Atanasio v BP Refinery (Kwinana) Pty Ltd

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



DISTRICT COURT OF WESTERN AUSTRALIACitation No:[2007] WADC 18
Case No:CIV:2391/20015 DECEMBER 2006
Coram:COMMISSIONER ARCHER8/03/07
PERTH
11Judgment 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…

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Details
Case
[2007] WADC 18
Decision Date

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.