wally Metcalf.
The plaintiff has brought her own application in the proceeding. In that application, she seeks leave to amend her pleadings to include a further cause of action against Norfolk Island Health in negligence in relation to her medical treatment at the hospital. She also seeks leave to join Dr Metcalf to the proceeding and to amend her pleadings to include a cause of action in negligence against him.
NORFOLK ISLAND HEALTH’S APPLICATION
There is no dispute concerning the key events and they may be stated relatively briefly.
On 7 December 2011, the Halls as landlords, and Norfolk Island Health as tenant, entered into a lease agreement whereby the Halls agreed to lease to Norfolk Island Health, Portion 23p3 Grassy Road, Norfolk Island at a rental of $170 per week for the two bedroom house (GST incl). On 18 December 2013, the plaintiff suffered the injury previously described at the premises. On the same day, Dr Metcalf repaired the plaintiff’s wound in the emergency room of the Norfolk Island Hospital. On 6 January 2014, the plaintiff left Norfolk Island and returned to the mainland. On a date in early 2014, the plaintiff lodged a workers compensation claim under the Employment Act. In February 2014, the Public Workers Compensation Scheme accepted that the accident was a work place accident. On 1 March 2014, the plaintiff attended the Dubbo Base Hospital and a medical practitioner noted “small hard swelling on [her] foot”. An imaging report in March 2014 revealed that there was a complete tear of the tibialis anterior tendon. On 3 April 2014, the Administration of Norfolk Island wrote to the solicitor for the plaintiff denying a claim made by the plaintiff for off‑island treatment. On 10 April 2014, the plaintiff’s solicitor sent an email to the employment liaison officer (see s 39A of the Employment Act) in which he asserted that the hospital had not provided appropriate medical treatment after the accident. On 11 April 2014, the employment liaison officer, Mr Gary Dowling, responded to the plaintiff’s solicitor. After advice from a Dr Wines, the plaintiff underwent surgery to repair the tibialis anterior tendon on 16 April 2014. On 7 July 2014, the plaintiff’s solicitor wrote to the members of the Norfolk Island Employment Conciliation Board (see s 65 of the Employment Act), noting a claim was made and accepted and making a further claim for medical expenses. On 29 July 2014, the employment liaison officer wrote to the solicitor for the plaintiff placing the plaintiff on notice that he considered that any application made by the plaintiff to be misconceived. On 1 August 2014, the plaintiff signed an application for review by the Employment Tribunal of Norfolk Island of a decision made by the Employment Conciliation Board concerning the reimbursement of medical expenses incurred by the plaintiff for treatment on the mainland and filed an affidavit in support of that application. On 25 November 2014, the plaintiff filed a second affidavit in the Employment Tribunal.
I was told in the course of submissions that the plaintiff’s claim for workers compensation had been accepted and she has been paid relatively small sums by way of weekly payments and medical costs for treatment on Norfolk Island.
The Employment Tribunal delivered its decision on the plaintiff’s application on 9 December 2014. In its reasons for judgment, it described the background to the matter as follows (at [3]-[6]):
The background to the matter is largely not a matter of dispute. On 18 December 2013, the Applicant was working as a locum Counsellor for the Norfolk Island Hospital Enterprise. Whilst engaged in that employment, the Applicant was injured when a plate glass window fell out of its frame, clipping the Applicant’s wrist and cutting her left lower leg.
The Applicant was taken to the Norfolk Island Hospital and treated. She had her leg wound stitched. She was also given follow up treatment and medication for pain. The Applicant continued to work for her employer and finally left Norfolk Island on 6 January 2014.
The Applicant’s condition worsened after her return to mainland Australia. Her leg wound had become infected and, on medical advice, she obtained an ultrasound. That ultrasound revealed that the Applicant was suffering from a severed tendon.
The Applicant subsequently had surgery for her injury. The applicant sought but did not obtain compensation for the medical costs incurred by her on mainland Australia for an injury received at her place of employment. She had previously had her claim for compensation accepted in relation to medical costs on Norfolk Island.
