Cox v Sirram Pastoral Company & Ors [1991] QSC 322

State Reporting Bureau, 4th Floor, Tne Law Courts, George Street, BRJSBA.?\it. 0. 4000 Tel. (07) 227.4360 (Copyright in th.is traJ1script 1s vested in the Crov,;n. be made or sold without the v..-ritten authority of the Bureau.) Copies thereof must not Director, State Reporting SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J ·No 7 of 1987 MERVYN NEIL COX and SIRRAM PASTORAL COMPANY (a firm) and THE WORKERS' COMPENSATION BOARD OF QUEENSLAND and SUNCORP INSURANCE AND FINANCE .ROCKHAMPTON .. DATE 24/10/91 .. JUDGMENT 1 Plaintiff Defendant Defendant by Election Third Party -- 1 of 14 -- I C I • i' ~7-rI , :, J ~ 241091 JUDGMENT HIS HONOUR: In this action I have reduced my reasons to writing, which I now publish. There will be judgment for the plaintiff against the defendant and the defendant by election for $230,0U0 together with costs to be taxed. On the third party proceedings I find and I so order that the third party is liable to indemnify the defendant and the defendant by election for one half of the amount of the plaintiff's judgment und costs. In view of the rulings I have made there will be no order as to costs on the third party proceedings. 2 -- 2 of 14 -- IN THE SUPREME COURT OF QUEENSLAND MACKAY BETWEEN: AND: No. 7 of 1987. MERVYN NEIL COX Plaintiff SIRRAM PASTORAL COMPANY (a firm)Defendant THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Defendant by Election SUNCORP INSURANCE AND FINANCE Third Party JUDGMENT - DEMACK J. DELIVERED the 24th day of October 1991. CATCHWORDS: Negligence - employer and employee - foreseeable risk of injury - liability as between insurers - motor vehicle registered in name of Wentworth Pastoral Co. - motor vehicle used by employee of Sirram Pastoral Co. - both companies had same members - motor vehicle insured by registered owner, Sirram Pastoral Co. - statutory obligation on members of firm to insure vehicle - statutory obligation on employer to insure employees - joint liability on part of Workers' Compensation Board and motor vehicle insurer. Damages - Personal injury - employee of Sirram Pastoral Co. injured while repairing cattle yards - use of motor vehicle - male stockman - Motor Vehicles Insurance Act, s. 3 ( 1) - "in respect of such motor vehicle" "caused by, through or in connection with" - Workers' Compensation Act, s. 8(1). COUNSEL: SOLICITORS: HEARING DATES: Mr D MCMEEKIN Mr J BAUCH MR B HARRISON MACROSSAN & AMIET PETER SEARLES & ASSOCIATES JOHN TAYLOR & CO. 2 AUGUST 1991; 4 OCTOBER 1991. for Plaintiff for Defendant & Defendant by Election for 'lhird Party for Plaintiff for Defendant & Defendant by Election for '!bird Party -- 3 of 14 -- IN THE SUPREME COURT OF QUEENSLAND MACKAY BETWEEN: AND: No. 7 of 1987. MERVYN NEIL COX Plaintiff SIRRAM PASTORAL COMPANY (a firm) Defendant THE WORKERS' COMPENSATION BOARD OF QUEENSLAND Defendant by Election SUNCORP INSURANCE AND FINANCE Third Party JUDGMENT - DEMACK J. DELIVERED the 24th day of October 1991 . Mr Cox suffered an injury to his back in the course of his employment with the defendant in March 1984. The parties have agreed upon the plaintiff's damages in the amount of $272,776.38 from which a Workers' Compensation Board refund of $42,776.38 must be deducted. The issues at the trial involve the insurers. In 1984, Mr Cox was employed by Sirram Pastoral Company as head stockman on a property known as "Sirram". At that time the partners of the Sirram Pastoral Company were Peter Malcolm Hughes, Richard Brian Hughes, Jill Mary Hasker and -- 4 of 14 -- 2 Margaret Elvey Philp. Sirram Pastoral Company owned several grazing properties which had been worked in conjunction with each other. Another firm, Hughes Grazing Company, owned the cattle. In 1981, a property known as "Wentworth" was acquired by Sirram Pastoral Company, and included in the purchase was a Toyota Landcruiser utility with a trayback. The Toyota was then registered in the name of Wentworth Pastoral Company. It remained so registered in May 1984 when Mr Cox was injured while using the vehicle in the course of his employment. By then the members of the firm, Wentworth Pastoral Company, were the same four people who were members of the firm "Sirram Pastoral Company". On a day in May 1984 Mr Cox and other employee of Sirram Pastoral Company, Edward Anderson, were engaged in repairing cattle yards on "Sirram". Three posts had to be replaced. The two men felled suitable ironbark trees, trimmed and barked them, loaded them on the back of the Toyota and drove to the yards. Two of the posts could be slid off the back of the truck and into a posthole. The third posthole was so placed that this could not be done. The third post was pushed off the truck onto the ground. A piece of rope with a knot in it joining separate pieces was thrown over an overhanging branch. One end was attached to the truck and the other to the post. The truck was then driven so as to raise the one end of the post and to drag the other end near the posthole. The knot in the rope caught on the branch at a point when the post was "a couple of feet" away from the hole. Mr Cox hurt his back -- 5 of 14 -- 3 while trying to lift and push the post that distance. The issue of liability was contested, but at the end of the evidence it was clear that the plaintiff had shown that the defendant was negligent. Mr