Percy v Central Control Financial Service Pty Ltd & Ors [2000] QSC 129

(1) that the statement of claim delivered on 16 June 1997 be amended by:

(a) amending paragraph 1 by deleting the words "is a plumber by trade" and inserting in their place the words "was at all material times a plumber trading in a partnership known as CW and SJ Percy trading as Percy's Plumbing Service;

(i) renumbering it (a) and (b) in accordance with paragraph 2 of the second amended statement of claim which is Exhibit DAB2 to the affidavit of David Anthony Bowen filed 9 February 2000; and

(ii) inserting the words "the Fourth Defendant", after the words "their agent" and before the words "NEIL LOUIS HARTLEY"; and

"In the alternative to the facts set forth in paragraph 2(b) herein, the Plaintiff says the Fourth Defendant requested the Plaintiff to perform certain work in relation to the said block of flats, including the placement of the corrugated iron roof sheeting thereof, and agreed to pay the Plaintiff an hourly rate for his labour and also an hourly rate for the labour of his employee."

(c) amending paragraph 3 by inserting the words "or in the alternative the Fourth Defendant" after the words "the First, Second and Third Defendants" wherever they appear.

(ii) inserting the words "or in the alternative the Fourth Defendant" after the words "the First, Second and Third Defendants"; and

"(b) Furthermore, the First Defendant, the Second Defendant and the Third Defendant or in the alternative the Fourth Defendant, owed the Plaintiff a duty of care in the carrying out of the tasks for which they were paying him an hourly rate for his labour to ensure that he was not exposed to a risk of injury arising from the nature of the work he was engaged to perform."

(i) inserting the words "or in the alternative the Fourth Defendant and furthermore were caused by the breach of duty on the part of the First, Second and Third Defendants or in the alternative the Fourth Defendant" after the words "First, Second and Third Defendants"; and

(ii) inserting the words "BREACH OF STATUTORY DUTY" after the words "particulars whereof are as follows"; and

(iii) deleting the number (a) in paragraph 6(a); and

(v) inserting after the words "did not contravene the provisions of the said Act", the words:

(i) failing to provide a safe system of work for the Plaintiff;

(ii) failing to provide a safe place of work for the Plaintiff;

(iii) failing to inspect or adequately inspect the workplace to ensure that it was free of risks and hazards for the Plaintiff in the carrying out of his labour;

(iv) failing to inspect or adequately inspect the workplace to ensure that it was safe for the use of the Plaintiff in the carrying out of the labour;

(v) failing to abide by the provisions of the Workplace Health and Safety Act 1989 and its attendant Regulations;

(vi) failing to warn the Plaintiff of the existence of a hazard or danger associated with walking on the timber structure of the roof and the batten;

(vii) failing to provide a system of planks or walkways or scaffolding for the Plaintiff's use whilst he was on the timber structure of the roof;

(viii) failing to instruct or adequately instruct the Plaintiff in the safe and proper means by which he was to carry out his labour on the premises;

(ix) failing to instruct, supervise, monitor and advise the Fifth Defendant in carrying out his allocation of tasks to the Plaintiff;

(x) failing to require the Plaintiff to provide for his own use and the use of his employee scaffolding or planks so as to enable them to walk safely upon the roof structure;

(xi) failing to supervise or properly supervise the conduct of the project by their contractors".

"The plaintiff claims the following relief: See "Schedule A" attached.

Interest on Past Griffiths -v- Kerkemeyer assistance @ 2% for 7 years

(2) Judgment should be entered in favour of the fifth defendant.

EMPLOYMENT LAW - BREACH OF STATUTORY DUTY - NEGLIGENCE - application for summary judgment by defendants - application by plaintiff for amendment of statement of claim - plaintiff injured at workplace while replacing roof sheeting - whether breach of s 23 Workplace Health and Safety Act 1989 gives rise to a private cause of action - whether amendments arise out of substantially similar facts.

