Butler v St John of God Health Care Inc
[2007] WADC 148
•31 AUGUST 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BUTLER -v- ST JOHN OF GOD HEALTH CARE INC [2007] WADC 148
CORAM: MARTINO DCJ
HEARD: 22 AUGUST 2007
DELIVERED : 31 AUGUST 2007
FILE NO/S: CIV 2520 of 2005
BETWEEN: MARK BUTLER
Plaintiff
AND
ST JOHN OF GOD HEALTH CARE INC
Defendant
Catchwords:
Practice and procedure - Defendant's application for summary judgment - Deed of Release
Legislation:
Workers' Compensation & Rehabilitation Act 1981 s 93C
Result:
Application partially successful
Representation:
Counsel:
Plaintiff: Mr B L Nugawela
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Godfrey Virtue
Defendant: Pynt & Partners
Case(s) referred to in judgment(s):
Australian Broadcasting Commission v Australian Performing Rights Associates Ltd (1973) 129 CLR 99
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233
MARTINO DCJ: This action was commenced on 10 November 2005. An amended writ of summons was filed on 3 November 2006.
Mr Butler's claim
By the indorsement of claim on the amended writ of summons the plaintiff, Mr Butler, claims damages for personal injuries. The indorsement contains the following paragraphs:
"1.The Plaintiff's (sic) was born on the 28 December 1959 and from 1996 to 2003 was a patient care assistant at the Defendant's hospital.
2.From 1996 to December 1999 the Plaintiff was subject to victimisation and vilification from the employees of the Defendant and management of the Defendant which resulted in the Plaintiff suffering post traumatic stress with symptoms of stress and depression causing the Plaintiff to be incapacitated for periods from 1 December 1999.
3.The Plaintiff alleges that the Defendant directly and vicariously was negligent in the manner in which the Plaintiff was treated in his place of employment causing the Plaintiff to suffer the onset of depression and stress ("the First Accident").
4.The Plaintiff further alleges that the Defendant was in breach of statutory duties in respect of its employment of the Plaintiff pursuant to the Occupational Health & Safety Act.
5.On or about 18 October 2002 the Plaintiff suffered injuries to his back and suffered damage when in the course of his employment whilst cleaning out a room suffered the second injury ("the Second Accident").
The second accident was caused by the negligence and breach of statutory duty of the Defendant.
6.From the commencement of employment to on or about November 2002 the Plaintiff in the course of his employment was subject to further racial vilification, victimisation and discrimination resulting in the Plaintiff suffering further depression ("the Third Accident").
The third accident was caused by the negligence and breach of statutory duty of the Defendant."
St John of God Health Care's application
The defendant, St John of God Health Care, applies for summary judgment under O 16. Its chamber summons also refers to the inherent jurisdiction of the Court and O 20 r 19. However argument was limited to the application for summary judgment and counsel for St John of God Health Care informed me that the other grounds did not add anything to the application.
St John of God Health Care's application was based upon a deed of release between it and Mr Butler dated 3 October 2003. Counsel for St John of God Health Care did not argue that any current or former provisions of the workers' compensation legislation entitled St John of God Health Care to summary judgment.
The deed of release
The deed of release was prepared by solicitors acting for St John of God Health Care. Mr Butler's signature was witnessed by a solicitor from another firm and the deed contained an acknowledgement by him that he had received legal advice on it. It contained the following recitals and clauses:
"RECITALS
A.The Employee was employed by the Employer as a Patient Care Assistant on a permanent basis from 6 July 1998 until his resignation on 18 February 2003 (the Employment).
B.On 25 September 2002 the Employee made a complaint to the Human Rights and Equal Opportunity Commission (the Commission) alleging that he had been subject to sex discrimination and racial discrimination in the Employer's hospital facility in Murdoch. On 30 January 2003 the Employee raised a further allegation of victimisation by the Employer which was accepted by the Commission as forming part of the original complaint (the Complaint).