Kahler, engineer, inspected the yards and post in question, and he estimated the weight of the post at 156kg. Clearly any attempt to lift and push such a weight carried a foreseeable risk of injury. Yards needed regular repair, generally after each muster. Thus some form of lifting apparatus was a necessary piece of equipment which should have been provided on the truck. Such a device would have had many uses on the property and the expense was reasonable in the light of the obvious risk of serious injury. Thus I am satisfied that the defendant was in breach of its duty to the plaintiff. There is no question of contributory negligence as Mr Cox was using the system provided. The defendant then is liable to pay the plaintiff's damages. The significant issues then are to decide which of the insurers will meet the judgment. Sirram Pastoral Company held a policy under the provisions of s. 8(1)(b) of the Workers' Compensation Act in the relevant form. The Toyota was, as I have said, registered in the name of Wentworth Pastoral Company, and Suncorp Insurance and Finance was the licensed insurer. It was accepted by counsel that there were two issues:- ( 1 ) Was Sirram Pastoral Company's liability to pay the plaintiff's damages within the cover provided by the Motor Vehicles Insurance Act in respect of the Toyota? -- 6 of 14 -- 4 (2) Was the plaintiff's injury such an injury in respect of which Sirram Pastoral Company is required by some Act other than the Workers' Compensation Act to provide against such liability as prescribed by such other Act? Dealing first with the cover provided by the Motor Vehicles Insurance Act, it is clear that there are two relevant questions - has the plaintiff suffered accidential bodily injury "by through or in connection with" the motor vehicle? and is the defendant's liability in damages "in respect of" the motor vehicle? In Technical Products Pty Ltd v. State Government Insurance Office (1989) 85 A.L.R. 173, at p. 175 the following passage appears in the joint judgment of Brennan, Deane and Gaudron J.J.:- "The effect of the words "in respect of such motor vehicle" ins 3(1) is to add to the requirement that the relevant accidental bodily injury be "caused by, through, or in connection with" the motor vehicle, the further requirement that the circumstances giving rise to the relevant legal liability by way of damages for that injury show a discernible and rational link between the liability and the particular vehicle. In most cases where the injury itself was "caused by, through, or in connection with" the relevant vehicle that further requirement will, no doubt, be satisfied. There will however, be cases in which the superimposed requirement will be critical in the sense that, notwithstanding that the injury was "caused by, through, or in connection with" the insured motor vehicle, there is no discernible rational relationship between the relevant legal liability for the injury and that vehicle." Here I am satisfied that Mr Cox's accidental bodily injury was caused by, through or in connection with the motor vehicle. The motor vehicle was being used to raise the post and it was being used to keep the post in position with one -- 7 of 14 -- 5 end elevated while Mr Cox pushed and lifted the other end into the posthole. That seems to be an injury caused in connection with a motor vehicle. I am also satisfied that the defendant's liability for damages was "in respect of the motor vehicle" . The motor vehicle was part of an integrated system of work. There was a discernible and rational link between the basis of liability and the vehicle itself. The use of the vehicle and its inadequacy for the purpose lie at the heart of the defendant's liability. I am satisfied that the third party is liable to indemnify the defendant. The second issue calls for a consideration of the decision of Glover v. Politanski (1990) 2 Qd. R. 41. The issue is whether "the employer" is required by some other Act to provide against such liability. Under the Motor Vehicles Insurance Act only the registered owner is required to be insured. Is that to be determined by looking at the firm name or at the individuals who comprise the firm? If it is the "firm", then Wentworth Pastoral Company, as registered owner, is required to insure under the Motor Vehicles Insurance Act, and Wentworth Pastoral Company is not the employer required to hold a policy under Workers' Compensation Acts. If it is the people who comprise the two partnerships, who are required to insure under the Motor Vehicles Insurance Act then they are relieved of the obligations to insure under the Workers' Compensation Act. -- 8 of 14 -- 6 The relevant facts in Glover v. Politanski (1990) 2 Qd. R. 41 appear in the following passage of Macrossan C.J., at p. 46:- "Section 8(1) requires employers to insure themselves against all sums for which in respect of injury to any workers employed by them they may become legally liable by way of compensation under the Act or what might conveniently but rather inaccurately be called common law damages. The obligation of an employer to insure himself with the Board against legal liability in respect of injury to his worker excludes the case of "an injury in respect whereof the employer is required by some other Act to provide against such liability as prescribed by such other Act". The words just