The Tribunal refused to make any order in favour of the plaintiff. The two main reasons for the Tribunal’s decision were as follows. First, the medical superintendent had not decided that it was necessary for medical treatment to be carried out in a place other than Norfolk Island within s 37(3) of the Employment Act and, therefore, a statutory condition for the recovery of the cost had not been satisfied. Secondly, the treatment carried out did not meet the definition of medical treatment as set out in s 26 of the Employment Act by reason of the lack of relevant approvals in relation to the hospital and treating practitioner.
On 20 October 2015, Dr David O’Keefe, orthopaedic surgeon, provided an opinion to the plaintiff to the following effect:
Dr Metcalf failed to treat and diagnose her condition properly, although it is doubtful that surgical facilities would have been available on Norfolk Island even if he had done this. The wound still needed to be closed and treated but she could not have had appropriate surgery at that stage for reasons outlined above. She would have had to have waited until she got back to Australia, although this could have been expedited, although it was probably wise to wait until the wound had healed and the infection had cleared up before any repeat surgery was carried out. …
On 3 May 2016, the Administration of Norfolk Island wrote to the plaintiff’s solicitor denying an allegation made by the plaintiff that Norfolk Island Health had been negligent.
On 11 October 2016, the plaintiff commenced this proceeding.
The Plaintiff’s Statement of Claim
The nature of the application is such that I can restrict my attention to those allegations in the Statement of Claim which relate to liability.
Each of the Halls and Norfolk Island Health are alleged to have owed duties to the plaintiff. The clearest statement of Norfolk Island Health’s duty is as follows:
8.The second defendant was obliged to ensure the property was fit to occupy by the plaintiff and provide and maintain, so far as is practicable, a working environment that was safe and without risk to the health of an employee.
There is a plea in paragraph 11 which certainly refers to Norfolk Island Health’s duties under the lease and it may also refer to its duty to the plaintiff. It is as follows:
11.At all such times it was the duty of the second defendant, under the terms of the agreement to occupy or other enter and use the premises, to take all reasonable care for the safety of the plaintiff and not to expose her to an unreasonable risk of injury or damage that was foreseeable and in particular provide and maintain, so far as is practicable, a working environment that was safe and without risk to the health of an employee and indemnify the first defendant against any loss caused by its, agents, servants and employees neglect.
Particulars
ŸClause 19 of the agreement between the first and second defendant
ŸSections 49 and 50 of the Employment Act 1988
The plaintiff pleads that her injury, loss and damage was caused by the negligence of Norfolk Island Health, its servants and agents. She pleads the following particulars of negligence:
a.Failing to inspect and identify defects in the plaintiff’s work environment
b.Failed to warn the plaintiff of the risk of injury
c.Failing to comply with section 49 of the Employment Act 1988
d.Failing to maintain a place of work in a condition that is safe and without risk to health;
e.Failing to provide and maintain, so far as is practicable, a working environment that is safe and without risk to the health of an employee
f.Failed to take precautions to identify risks of harm
g.Failed to take reasonable precautions to protect the plaintiff against risks of harm
h.Failed to [take] reasonable care in the circumstances
The clearest statement of the Halls’ duty is in paragraph 10. It is as follows:
10.In the first instance, it was the duty of the first defendant, as occupier and or owner of premises, to take all reasonable care for the safety of the plaintiff and not to expose her to an unreasonable risk of injury or damage that was foreseeable.
Particulars
ŸThe duty exists at law and is implied by clause 3 of the lease.
There are pleas relating to the relationship between the Halls as landlord and Norfolk Island Health as tenant. In the course of those pleas, there is reference to an obligation on the part of Norfolk Island Health to indemnify the Halls in relation to certain loss and damage. I have already referred to paragraph 11 (at [16]). Another example is paragraph 6 which is as follows:
6.The agreement to lease provided, among other things, that the second defendant would indemnify the first defendant where any entrant to the premises suffered loss as a result of the second defendants neglect.
Paragraph 7 refers to obligations on the part of both the Halls and Norfolk Island Health at law and under the terms of the agreement.
The plaintiff does not plead how any indemnity by Norfolk Island Health to the Halls is relevant to her case. On the pleadings, it is not relevant to her case. The Halls took no part in this application and they have not as yet filed a defence or a cross-claim or contribution notice. Norfolk Island Health contends that the plaintiff’s claim against the Halls is also barred by s 43 of the Employment Act because “it is a claim for damages arising out of a work related injury that will ultimately (on the pleaded case) be sheeted home to the employer via the indemnity pleaded in paragraph 6 of the Statement of Claim”.