Supreme Court of Queensland Act 1991 s 72, s 81

Uniform Civil Procedure Rules r 293, r 375, r 376, r 377

Workplace Health and Safety Act 1989 s 10, s 11, s 23

Workplace Health and Safety Regulation 1989 reg 12, reg 13

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, considered

Byrne v Australian Airlines Ltd (1995) 185 CLR 410, considered

Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36, considered

Draney v Barry [1999] QCA 491; CA No 11361 of 1998, 30 November 1999, applied

Finn v Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29, considered

Heil v Suncoast Fitness CA No 5199 of 1998, 15 December 1998, applied

Hosking v Pacific Partner P/L [1999] QCA 484; CA No 1939 of 1999, 26 November 1999, considered

John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218, considered

Mount Isa Mines Ltd v Peachey [1998] CA No 3072 of 1998, 1 December 1998, considered

O'Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, considered

Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832, considered

Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584, considered

Rogers v Brambles Australia Limited [1998] 1 Qd R 212, considered

Schiliro v Peppercorn Child Care Centres P/L [2000] QCA 18; CA No 9640 of 1998, 11 February 2000, applied

Schulz v Schmauser [2000] QCA 17; CA No 9022 of 1998, 11 February 2000, applied

Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397, considered

St Vincent's Hospital Toowoomba Ltd v Hardy CA No 7477 of 1997, 6 May 1998, considered

G T Riethmuller for the first, fourth and fifth defendants

Hope & Associates for the first, fourth and fifth defendants

Nehmer & McKee & Partners acting as Town Agents for Macrossan & Amiet for the second and third defendants

[1] ATKINSON J: This was the hearing of 2 interlocutory applications which were dealt with together. The first, fourth and fifth defendants applied for judgment for the defendants against the plaintiff pursuant to r 293 of the Uniform Civil Procedure Rules 1999 ("UCPR"). The plaintiff applied for leave to amend his statement of claim pursuant to rr 375 - 377 of the UCPR.

[2] The action in which these applications were made commenced when the writ of summons was filed by the plaintiff, Christopher William Percy, on 12 March 1996. The endorsement on the writ was a claim for "damages for personal injury for negligence and/or breach of statutory duty together with interest upon damages, and costs". However, the statement of claim which was delivered on 16 June 1997 pleaded liability based only on breach of statutory duty under the Workplace Health and Safety Act 1989 ("the 1989 Act"). That pleading was fully particularised and was settled by counsel. The claim for negligence endorsed on the writ was abandoned at that time by the failure to plead it in the statement of claim.[1]

[3] The statement of claim alleged that the plaintiff, a plumber, was injured in the course of carrying out work which he had agreed to perform for the first, second and third defendants, Central Control Financial Services Pty Ltd, John Barry Clark and Merilyn Margaret Clark and Mercia Therese Duncan, who were the registered proprietors of land on which a block of six flats was erected. The agreement was alleged to have been made between the plaintiff and the fourth defendant, Neil Louis Hartley, who was a director of the first defendant and acted as agent for the first, second and third defendants. The agreement was for the plaintiff to perform certain work including replacement of the corrugated iron roof sheeting for an hourly rate for himself and his employee.

[4] The plaintiff alleged that he suffered personal injuries on 15 March 1993 in the course of assisting the fifth defendant, Reginald John Sinnot, a carpenter engaged by the first, second and third defendants, who was carrying out repairs to the roof prior to the installation of new roofing sheets. While walking on the timber structure of the roof, the plaintiff, it was alleged, stepped on a batten which gave way beneath him as a result of which he fell to the ground.

[5] The plaintiff alleged that the workplace was a `project' within the meaning of the 1989 Act and that the first, second and third defendants as owners were the `principal contractor' within the meaning of s 18(1)(b) of the 1989 Act.

[6] The plaintiff further alleged in paragraph 5 of the statement of claim that pursuant to s 23 of the 1989 Act, the principal contractor was under a duty to ensure, save where not practicable, that every employer and every employee engaged in an occupation at a workplace complied with or did not contravene the provisions of the 1989 Act and to provide such safeguards and take such safety measures as prescribed under the 1989 Act. In paragraph 6 of the statement of claim, it is alleged that in breach of statutory duty the first, second and third defendants failed as principal contractor:

(a) to ensure that the fifth defendant and the plaintiff complied with or did not contravene the provisions of the 1989 Act; and (b) to provide instruction to the plaintiff with respect to health and safety including construction in relation to scaffolding relevant to the work to be performed by the plaintiff as required by reg 13 of the Workplace Health and Safety Regulation 1989 ("the Regulation").

[7] The plaintiff alleged in paragraph 7, further and in the alternative, that the defendants had control of the premises at all material times and were under a duty pursuant to s 10 and s 11 of the 1989 Act to ensure that the premises were safe. In breach of that duty, the defendants failed to ensure that the premises were safe by:

(a) failing to provide scaffolding or planks to enable the plaintiff to walk safely upon the roof structure; and (b) failing to require the plaintiff to provide for use for himself and his employee, scaffolding or planks so as to enable them to walk safely upon the roof structure.

