Strudwick v Selby - [1999] QDC 280

DISTRICT COURT OF QUEENSLAND

[Strudwick v Selby]

REGISTRY:     BRISBANE
  PLAINT:        222 OF 1997
Plaintiff:
  GEOFFREY ALAN STRUDWICK

AND
Defendant:
JOHN SELBY
JUDGMENT - McGILL D.C.J.

Judgment Delivered: 15 October 1999

Catchwords: INSURANCE - workers’ compensation - entitlement of injured worker to be paid damages from the workers’ compensation fund - no cause of action prior to quantification - Workers’ Compensation Act 1990 s.183(1).
Spain v. Metropolitan Meat Industry Board [1971] 1 NSWLR 91 - followed
Ex Parte Workers’ Compensation Board of Queensland [1982] Qd.R. 738 - applied
FAI Insurances Ltd v. Zoric (1991) 28 FCR 250 - distinguished
PRACTICE - renewal of plaint - to enable re-service of defendant and WorkCover - Supreme Court Act of Queensland 1991 s.135(2).
Moore v. Boyne Smelters Ltd [1998] 1 Qd.R.649 - followed
PRACTICE - parties to action - amendment to add second defendant - whether cause of action against proposed defendant - whether necessary party - Uniform Civil Procedure Rules 62, 69.
FAI General Insurance Co Ltd v. Interchase Corporation Ltd (Appeal 4241/97, Court of Appeal 14.7.98 unreported) - applied

Counsel for the applicant: G.R. Allen

Counsel for the respondent: R.A. Perry

Solicitors for the applicant: Anderssen & Co

Solicitors of the respondent: McCullough Robertson

Date of Hearing: 1 October 1999
DISTRICT COURT OF QUEENSLAND

REGISTRY: BRISBANE
PLAINT: 222 OF 1997

Plaintiff:

GEOFFREY ALAN STRUDWICK
AND
Defendant:
JOHN SELBY

JUDGMENT - McGILL D.C.J.
Delivered the 15^th day of October 1999

This is an application to join WorkCover Queensland as second defendant to the plaintiff’s action, and to renew the plaint in order to enable WorkCover to be reserved. The latter relief is not sought in a summons which was filed on 29 June 1999, but the summons does seek “such other orders as the court deems appropriate” and evidently notice of intention to seek this order was given to the respondents’ representatives, as no point was taken about seeking this relief before me, and the respondents argued that part of the application on its merits. In order to understand the position it is necessary to set out some of the background.

Background
By a plaint filed on 30 May 1997, the plaintiff claimed damages from the defendant in respect of injury alleged to have been suffered by the plaintiff on 3 June 1994. The plaint alleges that the plaintiff was employed by the defendant in the capacity of night watchman and caretaker at a home unit complex managed by the defendant and that in the course of that employment the plaintiff suffered injury as a result of the negligence or breach of contract or breach of statutory duty of the defendant. The facts are a little unusual, but not, I think, relevant; it is sufficient to say that there is a denial that there was a relevant employment relationship, or that any injury suffered to the plaintiff arose out of it, or that the plaintiff’s injury occurred in the circumstances alleged. The plaintiff was paid workers’ compensation in respect of his injuries,…

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: [1999] QDC 280
Decision Date: 15 October 1999

CaseChat Overview and Summary

In the District Court of Queensland, Geoffrey Alan Strudwick, the plaintiff, filed a suit against John Selby, the defendant, seeking damages for injuries alleged to have been sustained by the plaintiff during his employment as a night watchman and caretaker at a complex managed by the defendant. The plaintiff had previously received workers' compensation for the injuries, which was later recovered by the Workers' Compensation Board from the defendant. The dispute centers on the plaintiff's entitlement to recover damages from the workers' compensation fund and whether WorkCover Queensland should be joined as a second defendant in the suit.

The primary legal issue the court had to address was whether the plaintiff had a cause of action against WorkCover Queensland for the payment of damages from the workers' compensation fund before any judgment was awarded against the defendant. The court also had to consider whether WorkCover Queensland was a necessary party to the proceeding and whether it was appropriate to join WorkCover as a second defendant under the circumstances.

The court ruled that the plaintiff did not have a cause of action against WorkCover Queensland until damages were assessed and awarded by the court against the defendant. The court found that any entitlement to payment from the workers' compensation fund arises only after a judgment against the employer, which had not yet occurred in this case. The court further held that any claim against the fund should be directed towards the Treasurer of Queensland rather than the Workers' Compensation Board. Consequently, the court found that WorkCover Queensland was not a necessary party to the proceeding as the matters in dispute between the plaintiff and the defendant could be effectively and completely adjudicated without its involvement. Therefore, the application to join WorkCover Queensland as a second defendant was refused.

The court, however, granted the application to renew the plaint to enable the plaintiff to serve the Workers' Compensation Board within the statutory period, allowing the action to proceed. The plaintiff was ordered to pay the respondent's costs of the application.

Orders