Hodgson v Dimbola Pty Limited t/as Towers Removals & QBE Workers Compensation

2. The plaintiff commenced his action by originating claim on 27 October 2006. His case is that he was employed by the first defendant as a furniture removalist and driver. The plaintiff lives in a northern Canberra suburb in the Australian Capital Territory. The registered office of the first defendant was at Campbelltown in New South Wales. Relevantly for the plaintiff, the company conducted its business from premises at Queanbeyan in New South Wales, where he would report for duty.

3. Early in August 2003, he was directed to take his truck to an address at Chapman, another Canberra suburb, to pack the furniture from a house for removal to a house in Queensland. He had the assistance of two other employees to carry the furniture from the house to the truck, but the plaintiff was directed to drive the truck alone to Queensland. He asked to be accompanied on the trip by another removalist but the request was denied. He drove to Queensland, spending two nights on the way. He complains that the arrangements for rest at night were inadequate. He arrived at the delivery address on the Sunshine Coast at about 7.00 am on 7 August. He found that the driveway was too steep to get the truck close to the house. He telephoned his employer to ask for assistance but this was not immediately available. He started work on his own, unloading the truck and moving furniture up the driveway to the house. During the morning two men arrived to help but they were inexperienced. The plaintiff spent some hours unloading the truck and moving the furniture. At about midday, he lost his footing and fell from the tray of the truck to the road surface. He asserts that he suffered either a back injury or an aggravation of a previous back injury. He claims that he subsequently suffered psychological injury as a result of his physical injuries.

4. The plaintiff asserts in the statement of claim that about two months later, on 2 October 2003, he was again required to move heavy items from a house without adequate assistance. It emerges from particulars subsequently provided by letter that this task was carried out at Queanbeyan in New South Wales. The statement of claim does not specifically assert any injury resulting from the incident in October 2003 but it can reasonably be assumed that the plaintiff's case at trial will be that the work on that occasion aggravated his earlier injury.

5. It is asserted in a statement of particulars filed in May 2008 that the first defendant terminated the plaintiff's employment in April 2004. He says that his claim for workers' compensation was initially accepted by the employer's insurer but that payments were stopped in February 2004. He says that the workers' compensation claim was formally declined in July 2004. He makes a substantial claim for damages, the largest component being damages for loss of earning capacity.

6. The solicitors for the defendants filed a notice of intention to respond in May 2007 and a defence in July 2007. They say in the defence that the tort is alleged to have been committed in Queensland, and that in those circumstances the substantive law of Queensland applies to the proceedings. They further say that the plaintiff was "a worker of New South Wales" for the purposes of the Workers Compensation Act 1987. They rely on section 324 of the Workers' Compensation and Rehabilitation Act 2003 (Queensland). That section is in the following terms:

324 The applicable substantive law for work injury claims

(1) If compensation is payable (whether or not it has been paid) under the statutory workers' compensation scheme of a State in relation to an injury to a worker, the substantive law of that State is the substantive law that governs -

(a) whether or not a claim for damages in relation to the injury can be made; and

(b) if it can be made, the determination of the claim.

(2) For the purposes of this section, compensation is considered to be payable under a statutory workers' compensation scheme of a State in relation to an injury if compensation in relation to it -

(a) would have been payable apart from a provision of the scheme that excludes the worker's right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision; or

(b) would have been payable if a claim for that compensation had been properly made, and (if applicable) an election to claim that compensation (instead of damages) had been properly made.

7. The defence asserts that section 324 of the Queensland Act, being part of the substantive law of Queensland, applies to the plaintiff's claim for damages and that its effect is to make the substantive law of New South Wales the law governing the determination of his claim.

8. The defence then asserts that the claim is statute-barred by section 18A(2) of the Limitation Act 1969 (NSW). That section imposes a three-year limitation period; the action was not commenced until more than three years after the plaintiff's fall.

9. I am not sure that this assertion is correct. Neither counsel really addressed about it. I note that section 18A is expressed not to apply to a cause of action to which division 6 of the NSW Limitation Act applies: section 18A(1)(c). Division 6 appears to have been inserted in the Act in 2002 and is expressed to apply to causes of action for damages for personal injury occurring after the commencement of the division, but not to a cause of action on a claim under the Motor Accidents Compensation Act 1999 (NSW). Counsel have not taken me to that Act or addressed the question of whether the plaintiff's cause of action arises under it for the purposes of division 6 of the Limitation Act. Division 4 of part 3 of the NSW Limitation Act deals with postponement of the bar in personal injury cases arising out of the 2002 amendments. Again, I have not been taken to that division, and have not had the benefit of submissions from counsel for either side as to whether the Court has a discretion to extend the limitation period. In these circumstances it seems to me that it might work unfairness to the plaintiff, if I were otherwise against him on the issues on which I have been addressed, if I were to dismiss the action, and that it would be preferable for me to deal with the matter at this stage by way of declaration, leaving it open to the plaintiff to make an application for an extension of time if so advised.

