You are in-house counsel for a construction company, Wecanfixit Pty Ltd ("Wecanfixit") which has its registered office in Lismore, NSW and which has two directors, John Botchit and Paul Scamm. One of the directors, Botchit, has come to see you and briefed you on a problem relating to one of the employees, James Slipped, who was working overseas for the company in Malaysia on a large construction project. While working on the project, Slipped fell from some scaffolding and broke his leg in several places (there are no allegations of negligence or fault against Wecanfixit in respect of the accident). He was rushed to a local private hospital, the King Plaza hospital, where he underwent surgery for his serious but non life threatening injuries. He was required to stay in hospital for a few days until he was fit enough to be moved and travel back to Australia. While staying in hospital, he unfortunately suffered a post operative wound infection and which resulted in him having to have his leg amputated below the knee. He is now unable to ever work again in his specialist field and is entitled to an award of worker's compensation under Australian law.

Wecanfixit's insurers have reached a settlement with Slipped and he has been paid an agreed amount of statutory compensation. Slipped has now filed proceedings against Wecanfixit in the NSW Supreme Court seeking additional damages (not covered by worker's statutory compensation) under the common law in negligence - specifically damages for his pain and suffering as well as for loss of future earnings Botchit informs you that Wecanfixit don't believe it is responsible for any of these damages and that it is the Malyasian hospital, the King Plaza, who were negligent. Wecanfixit therefore want to defend the claim on the basis it was the King Plaza who were negligent and caused Slipped his injuries resulting in the damages he now seeks. You are told damages claimed total $5M.

Botchit asks whether Wecanfixit can join the King Plaza to the proceedings brought against Wecanfixit by Slipped? He also tells you that the directors don't want to have to travel to Malaysia to deal with the matter. They want any claim against the King Plaza to be heard here in Australia, where Slipped, the company and all of Slipped's doctors are based - they think they shouldn't have to travel to Malaysia to give evidence and incur all that additional time and cost. Also, Slipped remains in significant pain and travel is very difficult for him. Botchit tells you that the hospital is owned by a Malaysian company - he can give you the hospital's address but he doesn't have the company's name.

Advise as to the likely outcome of this preliminary dispute over jurisdiction. Give reasons.

When advising on each issue, cite any relevant rules, legislation and cases.

Australian Law