I will address later in these reasons whether, leaving aside the alleged indemnity, it is unarguable in the relevant sense that s 43 does not bar the plaintiff’s claim against the Halls. I conclude that it is not unarguable in the relevant sense. The plaintiff has raised the alleged indemnity, but, as I have said, that matter is not relevant to any of the causes of action she relies upon. If the Halls raise the alleged indemnity against Norfolk Island Health, then Norfolk Island Health can raise s 43, either in relation to the claim by the Halls or in relation to the claim by the plaintiff against the Halls or both. That issue can be determined at trial or, if Norfolk Island Health is so advised, a further application for summary judgment. Without finally deciding the point, on the submissions to date, I doubt whether the case would be strong enough for summary judgment.
The Basis of Norfolk Island Health’s Application
The basis of Norfolk Island Health’s application is that the plaintiff’s action against it and against the Halls is barred by s 43 of the Employment Act. The terms of that section are set out below. In short, the section operates to bar certain proceedings in order to substitute compensation under the Employment Act for damages for incapacity or death arising out of, or in the course of, employment.
The reference by Norfolk Island Health to s 49 of the Negligence Act is a subsidiary matter. Section 49 appears in Part 5 of the Negligence Act and that Part regulates awards for personal injury damages. All s 49(3) does is provide that Part 5 has no application to any liability or amount that may be payable under the provisions of Part 3 of the Employment Act. The section received very little attention during the course of argument.
As to the doctrines of res judicata, issue estoppel and Anshun estoppel, I think it fair to say that the submissions were narrowed to a submission that the present proceeding is an abuse of process or there is an estoppel based on the fact of previous proceedings before the Employment Tribunal and delay.
Before addressing the substantive arguments, it is necessary to address the principles which govern this application.
The Principles which govern Norfolk Island Health’s Application
Norfolk Island Health’s contention is that the existing action is barred. If that is right, then in one way or another, this action would be brought to an end, whether it be by an order under r 40 or an order under r 425. It is perhaps for that reason that the parties did not spend any time on these rules. I do not propose to do that either other than to say that I would be disposed to rely on the power to enter judgment for the defendants under r 425(3).
The matters which Norfolk Island Health needs to establish in order to succeed does need to be addressed.
In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (Dey v Victorian Railways Commissioners), Dixon J (as his Honour then was) considered the principles attending the Court’s inherent jurisdiction to stop the abuse of its processes when it is employed for groundless claims. His Honour said that the principles are well settled. A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his or her case for determination. His Honour said at 91:
But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
In General Steel Industries Inc v Commissioner for Railways and Others (NSW) (1964) 112 CLR 125, Barwick CJ considered the power under the inherent jurisdiction of the Court or the statutory rules of court to summarily dismiss a claim. His Honour referred to the observations of Dixon J in Dey v Victorian Railways Commissioners. The Chief Justice said (at 130):
… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of the case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the utility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
Relevant Provisions of the Employment Act
Section 43 of the Employment Act is the following terms:
43. (1) Subject to subsection 43(3), where an employee —
(a) suffers incapacity;
(b)would have suffered incapacity but for the fact that the employee did not suffer a loss or diminution of the employee’s capacity to earn; or
(c)dies as a result of an occurrence or condition specified in subsection 29(1),
no proceedings for damages or compensation arising directly or indirectly out of —
(d) an injury or condition out of which the incapacity arose;
(e)an injury or condition out of which incapacity would have arisen had the employee suffered a loss or diminution of the employee’s capacity to earn; or
(f)a death as a result of an occurrence or condition specified in subsection 29(1),
shall be heard or determined except in accordance with this Act, whether instituted by the employee or another person, and whether under a rule of law, enactment or law in force in Norfolk Island.
(2) Without limiting the generality of subsection 43(1) —
(a)the action for loss of services (known as the action per quod servitium amisit); and
(b)the action for loss of consortium (known as the action per quod consortium amisit), in relation to an employee,
are hereby abolished.
