English v Workers' Compensation Board of Queensland [1994] QSC 12

tate Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thaeof must not be made or sold without the written authority of the Director, State l{eporting Bureau.) SUPREME COURT OF QUEENSLAND CIViL JURISDICTION RYAN J No 559 of 1993 STANLEY STUART ENGLISH & ORS and BLUECORP PTY LTD No 825 of 1992 STANLEY STUART ENGLISH and THE WORKERS COMPENSATION BOARD OF QUEENSLAND BRISBANE .. DATE 10/02/94 JUDGMENT 1 REViSED COPiES ISSUED State Reporting Bureau Date/1 I ~/ 6} c..f Plaintiff Defendant Plaintiff Defendant -ilh Floor, The t:w Courts. Gcorgc Sired, JJrisbanc, (). .J()()() Ji•/cplwnt': (07) 227 .J.'60. J·:l<·.;;imilc: ({)7) 227 SS32 -- 1 of 12 -- 100294 sbd (Ryan J) HIS HONOUR: I order (1) that the period of limitation for action number 559 of 1993 brought by the plaintiff, Stanley Stuart English, claiming damages for negligence, breach of contract and breach of duty and arising out of injuries he received during the course of his employment with the defendant on 10 5 June 1989 and subsequently be extended until 4 p.m. on 8 April 1993; (2) that the plaintiff have leave to proceed in this action against Bluecorp Pty Ltd in liquidation; and, (3) that the costs of this application be reserved. I dismiss the application in action number 825 of 1992 and 20 order the applicant to pay the respondent's costs of that 30 application to be taxed. I publish my reasons. 40 50 60 JUDGMENT 2 -- 2 of 12 -- IN THE SUPREME COURT OF QUEENSLAND No. 825 of 1992 BETWEEN: STANLEY STUART ENGLISH Plaintiff AND: THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Defendant No. 559 of 1993 BETWEEN: STANLEY STUART ENGLISH Plaintiff AND: BLUECORP PTY LTD (ACN 010 547 903) formerly known as LLOYDS SHIPS HOLDINGS PTY LTD Defendant REASONS FOR JUDGMENT RYAN J. Judgment delivered 10/02/1994 CATCHWORDS: Counsel: Solicitors: Negligence - Contract - Statutory duty - Damages for personal injuries - Order 3 rr 11 and 13 - Rules of the Supreme Court - s. 31 ( 2) of the Limitation of Actions Act 1974 Mr M Stewart for the Plaintiff Mr R King-Scott for the Defendant (The Workers' Compensation Board of Queensland) Barker Gosling for the Plaintiff O'Mara Patterson & Perrier for the Defendant (The Workers' Compensation Board of Queensland) Hearing Date: 2 December 1993 -- 3 of 12 -- IN THE SUPREME COURT OF QUEENSLAND No. 825 of 1992 BETWEEN: STANLEY STUART ENGLISH Plaintiff AND: THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Defendant No. 559 of 1993 BETWEEN: STANLEY STUART ENGLISH Plaintiff AND: BLUECORP PTY LTD (ACN 010 547 903) formerly known as LLOYDS SHIPS HOLDINGS PTY LTD Defendant REASONS FOR JUDGMENT RYAN J. Judgment delivered 10/02/1994 The plaintiff Stanley Stuart English has applied for orders (a) that Bluecorp Pty Ltd (in liquidation) be substituted for the Workers' Compensation Board as defendant in Action No. 825 of 1992; (b) that the action be deemed to have begun against Bluecorp Pty Ltd (in liquidation) on 3 June 1992; and (c) that the plaintiff have leave to proceed in the action against Bluecorp Pty Ltd (in liquidation). The plaintiff has deposed that on 13 April 1987 he injured his back while working for Lloyds Ships Holdings Pty Ltd. Following the accident he went on to Workers' Compensation. In June 1988 he was operated upon as a result of the accident. He returned to work on a full-time basis on 23 January 1989. On -- 4 of 12 -- 2 5 June 1989 he suffered a further injury to his back. He saw a general practitioner who told him that he was suffering from lower back strain and suggested he take a couple of weeks off work. He gave the plaintiff a medical certificate to that effect. Next morning prior to starting work the plaintiff gave his supervisor the medical certificate. He was required to continue to work because of the pressure of the work that had to be done. Within two weeks he had to return to normal duties which included much heavy lifting. This caused aggravation of pain to his back. He continued to do heavy lifting until he was retrenched when his employer went into liquidation in late 1989. He was recalled in May 1990 to finish work on a boat, and continued to work until July 1990. He states that his superiors employed by his employers were aware of the difficulties he was having with his back throughout the period. In July 1991 he instructed solicitors to act on his behalf in relation to the accident which occurred on 5 June 1989. In May 1992 the Legal Aid Office notified him that aid had been granted to file proceedings to protect his interests. On 3 June 1992 the plaintiff issued a writ against the Workers' Compensation Board claiming damages for loss arising out of an accident which occurred in or about June 1989 in the course of his employment with Lloyds Ships Holdings Pty Ltd (a corporation which has ceased to exist). It is alleged that the accident was caused or contributed to by the negligence, breach