Rough v Lockwood Aust Pty Ltd - [2001] QSC 100

SUPREME COURT OF QUEENSLAND

CITATION: Rough v Lockwood Aust Pty Ltd & Anor [2001] QSC 100

PARTIES: BARBARA LYNN ROUGH
(plaintiff/respondent)
v
LOCKWOOD AUSTRALIA PTY LTD
(ACN 004 239 392)
(first defendant/first applicant)
and
WHITCO PTY LTD
(ACN 009 667 207)
(second defendant/second applicant)

FILE NO: 4746 of 1999

DIVISION: Trial Division

DELIVERED ON: 10 April 2001

DELIVERED AT: Brisbane

HEARING DATE: 14 March 2001

JUDGE: Mullins J

ORDER:1. To the extent that the respondent's statement of claim filed on 29 October 1999 pleads a cause of action against the first applicant, it is struck out.
2. Those parts of the statement of claim pleaded against the second applicant which relate to any injury sustained by the respondent from and including 1 January 1996 are struck out.

CATCHWORDS: WORKERS' COMPENSATION – RIGHT TO PROCEED FOR DAMAGES – whether the plaintiff required to comply with the pre-court procedures prescribed by WorkCover Queensland Act 1996 or Workers' Compensation Act 1990 – relevance of when plaintiff's injury was sustained where occurred over period of time - relationship between injury and employment.

Law Reform Act 1995
Limitations of Actions Act 1974
UCPR rule 171
WorkCover Queensland Act 1996
WorkCover Queensland Amendment Act 1999
Workers' Compensation Act 1990
Workers' Compensation Amendment Act (No 2) 1995

Bonser v Melnacis & Anor [2000] QCA 13 (8 February
2000)

2

Cartledge v E Jopling & Sons Ltd [1963] AC 758
Favelle Mort Ltd v Murray (1976) 133 CLR 580
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Hawthorne v Thiess Contractors Pty Ltd & Anor [2000] QSC 154 (2 June 2000)
Mears v Coles Myer Ltd (unreported, Sup Ct (Q) 18 August
1999)
Mears v Coles Myer Ltd [2000] QCA 342 (25 August 2000) Tanks v WorkCover Qld [2000] QSC 326 (12 October 2000) Tanks v WorkCover Qld [2001] QCA 103 (20 March 2001)

COUNSEL: PD Lane for the applicants
PO Land for the respondent

SOLICITORS: Hunt & Hunt for the applicants
Kevin Bradley for the respondent

[1] MULLINS J: On 24 May 1999 Ms Barbara Lynn Rough ("the respondent") issued a writ against Lockwood Australia Pty Ltd as first defendant ("the first applicant") and Whitco Pty Ltd as second defendant ("the second applicant") claiming
"damages for personal injuries caused by the negligence and/or breach of statutory duty of the First and Second Defendants, their servants or agents over the period from approximately January 1980 to 15 December 1998 at 450 Sherwood Road, Brisbane in the State of Queensland". The respondent then applied for an extension of the period of limitation pursuant to section 31 of the Limitations of Actions Act
1974.

[2] On 3 September 1999 Helman J ordered that the period of limitation for the respondent's action against the second applicant in respect of any statute barred cause of action be extended to 24 May 1999, being the date of issue of the writ in this action.

[3] The statement of claim was filed on 29 October 1999. The applicants' defence was…

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.

Continue reading Rough v Lockwood Aust Pty Ltd

Details

AGLC: Rough v Lockwood Aust Pty Ltd [2001] QSC 100
Case: [2001] QSC 100
Decision Date: 10/04/2001

CaseChat Overview and Summary

In the case of Rough v Lockwood Aust Pty Ltd, the plaintiff, Ms Barbara Lynn Rough, sought damages for personal injuries sustained during her employment with Lockwood Australia Pty Ltd and Whitco Pty Ltd. The defendants applied to have portions of the plaintiff's statement of claim struck out, arguing that she had failed to comply with pre-court procedures prescribed by the WorkCover Queensland Act 1996 and the Workers' Compensation Act 1990. The court examined whether the plaintiff was required to comply with these pre-court procedures and if her failure to do so meant her claims were barred.

The court found that the plaintiff's failure to obtain the necessary certificates and comply with the pre-court procedures under the relevant Acts meant that her claims for injuries sustained after 1 January 1996 were struck out. Specifically, the court held that to the extent the statement of claim pleaded a cause of action against the first defendant, it was struck out. Additionally, those parts of the statement of claim pleaded against the second defendant which related to any injury sustained by the plaintiff from and including 1 January 1996 were also struck out. The court emphasised that the plaintiff's failure to comply with the statutory requirements meant she was barred from pursuing her claims for those injuries. The court left the question of costs to be heard separately.

Orders