(3)Subsections 43(1) and 43(2) do not apply in respect of a cause of action that arose during a period not exceeding 6 years before the commencement of this Act.
(4)Compensation payable under this Act in respect of incapacity or death arising out of, or in the course of, employment is to be in substitution for damages recoverable or payable in respect of the incapacity or death whatever the cause of action or basis of liability and whether the cause of action is actionable at the suit of, or the liability is enforceable by, a person suffering incapacity or some other person.
(5)Nothing in this section affects an action for breach of a contract of insurance.
(6)In this section, a reference to damages includes a reference to aggravated, exemplary or punitive damages.
Section 43 appears in Part 3 of the Employment Act. Part 3 deals with compensation for work related accidents and other matters. I do not need to refer in any detail to the compensation rights conferred by the Employment Act. They include compensation for death, periodic compensation for incapacity and compensation for permanent loss or impairment of function and compensation for medical treatment. Section 37A provides that compensation is not payable to a person under the Act unless a claim for compensation is made under the section.
Section 26, which is the first section in Part 3, is a definition section. It defines injury relevantly as meaning:
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment;
The section defines work related accident as meaning:
… a situation or event occurring at a work place or arising out of, or in the course of, an employee’s work that results in death or significant injury.
Section 27 sets out the meaning of the phrase “out of, or in the course of, employment” for the purposes of Part 3. For example, s 27(1)(a) provides that an occurrence shall be deemed to have arisen out of, or in the course of, employment if the occurrence happens while the employee on any working day is present at the place of employment.
Section 28 contains a definition of “incapacity” for the purposes of Part 3 and it includes, relevantly, personal injury by way of a work related accident suffered by an employee as a result of which there is a loss or diminution of the employee’s capacity to earn. Section 28(2) provides that the physical and mental consequences of personal injury or of a work related accident constitute incapacity in relation to an employee where, as a result of those consequences, there is a loss or diminution of the employee’s capacity to earn.
Analysis
Norfolk Island Health contends that these proceedings are proceedings “for damages or compensation arising directly or indirectly out of … an injury or condition out of which the incapacity arose,” within s 43(1). It contends that these words are wide enough to include not only the claims against it, but also the claim against the Halls and, relevant to the plaintiff’s application which is considered below, the proposed claim against it and Dr Metcalf for negligent medical treatment.
It pointed out that the phrase does not refer to the employer. In other words, the section does not say “no proceedings for damages or compensation against the employer”. Norfolk Island Health submitted that s 43 is designed to include claims against third parties. It submitted that there was good reason why this should be the case as the facts of this matter show. The plaintiff may be barred from suing Norfolk Island Health, but if her action against the Halls proceeds, Norfolk Island Health is likely to be joined as a third party under a claim under the indemnity. Norfolk Island Health submits that the injury out of which the incapacity arose was the personal injury sustained by reason of the work related accident, that is, the accident which occurred at the premises on 18 December 2013, and that arose out of, or was in the course of, the plaintiff’s work. Norfolk Island Health submitted that the causal link between the proceedings for damages or compensation and the injury may be indirect and that is established in this case.
The plaintiff submitted that her claim against the Halls and her proposed claim against Norfolk Island Health and Dr Metcalf for negligent medical treatment fall outside the terms of s 43 of the Employment Act. She also submitted, as I understand it, that her claim against Norfolk Island Health based on its status as an occupier of the premises is also outside the terms of s 43 of the Employment Act.
Both parties addressed the decision in Meyers v The Director of National Parks [2006] NFSC 2 (Meyers v Director of National Parks). In that case, Mr Meyers sued the Director of National Parks. He alleged that the director was a corporation sole and was responsible for the establishment and management of the Norfolk Island National Park. He alleged that the director entered into a contract with a New Zealand company, Roadstone Construction Limited (Roadstone), for works associated with the upgrade of a road within or related to the national park. Mr Meyers alleged that Roadstone “under the supervision and control of the [Director] undertook the contract works by employing a subcontractor, Island Industries Pty Ltd”. Mr Meyers alleged that at all material times, Roadstone and Island Industries Pty Ltd (Island Industries), in carrying out their contracts, were agents and/or servants of the Director. Mr Meyers was an employee of Island Industries. It was alleged that the Director owed him a duty of care to ensure that proper measures were taken to protect the health and safety of persons such as Mr Meyers who were working on the site. The plaintiff suffered a serious injury in the course of his employment by Island Industries.
