Edwards v Woolworths Ltd [2009] ACTSC 4 (6 February 2009)

Last Updated: 16 March 2009

TERRENCE EDWARDS v WOOLWORTHS LIMITED (ACN 000 014 675)

[2009] ACTSC 4 (6 February 2009)

PRACTICE AND PROCEDURE – pleading – statement of claim – action by employee against employer – whether count in breach of statutory duty under occupational health and safety legislation available – whether breaches of occupational health and safety regulations may be pleaded as particulars of negligence

STATUTORY INTERPRETATION – Occupational Health and Safety Act 1989 – section 223 (Civil liability not affected) – whether bar to claim for breach of statutory duty – whether bar to pleading breach of regulations as particulars of negligence

Court Procedures Rules 2006, Part 2.6, r 53, 406, 430

Occupational Health and Safety Act 1989, ss 95, 223

Occupational Health and Safety (Manual Handling) Regulations 1997, ss 5(1), 5(3), 6(1), 6(2), 6(3)

Legislation (Consequential Amendments) Act 2001

Legislation Act 2001, s 104

Civil Procedure ACT

Balkin and Davis, Law of Torts, 3rd Edition, LexisNexis Butterworths, 2004, ch 16

Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465

Schiliro v Peppercorn Childcare Centres Pty Limited (No 2) [2000] QCA 18; [2001] 1 Qd R 518

No. SC 519 of 2008

Judge: Master Harper

Supreme Court of the ACT

Date: 6 February 2009

IN THE SUPREME COURT OF THE )

) No. SC 519 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TERRENCE EDWARDS

Plaintiff

AND: WOOLWORTHS LIMITED (ACN 000 014 675)

Defendant

ORDER

Judge: Master Harper

Date: 6 February 2009

Place: Canberra

THE COURT ORDERS THAT:

1. In paragraph 2 of the details of the claim contained in the statement of claim, the heading “Time, date, place, circumstances and acts or omissions constituting breach of statutory duty” be replaced with the words “Further particulars of omissions constituting negligence on the part of the defendant”.

2. The application be stood over to 13 February 2009 for submissions as to costs and further directions.

1. This is an application by the defendant in an action for damages for personal injury seeking an order that a portion of the statement of claim be struck out as not disclosing a cause of action.

2. The action was commenced by originating claim on 1 July 2008. A statement of claim accompanied the originating claim. In compliance with the Court Procedures Rules 2006, the statement of claim follows a prescribed format, and has not been drafted as a conventional pleading. The statement of claim opens with the words “the plaintiff claims damages for personal injury in relation to an employer’s negligence”. Details of the claim follow, in seven numbered paragraphs. To understand the format of the statement of claim it may be helpful for me to set out the relevant portion of the rule governing statements of claim in actions by employees against employers for personal injury.

53 Originating claim—statement of claim for employment death and personal injury claims

(1) This rule applies in relation to an originating claim that includes a claim for damages for death or personal injury caused by, or arising out of, negligence or breach of statutory duty by an employer (the incident).

(2) The statement of claim for the originating claim must include, and is sufficient if it includes, the following:

(a) if the cause of action is based on negligence—the time, date, place and circumstances of the negligence claimed, including the acts or omissions making up the negligence;

. . . . . . . .

(c) if the cause of action is based on breach of statutory duty—the name and provision of the statute and a precise statement of the

acts or omissions making up the breach claimed;

. . . . . . . .

3. As will be seen, the rule does not contemplate that an employee might have a claim against an employer for damages for personal injury on a cause of action other than negligence or breach of statutory duty, for example in trespass or contract. A note to rule 53 says that a statement of claim is a pleading and therefore must comply with Part 2.6 of the rules. Rule 406 in that part requires a pleading to contain a statement in a summary form of the material facts on which the party relies, and to state specifically any matter that if not stated might take the other party by surprise. The learned editors of Civil Procedure ACT note at [406.5] that as only facts are to be pleaded, it is not necessary to specify the particular cause of action. Parties, they state, may and often do so specify, but it always and ultimately remains the function of the Court, not the parties, to draw the appropriate legal conclusion available on the facts pleaded and proved: see Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 473-4.

4. Rule 430 in the same part requires a party to include in a pleading particulars necessary to define the issues for, and prevent surprise at, the trial; and to enable the opposite party to identify the case required to be met.

