David Rogerson v John Pfeiffer Pty Limited [1997] ACTSC 26 (24 April 1997)

SUPREME COURT OF THE ACT

DAVID ROGERSON v. JOHN PFEIFFER PTY LIMITED
No. SC 723 of
1993
Number of pages - 5
Jurisdiction - Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER T CONNOLLY

CATCHWORDS

Jurisdiction - Choice of law in tort - Interstate tort - Personal Injury - Whether the law of the forum is the applicable law - Defendant company resident in ACT - Plaintiff resident of NSW - Plaintiff employed by defendant - Accident in NSW - NSW legislation governing industrial accident claims precludes general damages - Whether claim is maintainable in the forum under the two limbs of the Breavington v Goldman Test - Whether the NSW law is substantive or procedural.

The Constitution , s.118

Supreme Court Rules, O 61 r.1(f)

Workers Compensation Act 1987 (NSW), s.151

Breavington v Goldman [1988] HCA 40; (1988) 169 CLR 41

Thompson v Hill (1995) 38 NSWLR 714

Stevens v Head [1993] HCA 19; (1993) 176 CLR 433

Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95

Nalpantidis v Stark [1995] Aust Torts Reports 63,070

Davies Exactly What is the Australian Choice of Law Rule in Torts Cases (1996) 70 ALJ 711

Negligence - Personal Injury - Industrial Accident - Construction site - Plaintiff tripped on plastic barrier tape and fell - Whether defendant failed to provide a safe system of work - Failure to remove plastic barrier material.

HEARING

CANBERRA, 31 January and 24 April 1997 (hearing), 24 April 1997 (decision)

24:4:1997

Counsel for the Plaintiff: Mr F G Parker

Instructing Solicitors: Gary Robb & Associates

Counsel for the Defendant: Mr M J Cranitch SC

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $31,689.75.

2. The defendant pay the plaintiff's costs to be agreed or taxed at the Supreme Court scale.

DECISION

MASTER T CONNOLLY

This is a claim for personal injuries arising from an industrial accident which occurred while the plaintiff was in the employ of the defendant. The defendant is a company resident in the Australian Capital Territory, and the plaintiff was first engaged as an employee in the Australian Capital Territory. The plaintiff is a resident of New South Wales. While the bulk of the defendant company's building activities are within the Australian Capital Territory, the plaintiff was injured while engaged in major renovations to the Queanbeyan District Hospital, situated in New South Wales.

The real question for determination, if liability is established, is what law applies in such circumstances. I was advised at the opening of the hearing that the parties were agreed that, if the law to be applied in the assessment of damages in this claim was to be the law of the Australian Capital Territory, appropriate damages would be $30,000, plus out of pocket expenses. If the law to be applied was the law of New South Wales, damages would be limited to out of pocket expenses. In either event, the total damages would be well within the jurisdictional limits of the Magistrates Court. This means that the matter is within my jurisdiction pursuant to Order 61 rule 1(f) of the Rules of this Court.

The plaintiff claims that the defendant failed to provide a safe system of work, and is thus liable for the accident. On the day in question the plaintiff was performing his duties as a carpenter at a construction site at Queanbeyan Hospital. There were, on his evidence, two entrances to the building. One was the entrance being used by the public and hospital staff, and building workers were discouraged from using this because of dust and dirt. The other entrance was being refurbished, and public access to this was restricted after hours by means of orange plastic webbing. The plaintiff gave evidence that the gateway was barricaded by about 5 metres of this material, and that it was the job of a labourer to remove this webbing when work commenced so that the building workers could access the site, and to re erect the barrier at the end of the day. This normally involved rolling up the barrier and placing it behind a fence.

On the day of the accident, 4 July 1989, the plaintiff needed to go from the site to his car to obtain some materials and replace his lunch box. He saw the barrier tape lying on the ground, and attempted to step over it. In the course of doing so his left foot caught in the webbing, and he fell, sustaining injuries. I am satisfied from this evidence that on the day of the accident the defendant had failed to properly remove the plastic barrier material, and had left it instead lying on the ground in such a way that it presented a danger to building workers who were required to leave the site through the only appropriate gateway. I thus find that the defendant is liable for the injuries suffered by Mr Rogerson.

The plaintiff has chosen to bring proceedings in the Supreme Court of the Australian Capital Territory for an accident which occurred in New South Wales. This is permissible under the law if

"1. The claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce, and

2. By the law of the place where the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce."

(per Brennan J (as he then was) in Breavington v Goldman [1988] HCA 40; (1988) 169 CLR 41 at 110-111).

This means that the law in Australia applies the rules of private international law to suits brought across jurisdictions. This approach has been criticised. In the New South Wales Court of Appeal Kirby J has strongly argued that the approach to interstate torts should be premised on the application of Section 118 of The Constitution which provides that

"Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."

In Thompson v Hill (1995) 38 NSWLR 714 Kirby P (as he then was) said of s.118

"The section affords to Australian courts an ample warrant (indeed, in my view a command) to give respect to the laws (legislative, judicial and otherwise) made or pronounced in different parts of Australia. Given its full meaning, the section provides Australian lawyers with the means of advancing beyond the mentality by which each jurisdiction of the new nation was regarded, in some respects at least, as foreign, so that rules of private international law were applied to them as if their statutes and judicial decisions were in no way different, in relation to each other, from those of Mongolia or Haiti."