The Director filed an application seeking an order that the Amended Originating Application be set aside. He argued that the Court had no jurisdiction to hear and determine Mr Meyers’ claim because of the terms of s 43 of the Employment Act.
Justice Wilcox identified the arguments of the parties. His Honour referred to the explanatory memorandum which dealt with clause 43 of the Bill for the Act. The relevant part of the explanatory memorandum is as follows:
Compensation in substitution for common law claims
The intention of the Legislative Assembly expressed in the legislation is that compensation payable under the legislation for incapacity or death arising out of, or in the course of, employment is to be in substitution for damages for such incapacity or death. This is to apply irrespective of the cause of action or basis of liability, and whether the cause of action is actionable at the suit of (or the liability is enforceable by) an incapacitated person or some other person.
This intention is given effect to by provisions abolishing common law employers’ liability. No proceedings are to be heard or determined except under the legislation for damages (including aggravated, exemplary or punitive damages) or compensation arising directly or indirectly out of (1) an injury or condition arising from an employee’s incapacity, (2) an injury or condition out of which incapacity would have arisen if the relevant employee had suffered a loss or diminution of earning capacity (eg for a minor injury not leading to loss of earning capacity) or (3) death that falls within the causes of death for which compensation is payable to dependants. The prohibition on hearing or determining such proceedings applies irrespective of whether they are brought under a rule of law, enactment or other law in force in Norfolk Island. Without limiting the generality of that prohibition, the action for loss of services (the action per quod servitium amisit), is expressly abolished, as is also the action for loss of consortium (the action per quod consortium amisit) in relation to an employee.
A transitional provision preserves common law proceedings where the cause of action arose not more than 6 years before the commencement of the legislation. Nothing in the above prohibitions affects an action for breach of an insurance contract.
His Honour said that, read literally, s 43 had the effect of precluding the Court from hearing and determining the proceeding before him. However, his Honour considered that the Legislature intended to confine the operation of s 43 to claims against employers. His Honour said that s 43 was restricted to claims against employers and did not preclude actions against non‑employer tortfeasors. He referred to the terms of the explanatory memorandum and then said: (at [33]-[34]):
The view that the legislature intended to confine the operation of s 43 to claims against employers is supported by the structure of the Act. As its name suggests, the subject of the Act is the relationship between employers and employees. Part 3 of the Act, in which s 43 appears, is designed to establish a workers’ compensation scheme, of a kind familiar in all Australian jurisdictions. The Part is clearly designed to impose burdens on employers, and to give benefits to employees, in relation to death and various types of incapacity arising out of the employment relationship. It is understandable that the legislature might have thought it reasonable to take away an employee’s right to sue his or her employer in respect of a work-related incapacity, for which the employer was required to provide compensation. But it is not readily understandable why the legislature would also have wished to take away the employee’s right to sue a non-employer tortfeasor. … On the defendant’s argument, the tortfeasor obtains immunity from a damages claim as a side wind of legislation concerned with the rights inter se of employers and employees.
I agree with counsel for the plaintiff that the Court should not construe a statute as abolishing a cause of action unless it is clearly satisfied that this was the legislature’s intention. In the context of a statute that, otherwise, deals entirely with the employer‑employee relationship, a provision that, read literally, has the effect of precluding an action for damages against a non-employer comes as such a surprise that the reader is forced to wonder whether this really was intended. When elucidation is sought from the explanatory memorandum, the answer is clearly in the negative.
There are clearly cogent arguments on the other side as Wilcox J acknowledged. There is the fact that the section does not refer to proceedings against the employer and there is the statement in s 43(4). However, I am not prepared to conclude on a summary judgment application that the decision in Meyers v Director of National Parks is clearly wrong. It is not unarguable in the relevant sense that s 43 does not bar the plaintiff’s claim against the Halls.