quoted appear as a limiting exception ins. 8(1)(b). If some other Act requires the employer to insure himself against liability for the injury in question then he does not need to insure himself in response to the general requirement which s. 8 contains. That is in the case before us if the "employer" of the plaintiff was required by the Motor Vehicles Insurance Act to provide against liability for damages in respect of the injury to the plaintiff then the motor vehicle insurer (i.e. the third party) will be left with responsibility for the loss and the Workers' Compensation Board (the fourth party) will be relieved of responsibility because of the limiting operation of the exception which is contained in s. 8(1) (b). The question is to be determined by considering the meaning of the word "employer" where it appears in· sub-s.(1) and in particular where it appears within the exception in sub-s. (1) (b). It requires to be understood that the plaintiff's employers in fact were the two defendants, Henry and Coleen Politanski. The word "employer" in s. 8(1) appears in the singular in the provision that "every employer shall be legally liable to pay . . . compensation", and the requirement that "every employer shall insure himself" as well as the exception which excludes an injury "in respect whereof the employer is required by some other Act to provide against such liability . . . ". Does this mean, for example, that each of the two defendants was obliged separately to insure? The answer to this question and the related problems presently being considered is assisted by the terms of the definition of "employer" to be found in s. 3 of the Act which provides that unless the context otherwise indicates the word "employer" is to include "persons, firm . associations companies .. " Applying this definition to the -- 9 of 14 -- 7 wording of s. 8, it can be seen that the defendants' firm was obliged to insure. It is hardly likely that all three entities, that is the firm and eachof the two defendants were separately obliged to insure. The very purpose of providing that "employer" shall include firms as well as persons must surely be to provide a simple mechanism whereby a partnership, in response to a single obligation imposed upon it, shall be obliged to take out a single piece of insurance covering the partnership's legal liability in respect of injury to workers employed by it. This view is not in any way impaired by the consideration that under the general law a partnership has no separate existence in the way that a corporation has. This proposition may be stated in terms of the evident policy of the Act:firms as a matter of convenience are to provide themselves with a single insurance which if obtained shall be sufficient compliance. I would conclude that the firm constituted by the two defendants was obliged to insure and that the first of the two defendants, Henry Politanski, was not separately or additionally obliged to insure under the scheme of s. 8(1) of the Act. In the present case the motor vehicle in connection with the use of which the plaintiff received his injury was registered solely in the name of the first of the defendants, Henry Politanski and not in the joint names of the two persons who constituted the relevant firm. It has been decided that theobligation of the owner of a motor vehicle to insure against legal liability by way of damages in respect of such motor vehicle for accidental bodily injury, which obligation is imposed bys. 3(1) of the Motor Vehicles Insurance Act, is an obligation which applies only to the registered owner of the motor vehicle in question and that this is sonotwithstanding the wide terms of the definition of "owner" in s. 2 of that Act: State Government Insurance Office (Queensland) v. Brisbane Stevedoring Pty Ltd (1969) 123 C.L.R. 228 and the same case below under the name of Schleimer v. Brisbane Stevedoring Pty Ltd (1969] Qd.R. 46. The exception within s. 8(1)(b) of the Workers' Compensation Act provides that if an employer is required by some other Act to provide against liability in respect of injury to any worker employed by him the employer is not required to provide himself with insurance under the Workers' Compensation Act. Once it is concluded that "employer" in the first two paragraphs of s. 8(1) of the Workers' Compensation Act means in the case of a partnership the firm itself considered as an entity (and the context does not require any different -- 10 of 14 -- 8 conclusion) then there is no reason at all which would justify taking a different meaning for "employer" where is occurs within the exception in s. 8(1)(b). The answer, then, in the present case is that the "employer", meaning the firm constituted by the partnership of Henry and Coleen Poli tanski, was not obliged to take out statutory motor vehicle insurance in respect of the motor vehicle in question and only the first named of those two partners, Henry Politanski, was so obliged since he alone was the registered owner of that vehicle. There being no relevant requirement to insure under the motor vehicles insurance legislation, the exception to be found within s. 8 ( 1 ) ( b) does not apply and the responsibility of the Workers' Compensation Board for the damages resulting from the injury to the plaintiff is not displaced. It may be as well to add that the words of the