Plumb v State of Queensland [2000] QCA 258

Maurice Blackburn Cashman Lawyers for the respondent

[1] McMURDO P: I have read the reasons for judgment of Moynihan J and agree generally with them.

[2] This is an application for leave to appeal from a decision of the District Court dismissing the applicant defendant's application to strike out the respondent plaintiff's claim or pleadings. I shall refer to the parties as "defendant" and "plaintiff" respectively.

[3] Mr R Douglas SC, who appears for the defendant submits that the plaintiff must plead the relevant matters set out in s 312 WorkCover Queensland Act 1996 ("the Act"); merely repeating the relevant words of s 312(1)(a)-(i) as they apply to the case may be sufficient compliance, provided that elsewhere in the statement of claim the facts relied upon are also pleaded. I will not set out the section, presuming the reader has access to it.

[4] It is difficult to understand why a repetition of this formula of words would be necessary to save the plaintiff's pleading. The plaintiff's cause of action can be established independently of s 312.[1] Although s 312 forms no part of the plaintiff's cause of action, the section places the onus of proof on the plaintiff to establish the matters set out in s 312(1)(a)[2], s 312(1)(b)[3] and s 312(1)(c)-(i).[4]

[5] In Banque Commerciale SA en Liquidation v Akhil Holdings Ltd,[5] Mason CJ and Gaudron J noted:

"The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liq) per Isaacs and Rich JJ. In this way pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting a case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness."[6]

[6] The pleadings make clear that the plaintiff was injured in his work for the defendant as a gardener loading a ride-on lawn mower onto a trailer; his left foot became entangled in the left side pedal arrangement and he was injured. The particulars of the negligence pleaded are:

"(a) Requiring the Plaintiff to carry out the duties described in paragraph 2 thereby exposing him to the risk of injury;

(b) Failing to provide the Plaintiff with any or any adequate training as to the risks involved in his duties;

(d) Failing to take reasonable care for the Plaintiff's safety;

(e) Failing to provide the Plaintiff with work boots;

(f) Failing to respond to a written complaint by the Plaintiff dated 27 March 1997 concerning problems in safely loading the mower onto the trailer;

(g) Requiring the Plaintiff to perform an manoeuvre which was inherently dangerous;

(h) Failing to provide a trailer which was appropriate for loading the mower;

(i) Failing to provide any ramps with which to load the mower onto the trailer;

(j) Modifying the trailer by attaching a cage which prevented the mower from being loaded safely."

[7] If the matter proceeds to trial, the plaintiff must establish that these pleadings sufficiently set out the facts upon which the plaintiff relies so that the defendant understands the case it must meet. Subject to the granting of any adjournment, if the plaintiff fails to prove the matter set out in s 312(1)(b) and, if relevant, the matter set out in s 312(1)(a) the court must dismiss the claim; if the plaintiff fails to prove any of the matters set out in s 312(1)(c)-(i), the court must either dismiss the claim or reduce the plaintiff's damages.

[8] Certainly the pleadings in this case could be better expressed to more clearly deal with the consequences of s 312, but the facts pleaded appear to sufficiently set out the case the defendant must meet. Neither s 312 nor the Uniform Civil Procedure Rules appear to provide any other justification in this case for striking out the pleadings or the action.

[9] An application for leave to appeal from an interlocutory judgment will commonly be refused unless it appears that the decision from which it is sought to appeal is attended with sufficient doubt to warrant its being reconsidered and also that, supposing the decision below to be wrong, substantial injustice would result if leave were refused: Westpac Banking Corporation v Klef Pty Ltd.[7] The primary judge's ruling appears to be correct; supposing it to be wrong there can be no injustice in having the facts and issues determined at trial according to law. The defendant has not made out any grounds to justify the granting of leave to appeal.

[10] I would refuse the application and order the defendant pay the plaintiff's costs to be assessed.