5. To return to the statement of claim in the present case, the paragraphs relevant to liability are paragraphs 1 and 2. The balance of the statement of claim goes solely to damages. Paragraph 1 is in two sections, the first headed “Time, date, place and circumstances of the negligence”, and the second headed “Precise particulars of the acts or omissions constituting negligence on the part of the defendant”. To summarise briefly, paragraph 1(a) asserts that the accident happened on 20 November 2007 at the back dock of the defendant’s Big W premises at Woden Plaza, where the plaintiff was employed as a back dock associate. He was walking through the dock area when a column of boxes fell and struck him.

6. The particulars of negligence set out are in familiar terms, including the general assertions of failure to provide a safe system and safe place of work, and failure to perform a risk assessment of the workplace and of the plaintiff’s duties. More specifically, they assert a failure to institute a safe system for storage of the boxes, and failure to ensure that they were properly secured. The particulars of negligence do not specifically include failure to comply with any statutory obligations.

7. Paragraph 2 is headed “Time, date, place, circumstances and acts or omissions constituting breach of statutory duty”. Under this heading, the pleading asserts that the defendant was in control of the premises for the purposes of the Occupational Health and Safety Act 1989. They then assert specific breaches of sub-sections 5(1), 5(3), 6(1), 6(2) and 6(3) of the Occupational Health and Safety (Manual Handling) Regulations 1997.

8. The facts pleaded in paragraph 1(a) do not include any assertion that the plaintiff was engaged in a manual handling task at the time of his injury. In particulars furnished by the plaintiff’s solicitors in response to a request from the defendant’s solicitors, it is stated that the plaintiff had not touched or moved the column of boxes before they fell. His case is that night staff who unloaded the boxes the previous day stacked them too high. Presumably the plaintiff’s case will be that the night staff were employees or agents of the defendant and failed to comply with the manual handling requirements of the regulations. The defendant’s solicitors have not so far sought further and better particulars of paragraph 2 of the statement of claim, no doubt pending the outcome of the present application. If the plaintiff is permitted to retain in the statement of claim the assertions of breaches of the regulations, no doubt the solicitors for the defendants will seek particulars which will clarify this part of the claim.

9. The basis of the plaintiff’s application is that paragraph 2 of the statement of claim pleads a claim against the defendant for breach of statutory duty, something the defendant says is prohibited by section 223 of the Occupational Health and Safety Act. That section is in the following terms:

223 Civil liability not affected

Nothing in this Act shall be taken—

(a) to give a right of action in any civil proceeding in relation to any contravention of any provision of this Act; or

(b) to give a defence to an action in any civil proceeding or affect a right of action in any civil proceeding.

10. For the purposes of the application, counsel for the plaintiff apparently accepts that the effect of paragraph 2 of the statement of claim is to plead a count in breach of statutory duty, separately from and additionally to the count in negligence. I am not sure that this is the effect of the pleading in its present form, though there is undoubtedly some ambiguity in its drafting.
11. The plaintiff’s response to the application is that section 223 should be construed as applying only to the Occupational Health and Safety Act itself, and not to regulations made under it.
12. There is no doubt that breach of statutory duty has developed as an independent tort, and is not simply part of the tort of negligence. The development of the tort is usefully summarised in Chapter 16 (Violations of Interests Protected by Statute) of Balkin and Davis, Law of Torts (3rd Edition, LexisNexis Butterworths, 2004). It is a typical feature of the tort that the statute in question prohibits or requires specified activities or conduct, often with penal consequences for failure to comply. The statute does not specifically provide for a civil cause of action for breach, but the courts in some circumstances will read such an intention into the statute. No general principle is obvious as to when the courts will construe a statutory provision in this way and when they will not. Familiar examples of legislation giving rise to a cause of action are regulations in relation to scaffolding and lifts, and industrial safety generally. On the other hand, I have been unable to identify any authority for a right of an injured person to sue the driver of a motor vehicle for breach of statutory duty, for example in disobeying a traffic light or give way sign. Occupational health and safety legislation not including a section along the lines of section 223 of the ACT Act has been held to give rise to a civil cause of action: Schiliro v Peppercorn Childcare Centres Pty Limited (No 2) [2000] QCA 18; [2001] 1 Qd R 518. However, sections in the same or similar terms are included in the occupational health and safety legislation in New South Wales, Victoria and the Northern Territory.
13. Section 223 has been in the ACT Act since it was first enacted. It was originally section 95 and was in the following terms:

95 Civil liability not affected

Nothing in this Act or the regulations shall be taken—

(a) to confer a right of action in any civil proceedings in respect of any contravention of any provision of this Act or the regulations; or

(b) to confer a defence to an action in any civil proceedings or affect a right of action in any civil proceedings.