exception do not require a search to ascertain whether there is an obligation under some other Act to provide against liability specifically "in respect of injury to any worker". It is sufficient that the Motor Vehicles Insurance Act requires registered owners to indemnify themselves against legal liability by ways of damages in respect of a motor vehicle for accidental bodily injury "to any person", that phrase being wide enough to cover workers employed by an employer since it covers all persons: se Petricevic v. State Government Insurance Office (Queensland) (1976) 50 A.L.J.R. 731 at 733; 11 A.L.R. 629 at 633.45-634.5, Miller v. Frost Constructions Pty Ltd [1971] Q.W.N. 29 and Brady v. Simsmetal (Old) Pty Ltd [1971] Q.W.N. 30." The following passage from the judgment of Ryan J. is to the same effect, (p.51):- "The exception in s. 8 ( 1 ) ( b) of the Workers' Compensation Act is of injury in respect whereof the employer is required by some other Act to provide against such liability. The Motor Vehicles Insurance Act required the registered owner to provide against liability but it did not require the employer to provide against liability. In this case the two defendants carried on the business of building contractors and the plaintiff was employed by them. The definition of "employer" in s. 3 of the Workers' Compensation Act includes a firm, and in my opinion the defendants were a firm, that is, an unincorporated body of persons associated together for the purpose of carrying on business. The question then is whether when the employer is a firm, that is the aggregate of persons who are associated together for the purpose of carrying on -- 11 of 14 -- 9 business, the expression "employer" in the exemptionprovision should be read distributively as meaning any member of the firm or should be readcollectively to refer to all members of the firm. The answer in my opinion must be that there is noreason why the expression should bear a different meaning in the exemption clause than its defined meaning. Accordingly it could · not be said that Henry Politanski, the registered owner of the motor vehicle was the employer of the plaintiff so as to make applicable the exemption under s. 8(1) of the Workers' Compensation Act." In Glover's case the two natural persons constituted a firm which employed the plaintiff. Only one of them was the registered owner, so that he alone was required to effect a Motor Vehicles Insurance Act policy. This meant that the exception ins. 8(1)(b) did not apply. Applying the reasoning to this case, the definition of "employer" in the Workers' Compensation Act and the definition of "person" in the Motor Vehicles Insurance Act include "firm". Thus the obligation to insure cast on an owner by the Motor Vehicles Insurance Act is discharged by insuring in the name of a firm, if that firm is the registered owner. The obligation to insure cast on the employer under the Workers' Compensation Act is discharged by insuring in the name of a firm. This can only have any practical effect if the name of the firm in each case is sufficient to identify the insured. As I understand Macrossan C.J.'s reasoning he recognised that for the purpose of the legislation the firm is an entity which has sufficient identity through its name to discharge the obligation to insure, al though there. does not seem to have been a firm name involved in Glover's case. That does no more than recognise that the firm name identifies the entity upon -- 12 of 14 -- 10 which the obligation is cast. The provisions of Order 54 of the Supreme Court Rules recognise the same concept, namely, that for the purpose of identifying the parties to an action the firm name is sufficient. In other circumstances, such as execution (0. 54, r. 10), the people who constitute the firm must be identified. Such considerations do not apply when a statutory insurer is standing behind any judgment given against the firm. The commercial utility of this approach was supported by the evidence of Mr Hughes that the membership of the firms had changed while the names remained constant. If the firm name is not sufficient identification of the insured, then the "evident policy of the Act" will be defeated. I am satisfied then that as Wentworth Pastoral Company was the registered owner of the Toyota, the duty to insure that vehicle under the Motor Vehicles Insurance Act lay upon that firm. There was on obligation on the partners, individually or collectively, to insure the vehicle. There was no obligation on Sirram Pastoral Company, as employer, to insure the vehicle. It follows then that the defendant by election's liability under the s. 4(1)(b) policy remains. There is thus a joint liability on the part of the defendant by election and the third party. There will be judgment for the plaintiff against the defendant and the defendant by election for $230,000 together with costs to be taxed. On the third party proceedings I find~lsooni that the third party is liable to indemnify the defendant and -$ i ?:> 0 ::3~ti · I9a,nJ the defendant by election for~one half of the amount of the plaintiff's j-aag.me:at-a-oo costs. In view of the rulings I have -- 13 of 14 -- 1 1 made there will be no order for costs on the third party proceedings. The third party lost on the first issue and the defendant by election lost on the second issue. -- 14 of 14 --