ATANASIO -v- BP REFINERY (KWINANA) PTY LTD [2007] WADC 18

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 18
Case No:	CIV:2391/2001	Heard:	5 DECEMBER 2006
Coram:	COMMISSIONER ARCHER	Delivered:	8/03/07
Location:	PERTH
No of pages:	11	Judgment Part:	1 of 1
Result:	Defendant was a deemed employer
PDF Version

Parties:	ANTONIO ATANASIO BP REFINERY (KWINANA) PTY LTD UNITED MAINTENANCE PTY LTD
Catchwords:	Section 175 of the Workers' Compensation and Rehabilitation Act 1981 Deemed employer Execution of work "By or under" Level of control required of contractor
Legislation:	Workers' Compensation and Injury Management Act 1981 (WA), s 93E, s 175
Case References:	Foster v Chief Executive Officer of the Department of Agriculture [2006] WASCA 95 Marsden v Unimin Australia Ltd [2004] WASCA 143 Hewitt v Benale [2002] WASCA 163 Jones v Wesfarmers [2003] WASCA 225 Minister for Education v Klein [2005] WASCA 185

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : ATANASIO -v- BP REFINERY (KWINANA) PTY LTD [2007] WADC 18 CORAM : COMMISSIONER ARCHER HEARD : 5 DECEMBER 2006 DELIVERED : 9 MARCH 2007 FILE NO/S : CIV 2391 of 2001 BETWEEN : ANTONIO ATANASIO

Plaintiff

AND

BP REFINERY (KWINANA) PTY LTD

Defendant

UNITED MAINTENANCE PTY LTD

Third Party

Catchwords:

Section 175 of the Workers' Compensation and Rehabilitation Act 1981 - Deemed employer - Execution of work - "By or under" - Level of control required of contractor

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 93E, s 175

(Page 2)

Result:

Defendant was a deemed employer

Representation:

Counsel:

Plaintiff : Mr A D Gill

Defendant : Mr Schwikaard

Third Party : No appearance

Solicitors:

Plaintiff : Chapmans

Defendant : Jackson McDonald

Third Party : Not applicable

Case(s) referred to in judgment(s):

Foster v Chief Executive Officer of the Department of Agriculture [2006] WASCA 95
Marsden v Unimin Australia Ltd [2004] WASCA 143

Case(s) also cited:

Hewitt v Benale [2002] WASCA 163
Jones v Wesfarmers [2003] WASCA 225
Minister for Education v Klein [2005] WASCA 185
(Page 3)

COMMISSIONER ARCHER

Introduction

1 This trial involved the determination of a preliminary issue as to whether the defendant was a "deemed employer" of the plaintiff, under s 175 of the Workers' Compensation and Injury Management Act 1981 ("the Act"). The plaintiff has claimed damages against the defendant. The defendant asserts that it was a deemed employer. The defendant alleges that, therefore, as the plaintiff's disability did not result in a degree of disability required by s 93E(3)(a) or s 93E(4) of the Act, the plaintiff is not entitled to damages from the defendant.

2 There was little factual dispute between the parties.

3 The defendant operates a refinery at premises in Mason Road. The defendant's plant and equipment requires day to day maintenance and periodic overhauling. Periodic overhauling was variously referred to in the evidence as "turn around" or "shut down". The defendant has a schedule for overhauls. Every four to six years, a section of the refinery is taken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] WADC 18
Decision Date: 9 MARCH 2007

CaseChat Overview and Summary

In the case of Atanasio v BP Refinery (Kwinana) Pty Ltd, the dispute before the court involved a question of whether the defendant, BP Refinery (Kwinana) Pty Ltd, could be considered a deemed employer under Section 175 of the Workers' Compensation and Rehabilitation Act 1981. The plaintiff, Atanasio, sought to establish the defendant's liability as a deemed employer for injuries sustained during the execution of work on the defendant's premises. The case was heard by the Supreme Court of Western Australia.

The primary legal issue before the court was to determine the extent of control a contractor must exercise over the work performed by a subcontractor to be considered a deemed employer under the Act. Specifically, the court had to examine whether the defendant's level of control over the subcontractor's work met the threshold required by Section 175. This involved assessing the relationship between the defendant and the subcontractor, as well as the nature and degree of control exercised by the defendant over the execution of the work.

The court examined the statutory language of Section 175 and the relevant legislative framework, including the broader purpose of the Act to provide compensation for workers injured in the course of their employment. The court concluded that the defendant's control over the subcontractor's work was sufficient to classify the defendant as a deemed employer under the Act. The court found that the defendant exercised a significant level of control over the subcontractor's work, including the right to direct the manner in which the work was performed. This degree of control was deemed to establish a sufficient employment relationship between the defendant and the subcontractor, thereby making the defendant a deemed employer. The court's reasoning focused on the practical realities of the work arrangement and the overarching intent of the Act to provide compensation to injured workers.

The court ordered that BP Refinery (Kwinana) Pty Ltd was to be considered a deemed employer under Section 175 of the Workers' Compensation and Rehabilitation Act 1981, thereby establishing the defendant's liability for the injuries sustained by the plaintiff. This decision underscores the importance of the level of control exercised by a contractor over subcontractor work in determining deemed employer status.

Orders

Orders of the court

Defendant was a deemed employer

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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