National Mutual Life Association of Australasia Limited v Chris Poulson Insurance Agencies Pty Ltd 28/1996; Giuriato v The Attorney-General & Anor 31/1997, followed.

ROBERT WILLIAM JONES v BASS EXPRESS SHIPS LIMITED and BRAMBLES AUSTRALIA LIMITED

By a writ filed on 18 April 1994, the plaintiff commenced proceedings against the defendant to recover damages for negligence and/or breach of contract and/or breach of duty. By his statement of claim, par2, the plaintiff alleged that at all material times he was employed by the defendant as a waterside worker at the port of Stanley. The statement of claim, pars6, 7 and 8, allege that in the course of his employment on 18 June 1991 the plaintiff was driving a forklift, that he slipped whilst climbing out of the forklift and that he thereby suffered personal injury, loss and damage. The statement of claim also alleges that the injuries were caused by the defendant's negligence, breach of contract and/or breach of duty. By its defence dated 6 July 1994, the defendant admits the allegation in the statement of claim, par2 that at all material times the plaintiff was employed by the defendant. However, by this application, brought pursuant to the Rules of Court, O31, r1, the defendant seeks leave to amend its defence by withdrawing the admission of employment and by denying the allegations in the statement of claim, par2.

It appears that on 25 June 1991, the plaintiff made a claim for workers compensation for injuries sustained during the course of his employment on 18 June 1991 when climbing down from a forklift truck. That claim was sent to the defendant or its insurer, Mercantile Mutual Limited. The claim for workers compensation was not disputed and weekly payments and other payments of compensation were made. There were proceedings between the plaintiff and the defendant in the Workers Compensation Tribunal and ultimately all claims of the plaintiff, pursuant to the provisions of the Workers Rehabilitation & Compensation Act 1988, were settled in August 1993, before the writ in these proceedings was issued.

Upon the commencement of these proceedings, the defendant's insurer instructed Mr Gunson to act on its behalf and sent him their complete file. Upon its perusal, Mr Gunson understood that there was no issue over the identity of the plaintiff's employer and, accordingly, the admission in the defence was made.

Prosecution of these proceedings appears to have been somewhat tardy. The plaintiff made discovery in October 1994 but there was no inspection of the plaintiff's documents until August 1996. Shortly prior to that date, Mr Gunson made a complete review of the insurer's file and in result entertained doubts that the plaintiff was the defendant's employee at the time of the alleged accident. Just what that material was, Mr Gunson is unable to say, but as a result of his doubts he delivered an amended defence to the plaintiff's solicitors on 12 July 1996. That document, par2, provided, "the Defendant does not admit paragraph 2 of the Statement of Claim". The proposed alteration from an admission to a denial was not highlighted nor was any reference made in the accompanying letter to the fact that the proposal was to withdraw the earlier admission. That document has no effect, of course, because leave of the court had not be obtained. As the proposed amendment involved the withdrawal of an admission, it was a clear case where leave would have to be sought. The plaintiff's solicitors did not respond to Mr Gunson's proposed amendment to the defence.

Upon inspection of the plaintiff's documents in August 1996, Mr Gunson discovered a termination of payment document and a cheque, both of which indicated that at the material time the plaintiff's wages were paid by an employer known as "National Steve Tasmania Pty Ltd for the Association of Employers of Waterside Labour". Material not before Mr Gunson in 1996, but which was tendered on this application, tends to prove that the plaintiff's wages were indeed paid by or on behalf of the Association of Employers of Waterside Labour. This organisation was a registered organisation under the Industrial Relations Act (Cth) but is now in liquidation. According to the affidavit of Mr Tremayne, sworn 17 March 1998, this organisation was a non-profit organisation designed to maintain a pool of labour to be hired out to stevedoring companies. The organisation allocated labour to stevedoring companies, paid the waterside workers, and subsequently billed the stevedoring companies to whom the labour was hired.

By this application, the defendant wishes to argue that it did not employ the plaintiff at the time of his alleged accident in 1991. There is evidence that tends to prove that the defendant did not pay the plaintiff's wages. Of course, payment or non-payment of wages is only one piece of evidence relevant to the issue of whether there was a master/servant relationship. Mr Gunson deposed that he had spoken to a Christina Wright, clerk of the defendant's insurer, who told him that ship owners did not supervise the waterside workers who were hired by the Association of Employers of Waterside Labour. She said that supervision was carried out by foremen and leading hands employed by the Association of Employers of Waterside Labour. Very little weight can be given to the statement made to Mr Gunson by the clerk in the insurance company office. It is certainly hearsay and most probably hearsay on hearsay. There was no direct evidence tendered on this application of the control (if any) that the defendant exercised over the plaintiff as he drove the forklift truck in the 18 June 1991. In answer to an interrogatory the plaintiff deposed that he was employed by the Association of Employers of Waterside Labour, but this is far from conclusive of the critical issue, for whether a person is an employee of another in circumstances that give rise to an employer's duty of care is a question of law to be determined upon all the relevant facts. There is strong circumstantial evidence that the plaintiff was an employee of the defendant on that day. It lies in the files of the defendant's insurer. That material shows that the defendant and the defendant's insurer, within the meaning of the Workers Rehabilitation & Compensation Act 1988, believed, stated and acted on the basis that the plaintiff was a worker within the meaning of that Act and consequently was an employee of the defendant as pleaded in the statement of claim, par2. Apart from the actual payment of workers compensation, there are letters and other documents written by the defendant and the insurer that describe the plaintiff as an employee of the defendant. That evidence is to be found, in part, in the annexures to the affidavit of Mr Tremayne, sworn on 2 October 1997, and read upon the hearing of this application.

The defendant submits that it should be allowed to withdraw its admission of employment and consequently put in issue that the defendant owed the plaintiff an employer's non-delegable duty of care. It does not contend that the evidence adduced on this application is such that I could conclude that no master/servant relationship existed. It contends that there is some evidence which indicates that such a relationship may well not have existed and therefore it should be permitted to put the relationship in issue.

This application should be granted if it is just between the parties to do so. The authorities are settled with respect to that, see Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738; National Mutual Life Association of Australasia Limited v Chris Poulson Insurance Agencies Pty Ltd 28/1996; Giuriato v The Attorney-General & Anor 31/1997.

I am very clearly of the view that in the circumstances of this case, it would not be just to permit the admission to be withdrawn. The application is made very late. The plaintiff has relied upon it for a long time. The defendant has known of the present state of affairs since 12 July 1996 but chose not to then make this application. By virtue of the effluxion of time, the plaintiff is now statute barred from commencing proceedings against any other defendant for damages arising out of an incident that occurred on 18 June 1991. Had the defendant made the application to withdraw the admission at the time it sent a proposed amended defence to the plaintiff's solicitors, this very significant prejudicial matter would not have existed. In the conduct of the plaintiff's claim for workers compensation, the defendant and its insurer accepted that there was a master/servant relationship between the parties and in view of the lateness of this application, the incurable prejudice to the plaintiff if the order sought is granted, and the lack of firm evidence that there was no master/servant relationship, the application should be refused. It is dismissed.