[8] The amendments sought to the statement of claim include an amendment to paragraph 1 of the statement of claim so that instead of alleging that the plaintiff was a plumber by trade it alleges that he "was at all material times a plumber trading in a partnership know (sic) as CW and SJ Percy trading as Percy's Plumbing Service".

[9] Some additional facts are pleaded against the defendants but the principal new pleading is an allegation of negligence against the defendants. The plaintiff sought to amend paragraph 5 of the statement of claim which alleged that the first, second and third defendants owed a duty to the plaintiff under s 23 of the 1989 Act so that it was re-numbered as paragraph 5(a) and included a claim in the alternative against the fourth defendant. Furthermore he sought to add the following subparagraphs to paragraph 5:

"(b) Furthermore, the First Defendant, the Second Defendant and the Third Defendant or in the alternative the Fourth Defendant, owed the Plaintiff a duty of care in the carrying out of the tasks for which they were paying him an hourly rate for his labour to ensure that he was not exposed to a risk of injury arising from the nature of the work he was engaged to perform.

(c) At all material times to this action the Fifth Defendant provided directions to the Plaintiff and the Plaintiff's employee in the manner of carrying out the repairs to the roof structure.

(d) The Fifth Defendant owed the Plaintiff a duty of care not to expose the Plaintiff to risk of injury whilst he performed the labour."

[10] The plaintiff also sought leave to amend paragraph 6 of the statement of claim to plead breach of statutory duty in the alternative by the fourth defendant and to claim breach of duty by the first, second and third defendants or in the alternative, the fourth defendant. The particulars of breach of statutory duty were repeated but in addition the plaintiff pleaded the following particulars of negligence:

"(i) failing to provide a safe system of work for the Plaintiff;

(ii) failing to provide a safe place of work for the Plaintiff;

(iii) failing to inspect or adequately inspect the workplace to ensure that it was free of risks and hazards for the Plaintiff in the carrying out of his labour;

(iv) failing to inspect or adequately inspect the workplace to ensure that it was safe for the use of the Plaintiff in the carrying out of the labour;

(v) failing to abide by the provisions of the Workplace Health and Safety 1989 Act 1989 and its attendance (sic) Regulations, particularly the scaffolding regulation 13 of those Regulations;

(vi) failing to warn the Plaintiff of the existence of a hazard or danger associated with walking on the timber structure of the roof and the batten;

(vii) failing to provide a system of planks or walkways or scaffolding for the Plaintiff's use whilst he was on the timber structure of the roof;

(viii) failing to instruct or adequately instruct the Plaintiff in the safe and proper means by which he was to carry out his labour on the premises;

(ix) failing to instruct, supervise, monitor and advise the Fifth Defendant in carrying out his allocation of tasks to the Plaintiff;

(x) failing to require the Plaintiff to provide for his own use and the use of his employee scaffolding or planks so as to enable them to walk safely upon the roof structure;

(xi) failing to supervise or properly supervise the conduct of the project by their contractors".

[11] In addition the plaintiff sought leave to plead that the fifth defendant was in breach of duty in that he:

"(i) required the Plaintiff to walk on the timber structure of the roof;

(ii) failed to provide the Plaintiff with planks and/or scaffolding upon which to walk on the roof structure;

(iii) failed to warn or instruct or monitor the Plaintiff whilst he performed his labour;

(iv) failed to take steps to require the First Defendant, the Second Defendant, the Third Defendant or in the alternative the Fourth Defendant to provide a safe place of work and a safe system of work for the Plaintiff, including the provision of planks or scaffolding for the use of the Plaintiff whilst he performed his labour on the wooden roof structure."

[12] The pleading against all the defendants in paragraph 7 was to be limited to the first, second and third defendants or alternatively the fourth defendant. The only other relevant amendment sought was that the relief claimed was fully particularised in a schedule whereas previously the damages were at large. The damages claimed were to be in the amount of $774,430.00. There was no specific objection to that amendment.

[13] The amendments were said to be necessary because of a decision by the Court of Appeal delivered on 15 December 1998 in Heil v Suncoast Fitness[2], in which it was held that a breach of s 10 of the 1989 Act did not give rise to a private cause of action. A breach of s 10 did not give rise to an action for breach of statutory duty because the statute was not passed for the benefit of a class or section of the public but relates to the public at large as did ss 11-14. Section 9, it was held, was a clear exception which was so phrased as to indicate an intention to protect a particular class of persons whereas ss 10-14 appeared to be for the protection of anyone, whether employee or not, whose safety may be put at risk by the activities dealt with by the various sections. Rights of action based on the statutory duty of employees on the other hand appeared to the court to be in a special category.