He continued

"The further consequence of this approach to the constitutional provision has been a series of highly inconvenient, often disputed and also criticised court decisions by which legislation of a particular Australian State or Territory, apparently applicable to events occurring in that State or Territory, is avoided or circumvented by the simple expedient of commencing proceedings in another State or Territory (or in the High Court) and invoking private international law rules to escape the application of the local law."

(at 716-717)

This view has been set out in decisions of Deane J, who in reaffirming this view in Stevens v Head (1993) 176 CLR at 462, said that the alternative view, accepted by the majority of the High Court,

"...goes a long way towards converting the Australian legal system into a national market in which forum shoppers are encouraged to select between competing laws imposing different legal consequences in respect of a single occurrence."

However, as Kirby P acknowledged in Thompson v Hill, this is not the law, and under the prevailing state of the law where an interstate tort is the subject of a claim in an Australian court, the court hearing the claim is to apply the law of the forum to determine the claim, provided the claim is maintainable in that Court. The law is that

"An action could be maintained in a State, other than that in which the tort occurred and that the law, procedural and substantive, to be applied in resolving the action was the law of the State in which the action was heard, that is to say, the law of the forum."

(per Dawson J, Gardner v Wallace [1995] HCA 61; (1995) 184 CLR 95 at 98)

This requires an examination of whether the law of both the place of the tort and the forum will allow a claim, an apparently simple question which has given rise to very complex arguments. I note the dicta of Doyle CJ who referred to his

"...sense of impending doom as I tackle the complexities which arise in this area of the law"

(Nalpantidis v Stark [1995] Aust Torts Reports 63,070 at 63,073, cited by Davies, Exactly What is the Australian Choice of Law Rule in Torts Cases (1996) 70 ALJ 711).

The issue in the present case is a familiar one. The Parliament in the state where the tort occurred has legislated by s.151 of the Workers Compensation Act 1987 (NSW) as amended to limit common law personal injury claims. The effect of these reforms is to preclude general damages in the type of accident that the plaintiff experienced. The Parliament in this Territory has not so legislated. The result is that, if the action is maintainable in this court, the court should apply the law of the Territory to the assessment of damages, rather than the law of New South Wales.

The argument for the defendant is that I should find that the provisions of the New South Wales legislation provide in effect a legislative code governing industrial accidents, so that the subject accident is, under that code, not one which would, by the law of the place where the accident occurred, give rise to a civil liability of the kind which the plaintiff claims to enforce. On this view the claim is not maintainable at all, failing the second limb of the Breavington v Goldman test. Alternatively, it is argued, I should find that the provisions of the New South Wales Act is a substantive provision which extinguishes the right to recover common law damages in respect of an industrial accident in New South Wales except as provided by that Act. Accordingly any action arising from such an accident is, it is argued, not maintainable under private international law principles in the Australian Capital Territory except as provided by the New South Wales legislation.

The Court of Appeal in New South Wales adopted this view of the Victorian Transport Accident Act in Thompson v Hill, but in my opinion the decision of the High Court in Stevens v Head [1993] HCA 19; (1992) 176 CLR 433 is against the defendant's submissions on this point. The majority there (Brennan, Dawson , Toohey and McHugh JJ) said at 456

"In determining whether, by the lex loci, the relevant facts give rise to a civil liability of the kind which the plaintiff seeks to enforce, the courts of the forum distinguish between substantive and procedural laws. Procedure is governed exclusively by the laws of the forum, but the substantive laws of the place of the tort determine whether, by those laws, there exists a civil liability of the kind which the plaintiff seeks to enforce."

The majority held that the relevant provision of the New South Wales Motor Accidents Act 1988 was

"...plainly a provision which affects the measure of damages but does not touch the heads of liability in respect of which damages might be awarded. It is simply a law relating to the quantification of damages and that, as we have seen, is a matter governed solely by the lex fori."

(at 459)

I can see no relevant difference between the provisions examined in Stevens v Head and the relevant provisions in the Workers Compensation Act 1987 (NSW). I am bound to follow the law as set out in Stevens v Head, and so, having established primary liability, I find that the law to apply in relation to the quantification of damages is the common law applying in the Australian Capital Territory. Counsel advised me that it was agreed that, if the law of the Australian Capital Territory was to apply, damages were agreed at and should be found in the sum of $30,000, plus out of pocket expenses. I take it that the figure of $30,000 was arrived at as a global sum, inclusive of interest. As such, it seems appropriate in all the circumstances. I was advised during the hearing that agreement would be reached on the quantum of out of pocket expenses, and I was advised by letter of 11 April 1997 that agreement had been reached in the sum of $1,689.75. I award damages in the sum of $31,689.75.

Counsel for the plaintiff argued that, if I should find in the plaintiff's favour I should order costs in the normal Supreme Court scale despite the fact that the total damages award would be below the normal jurisdictional limit of the Magistrates Court, and that in the normal course of events reduced costs would flow. Counsel for both parties indicated clearly that this matter was one which would raise an important issue of principal, and that it may well be subject to an appeal to test the continued applicability of the rule in Stevens v Head which I have applied. Accordingly, it was both sensible and appropriate that the matter be determined in this court, and I order that costs be awarded on the Supreme Court scale.