[11] DAVIES JA: This is an application for leave to appeal from an order of a District Court judge refusing to strike out a statement of claim by a claimant against his employer within the meaning of the WorkCover Queensland Act 1996. I have had the advantage of reading the reasons for judgment of both the President and Moynihan J. I agree with them that the decision of the learned primary judge was correct. However as both my reasons for that conclusion and the orders which I would consequently make differ from theirs I shall state my reasons fully.

[12] If this application were granted the appeal would raise an important question of law; whether and if so the extent to which Chapter 5, Part 8 of the Act alters the rules of pleading; in particular, whether it requires a claimant, in effect, to plead matters stated in s 312. Counsel agreed that, if leave were granted, the hearing should be treated as the hearing of the appeal, neither having any further argument to add on the substantive question. For the reason already mentioned the matter is, in my view, one in respect of which this Court should grant leave and I would accordingly grant it. The more difficult question is whether the appeal ought to succeed.

[13] The statement of claim alleged that the plaintiff, whom I shall hereafter refer to as the claimant in order to conform with the relevant provisions of the Act, was employed by the defendant (the "employer") as a gardener. It alleged that, on 10 April 1997 he was required to load a ride-on mower onto a trailer which had attached to it a metal cage structure. It alleged that, whilst the claimant was attempting to load the mower onto the trailer, his left foot became entangled in the left side pedal arrangement in consequence of which he sustained injury. It alleged some consequences of that injury and then, more importantly, alleged that those injuries were caused by the negligence of the defendant particulars of which were alleged to be:

"(a) Requiring the Plaintiff to carry out the duties [of loading the mower onto the trailer] thereby exposing him to the risk of injury;

(b) Failing to provide the Plaintiff with any or any adequate training as to the risks involved in his duties;

(d) Failing to take reasonable care for the Plaintiff's safety;

(e) Failing to provide the Plaintiff with work boots;

(f) Failing to respond to a written complaint by the Plaintiff dated 27 March 1997 concerning problems in safely loading the mower onto the trailer;

(g) Requiring the Plaintiff to perform a manoeuvre which was inherently dangerous;

(h) Failing to provide a trailer which was appropriate for loading the mower;

(i) Failing to provide any ramps with which to load the mower onto the trailer;

(j) Modifying the trailer by attaching the cage which prevented the mower from being loaded safely."

Some of these allegations are plainly not particulars of negligence and others may be inadequate. However no question of the adequacy of the pleading, other than that which is said to arise in consequence of Chapter 5, Part 8 of the Act, was argued by the applicant.

[14] The sole question is whether s 312 of the Act rendered that pleading so inadequate that it ought to have been struck out. It is necessary to set that section out in full.

"312(1) [Liability restricted] In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim -

(a) that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of events that were reasonably readily foreseeable;

(b) that the actual and direct event giving rise to the worker's injury was actually foreseen or reasonably readily foreseeable by the employer;

(c) that the worker did not know and had no reasonable means of knowing that the actual and direct event giving rise to the injury might happen;

(d) that the injury sustained by the worker did not arise out of a relevant failure of the worker to inform the employer of the possibility of the event giving rise to the injury happening, in circumstances in which the employer neither knew nor reasonably had the means of knowing of the possibility;

(e) that the worker did everything reasonably possible to avoid sustaining the injury;

(f) that the event giving rise to the worker's injury was not solely as a result of inattention, momentary or otherwise, on the worker's part;

(g) that the injury sustained by the worker did not arise out of a relevant failure of the worker to use all the protective clothing and equipment provided, or provided for, by the employer and in the way instructed by the employer;

(h) that the worker did not relevantly fail to inform the employer of any unsafe plant or equipment as soon as practicable after the worker's discovery and relevant knowledge of the unsafe nature of the plant or equipment;

(i) that the worker did not inappropriately interfere with or misuse or fail to use anything provided that was designed to reduce the worker's exposure to risk of injury.