Res judicata and issue estoppel are not relevant as far as the Halls are concerned. They have not previously been involved in litigation with the plaintiff. Anshun estoppel or abuse of process are not relevant. They are matters for the Halls to raise and they have not done so. More importantly, there appears to be no basis for an abuse of process argument. The plaintiff has commenced her action against the Halls within time.
Norfolk Island Health’s application that the plaintiff’s claim against the Halls be struck out or the subject of summary judgment is refused.
The existing claims against Norfolk Island Health stand in a different position. The claim founded on the employment relationship is barred by s 43 and must be struck out. The plaintiff submits that it is not unarguable that s 43 does not bar a claim based on Norfolk Island Health’s status as an occupier of the premises.
The first difficulty is drawing a clear line on the pleadings between liability based on the employment relationship and liability based on occupation of the premises. That is not an easy matter where there are pleas like that in paragraph 8 where the plea appears to combine the two bases of liability. Secondly, it is not easy to draw the distinction as a matter of law where a work accident occurs at premises occupied by the employer and the accident is caused by the condition of the premises. As far as liability based on the employment relationship is concerned, there is the fact that an employer’s duty includes a duty to provide a safe place of work. This is the position at common law, but can also be seen in statute. For example, s 49 of the Employment Act is in the following terms:
49. (1)An employer shall provide and maintain, so far as is practicable, a working environment that is safe and without risk to the health of —
(a) an employee employed by the employer; or
(b) another person performing work in the working environment.
Penalty: 40 penalty units.
(2)Without limiting the generality of subsection 49(1), an employer contravenes that subsection if the employer fails to take all reasonably practicable steps to —
(a)provide and maintain plant and systems of work that are safe and without risk to health;
(aa)provide and maintain a place of work that is free of bullying and to take such steps as may be necessary to prevent or stop bullying that may take place;
(b)make arrangements adequate to ensure that the use, handling, storage and transport of plant and substances is safe and without risk to health;
(c)maintain a place of work of which the employer is the occupier in a condition that is safe and without risk to health; and
(d)provide information, instruction, training and supervision adequate to ensure safety and an absence of risk to health.
As far as liability based on the occupation of premises is concerned, occupier’s liability has moved away from the class of entrant determining the nature of the duty owed to the recognition and application of a more general duty of care (Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479). In a number of States and Territories, this change in approach has been supplemented by statutory changes, but not I am told in Norfolk Island.
In any event, these are matters of context and the answer to the issue is resolved by the text of the Employment Act. In a case such as the present, the starting point is whether there was a personal injury by reason of a work related accident. The answer to that question is in the affirmative. There was a situation or event occurring at a work place. The facts also satisfy the other limb of the definition of work related accident. It arose out of, or in the course of employment because the accident happened while the plaintiff on a working day was present at her place of employment. A proceeding for damages based on occupier’s liability arises indirectly (at the least) out of the injury out of which the incapacity arose. The required causal link is established. This conclusion is reinforced by s 43(4) which provides that where the conditions for the bar arise the bar applies “whatever the cause of action or basis of liability”.
For these reasons, I am of the opinion that the plaintiff’s claim against Norfolk Island Health is barred by s 43 of the Employment Act.
In the circumstances, I do not need to deal with Norfolk Island Health’s submissions concerning res judicata, issue estoppel, Anshun estoppel and abuse of process. However, I will do so for the sake of completeness.
It is necessary to distinguish between the plaintiff’s claims generally in the present proceeding and her claim for the costs of medical treatment which was the subject of her application for review before the Employment Tribunal.
As to the plaintiff’s claims generally, the doctrines of res judicata and issue estoppel are not relevant as the plaintiff has not previously brought a claim for common law damages (Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ). As to Anshun estoppel and abuse of process, those doctrines are not relevant. I do not think it can be said that this proceeding had to be brought any earlier; there is a time limit and this proceeding has been issued within that time limit. Nor can it be said that this proceeding is an abuse of process because all claims for compensation under the Employment Act should have been pursued earlier, particularly when counsel for Norfolk Island Health accepted that it is still open to the plaintiff to pursue claims for compensation under the Employment Act.
The costs of medical treatment raise more specific arguments because of the decision of the Employment Tribunal. I do not propose to examine those arguments because I agree with the submission of counsel for the plaintiff that it is reasonably arguable that there is no estoppel because of the difference between the elements of the statutory claim for the costs of medical treatment costs and those relevant to a common law claim for such costs.