[14] In this case the plaintiff relied in his original statement of claim on what are alleged to be breaches of s 10 and s 11, and s 23 of the 1989 Act.

[15] Section 9 of the 1989 Act deals with employers' duties to ensure the health and safety of their employees at work. A private right of action independent of negligence is inferred from this section[3] because it creates a duty intended to protect a specified class of persons, and the rights of a person within that class are alleged to have been infringed by breach of the section by a person whose conduct falls within the statutory prescription.

[16] Sections 10 and 11 of the 1989 Act, on the other hand, deal with the duty of employers, self-employed persons and persons in control of workplaces to ensure the health and safety of persons other than employees. This does not give rise to a private cause of action. So paragraphs 7 and 8 of the statement of claim which rely on a breach of those sections do not disclose a reasonable cause of action. They must therefore be struck out.

[17] The plaintiff also claims damages for breach of s 23 of the 1989 Act. Section 23 provides that the duties of a principal contractor are as follows:

"In respect of a project on which he is engaged, a principal contractor who -

(a) fails to ensure, except where it is not practicable for the principal contractor to do so, that every employer and every employee engaged in an occupation at a workplace complies with or, as the case may be, does not contravene the provisions of this Act; or

(b) fails to ensure the health and safety of members of the public on or near the workplace; or

(c) fails to provide such other safeguards and take other such safety measures as are prescribed;

[18] Regulation 12 of the Regulation sets out the safeguards and safety measures that are prescribed under s 23(c). It provides:

"12. For the purposes of section 23 of the Act, the following safeguards and safety measures are prescribed in respect of a project in relation to a building or structure on which a principal contractor is engaged -

(a) the provision of lighting in the workplace and areas giving access to the workplace;

(b) the provision of railings on stairs and landings and around floor and wall openings so as to secure safety;

(c) the provision of protection about the perimeter of floor areas;

(d) the provision of safe and protected means of entrance to the workplace and to every building or structure in the workplace;

(e) the provision of protection for members of the public on the workplace and every building or structure in the workplace;

(f) the maintenance of the workplace in a tidy condition;

(g) the provision of safeguards and the taking of precautions in respect of fire safety."

[19] A "project" is defined in s 6(1) of the 1989 Act to mean, subject to s 17(2) which is not here relevant:

"(a) a workplace (other than a ship or floating structure unless the ship or floating structure is in a dock or at a wharf or other place outside of the tidal influence) where any of the following classes of work are carried out - the construction, digging, filling, erection, installation, alteration, repair, maintenance, cleaning, painting, renewal, removal, dismantling or demolition of, or addition to, a building or structure; or

(b) any work, or any work of a kind or class, designated by the Director, under the provisions of this Act, to be a project."

A "workplace" is defined in s 6(1) to mean, inter alia, any premises where work is or is likely to be performed by employees or self-employed persons. It follows that the replacement of corrugated iron roof sheeting was work carried out at a workplace which was a project within the meaning of the 1989 Act.

[20] The project is not however a notifiable project of the type referred to in subparagraph (b) of the definition of "project": see also ss 19 - 21 of the 1989 Act. Therefore the duties referred to in reg 13 of the Regulation, which apply only to notifiable projects, do not apply as statutory duties in this case. As paragraph 6(b) of the statement of claim relies on a breach of reg 13, it must be struck out as not disclosing a cause of action. Neither can an allegation of a breach of reg 13 be added to particulars of negligence.[4]

[21] The owner of the project is the principal contractor unless another person has been appointed by the owner by notice in the Industrial Gazette.[5] There is no suggestion of any such appointment. It follows that the owners of the project, the first, second and third defendants, were the principal contractors for the purposes of the 1989 Act. It also follows that the first, second and third defendants (and the fourth defendant if he was acting as their agent) were subject to the duties found in s 23(a) and (c) of the Act.