312(2) [Safe system] If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove the matter mentioned in subsection (1)(a), the court must dismiss the claim.

312(3) [Foreseeability] If the claimant fails to prove the matter mentioned in subsection (1)(b), the court must dismiss the claim.

312(4) [Other matters mentioned] If the claimant fails to prove any of the matters mentioned in subsection (1)(c) to (i), the court must -

(b) reduce the claimant's damages on the basis that the worker substantially contributed to the worker's injury.

312(5) [Other matters] In deciding whether a worker has been guilty of completely causative or contributory negligence, the court is not confined to a consideration of and reliance on the matters mentioned in subsection (1)(c) to (i)."

[15] It can be seen that s 312(1) does no more than require courts to "have regard", in deciding whether a claimant is entitled to recover any damages, or damages not reduced by contributory negligence, to whether he or she has proved such of a number of matters as may be relevant to his or her claim. The matters are then set out in no particular order; paragraphs (a), (b) and (f) appear to relate solely to the question of negligence of the employer whilst paragraphs (c), (d), (e), (g), (h) and (i) appear to relate solely to the question of contributory negligence of the worker. But the subsection imposes no obligation on the claimant.

[16] The consequences of a claimant failing to prove such of those matters as may be relevant are stated in s 312(2), s 312(3) and s 312(4). As appears from s 312(2), the matter mentioned in s 312(1)(a) has a relevant consequence only where the claimant relies exclusively on a failure by the employer to provide a safe system of work. Thus s 312(2) appears to assume a pleading alleging a failure to provide a safe system of work but no other allegation of negligence against the employer and, in that event only, requires the claimant to prove that the employer had made no genuine and reasonable attempt to put in place an appropriate system to guard the worker against injury arising out of reasonably readily foreseeable events. As it appears here that the claimant has not relied exclusively on a failure by the employer to provide a safe system of work it is unnecessary to consider whether s 312(2) in any way alters the common law. However that depends on whether the foreseeability test stated in s 312(1)(a) is narrower than the common law test, a question which I shall discuss with reference to s 312(3).

[17] Section 312(3) appears to require dismissal of a claim in every case in which a claimant fails to prove that "the actual and direct event" giving rise to the claimant's injury was at least "reasonably readily foreseeable" by the employer. A question arises here as to whether that requirement states a foreseeability test which is narrower than that required by the common law.

[18] At common law a negligent defendant is liable for any injury of the kind which was reasonably foreseeable as a result of his or her negligence; it is not necessary for the plaintiff to prove that the defendant should have envisaged the precise circumstances in which the injury occurred.[8] It is not clear whether, in this respect, s 312(1)(b) and s 312(3) are together intended to alter the common law. The "actual and direct event" may be described widely or narrowly. Examples of each may be given by reference to the present case. On a wider view it might mean the loading of the mower onto the trailer. On a narrower view it might mean the entangling of the claimant's left foot in the pedal arrangement of the mower. If the latter is the correct view then these provisions will make a claimant's task very much more difficult, possibly precluding recovery in many cases, because the precise circumstances in which an accident may occur are innumerable and some of them are unlikely to be foreseeable. However the phrase "the actual and direct event giving rise to the injury" also occurs in s 312(1)(c) and a similar phrase "the event giving rise to the injury" occurs in s 312(1)(d) and s 312(1)(f). In the context of each of those provisions only the narrower view would make much sense.[9] It seems likely therefore that the combined effect of s 312(1(b) and s 312(3) is to alter the common law test with respect to foreseeability.

[19] It does not follow from this, however that the matter stated in s 312(1)(b) should be pleaded by a claimant. On the contrary, it is not necessary to plead foreseeability of damage; rather it is to plead facts from which that may be inferred.[10] It was accepted by counsel for the applicant in this Court that the statement of claim here was in the form in which such actions are ordinarily pleaded. It may be that foreseeability of the employer of this actual and direct event, the entangling of the claimant's foot in the pedal arrangement of the mower, cannot be inferred from the facts pleaded in the statement of claim but that question was not argued in this Court.