THE PLAINTIFF’S APPLICATION
The Nature of the Proposed Claims
The nature of the claims which the plaintiff seeks to introduce and the factual basis for them is as follows.
The grounds of the plaintiff’s application are that immediately following the accident, she was admitted into the Norfolk Island Hospital and treated by a doctor and nurse in the emergency department. The doctor was Dr Metcalf. The plaintiff alleges that there is doubt about the defendant the plaintiff can claim relief from and, in particular, whether it is Dr Metcalf in his private capacity or as an employee of the hospital. The plaintiff alleges that Norfolk Island Health and Dr Metcalf failed to properly examine her using an ultrasound which would have identified a severed tendon in the left leg and put the hospital on notice of the necessity for urgent treatment. The plaintiff alleges that the hospital failed to take reasonable steps to prevent infection in the wound even though it knew the hospital was rated as a facility of extreme risk for the spread of infection. The plaintiff alleges that she suffered an infection after treatment and was prescribed antibiotics on 3 January 2014. The plaintiff alleges that the hospital failed to exercise due care and performed rudimentary diagnostics and treat the wound with the appropriate care in the circumstances. The plaintiff alleges that by reason of s 38 of the Limitations of Actions Act 2008 (NI), no limitation period applies due to the discoverability of the cause of action. The plaintiff alleges that she was informed of reports by Maria Christian “Quality investigator” identifying the hospital’s failures specifically in wound care, spread of infection, delay in transfer of patients and use of ultrasound. The plaintiff alleges that the negligence of the doctor and/or hospital constitutes a general intervening event and calls into question the distribution of liability and damages among the defendants. The plaintiff alleges that early treatment of her injury would have enabled a fuller recovery with little residue impairment. The plaintiff alleges that she remains permanently impaired and that her earning capacity has been cut short and that her enjoyment of life has been impaired. These matters appear in the plaintiff’s application.
The plaintiff has also put forward an Amended Originating Claim and Amended Statement of Claim and she seeks leave to file those documents. In the proposed Amended Statement of Claim the plaintiff alleges that Norfolk Island Health conducted a hospital, employed or otherwise made available medical practitioners at the hospital and provided medical services at the hospital by medical practitioners it employed or otherwise made available at the hospital. The plaintiff alleges that at all material times, Dr Metcalf was a duly qualified medical practitioner and provided medical services at the hospital.
The plaintiff alleges that on 18 December 2013, she consulted Dr Metcalf at Norfolk Island Hospital after being injured. She alleges that she was a patient of and in the care of Dr Metcalf and received medical services from him and that she was a patient of and in the care of Norfolk Island Hospital and its employees, servants and agents and received medical services from the employees, agents or servants of Norfolk Island Health. The plaintiff alleges that Dr Metcalf sutured the leg, but the wound was left open at the top and dressed. She alleges that Dr Metcalf did not identify, diagnose or treat the laceration, tearing of transection of the plaintiff’s tibialis anterior tendon and associated nerves. She alleges that she was provided with crutches. She alleges that the wound became infected and that she was treated with antibiotics. The plaintiff alleges that she returned to Australia on or about 6 January 2014 and that about three weeks later it was noticed that she had no tibialis anterior function and had numbness on the dorsum of the left foot. She alleges that an ultrasound was performed which confirmed a complete tear/transection of the tibialis anterior tendon and associated nerves. The plaintiff alleges that an urgent MRI scan was carried out which confirmed the findings. An urgent repair of the tibialis anterior tendon was carried out on 16 April 2014 using part of the extensor hallucis longus tendon to reinforce the repair. The plaintiff alleges that she suffered adverse outcomes, injury, loss and damage by reason of the failure of Dr Metcalf to identify properly, diagnose and treat the injury to the plaintiff’s tibialis anterior tendon and associated nerves, and the delay associated with the correct treatment of that injury. She alleges that her adverse outcomes, injury, loss and damage were caused by the negligence of Norfolk Island Health and Dr Metcalf. She provides particulars of the negligence of both of these parties. The particulars of negligence in the case of Norfolk Island Health are as follows:
l.The second defendant failed to ensure reasonable procedures were in place for the timely management and treatment of severe injuries such as the injury sustained by the plaintiff;