[22] The question of whether a breach of such a duty gives rise to a private cause of action has not been authoritatively determined in Queensland. The Court of Appeal has recently held,[6] that s 9 of the 1989 Act gave rise to a private cause of action. The Court of Appeal has also held that a breach of s 28(1) of the Workplace Health and Safety Act 1995 (the 1995 Act), which is the equivalent of s 9 of the 1989 Act, gives rise to a civil cause of action.[7]

[23] An analysis of the decisions of the Court of Appeal gives some guidance as to the criteria to be applied in determining whether or not s 23(a) and (c) of the Act gives rise to a private right of action. The section is silent as to whether or not they give rise to a private cause of action.[8] It is not the law that because a statute creates an offence punishable by a penalty the statute is precluded from also creating a civil cause of action.[9] Accordingly whether or not the legislature intended to give rise to a private cause of action is a matter of inference from the construction of the section.[10]

[24] There are a number of factors the court will consider:

1. The historical legislative context.[11]

If the legislation replaces legislation which gave rise to a private cause of action without any intention expressed by the legislature to abolish such a cause of action,[12] this may lead more readily to the inference that the legislation was intended to give rise to a private cause of action. It is significant if a civil cause of action is specifically excluded in similar legislation in other jurisdictions, but is not excluded in the legislation under consideration.[13]

2. Benefit of a particular class of the public.[14]

There must be some limitation on the group to whom the duty is owed.[15]

Rights of action based on a statutory duty to employees are in a special category.[16] Legislation directed at employee safety is generally considered as giving rise to a correlative private right unless the scope of the legislation suggests otherwise.[17] The legislation may be restricted to a specific place such as a workplace.[18]

Generally expressed statutory duties can give rise to a cause of action.[19] Usually however the right to a private cause of action will be more readily implied where there is a duty to take a specific precaution for the safety of others, not just a duty to act safely.[20] Generality of expression is a relevant factor, although not decisive.[21]

If the statute refers to a duty of care, it is likely to be interpreted as being intended to reinforce or supplement the common law duty of care.[22] The duty found under statute is not exactly the same as under the common law.[23] Negligence need not be established.[24] However, there should be a causal connection between an act or omission on the part of the tortfeasor and the injury.[25] The language may suggest limitations on liability, such as practicability.[26] The use of the language of duty will suggest the section creates a civil cause of action.[27]

[25] In this case, the historical legislative context suggests that a private cause of action is intended. The 1989 Act replaced legislation which included the Construction Safety Act 1971. Construction safety provisions traditionally conferred on employees and imposed on employers a private right of action.[28] Section 23(a) and (c) of the Act are in similar terms to the construction safety legislation.[29] There is no expression of any intention to abolish that cause of action.

[26] Section 23(b) is for the benefit of members of the public on or near a workplace whereas s 23(a) deals with the duty of principal contractors towards employers and employees engaged in an occupation at a workplace. Although s 23(c) is in general terms, reg 12 shows that the duty is owed in relation to safeguards and safety measures at the workplace. When read with s 23(a) it relates to those who are employers and employees engaged in an occupation at a workplace.

[27] The section is cast in the language of duty and is in similar terms to s 9 of the 1989 Act which, as it has been held, gives rise to a private cause of action. In the 1995 Act, the equivalent provision to s 9, which is s 28, is in very similar terms to s 31(1), which is the equivalent provision to s 23(a) of the 1989 Act. The limitation of liability in relation to practicability is found in s 23(a).

[28] In all of the circumstances, the language, history and policy of s 23(a) and (c) of the 1989 Act demonstrate an intention to add an action for breach of statutory duty to the common law duty of care in the interests of employee safety.[30]

[29] The defendants have applied for summary judgment under r 293 of the UCPR which provides:

293(1) The defendant may at any time apply to the court under this part for judgment.

(2) Also, the court may give any judgment or make any other order the court considers appropriate if satisfied -

(b) the proceeding is frivolous, vexatious or an abuse of the process of the court; or

(c) the defendant has a defence to the proceeding."

[30] It follows from the reasons given that paragraphs 6(b), 7 and 8 of the statement of claim delivered on 16 June 1997 do not disclose a reasonable cause of action but as the statement of claim pleads a breach of s 23 of the 1989 Act against the first, second and third defendants, judgment should not be entered in their favour. Whether or not judgment should be entered in favour of the fourth and fifth defendants depends on whether the plaintiff should be allowed to amend his statement of claim.

[31] The power to amend and the relevant rules and procedures governing amendment are found in rr 375-377 of the UCPR which provide as follows:

375 (1) At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or a document in a proceeding in the way and on the conditions the court considers appropriate.

(2) Subject to rule 376, the court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.

376 (1) This rule applies if, in a proceeding, an application for leave to make an amendment is made after the end of a relevant period of limitation current at the date the proceeding was started.

(4) The court may give leave to make an amendment, even if the effect of the amendment is to include a new cause of action, if -

(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

(5) This rule does not limit the court's powers under rule 375.

377 (1) An originating process may not be amended except -

(a) if the amendment is a technical matter - with the leave of the registrar or the court; or

(2) Subrule (1) does not apply to a pleading or particular included in an originating process."

[32] The problem facing the plaintiff in seeking such amendments is that insofar as they plead a new cause of action against any of the defendants, they are sought to be made after the end of the relevant limitation period. They are accordingly governed by r 375 and r 376(1), (4) and (5) of the UCPR. The power to make such an order is also found in s 81 of the Supreme Court of Queensland Act 1991 which provides:

"81 (1) This section applies to an amendment of a claim, anything written on a claim, pleadings, an application or another document in a proceeding.

(2) The court may order an amendment to be made, or grant leave to a party to make an amendment, even though -

(a) the amendment will include or substitute a cause of action or add a new party; or

(b) the cause of action included or substituted arose after the proceeding was started; or

(c) a relevant period of limitation, current when the proceeding was started, has ended.

(3) This section applies despite the Limitation of Actions Act 1974."

Although this section is found in an Act which apparently deals with the Supreme Court, this power is also given to the Magistrates and District Courts.[31] It is a separate head of power which is complimentary to the exercise of the power as set out in r 375 and r 376. As Pincus JA, with whom McMurdo P agreed[32], held in Draney v Barry[33]:

". . . when applications do not pass the test set out in r 376(4)(b) the court has a general discretion under s 81 of the Supreme Court of Queensland Act 1991 to add a cause of action out of time. In exercising that discretion, the court should have regard to the fact that the effect of adding a new cause of action out of time is equivalent to an evasion of the provisions of the Limitation of Actions Act 1974, so some adequate ground will be required, in order to justify such an amendment. Since the discretion given by s 81 is not, however, the subject of any express limitation, it appears to me that the court must always have a discretion to add a cause of action out of time where the interests of justice demand that."

This is consistent with r 376(5) which also provides for an unfettered discretion.

[33] There is no doubt that the amendments sought plead a new cause of action. The next question is do they arise out of the same facts or substantially the same facts. The need to prove some additional facts is not necessarily fatal to a favourable exercise of power. The test is whether the additional facts arise out of the same story.[34] In my view the facts sought to be pleaded in the proposed amended statement of claim do arise out of substantially the same facts with regard to the first, second and third defendants. The first, second and third defendants have always had breach of statutory duty pleaded against them. The factual basis of that pleading was substantially the same as the facts pleaded in support of the negligence claim.

[34] The original claim against the fourth defendant was that he acted as agent for the first, second, and third defendants in entering into an agreement with the plaintiff to perform the work in question and that he was in breach of his duty (along with the other defendants) pursuant to s 10 and s 11 of the 1989 Act to ensure that the premises were safe by failing to provide or requiring the plaintiff to provide scaffolding or planks to enable the plaintiff to walk safely upon the roof structure. The new cause of action sought to be pleaded against the fourth defendant arises out of the same story. The facts sought to be pleaded in the proposed amendments are substantially the same as the facts already pleaded.

[35] The situation is rather different however with regard to the fifth defendant. The original pleading against him was merely that the plaintiff was assisting the fifth defendant, a carpenter who had been engaged by the first, second and third defendants and who was carrying out repairs to the roof structure prior to the installation of the new roofing sheets and that he was in breach of s 10 and s 11 of the 1989 Act. The amended pleading relies on facts which are similar but not substantially similar. For example, the plaintiff has sought to plead for the first time in the amended statement of claim that the fifth defendant provided directions to the plaintiff and the plaintiff's employee in the manner of carrying out the repairs to the roof structure. I do not believe it would be appropriate or just in these circumstances to allow the plaintiff to plead a new cause of action against the fifth defendant. In my view, this amendment would fall outside those allowed by r 376(4) or (5) of the UCPR or s 81 of the Supreme Court of Queensland Act 1991.