[20] The phrase "any of the matters mentioned in subsection (1)(c) to (i)" in s 312(4) plainly means a reference to such of those matters as are relevant to the claim; see the opening words of s 312(1). That that is so is clear enough from the fact that some of the matters contained in those paragraphs will not be relevant to every claim. For example paragraph (g) would arise only where there was a question as to whether the claimant had relevantly failed to use all of the protective clothing or equipment provided or provided for by the employer and in the way instructed by it; paragraph (h) would apply only where there was some question as to unsafe plant or equipment; and paragraph (i) would apply only where there was some question as to whether the worker had misused or failed to use something provided to him, designed to reduce his exposure to risk of injury.

[21] More relevantly for present purposes, for there to be any issue in respect of some of the matters contained in those paragraphs there would ordinarily need to be an allegation by the employer of a relevant act or omission by the claimant; paragraph (g) is the most obvious example but paragraph (d), paragraph (h) and paragraph (i) are other possible examples. This leads me to conclude that s 312(4) was not intended to alter the rules of pleading though it does reverse the onus of proof on some matters of contributory negligence once they are properly raised by the employer. It is unnecessary to determine whether that subsection alters the common law in other respects.

[22] The result is, in my opinion, that nothing in s 312 required the making of any further allegation in the claimant's statement of claim and the learned primary judge was therefore correct in refusing the application to strike it out. I would therefore allow the application for leave but dismiss the appeal with costs.

[23] MOYNIHAN J: The defendant seeks leave to appeal from a order of the District Court refusing its application to strike out the plaintiff's claim for non-compliance with s 312 of the WorkCover Queensland Act 1996.

[24] Neither s 312 nor the Act expressly provides for striking out on the basis of non-compliance. The application seems to have been dealt with in the District Court as an application to strike out the plaintiff's statement of claim on the basis that it disclosed no reasonable cause of action.

[25] The application was brought in an action where the plaintiff sued the defendant for breach of its duty as an employer to take reasonable care that the plaintiff would not be injured in the course of his employment. Section 312 aside, it was not contended the statement of claim failed to plead the essential elements of that cause of action or perhaps that the non-compliance made the pleading frivolous or vexatious.

[26] The defendant did not submit that s 312 introduced additional essential elements to the plaintiff's cause of action but accepted that it did not "engraft additional elements" on the cause of action.

[27] It is simpler to set s 312 out rather than attempt to paraphrase or summarise it.

"Section 312 Liability of Employers and Workers

312(1) [Liability restricted] In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim -

(a) that the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the workers against injury arising out of events that were reasonably readily foreseeable;

(b) that the actual and direct event giving rise to the worker's injury was actually foreseen or reasonably readily foreseeable by the employer;

(c) that the worker did not know and had no reasonable means of knowing that the actual and direct event giving rise to the injury might happen;

(d) that the injury sustained by the worker did not arise out of a relevant failure of the worker to inform the employer of the possibility of the event giving rise to the injury happening, in circumstances in which the employer neither knew nor reasonably had the means of knowing of the possibility;

(e) that the worker did everything reasonably possible to avoid sustaining the injury;

(f) that the event giving rise to the worker's injury was not solely as a result of inattention, momentary or otherwise, on the worker's part;

(g) that the injury sustained by the worker did not arise out a relevant failure of the worker to use all the protective clothing and equipment provided, or provided for, by the employer and in the way instructed by the employer;

(h) that the worker did not relevantly fail to inform the employer of any unsafe plant or equipment as soon as practicable after the worker's discovery and relevant knowledge of the unsafe nature of the plant or equipment;

(i) that the worker did not inappropriately interfere with or misuse or fail to use anything provided that was designed to reduce the worker's exposure to risk of injury."

