Elms v Ansell Ltd [2007] NSWSC 618

New South Wales Supreme Court

CITATION : Elms v Ansell Ltd [2007] NSWSC 618

HEARING DATE(S) : 15/06/2007

JUDGMENT DATE : 20 June 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : I order that paragraphs 7-9 of the Statement of Claim be struck out. The plaintiff is to pay the costs of the Notice of Motion.

CATCHWORDS : Relief sought pursuant to Trade Practices Act - application to strike out - plaintiff entitled to workers' compensation - statutory construction - definition of "acquire" - summary relief

LEGISLATION CITED : Trade Practices Act 1974 (Cth)

CASES CITED : Klease v Brownbuilt Pty Ltd [2002] QSC 226 Lanza v Codemo Management Pty Ltd t/a Yoogali Engineering Co [2001] NSWSC 72

PARTIES : Susan Mary Elms Ansell Ltd

FILE NUMBER(S) : SC 20418/06

COUNSEL : Mr A.J. Bartley SC / Mr S. J. Longhurst (Pl) Mr R. A. Cavanagh (Def)

SOLICITORS : Russel McLelland Brown (Pl) Carroll & O'Dea (Def)

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

20 JUNE 2007

20418/06 Susan Mary Elms v Ansell Ltd

JUDGMENT 1 HIS HONOUR: The plaintiff has been employed as an enrolled nurse. In or about August 1999, she commenced employment with what is now known as South Eastern Sydney and Illawarra Area Health Service (the employer). 2 The plaintiff's evidentiary statement contains, inter alia, the following:- "5 In the time that the plaintiff was employed by the Health Service she was constantly and continually exposed to products which contain latex. These products included latex gloves. 6 The latex gloves were made available by the Health Service for use by all Hospital staff. The gloves were contained in a dispenser box." 3 The defendant was the manufacturer and distributor of latex gloves (the gloves) sold to the employer. The plaintiff claims to have suffered injury on or about 20 October 2003 as a result of exposure to the gloves. 4 On 20 October 2006, the plaintiff filed a Statement of Claim in this Court. It purports to allege four causes of action. 5 The first is founded on negligence. It is pleaded in paragraph 6 of the Statement of Claim. 6 The second is founded on s75AD of the Trade Practices Act 1974 (Cth) (the Act). It is pleaded in paragraph 7 of the Statement of Claim. 7 The third is founded on s74B of the Act. It is pleaded in paragraphs 8 and 9 of the Statement of Claim. 8 The fourth is founded on s52 of the Act. It is pleaded in paragraph 10 of the Statement of Claim. 9 On 6 June 2007, the defendant filed a Notice of Motion. The hearing of that Notice of Motion took place on 15 June 2007. 10 The relief pressed by the defendant at the hearing was the striking out of paragraphs 7-9 of the Statement of Claim. 11 It is common ground that the plaintiff has suffered what is described as a workplace injury and that she is receiving workers' compensation. 12 The defendant says that neither s75AD or s 74B of the Act provide any remedy to the plaintiff. 13 In respect of the claim advanced pursuant to s75AD, it is said that s75AI provides a defence to her claim. 14 Section 75AI relevantly provides that s75AD does not apply to a loss in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that; relates to workers' compensation. 15 The question that is now being argued before me has been decided in Lanza v Codemo Management Pty Ltd t/a Yoogali Engineering Co [2001] NSWSC 72. In that case what was said by Wood CJ at CL supports the argument advanced by the defendant. What was said in that case was followed in Klease v Brownbuilt Pty Ltd [2002] QSC 226. 16 It seems to me, at least as a matter of judicial comity, that I should follow these decisions. 17 The plaintiff accepts that this may be the case. All that is then put is that there may be some uncertainty as the question has not been considered by an Appellate Court and that paragraph 7 of the Statement of Claim should not be struck out until that has taken place. I do not accept that submission. 18 In respect of the purported cause of action founded on s75B, the defendant says that as a matter of statutory construction it cannot be maintained. 19 For present purposes, the relevant provisions of s74B are as follows:- "74B Actions in respect of unsuitable goods (1) Where: (a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply; (b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer; … the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction."