Bowman v Bowman & WorkCover Queensland [2002] QSC 460

State Reporting Bureau jiioosT} Q&C AbO Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. REVISED COPIESISSUED State Reporting Bureau Date JO / / / SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILSON J No 771 of 1993 KEITH PATRICK BOWMAN Plaintiff and M J AND J A BOWMAN Defendant and WORKCOVER QUEENSLAND (Formerly the Workers ' Compensation Board of Queensland) Defendant by Election BRISBANE . .DATE 17/12/2002 REASONS WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 8 -- 17122002 rc (Wilson J) HER HONOUR: This is an application for leave to amend the defence of the defendants and that of the defendant by election. By a writ issued in 1993 the plaintiff Keith Bowman claims damages for personal injuries allegedly sustained in the course of his employment on 27 February 1991. The plaintiff was a bricklayer's labourer. The named defendants are MJ and JA Bowman. I take that to be a husband and wife partnership. The male defendant MJ Bowman is the brother of the plaintiff. It may be of assistance briefly to set out the chronology. As I said, the accident allegedly occurred on 27 February 1991. On 20 March 1991, an employer's report was submitted to the Workers' Compensation Board of Queensland. It is not clear to me whether the signature on it is that of the male defendant or the female defendant. Be that as it may, it contains details of injury as reported to the employer, and those details are essentially that the injury occurred at the corner of Sir Dapper Drive and Sobar Street, Burpengary, at 2 p.m. on Wednesday, 27 February 1991; that it was reported to a person in authority five minutes later, that person being M Bowman; that the plaintiff ceased work at about 2.05 p.m. on that day and has not returned to work. The injury was reported as having occurred when the plaintiff was wheeling a barrow that tipped over. He was reported as having sustained a strain injury to his spine 1 10 20 30 40 50 2 JUDGMENT 60 -- 2 of 8 -- 17122002 rc (Wilson J) and lower back. The statement of claim was delivered on 19 May 1995. So far as presently relevant, it contained the following allegations: "2) For a period of many months prior to the 27th day of February 1991, the plaintiff was frequently required by the defendants to lift, carry and/or move very heavy weights including cement bags and wheelbarrows loaded with bricks. 3) On or about the 27th day of February 1991 whilst - in the course of his duties, the plaintiff was required to push a loaded wheelbarrow along part of a building site located at the corner of Sir Dapper and Sobar Streets, Burpengary, in the State of Queensland. In the course of doing this, the said wheelbarrow struck a hole or depression in the ground and became destabilised. The plaintiff unsuccessfully attempted to arrest the fall of the wheelbarrow and suffered injury particulars whereof 30 are as follows: a) injury to the neck; b) injury to the lower back" . The defendants delivered a defence on 10 August 1995. So far as presently relevant, it contained the following: An "2) In relation to the allegations contained in paragraph 2 of the statement of claim, the defendants admit that from time to time the plaintiff was required to move wheelbarrows loaded with bricks. However, the defendant does not admit the balance of the allegations contained in this paragraph and further say that they are not relevant to the issues in the action. 3) In relation to the allegations contained in paragraph 3 of the statement of claim, the defendants admit that on or about the 27th February 1991 whilst in the course of his employment, the plaintiff did push a loaded wheelbarrow along part 3 JUDGMENT 60 -- 3 of 8 -- 17122002 rc (Wilson J) of a building site located at the corner of Sir Dapper and Sobar Streets, Burpengary, in the State of Queensland. However, the defendants do not admit the balance of the allegations contained in that paragraph relating to the circumstances of the incident pleaded. 4) In relation to the balance of the allegations contained in paragraph 3 referring to injuries allegedly suffered by the plaintiff, and in relation to the allegations contained in paragraphs 4 and 6 of the statement of claim, the defendants say that if the plaintiff did suffer any injury as alleged, which is not admitted, the injury and the consequences of the injury were not of the nature or to the extent alleged in the statement of claim. 6) If the defendants were guilty of any negligence and/or breach of duty, both of which are denied, they say that the plaintiff's injury was contributed to by his own negligence in: a) failing to keep a proper lookout; b) failing to steer the wheelbarrow clear of any hole or depression in the ground; c) failing to restrict the load in the wheelbarrow so it might be safely moved over the building site; d) failing in all of the circumstances to take any or any reasonable care for his own safety". Particulars of that defence were sought and supplied on 10 December 1998. They were particulars of paragraph 6, the contributory negligence allegation. "1) As to paragraph 6(a) of the defence - a) the manner and respect in which the plaintiff failed to keep a proper lookout was: (i) the hole in which the plaintiff fell was patently obvious to someone paying due care and attention to ther surroundings; (ii) the plaintiff knew the hole was there or ought to have known. 2) As to paragraph 6(b) of the defence - a) the plaintiff should have steered the wheelbarrow clear of any hole or depression in the ground by: (i) not steering the wheelbarrow in close proximity to the hole; (ii) the building site was large, thus the plaintiff should have used an alternative route of 1 10 20 30 40 50 4 JUDGMENT 60 -- 4 of 8 -- 17122002 rc (Wilson J) travel . 