[36] The exercise of discretion in favour of an applicant for an amendment requires the judge to consider any prejudice which may be suffered by the other parties by allowing the amendment. The prejudice may be palpable or may exist without either of the parties being able to point to it.[35] Here the defendants complain of prejudice through the loss of tangible evidence as well as the inevitable fading of memory. In particular, the fourth defendant says that the batten that was broken is not in the possession of the first or fourth defendants. This batten was, however, referred to in the original pleading. The fourth defendant says he kept diaries during 1992 and 1993 which he no longer has and that he does not know the whereabouts of a person who was working on the premises at the relevant time. The first and fourth defendants say that they are unable to bring an action against CW and SJ Percy trading as Percy's Plumbing Service. That complaint is without merit as they are entitled to defend the claim made against them by the plaintiff who was a member of that partnership. They are entitled to file an amended defence if leave is given to amend the statement of claim. There is in my view no additional prejudice caused by the addition of the new cause of action which became necessary after the clarification of the liability for breach of statutory duty by the Court of Appeal in Heil, Schulz and Schiliro. There is no reason not to exercise my discretion in favour of allowing most of the amendments sought against the first, second, third and fourth defendants. I would not, however, allow the amendments sought to be pleaded against the fifth defendant.

(1) that the statement of claim delivered on 16 June 1997 be amended by:

(a) amending paragraph 1 by deleting the words "is a plumber by trade" and inserting in their place the words "was at all material times a plumber trading in a partnership known as CW and SJ Percy trading as Percy's Plumbing Service;

(i) renumbering it (a) and (b) in accordance with paragraph 2 of the second amended statement of claim which is Exhibit DAB2 to the affidavit of David Anthony Bowen filed 9 February 2000; and

(ii) inserting the words "the Fourth Defendant", after the words "their agent" and before the words "NEIL LOUIS HARTLEY"; and

"In the alternative to the facts set forth in paragraph 2(b) herein, the Plaintiff says the Fourth Defendant requested the Plaintiff to perform certain work in relation to the said block of flats, including the placement of the corrugated iron roof sheeting thereof, and agreed to pay the Plaintiff an hourly rate for his labour and also an hourly rate for the labour of his employee."

(c) amending paragraph 3 by inserting the words "or in the alternative the Fourth Defendant" after the words "the First, Second and Third Defendants" wherever they appear.

(ii) inserting the words "or in the alternative the Fourth Defendant" after the words "the First, Second and Third Defendants"; and

"(b) Furthermore, the First Defendant, the Second Defendant and the Third Defendant or in the alternative the Fourth Defendant, owed the Plaintiff a duty of care in the carrying out of the tasks for which they were paying him an hourly rate for his labour to ensure that he was not exposed to a risk of injury arising from the nature of the work he was engaged to perform."

(i) inserting the words "or in the alternative the Fourth Defendant and furthermore were caused by the breach of duty on the part of the First, Second and Third Defendants or in the alternative the Fourth Defendant" after the words "First, Second and Third Defendants"; and

(ii) inserting the words "BREACH OF STATUTORY DUTY" after the words "particulars whereof are as follows"; and

(iii) deleting the number (a) in paragraph 6(a); and

(v) inserting after the words "did not contravene the provisions of the said Act", the words:

(i) failing to provide a safe system of work for the Plaintiff;

(ii) failing to provide a safe place of work for the Plaintiff;

(iii) failing to inspect or adequately inspect the workplace to ensure that it was free of risks and hazards for the Plaintiff in the carrying out of his labour;

(iv) failing to inspect or adequately inspect the workplace to ensure that it was safe for the use of the Plaintiff in the carrying out of the labour;

(v) failing to abide by the provisions of the Workplace Health and Safety Act 1989 and its attendant Regulations;

(vi) failing to warn the Plaintiff of the existence of a hazard or danger associated with walking on the timber structure of the roof and the batten;

(vii) failing to provide a system of planks or walkways or scaffolding for the Plaintiff's use whilst he was on the timber structure of the roof;

(viii) failing to instruct or adequately instruct the Plaintiff in the safe and proper means by which he was to carry out his labour on the premises;

(ix) failing to instruct, supervise, monitor and advise the Fifth Defendant in carrying out his allocation of tasks to the Plaintiff;

(x) failing to require the Plaintiff to provide for his own use and the use of his employee scaffolding or planks so as to enable them to walk safely upon the roof structure;

(xi) failing to supervise or properly supervise the conduct of the project by their contractors".

"The plaintiff claims the following relief: See "Schedule A" attached.

Interest on Past Griffiths -v- Kerkemeyer assistance @ 2% for 7 years

(2) Judgment should be entered in favour of the fifth defendant.