of contract, breach of statutory duty and/ or breach of the duties of an occupier of Lloyds Ships Holdings Pty Ltd. -- 5 of 12 -- 3 On 1 July 1993 he was advised by his solicitor that the company was in existence at the time when proceedings were instigated, and that the company in liquidation should have been sued. On 2 June 1992, his solicitor had written to an officer of the Workers' Compensation Board, stating that "it has come to our attention that on 12 December 1989 it was ordered that Lloyds Ships Holdings Pty Ltd be wound up. The company is now no longer trading and has ceased to exist.". An order that Lloyds Ships Holdings Pty Ltd be wound up was made on 12 December 1989. The solicitor for the applicant had made inquiries from another solicitor who had made the statutory affidavit supporting the winding-up application of Lloyds Ships Holdings Pty Ltd and had been assured by him that the company had ceased to exist. It was on that basis that the letter of 2 June 1992 asserted that the company had ceased to exist. On 18 December 1990, Lloyds Ships Holdings Pty Ltd changed its name to Bluecorp Pty Ltd. On 21 June 1993, the plaintiff's solicitor wrote to the solicitor for the Workers' Compensation Board. It was stated: "The solicitor who previously had control of thisaction undertook certain investigations and believed that the company was no longer in existence. It has now come to our attention that this belief is not in fact correct. The company is still in existence albeit in liquidation. The company has changed its name to Bluecorp Pty Ltd." It was stated further that new proceedings had been issued against the company. On 8 April 1993 a writ had been issued by Stanley Stuart English as first plaintiff and Michelle English as second plaintiff against Bluecorp Pty Ltd (formerly known as -- 6 of 12 -- 4 Lloyds Ships Holdings Pty Ltd). The claim of the first plaintiff is alleged to arise out of a series of accidents which occurred between 1989 and 1990 in the course of his employment with Lloyds Ship Holdings Pty Ltd. The second plaintiff's claim is alleged to arise out of a series of accidents between 1989 and 1990 to her spouse in the course of his employment with Lloyds Ships Holdings Pty Ltd. She claims damages for damage arising from an injury to her spouse including damages for loss of consortium. In that action (No. 559 of 1993), the plaintiff Stanley Stuart English seeks orders (a) that the period of limitation for an action brought by him claiming damages for negligence, brea.ch of contract and breach of statutory duty and arising out of injuries he received during the course of his employment with the defendant on 5 June 1989 and subsequently be extended until 4 p.m. on 8 April 1993; and (b) that the plaintiff have leave to proceed in this action against Bluecorp Pty Ltd (in liquidation). It is provided in s.10.4 of the Workers' Compensation Act 1990 that if a worker suffers injury in respect of which compensation under that Act is payable in circumstances conferring a right of action for damages in respect of the injury against the worker's employer who, being a corporation, has ceased to exist, a person who might have obtained judgment for damages against the employer in respect of the injury may recover by action against the Board, as if the Board were the employer, the sum that would have been payable by way of damages to that person by the Board pursuant to s.10.1(1) had judgment been given against the employer. -- 7 of 12 -- 5 As the worker's employer being a corporation has not ceased to exist, the action which the plaintiff has brought against the Workers' Compensation Board has been wrongly instituted. The first question for determination is whether Bluecorp Pty Ltd (in liquidation) should be substituted for it. An order is sought under 0.3 rr.11 and 13, namely the substitution of Bluecorp Pty Ltd for the Workers' Compensation Board and an order that the action be deemed to have begun on 3 June 1992. In Grotherr v. Maritime Timbers Pty Ltd [1991] 2 Qd R 128 it was held, as the headnote states, that s.31 of the Limitation of Actions Act had not worked any implied repeal of 0.3 r.13 with respect to personal injuries cases, and that an order joining a party as a defendant might be made under 0.3 r.11 notwithstanding the prior expiration of the relevant limitation period, with the joinder being ordered under 0.3 r.13 to take effect from the commencement of the action, thereby defeating a limitation defence provided special or peculiar circumstances warranted that course. That decision, and the decision in Lynch v. Keddell (No.2) [1990] 1 Qd R 10 which it followed, were made in respect to the joinder of defendants, but they seem to me to be equally applicable to the substitution of a defendant. Order 3 r.13 refers to a defendant being added or substituted. No point was taken before me that the principles stated in Grotherr v. Maritime