mThe second defendant failed to ensure that the third defendant was properly trained in emergency medicine and in the appropriate treatment and care of an injury such as the injury sustained by the plaintiff;
nThe second defendant failed to ensure that the third defendant followed procedures regarding the appropriate protocols to be followed in the management and treatment of injuries such as the injury sustained by the plaintiff;
oThe second defendant is legally and factually responsible for the consequences of the acts, omissions and conduct of the third defendant set out in paragraphs (a) to (k) above, and the plaintiff repeats as against the second defendant the acts, omissions and conduct set out in paragraphs (a) to (k) above. The second defendant is legally and factually responsible because the second defendant employed the third defendant to provide medical services, or, in the alternative, made the third defendant available to provide medical services at the second defendant’s hospital;
pThe second defendant failed to exercise reasonable care in the performance of its duty of care;
qThe second defendant failed to exercise reasonable care in the management of the plaintiff’s injury and condition;
rIn relation to the matters set out above the second defendant breached the provisions of sections 18 and 19 of the Law of Negligence and Limitation of Liability Act 2008 (Norfolk Island);
sThe plaintiff’s injuries and disabilities, which are particularised in the statement of particulars served in the proceedings, were caused by the delay in the correct treatment of the plaintiff’s injury and if the plaintiff’s injury had been correctly, and in a timely manner, identified, treated and managed the plaintiff would not have suffered the injuries and disabilities, which are particularised in the statement of particulars, served in the proceedings, and she would have made a full recovery.
The power to grant leave to amend is dealt with in Part 2.7 of the Rules. The causes of action sought to be introduced by the amendment are within time and it is not inappropriate to join the causes of action with respect to the alleged medical treatment immediately after the accident with the cause of action against the Halls with respect to the accident. Furthermore, the present proceeding has not reached the stage where it would be inappropriate to join a new party and new causes of action.
Analysis
The three main arguments put against the plaintiff’s application by Norfolk Island Health were as follows.
First, it was submitted that s 43 barred the proceedings for alleged negligent medical treatment. The medical treatment was made necessary by the accident and a tortfeasor in relation to the accident might be liable for the damage caused by subsequent medical treatment (Mahony v J Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522). There was, according to Norfolk Island Health, a sufficient causal connection, having regard to the broad words used in s 43 between the accident and claims for alleged negligent medical treatment. It seems to me that there are cogent arguments on either side. Against Norfolk Island Health’s submissions, there is the fact that it is a separate event or occurrence and there are the observations of Wilcox J in Meyers v Director of National Parks. I am not satisfied that the plaintiff’s proposed causes of action are so weak that the proposed amendments and joinder should not be allowed on that ground.
Secondly, Norfolk Island Health submitted that the case against it is very weak. There is very little direct evidence against it and, insofar as it may be liable, it will be because of conduct of Dr Metcalf. It submitted that the case against Dr Metcalf is not a strong one and reference was made to Dr O’Keefe’s report. I have set out a passage from Dr O’Keefe’s report above (at [11]). There is force in the point, but it is not overwhelming and it is not sufficient to justify refusing the application to amend.
Finally, Norfolk Island Health submitted that the application should be rejected on discretionary grounds. The plaintiff first asserted negligent medical treatment in April 2014 and yet she delayed bringing this application for approximately three years. She has not provided an explanation for that delay. I think the answer to this submission proffered by the plaintiff is conclusive. It is that she is well within the time limit for instituting a separate proceeding and she could do that and have it joined, or seek to have it joined, to the present action.
CONCLUSIONS
With respect to the proceeding as it presently stands, Norfolk Island Health’s application in relation to the plaintiff’s claim against the Halls fails, but succeeds in relation to the plaintiff’s claim against it.
With respect to the plaintiff’s application, I would allow the proposed amendment involving Norfolk Island Health and I would grant leave to join Dr Metcalf and plead the proposed cause of action against him.
One party should have the responsibility of bringing in draft minutes of order reflecting these conclusions. I think it appropriate in the circumstances that it be the plaintiff.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Besanko. Associate:
Dated: 17 October 2017
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