[28] Section 312 is not expressed in terms which impose an obligation to plead the matters set out. It operates "...in deciding whether a claimant is entitled..." and as to "...whether the claimant has proved..." The consequence of failure to prove such of the matters specified as are relevant to the claim is that the claim is dismissed or the damages restricted: s 312(2)(3)(4).

[29] The plaintiff's pleading obligations arise as a consequence of the Uniform Civil Procedure Rules. Generally speaking a plaintiff must plead the essential elements of the cause of action relied on and matters that, if not stated specifically, might take another party by surprise: rule 149. Rule 150 provides for matters which must be specifically pleaded but it is not suggested that it is relevant here.

[30] Once it is accepted that s 312 does not introduce fresh elements to the plaintiff's cause of action and of itself it does not impose a direct obligation to plead, it is difficult to see how the statement of claim can be said not to disclose a cause of action.

[31] Put shortly, s 312 does not introduce an additional requirement to plead beyond those which arise as a consequence of the operation of the Uniform Civil Procedure Rules. Failure to plead in terms of the section does not found a basis for striking the action out. Should it transpire that the plaintiff has failed to comply with the pleading requirement of the Uniform Civil Procedure Rules the usual consequences would follow. The plaintiff may be obliged to seek an amendment on terms or evidence might be inadmissible. Cases used in argument dealing with s 51A of the Trade Practices Act 1974 (Cth)[11], do not seem to be of direct application. Effectively they support the view that the section, the terms are irrelevant for present purposes, is an evidentiary deeming provision reversing the onus of proof rather than a substantive defence. They do illustrate, however, that when facts are relied on, whether to avoid the deeming consequences of the section or otherwise, the pleading rules may require facts to be pleaded: Cummings v Lewis[12]; Bowler v Hilda Pty Ltd[13]; and Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd.[14] Much the same can be said of Mount Isa Mines v Peachey.[15]

[32] It was submitted for the plaintiff, as a subsidiary submission, that the statement of claim in fact pleaded facts relevant to the issues raised by s 312. No doubt it does but it is unnecessary to examine that further. The statement of claim pleaded facts capable of sustaining the cause of action on which the plaintiff's claim is founded. It has not been demonstrated s 312 provides any basis for striking it out.

[33] The application for leave to appeal should be refused and the applicant should pay the respondent's costs of the application to be assessed.

[1] Cf s 253, s 262 and s 302 of the Act.

[2] See s 312(2) "If the claimant relies exclusively on a failure by the employer to provide a safe system of work and fails to prove (that the employer has made no genuine and reasonable attempt to put in place an appropriate system of work to guard the worker against injury arising out of the events that were reasonably foreseeable), the court must dismiss the claim." (my emphasis)

[3] See s 312(3): failure to prove requires the court to dismiss the claim.

[4] See s 312(4): failure to prove at least one of the matters set out in (c)-(i) requires the court to either dismiss the claim or reduce the damages.

[5] (1990) 169 CLR 279.

[7] [1998] QCA 311; Appeal 8204 of 1998, 16 October 1998.

[8] Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837 at 856. See also Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 121; Jolley v Sutton London Borough Council [2000] UKHL 31; [2000] 1 WLR 1082 at 1090, 1091 - 1092.

[9] The definition of "event" in s 33 tends also to support that view.

[10] Bullen & Leake & Jacob's, Precedents of Pleadings, Sweet and Maxwell, 13th ed, 1990 at 678 - 679; B Cairns, Australian Civil Procedure, LBC Information Services, 4th ed, 1996 at 267.

[11] Cummings v Lewis [1993] FCA 96; (1993) 113 ALR 285; Bowler v Hilda Pty Ltd (1998) 153 ALR 95 and Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [1998] FCA 126; (1998) ATPR 41-663.

[14] [1998] FCA 126; (1998) ATPR 41-663.

[15] [1998] QCA 400; Appeal No 3072 of 1998, 1 December 1998.