3) As to paragraph 6(c) of the defence, the plaintiff should have restricted the load in the wheelbarrow by - a) the plaintiff was an experienced bricklayer. He was only supplying bricks for one bricklayer and an apprentice. He carried more bricks than the demand required. 4) As to paragraph 6(d) of the defence, the plaintiff failed to take any reasonable care for his own safety by - a) failing to keep a proper lookout; b) failing to steer the wheelbarrow clear of any hole or depression in the ground; c) failing to restrict the load in the wheelbarrow; as particularised in 1, 2 and 3 above." A mediation took place on 10 May 2001. I will return to that shortly. The defendant by election, WorkCover Queensland Limited, filed a notice of intention to defend and a defence on 28 September 2001. It was in much the same terms as the defence of the defendants except that in lieu of paragraph 3, the following paragraph 3 appeared: "3) The defendant by election denies the allegations in paragraph 3 of the statement of claim and says : (i) the incident referred to in which the said wheelbarrow is alleged to have struck a hole or depression in the ground and become destabilised did not occur; (ii) , the plaintiff suffered no injury to his neck or lower back on the 27th of February 1991. " 30 Prior to the mediation, the male defendant attended a conference with WorkCover's counsel on 10 May 2001. During 50 the course of that conference, he provided instructions which were inconsistent with facts previously provided to the solicitors then acting for the defendants. That is the 5 JUDGMENT 60 -- 5 of 8 -- 17122002 rc (Wilson J) nub of the proposed amendment to the defence of the defendants and to the defence of the defendants by election. In essence, the defendants and the defendants by election wish to withdraw certain admissions and to allege an agreement falsely to make a claim for Workers' Compensation statutory benefits. It is probably best that I set out the proposed amendment to the defence of the defendants. It has gone through a number of forms. What I am about to include in these reasons is the form put forward by counsel for the defendants and the defendant by election at the conclusion of his submissions before me today. The amendments are as follows: In paragraph 2, after the words "From time to time", insert, "In the course of his employment". Delete paragraph 3 of the existing defence. This requires the leave of the Court. Insert in lieu of paragraph 3 the following: "3) In relation to the allegations in paragraph 3 of the statement of claim, the defendants: (i) admit that on or about the 27 February 1991 the plaintiff whilst in the course of his employment was at a building site located at the corner of Sir Dapper and Sobar Streets, Burpengary; (ii) otherwise deny the allegations made therein for the reasons set out below; (iii) on or about 27 February 1991, the plaintiff and the defendant MJ Bowman for the purpose of enabling the plaintiff to claim Workers' Compensation statutory benefits for a back condition suffered by the plaintiff many years beforehand, entered into an oral arrangement to falsely tell the former Worker's 1 10 20 30 40 50 6 JUDGMENT 60 -- 6 of 8 -- Compensation Board of Queensland that the plaintiff had been wheeling a loaded wheelbarrow and had wheeled it into a hole whereupon he had suffered a injury to his neck and back; (iv) pursuant to the said agreement the plaintiff claimed and obtained Workers' Compensation benefits from the former Workers' Compensation Board of Queensland; (v) the incident referred to in which the said wheelbarrow is alleged to have struck a hole or depression in the ground and become destabilised did not occur; (vi) the plaintiff suffered no injury to his neck or lower back on the 27th of February 1991; (vii) by reason of those matters, the plaintiff's claim is fraudulent ." 17122002 rc (Wilson J) The defendant by election seeks to make a similar amendment . to paragraph 2 of its defence; to delete paragraph 3 of its defence and to insert in lieu a new paragraph 3 in terms similar to that proposed in the defence of the defendants. 30 So if allowed, the defendants would be withdrawing the admission that on or about the 27th of February 1991 in the course of his employment, the plaintiff pushed a wheelbarrow along part of the subject building site. In order to be allowed to withdraw an admission, a party needs to give an acceptable explanation as to how and why the admission was made in the first place and particulars of the issues to be raised if the admission is withdrawn. See 50 the decision of the Court of Appeal in Rigato Farms Pty Ltd v. Ridolfi [2000] QCA 292. I am satisfied that these requirements have been fulfilled in all the circumstances. 7 JUDGMENT 60 -- 7 of 8 -- There is the further issue of whether the plaintiff would be prejudiced by the withdrawal of this admission. I have material before me sworn by the solicitor for the plaintiff in which he raises the issue of prejudice by the passage of time. However, what he says is unparticularised. The best I could glean from the submissions of counsel for the plaintiff was that there was concern that the defendants and defendant by election might allege that the plaintiff was not even on the site at the time and that there may have been loss of contact with a witness, namely a bricklayer, who was allegedly there at the time. However, this concern seems to me to have been dispelled by the nature of the amendments ultimately proposed. In all the circumstances, I intend allowing the withdrawal of the admission and the amendments in accordance with the drafts which I have set out in these reasons. Costs of the application, costs of the amendment and any costs ultimately shown to have been thrown away will all be reserved to the trial judge. 17122002 rc (Wilson J) 1 10 20 30 40 50 8 JUDGMENT 80 -- 8 of 8 --