10. The defence also asserts that the plaintiff does not have a degree of permanent impairment of at least 15%, a condition under section 151H of the Workers Compensation Act 1987 (NSW) to the award of damages. The defendants rely on reports by a neurosurgeon and a psychiatrist, annexed to a solicitor's affidavit. Both medical practitioners express the view that when they examined the plaintiff he showed no evidence of permanent impairment. It does not seem to me that I should act on evidence of that kind in what is in effect a summary judgment application. The plaintiff has not gone into evidence on these issues, and it may be that the plaintiff will establish at trial the necessary percentage impairment, if section 151H is found to be applicable.

11. The defence also asserts that the plaintiff has failed to comply with notice requirements under the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

12. A complication arose after the filing of the defence. On 13 August 2007, the first defendant company was wound up, in a creditors' voluntary winding-up, and a liquidator was appointed. The liquidator completed the responsibilities of the winding-up some months later, and on 6 March 2008 the company was deregistered by the Australian Securities and Investments Commission under section 508 of the Corporations Act 2001 (Commonwealth). The effect of this was that the company ceased to exist. I accept that the solicitors on both sides, and the insurer, were unaware of this.

13. The solicitors for the plaintiff have made a formal application for an order that ASIC reinstate the registration of the company. ASIC has set out, in a letter of 15 April 2009, some comments which amount to conditions on which ASIC would not oppose the application for reinstatement. I took the view that the conditions would be somewhat onerous for the plaintiff and his solicitors, and that it was preferable to make orders which would permit the action to proceed against the insurer, as is permitted by section 601AG of the Corporations Act. I accordingly ordered that the insurer be joined as a defendant. As it now seems unlikely that the registration of the first defendant will ever be reinstated, it seems appropriate that the first defendant cease to be a party, but I shall hear counsel for the continuing parties before making any order to that effect.

14. Counsel for the plaintiff submitted that the substantive law which should be applied in the determination of the plaintiff's claim was that of the Australian Capital Territory. The plaintiff in an amended reply has pleaded as follows:

1. The jurisdiction in which the tort arose is the Australian Capital Territory.

(a) Duty of care owing by the defendant to the plaintiff extant in the Territory;

(b) Breach of duty, being denial of experienced manpower as pleaded at paragraphs 9 and 11 (denied by the defence) of the statement of claim occurred in the Australian Capital Territory;

(c) Damage occurred and continues to occur, inter alia, in this Territory.

15. The reference to paragraphs 9 and 11 of the statement of claim is to the plaintiff's telephone request from the house at Chapman to the employer to provide an experienced removalist to accompany him to Queensland, and to the refusal of that request.

16. I am not persuaded that the breach of duty which, on the plaintiff's case, caused his injury occurred during that telephone conversation. It is unnecessary for me to consider whether the communication of the refusal should be seen as having physically taken place at Queanbeyan in New South Wales or at Chapman in the Australian Capital Territory. If there was ever any doubt about it, it has been clear at least since the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503 that, for the purpose of determining the locus delicti in a personal injury claim, the tort takes place where the initial injury takes place. This is undoubtedly the case where the claim is for a frank injury which occurs at a single point in time, as is the case with the plaintiff's fall from the truck to the road surface.

17. It is unclear from the statement of claim whether the plaintiff asserts that a second and separate tort was committed by the first defendant in October 2003. It is probably enough to say that if that was a separate tort, it was committed at Queanbeyan in New South Wales and the substantive law of New South Wales will be applicable to the determination of the issues between the parties about it.

18. In John Pfeiffer, the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) expressly stated at 544 (paragraph 100) that the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance and not procedure and hence would be governed by the lex loci delicti. Further, their Honours stated that all questions about the kinds of damage, or amount of damages that might be recovered, would be treated as substantive issues governed by the lex loci delicti.

19. It follows that for the purposes of the present case, at least in respect of the plaintiff's fall from the truck, the substantive law of Queensland governs the limitation period and the assessment of damages.

