Cox v Mechanical and Construction Insurance Pty Ltd & Anor [2014] QDC 24

DISTRICT COURT OF QUEENSLAND CITATION: Cox v Mechanical and Construction Insurance Pty Ltd & Anor [2014] QDC 24 PARTIES: KANE JEFFREY COX (Plaintiff) v MECHANICAL AND CONSTRUCTION INSURANCE PTY LTD AND ANOTHER (Defendants) FILE NO/S: 187/2012 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland at Southport DELIVERED ON: Ex tempore 3 February 2014 DELIVERED AT: Southport HEARING DATE: 3 February 2014 JUDGE: Samios DCJ ORDER: 1. Order as per draft CATCHWORDS: PRACTICE - Defence - Striking out - Pleading - where the Plaintiff was employed as a truck driver by the Second Defendant - where the First Defendant is the insurer of a construction company - where the Plaintiff was injured at a construction site - where the Plaintiff made a claim against the First Defendant under the Personal Injuries Proceedings Act 2002 (Qld) and a claim against the Second Defendant under the WorkCover Queensland scheme - where the Plaintiff applies for an order striking out paragraphs of the third amended defence of the First Defendant - whether the First Defendant has an obligation to plead the essential elements of its defence in response to the Plaintiff’s allegations Legislation Personal Injuries Proceedings Act 2002 (Qld) Uniform Civil Procedure Rules 1999 (Qld) r 444 COUNSEL: Mr C Newton for the Plaintiff Mr S Lee for the First Defendant -- 1 of 8 -- 2 Mr G Hampson for the Second Defendant SOLICITORS: Gall Stanfield & Smith Solicitors for the Plaintiff Jensen McConaghy for the First Defendant Dibbs Barker for the Second Defendant [1] HIS HONOUR: This is an application by the Plaintiff for an order striking out paragraphs 10(a) and 10(b) of the third amended defence of the First Defendant. The Plaintiff was employed as a truck driver by the Second Defendant on the date of the accident, namely, the 27th of March 2009. The First Defendant is the insurer of a construction company now in liquidation. The construction company was constructing a three-storey building near the Bond University. The construction company controlled the site and provided cranes and scaffolding thereat. The case for the Plaintiff is that he and others delivered loads of plasterboard to the site. He was required to deliver the plasterboard to the third level of a site building. [2] Despite contrary requests to the construction company supervisor, the crane delivered the plasterboard on pallets to the roof level scaffolding of the building. Therefore, the Plaintiff’s case is that he and others were required to manually hand the sheets of plasterboard between the roof level scaffolding and the building to level 3 of the building to deliver in accordance with his employer’s contractual requirements. In the course of doing so, he alleges he was injured. The proceedings, therefore, are a WorkCover claim against the Second Defendant employer and a PIPA1 claim against the First Defendant constructor. 1 Personal Injuries Proceedings Act 2002 (Qld). -- 2 of 8 -- 3 [3] The history of the events leading to this application are that proceedings were initially commenced under the PIPA Act2 against the First Defendant, and, when the workers compensation pre-court issues were completed, the Second Defendant was joined. It is now about five years since the Plaintiff suffered his alleged injuries. A mediation was held on 18 December 2012 which failed to resolve the matter. The First Defendant filed an amended defence on 1 August 2013, but did not raise the contentious issues in this application. On 8 October 2013, the second amended defence raised an insurance question, namely, the reasonable precautions defence. [4] It also raised contributory negligence and asserted no duty of care was owed for the first time, but did acknowledge the Plaintiff would not succeed in striking out the latter two points. But it is acknowledged the Plaintiff would not succeed in striking out the two latter points. The Plaintiff submits there is no reason all these defences should not have been raised in the initial defence on 21 October 2012. There has been correspondence by way of a UCPR 444 letter,3 and a third amended defence was filed on 9 December 2013. A further UCPR letter4 was sent on 12 December 2013. No further particulars or further amended pleading has been supplied, and this application was filed on 20 December 2013. [5] The Plaintiff submits that the late inclusion of these defences not only has delayed progressing the matter to a trial, but requires investigation and invalidates considerable expenditure incurred, including the original mediation and the interim pleading issues which have occurred. Without quoting word for word, the third amended defence of the First Defendant by paragraph 1A pleaded an allegation by the First Defendant that 2 Ibid. 3 Uniform Civil Procedure Rules 1999 (Qld) r 444. 4 Ibid. -- 3 of 8 -- 4 the insurance coverage provided by it to the constructor included a term and condition relevant to coverage of the claim made by the Plaintiff. That provided “General conditions 10.08 risk management: without exception you and your employees must (d) take all reasonable steps to prevent incurring any loss, damage or liability.” [6] Paragraphs 10A and 10B, in effect, allege there was a failure by the constructor to take reasonable precautions and, therefore, that triggered the operation of the condition referred to in paragraph 1A which I have just quoted. Particulars are given and they are that the Plaintiff alleges actions on the part of the constructor by a supervisor that, in effect, required the Plaintiff to adhere to a procedure that the Plaintiff told the supervisor would be dangerous. Therefore, paragraph 10B alleges that, as a consequence of those matters in paragraph 10A, any liability