[38] I will hear argument as to costs and direct that any further submissions as to costs to be delivered to my chambers by facsimile within seven days of the publication of these reasons.

[1] Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584 at 609 per Owen J.

[2] CA No 5199 of 1998, 15 December 1998.

[3] Schiliro v Peppercorn Child Care Centres P/L [2000] QCA 18; CA No 9640 of 1998, 11 February 2000; Schulz v Schmauser [2000] QCA 17; CA No 9022 of 1998, 11 February 2000 per McMurdo P and Pincus JA; Rogers v Brambles Australia Limited [1998] 1 Qd R 212.

[4] See subparagraph (v) of the amendment sought to paragraph 6 of the statement of claim.

[6] Schulz v Schmauser (supra); Schiliro v Peppercorn Child Care Centres (supra) at [17] - [18]. Prior to that case, the question had been left open in Finn v Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29 at 40 but the proposition had been assumed to be correct in Rogers v Brambles Australia Ltd (supra) at 217, 222, St Vincent's Hospital Toowoomba Ltd v Hardy CA No 7477 of 1997, 6 May 1998 at 3 and Mount Isa Mines Ltd v Peachey [1998] CA No 3072 of 1998, 1 December 1998; see Hosking v Pacific Partner P/L [1999] QCA 484; CA No 1939 of 1999, 26 November 1999 at [8] per Davies JA.

[7] Schiliro v Peppercorn Child Care Centres P/L (supra).

[8] Schulz v Schmauser (supra) per McMurdo P at [3] - [5].

[9] Schiliro v Peppercorn Child Care Centres P/L (supra) at [19].

[10] Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405; Schiliro v Peppercorn Child Care Centres P/L (supra) at [10] - [11]; Heil v Suncoast Fitness (supra) at [10].

[11] Schiliro v Peppercorn Child Care Centres P/L (supra) at [23].

[12] Schulz v Schmauser (supra) per McMurdo P at [6] - [9]; Schiliro v Peppercorn Child Care Centres P/L (supra) at [13].

[13] Schulz v Schmauser (supra) per McMurdo P at [11]; Schiliro v Peppercorn Child Care Centres P/L (supra) at [14], [26] .

[14] Schulz v Schmauser (supra) per McMurdo P at [10]; Schiliro v Peppercorn Child Care Centres P/L (supra) at [12], [28]; Heil v Suncoast Fitness (supra) at [10], [12] .

[15] Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 840; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 424; Heil v Suncoast Fitness (supra) at [13].

[16] Heil v Suncoast Fitness (supra) at [14].

[17] Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36 at 52; Schulz v Schmauser (supra) per McMurdo P at [11]; Schiliro v Peppercorn Child Care Centres P/L (supra) at [23].

[18] Cf Heil v Suncoast Fitness (supra) at [16].

[19] Schulz v Schmauser (supra) per Pincus JA at [32] - [34] ; cf per Douglas J at [41] - [42].

[20] Heil v Suncoast Fitness (supra) at [10], [12]; O'Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 478, 478; John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218 at 243; Byrne v Australian Airlines Ltd (supra) at 424.

[21] Schiliro v Peppercorn Child Care Centres P/L (supra) at [20] - [23].

[22] Schulz v Schmauser (supra) per Pincus JA at [25]; Schiliro v Peppercorn Child Care Centres P/L (supra) at [15] - [16].

[23] Schulz v Schmauser (supra) per Pincus JA at [31].

[24] Schiliro v Peppercorn Child Care Centres P/L (supra) at [18].

[25] Schulz v Schmauser (supra) per Pincus JA at [25].

[26] Schulz v Schmauser (supra) per Pincus JA at [26] - [27]; Schiliro v Peppercorn Child Care Centres P/L (supra) at [18], [23].

[27] Schiliro v Peppercorn Child Care Centres P/L (supra) at [23].

[28] Glass, HH, McHugh, MH, Douglas FM, The Liability of Employers in Damages for Personal Injury 2nd ed, 1979 Law Book Company, Chapter 11.

[29] See, for example, Construction Safety Act 1971 s 20(a).

[30] viz Schulz v Schmauser (supra) per McMurdo P at [11].

[31] Supreme Court of Queensland Act 1991 s 72, Schedule 2 - Dictionary.

[32] Draney v Barry [1999] QCA 491; CA No 11361 of 1998, 30 November 1999 at [2].

[34] Draney v Barry (supra) per McMurdo P at [4] and per Thomas JA at [57].

[35] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551 per McHugh J.