Slavojub Nedeski v T & S Simeonov Pty Ltd and Trajan Simeonov (Third Party) [1998] ACTSC 146 (13 February 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Practice
and Procedure - Application to strike out Further Amended Third
Party Claim - No Issue of Principle.

  

  

   CANBERRA, 19 December
1997 (hearing), 13 February 1998 (decision)

   #DATE 13:2:1998

  

   Counsel for the Plaintiff: Mr D Romano

   Instructing Solicitors:
Romano & Co

   (62476277)

  

   Counsel for the Defendant: Mr G Stretton

   Instructing Solicitors: Barker Gosling

   (62017275)

  

   Counsel for the Third Party: Mr M McDonogh

   Instructing Solicitors: Abbott Tout Harper Blain

   (62484222)

  

  


  THE COURT ORDERS THAT:

  

   1. The Amended Notice of Motion dated 19 December 1997 be dismissed.

   2. The third party pay
the plaintiff's and defendant's costs of the
application.

  

  

   MASTER T. CONNOLLY

  

   This is an application by way of
notice of motion from the third party to
these proceedings to strike out the further amended third party claim. The
matter is a claim
for damages for personal injuries arising from an industrial
accident. The plaintiff alleges that he sustained injuries on 7 February
1994
when, in the course of his employment with the defendant, he fell from the
back of a truck. It is common ground that at the
time of the accident the
plaintiff was employed by the defendant as a truck driver. The defendant has
issued a third party claim
against Mr Simeonov. The third party claim alleges
that the third party was at all material times the registered owner of the
truck
in question, as well as a director of the company which employed the
plaintiff, and that the third party supplied the truck to the
company knowing
that it would be driven and used by the plaintiff. The third party claim
alleges that the third party accordingly
owed a duty of care to the plaintiff
which the third party has breached.

  

   The third party argues that this claim should be
struck out, on the basis
that the duty owed by an employer to an employee is non delegable. The third
party argues that a defendant
company which is being sued by an employee for
personal injuries for breach of the duty of care owed by the employer to the
employee
cannot join as a third party a director of that company who, in the
circumstances of this case, happens to be the owner of a vehicle
used by the
employee. The third party argued that this follows from the principle that an
employer has a non delegable duty of care
to an employee, as set out in a long
chain of authority. In Kondis v State Transport Authority [1984] HCA 61;  (1984) 154 CLR 672
Mason J said at 683

  

  

   "On the hypothesis that the duty is personal or incapable of delegation,
the
employer is liable for its negligent performance, whether the performance
be that of an employee or that of an independent contractor."

   The third party argues that the existence of such a non delegable duty was
further recognised in Northern Sandblasting Pty Ltd
V Harris  [1997] HCA 39; (1997) 71 ALJR
1428 per Brennan CJ at 1434 where His Honour said

  

  

   "In principle, no duty owed by A to B can be delegated
to C. If it were
otherwise, the mere delegation would discharge A's duty to B."

   Counsel for the defendant argued that this analysis
fundamentally
misunderstood the nature of the claim, and that the third party claim did not
involve the delegation and subsequent
discharge of the employer's duty of
care. He argued that the third party claim assumes in effect joint
tortfeasors, and that the
third party is sued, not as a director of the
employer company as such, but as the supplier of the vehicle. He argued that,
in circumstances
where an employee is injured in the course of his employment
by A while using equipment perhaps supplied through B, and perhaps even
serviced in an allegedly negligent manner by C, third party claims are common.
He argued that the fact that the third party in this
case who supplied the
allegedly dangerous truck was also a director of the employer company could
not preclude a third party claim.

  

   Counsel for the third party correctly submitted that the test to be adopted
in an application to strike out a third party
claim as disclosing no
reasonable cause of action, which under the Rules of this Court is an
application pursuant to Order 29 rule
4, is that laid down by the High Court
in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69;  (1964) 112
CLR 125. As a general principle a party will not be denied a trial unless the
absence of a cause of action is clearly
demonstrable. Once it is apparent that
there is a real question to be determined, the court will not deal with the
matter summarily.
In Dey v Victorian Railways Commissioners [1949] HCA 1;  (1949) 78 CLR 62
Dixon J said at 91

  

  

   "A case must be very clear indeed to justify the summary intervention of
the court
to prevent a plaintiff submitting his case for determination in the
appointed manner by the court....once it appears that there is
a real question
to be determined whether of fact or law and that the rights of the parties
depend on it, then it is not competent
for the court to dismiss the action..."

   Counsel for the defendant submitted that this test is not satisfied in this
case. I agree.
It seems to me that the argument presented by the third party
against the existence of a cause of action in these circumstances is
arguable,
but that the contrary case is equally so. Having reached this conclusion, it
would be inappropriate for me to express a
final view. This will be a matter
for the trial judge. It is sufficient for me to set out that I am not
satisfied that there is no
real question of law to be determined here which
would permit me to dismiss the third party claim.

  

   A further argument raised
by the third party is that the third party, if it
did commit a tort, would be protected by the provisions of the Employees
Liability Act 1991 (NSW) s.3(1)(a), which provides that

  

  

   "If an employee commits a tort for which his or her employer is also liable
the employee is not
liable to indemnify, or to pay any contribution to, the
employer in respect of the liability incurred by the employer."

   The third
party argues that this is a substantive legislative provision
which would apply in proceedings in the Australian Capital Territory
pursuant
to Stevens v Head [1993] HCA 19;  (1992) 176 CLR 433. The defendant argues that as the
accident occurred in the Australian Capital Territory, the liability of the
third party is to be determined by the law of this Territory, and that there
is no legislative equivalent in the ACT to s.3(1). Moreover, there is
authority for the contrary proposition, Marrapodi v Smith-Roberts , unreported
per Fox J, 27 June 1968, at 287.

  

   To again apply the test from General Steel Industries , I am not satisfied
that this question is so clear that it should
not go to trial. Whether the
statutory defence provided by NSW law to the third party would be held to
govern an action arising from
an accident occurring in the Australian Capital
Territory seems to me to be clearly an arguable question. The application of
the
Stevens V Head test is not immediately clear in the circumstances of this
case (Juenger, Tort Choice of Law in a Federal System ,
(1997) 19 Sydney Law
Review 529).

  

   The amended notice of motion is dismissed, with costs.