for a breach of duty found against the constructor based upon the facts and matters pleaded in paragraphs 4, 5 and 6(b) of the second amended statement of claim and paragraph 3 in the further and better particulars dated 11 June 2013 is not covered by the policy of insurance by operation of condition 10.08. [7] On the hearing of this application today, it was submitted for the Plaintiff that these paragraphs I have been quoting and referring to raise a reasonable precautions issue, and it was submitted on behalf of the Plaintiff that to avoid liability the First Defendant must prove on the balance of probabilities (a) the constructor’s failure to take safety precautions was a reckless failure, and (b) the constructor recognised the danger and deliberately refrained from taking measures to avert it, that is, it deliberately courted the danger. In addition, it was submitted for the Plaintiff that the pleading which is being attacked on this application did not plead essential elements -- 4 of 8 -- 5 of a reasonable precautions defence, including (a) safety precautions the constructor was meant to take but did not, (b) that the failure to take such safety precautions was reckless, and (c) that the failure to take such safety precautions was deliberate. [8] Although it was not contested by the First Defendant on the hearing of this application today that a reasonable precautions defence raises issues such as reckless failure on the part of the constructor, and that the constructor recognised the danger and deliberately refrained from taking measures to avert it, that is, it deliberately courted the danger, the submission the First Defendant made was that it was not obliged to plead these matters; further, that it had, in any event, raised the issue and that was all that it was obliged to do in the circumstances; further, that the onus was upon the Plaintiff to satisfy this defence did not apply. In effect, I took the First Defendant to submit that it had raised the issue and, therefore, the obligation reverted to the Plaintiff to plead matters such as the safety precautions the constructor was meant to take, but did not, that the failure to take such safety precautions was reckless, and that the failure to take such safety precautions was deliberate. [9] Notwithstanding the submissions that have been made by the First Defendant in its written submissions and in its further oral submissions, I’ve come to the view that the obligation does rest upon the First Defendant to plead the essential elements I have mentioned that have been referred to by the Plaintiff as not having been complied with by the First Defendant. While one can see the merit in the submissions by the First Defendant that the issues are raised, they have not been, to my mind, completely raised as they should be by the First Defendant. -- 5 of 8 -- 6 [10] The Second Defendant appears today, but its interest is in the future conduct of the matter, it having invested considerable amounts in any event to matters to date. I’ll hear further argument from everybody, but I have come to the view that in all the circumstances, despite the submissions of the First Defendant, paragraphs 10A and 10B and - I think 1A should be included - should all be struck out. But I will give the First Defendant leave, despite the progress of the proceedings and the state that it is in, that is, how far it has come down the track, to make further amendments as it is advised. Yes, in those circumstances then, Mr Newton, I’ll make an order that paragraphs 1A, 10A and 10B of the third amended defence of the First Defendant be struck out. What other orders then should follow? In paragraph 2 is - - - [11] MR NEWTON: I guess the logical thing, your Honour, will be to give a timeframe for the repleading of the defence which is [indistinct] my learned friend. [12] HIS HONOUR: Yes. Well, paragraph 2A of this draft order will be the First Defendant have leave to replead its defence. How long do you need for that, Mr Lee? It doesn’t have to be a short period of time because the matter has had a - - - [13] MR LEE: 14 days, your Honour. [14] HIS HONOUR: 14, yes. [15] MR LEE: Thank you. [16] HIS HONOUR: Replead its defence within 14 days. And then paragraph 2, the -- 6 of 8 -- 7 provide answers to further and better particulars, that will have to wait, will it? [17] MR NEWTON: No, because that’s of other paragraphs of the defence, your Honour, so it can stay. [18] HIS HONOUR: Okay. So that will be paragraph 2. Yeah, I’ve inserted paragraph 2A before paragraph 2, so I’m making it difficult, I’m sorry. [19] MR NEWTON: No, that’s all right. I’m with you. [20] HIS HONOUR: Yes. All right. So paragraph 2 stays. [21] MR NEWTON: 2 can stand. [22] HIS HONOUR: Paragraph 3? [23] MR NEWTON: Within 14 days of receipt of the further amended - or the repleaded defence. [24] HIS HONOUR: Yes. Of the further defence of the First Defendant. And then paragraph 4, you can’t deal with that. [25] MR NEWTON: No, your Honour. I think - - - [26] HIS HONOUR: That will have to be crossed out. Now, we come to the question of -- 7 of 8 -- 8 costs. I’ll leave in that the parties have liberty to apply, but I’ll hear you on the question of costs then on having made the order I’ve made in paragraph 1. [27] HIS HONOUR: In this matter, I think the matter was fairly arguable on behalf of the First Defendant. I do not think the First Defendant took an unmeritorious position. It was a difficult point, I believe, and in all the circumstances, despite being put on notice, I’ve come to the view that the costs in this matter should be on the standard basis. So the order will be that the First Defendant pay the costs of the Plaintiff of the application on the standard basis, and then there will be the parties have liberty to apply. -- 8 of 8 --