20. It is then necessary to consider the effect of section 324 of the Queensland Workers Compensation and Rehabilitation Act, which I have set out above. The section is expressed to apply where compensation is payable under a State statutory workers' compensation scheme. There is evidence, in the form of annexures to an affidavit by the solicitor for the defendants, that an employee's report of injury form and an employer's report of injury form in respect of the plaintiff's fall from the truck were lodged with the insurer during August 2003. Whilst it is not strictly a matter of evidence, the plaintiff asserts in his statement of particulars that he received incapacity payments from the insurer for some period after lodgement of the claim, although I note that there is no specific Fox v Wood claim made in the statement of particulars. There is no evidence or assertion by the plaintiff that any of his treatment expenses were paid by the insurer. Nevertheless it seems to me that there is sufficient material for me to act on the basis, for the purpose of the present application at least, that compensation has been paid to the plaintiff under the statutory workers' compensation scheme in force in New South Wales.

21. Section 324 of the Queensland Act is self-evidently part of the substantive law of Queensland and accordingly must be applied to the present case. The effect of the section is that, derivatively from the substantive law of Queensland, the Court must apply the substantive law of New South Wales as the law governing whether or not a claim for damages can be made, and if it can, governing the determination of the claim.

22. This gives rise to the question whether a law imposing a limitation period can be said to be a law governing whether or not a claim for damages can be made. Patently the limitation law is not a law governing the determination of such a claim assuming that it can be made.

23. The expiry of a limitation period is a matter which must be pleaded by a defendant. If the defendant delivers a defence but does not plead the limitation point, the Court will not raise the issue of its own motion. Put another way, a plaintiff is not obliged to assert and prove as part of his or her claim that proceedings were commenced within the applicable limitation period. The onus to establish that they were not lies upon the defendant. In the circumstances it seems to me that a limitation law, whilst a substantive law, is not a law that governs whether or not a claim for damages in relation to an injury can be made. It is rather a law which prescribes the period within which proceedings upon such a claim may be instituted. Accordingly, it does not seem to me that section 324 of the Queensland Act displaces the applicable Queensland law as to limitation of actions. If the claim is statute-barred, it is statute-barred by the law of Queensland and not, as pleaded in paragraph 1.6 of the defence, by section 18A(2) of the Limitation Act 1969 (NSW).

24. For the reasons expressed by Spigelman CJ and Handley AJA in Hamilton v Merck & Co Inc [2006] NSWCA 55; (2006) 66 NSWLR 48 it seems to me that the defence pleaded in paragraph 1.7.2 of the defence, relating to the plaintiff's failure to file a pre-filing statement under section 315 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) must fail for the reason that the requirements of that section are procedural rather than substantive. This Court is required to apply the procedural law of the Australian Capital Territory in the determination of the plaintiff's claim: John Pfeiffer Pty Limited v Rogerson (supra).

25. Counsel have not taken me to any Queensland legislative provision imposing a limitation period upon a claim such as this, or conferring any discretion to extend any such period.

26. In the event, the plaintiff's argument that the law to be applied on the hearing of this action is the law of the Australian Capital Territory fails. The defendant's submission that the action is statute-barred by NSW legislation also fails.

27. It was necessary for these applications to be made because of the winding-up and subsequent deregistration of the first defendant. These events took place after the first defendant had been served and after a defence on its behalf had been entered. I would not have expected the solicitors for the parties to have found out about the deregistration any sooner then they did, and steps had to be taken either to reinstate the registration of the company or to join the insurer as a defendant.

28. The appropriate course is to declare that the substantive law to be applied in determining the plaintiff's claim is the substantive law of the State of Queensland, and to make a further declaration that the Limitation Act 1969 of the State of New South Wales is not a substantive law of that State that governs whether or not the plaintiff's claim for damages can be made, or, if it can be made, that governs the determination of the claim.

29. The defence will require amendment. The second defendant is to deliver a defence within 14 days. If the defence pleads the expiry of a limitation period, the plaintiff may apply within 14 days of service of the defence for an extension, if there is a power to extend and the plaintiff is so advised.

30. As it was necessary to bring the matter before the Court in any event by reason of the deregistration of the first defendant company, and as both sides have been unsuccessful in achieving what they set out to achieve on the substantive law and limitation points, I am minded to order that the costs of the applications before the Court be costs in the cause. I shall hear the parties further before making any orders about costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.