Australia: Queensland Court of Appeal win for seriously injured worker

Incidents on construction sites are by their very nature complex. Liability for construction incidents can often arise because of the negligent actions of multiple respondents.

When a respondent goes into liquidation following an incident, an injured worker has the added hurdle of obtaining leave of the Court prior to commencing proceedings and the Court has discretion as to whether or not to grant that leave. In this case, the injured worker, who had sustained a life-threatening injury during the course of his employment, was initially denied leave, by the Supreme Court (QLD), to proceed with his claim.

Hall Payne Lawyers, on behalf of the injured worker, appealed the Supreme Court decision to the Queensland Court of Appeal.

By unanimous judgement in the Court of Appeal, the decision at first instance was overturned and the injured worker was granted leave to proceed with his claim against the respondent in Palace v RCR O'Donnell Griffin Pty Ltd (in liq) [2021] QCA 137.

Background facts

In 2018, Mr Palace was working as an electrician during the construction of a solar farm in Townsville, the Sun Metals Solar Farm. RCR O'Donnell Griffin Pty Ltd (Ltd) ('RCR'), was responsible for the design and construction of the solar farm. Mr Palace was employed by a labour-hire company, Mass Solutions WA Pty Ltd ('The Employer').

On 13 February 2018, Mr Palace was injured during the course of his employment on the solar farm. His injuries were serious and included life-threatening heat stroke and orthopaedic injuries sustained whilst he, in an incoherent and disoriented state, was being transferred to hospital.

Prior to the commencement of proceedings, RCR entered voluntary liquidation and Mr Palace was required to seek leave of the Court to proceed with his claim.

Proceeding against a company in liquidation

A company entering into liquidation is not a bar to proceedings in a personal injury claim, however, it does require an application to the Court for leave (permission of the Court) to proceed. This requirement is set out in the Corporations Act 2001 (Cth) section 500(2):

Decision at first instance

At first instance, the primary judge considered the application for leave to bring proceedings against RCR.

The Court considered the relevant principles, as set out by Justice Bond in QNI Resources Pty Ltd v Park (2016) 116 ACSR 321, and dismissed the application, determining that Mr Palace had:

1. not demonstrated that there was a serious question to be tried in the sense that it had not been shown to any relevant degree that there was a claim against RCR for the damage caused to his knee and ankles;
2. not demonstrated that the degree of complexity of the legal and factual issues involved favoured the grant of leave; and
3. the damages which he might recover on the basis of the claim had it advanced, were less than the deductible of the insurance policy

As a consequence, Mr Palace had no entitlement to proceed with a claim for personal injury against RCR.

Queensland Court of Appeal decision

Hall Payne Lawyers appealed this decision to the Queensland Court of Appeal, on the basis that the judge at first instance erred in failing to properly consider and give appropriate weight to the evidence before the Court.

In considering the appeal, the Court of Appeal found that the primary judge had indeed erred, not in recognising which legal principles should be considered in such an application, but in the application of those principles to the facts.

As to the first conclusion of the primary judge, the Court of Appeal determined:

1. There was a detailed explanation of the circumstances of the occurrence of the injury in the exhibited statutory declaration by Mr Palace;
2. There was evidence which justified an arguable case of at least shared responsibility for health and safety of employees as between the respondent, who arguably controlled the site, and Mass Solutions who was the relevant employer;
3. Although there was no evidence naming the co-workers involved, there was evidence identifying them by position description, which when taken with the terms of the subcontract, provided an arguable connection with the respondent; and
4. There was an articulation of duty, breach and foreseeability, arguably supported by expert opinion evidence.

The Court considered that this evidence together demonstrated there was the relevant serious question concerning the responsibility of RCR for the orthopaedic injuries sustained by Mr Palace.

As to the third conclusion, the Court of Appeal determined:

1. In the exhibited statutory declaration, Mr Palace had provided a detailed explanation of the impact of his injury;
2. Support for Mr Palace's contentions concerning the impact of his orthopaedic injuries was to be found in the medical opinion evidence; and
3. Once regard was had to past and future economic loss caused by the injuries to his knees and ankles, the damages which Mr Palace might recover on the basis of the claim, greatly exceeded the deductible for the insurance policy.

In allowing the appeal and setting aside the decision of the primary judge, the Court of Appeal determined that the claim had 'sufficient merit to warrant the grant of leave.'

Conclusion

This decision is an important win for a deserving worker who had sustained life-threatening injuries during the course of his employment. As a consequence, the injured worker now has leave to proceed with his claim against RCR. Further, the decision has utility in clarifying the legal principles that apply to applications for leave pursuant to section 500(2) of the Corporations Act 2001 in the context of personal injuries claims.

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