Timbers and Hayward Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd R 153 were not applicable in the circumstances of this case. The position is that as the statutory limitation period has expired against Bluecorp Pty Ltd (in liquidation), an -- 8 of 12 -- 6 order might be made for substitution of a defendant only in special or peculiar circumstances. The principle that the court's discretion should only be exercised in peculiar circumstances or special circumstances was stated by Hoare J. in Archie v. Archie [ 1980] Qd R 546 at p. 561. He gave as an illustration a situation in which a plaintiff is deliberately misled by the other party in such a way as to render it most unjust to refuse the addition of another party to the action even though the benefits of statutory limitation would be denied the party joined. That is, however, an illustration only; it is not necessary to point to misleading conduct to justify the making of an order. At the same time it was pointed out in Lynch v. Keddell {No.2) at pp.14-15 that the discretion was not one to be exercised whenever justice so required. As Macrossan CJ pointed out, "any uncritical widening of the class of the exception would· involve an unjustified intrusion into the area intended to have statutory protection, thereby subverting the statute itself." The question for determination is as de Jersey J. stated in Grotherr v. Maritime Timbers Pty Ltd (supra) at p.143, "whether the circumstances are peculiar or special having regard to the relief sought, being the joinder of a party out of time with a denial of its limitation defence." In the instant case, the Board had been informed on 2 June 1992 of the reason why the action was being brought against it rather than against the employer. It entered an appearance on 8 January 1993. The special circumstance in this case which it was submitted justified the making of the order is that the Workers' Compensation Fund would be liable to meet an -- 9 of 12 -- 7 award of damages to the plaintiff either pursuant to s.10.1 of the Act (if the respondent had not ceased to exist) or under s.10.4 if it had ceased to exist. But the effect of an order will be to extend the limitation period against Bluecorp Pty Ltd, and to do so by reason of a mistake made by the plaintiff's solicitors. I do not think that this justifies the making of the order sought. In the summons in Action No. 559 of 1993, the main issue is whether an order should be made extending the period of limitation. Section 31(2) of the Limitation of Actions Act, 1974 (the Act) provides that where on application to a court by a person claiming to have a right of action to which the section applies, it appears to the court - (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation, the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. It was submitted for the applicant plaintiff that the material fact relating to the right of action was the identity -- 10 of 12 -- 8 of the person against whom the plaintiff's right of action lay. (See s.30(a)(ii) of the Act.) I do not think that this can be right; the plaintiff knew that his right of action lay against his employer Lloyds Ships Holdings Pty Ltd. Alternatively, it was said that the material fact was as to the continued existence of the employer company. The plaintiff was aware that his employer was a company in liquidation. He was told by his solicitors that the company did not exist and accordingly that it was necessary to sue the Workers' Compensation Board under s.10.4 of the Act. The question whether a company exists or has ceased to exist is, in my opinion, a question of fact though the answer to it depends on matters of law. There was no reason why he should question the advice given to him by his solicitor. It can therefore be said that the material fact of the continued existence of the company was not within his means of knowledge until July 1993. As this was a material fact of a decisive character relating to the right of action (see s.30(b) of the Act), and there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation, an order may be made that the period of limitation for the action be extended. I consider that in the circumstances the order sought should be made. Accordingly, I order: 1. that the period of limitation for action No. 559 of 1993 brought by the plaintiff Stanley Stuart English claiming damages for negligence, breach of contract and breach of duty and arising out of injuries he received during the -- 11 of 12 -- 9 course of his employment with the defendant on 5 June 1989 and subsequently be extended until 4.00 p.m. on 8 April 1993; 2. that the plaintiff have leave to proceed in this action against Bluecorp Pty Ltd in liquidation; and 3. that the costs of this application be reserved. I dismiss the application in Action No. 825 of 1992, and order the applicant to pay the respondent's costs of that application to be taxed. -- 12 of 12 --