14. The words “or the regulations” were omitted from the section, and from numerous other provisions of the Act in which they appeared, by the Legislation (Consequential Amendments) Act 2001. The explanatory memorandum made reference to the fact that section 104 of the Legislation Act 2001 provided that a reference to an Act included a reference to statutory instruments made under the Act. Statutory instruments for this purpose included regulations. The words “or the regulations” in the various sections of the Occupational Health and Safety Act were accordingly superfluous.
15. I am satisfied that this was the effect of the amendment. The intention of the legislature remains that nothing in the Occupational Health and Safety Act or in regulations made under that Act confers a right of action for contravention.
16. I am accordingly satisfied that it is not open to a plaintiff to sue a defendant for breach of statutory duty arising out of non-compliance with the Occupational Health and Safety (Manual Handling) Regulations. Section 223 affords a defendant a complete defence to any such claim.
17. This brings me back to the question of whether the present statement of claim should be construed as including a cause of action in breach of statutory duty separately from the cause of action in negligence. As I have said, the statement of claim in this respect is ambiguous. The originating claim itself does not identify any cause of action. The opening words of the statement of claim state that it is a claim in negligence. What follows are said to be details of that claim. It is not in my opinion appropriate or effective for a plaintiff to plead a cause of action not stated in the opening words of the statement of claim, where those words purport to state the cause or causes of action on which the plaintiff relies, by a paragraph contained within what are said to be the details of the claim.
18. It is, it seems to me, permissible for a plaintiff to plead failure to comply with statutory obligations as a particular of the tort of negligence. This has regularly been a feature of statements of claim in actions in negligence for damages for personal injury arising out of motor vehicle collisions, where the particulars of negligence will include failure to comply with specified provisions of the Australian Road Rules, or in earlier times, provisions of the Motor Traffic Act or Ordinance, or regulations. These are not pleaded as giving rise to a separate tort of breach of statutory duty, but simply as particulars of negligence. Subject to the rider that causation must be evident, this has been permitted by courts for many years. Evidence of failure to obey a give way sign has been treated as evidence of negligence, for the reason that the breach of the statutory provision is itself a cause of the collision causing the injuries. By contrast, an allegation that the driver’s licence or the registration of the vehicle had expired would not be permitted, as such a breach of a statutory provision would lack any causal connection with the collision.
19. In the same way, it seems to me that it is permissible for a plaintiff to plead breaches of the Occupational Health and Safety (Manual Handling) Regulations as particulars of negligence. It will be a question of fact whether an asserted breach has the necessary causal connection with the damage alleged, but subject to this, the legislative prohibition on construing the section as giving rise to a cause of action does not cause a problem for the plaintiff.
20. Having arrived at this conclusion, it seems to me that I should treat the particulars in paragraph 2 in the statement of claim as particulars of negligence, as opposed to an attempt to plead breach of statutory duty as an independent tort or cause of action. This could be achieved simply by deleting the heading of paragraph 2 and substituting a heading which might read “further particulars of omissions constituting negligence on the part of the defendant”. The statement of claim should be amended accordingly.
21. The hearing of this application has been a useful exercise. Those advising the plaintiff have to some extent brought this upon themselves by the ambiguous or imprecise manner in which they pleaded the plaintiff’s cause of action. On the other hand, the defendant has not completly succeeded in its aim of removing the occupational health and safety statutory provisions from the ambit of the case.
22. Orders will be made reflecting these reasons. I shall provide the parties with an opportunity to be heard in relation to the costs of the application, and further directions if sought.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 6 February 2009

Counsel for the plaintiff: Mr WL Sharwood

Solicitors for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr GA Stretton

Solicitors for the defendant: Mallesons Stephen Jaques

Date of hearing: 28 November 2008

Date of judgment: 6 February 2009