C.The Employee has also alleged that in or about November 2002 and on or about 19 February 2003 he suffered depression (the Disability) as a result of victimisation and discrimination during the Employment, caused by the Employer's negligence (the Compensation Claim).
D.On 30 April 2003 the Commission terminated the Complaint on the basis that there was no reasonable prospect of settlement through conciliation.
E.On 20 May 2003 the Employee filed in the Federal Magistrates Court application W80 of 2003 (the Application) alleging that he was discriminated against by the Employer because he was Aboriginal and male, and that he had been victimised by the Employer for making the Complaint.
F.The Employer denies all liability in relation to the allegations giving rise to the Complaint or the Application, or the Compensation Claim, or any other matters arising out of the Employment.
G.Without admission of liability, the Employer and the Employee have, save for workers' compensation entitlements, agreed to settle the Application and all other matters between them arising from, relating to or in connection with the Complaint, the Application, the Employment and the Compensation Claim, including any entitlement to common law damages arising from, relating to or in connection with the Disability, on the terms contained in this deed.
H.Workers' compensation entitlements arising out of the Compensation Claim have been settled pursuant to a separate agreement made under ss24, 67(2) and 76 Workers' Compensation & Rehabilitation Act 1981.
OPERATIVE PROVISIONS
1.INTERPRETATION
The recitals and descriptions of the parties to this document form part of this document.
2.PAYMENT
2.1In consideration of the release and indemnity set out in clauses 4 and 6 the Employer agrees to pay the Employee $5,618.20 to compensate the Employer for any hurt or humiliation the Employee may have suffered as a result of the allegations giving rise to the Complaint and/or the Application and for any common law liability the Employer may have to the Employee in respect of the Disability and/or the Compensation Claim.
2.2The Employee acknowledges that the Payment is not an eligible termination payment.
2.3The Employer will withhold from the Payment all amounts the Employer considers necessary for the Employer to comply with Australian taxation legislation.
2.4The Employer will make the Payment within 14 days of receipt by the Employer of this deed executed by the Employee.
3WITHDRAWAL OF THE APPLICATION
3.1The Employee agrees that, within 7 days of receipt of the Payment, he will:
(a)file a Notice of Discontinuance of the Application (the Notice); and
(b)provide the Employer with a copy of the Notice.
4.EMPLOYEE RELEASES THE EMPLOYER FROM CLAIMS AND LIABILITY
4.1The Employee agrees that this deed fully satisfies:
(a)the rights (however described and however arising) that the Employee, and everyone who claims through the Employee, has or may have against the Employer in connection with the Complaint or the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment; and
(b)the rights the Employee, and everyone who claims through the Employee, has or may have against the Employer at common law arising, in respect of, relating to, or in connection with the Disability or the Compensation Claim.
4.2The Employee releases the Employer from:
(a)all claims and liability in connection with the Complaint and the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment; and
(b)all claims and liability at common law and any legal or other costs, charges, fees or expenses incurred in connection with the Disability and/or the Compensation Claim.
4.3This release covers all claims and liability, however described and however arising, save for workers' compensation entitlements as noted in recital H. It covers liability to any person who claims through the Employee and extends to any present or future liability.
5.BAR TO FURTHER PROCEEDINGS
5.1The Employer may use this document:
(a)including as a bar, in any court or other proceedings brought by the Employee (or anyone who claims through the Employee) and to any action, suit or proceedings commenced now or in the future in connection with the Complaint or the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment; and
(b)as a bar to any common law claim or demand or action, suit or proceedings, relating to, or arising out of, or in connection with the Disability and/or Compensation Claim.
6.EMPLOYEE INDEMNIFIES THE EMPLOYER FROM CLAIMS AND LIABILITY
6.1The Employee indemnifies the Employer against:
(a)any claim brought by the Employee, or any person claiming on the Employee's behalf, in connection with the Complaint or the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment; and
(b)liability (including liability for costs) in respect to any action, demand, notice, claim or proceeding made in any jurisdiction by:
(i)The Employee;
(ii)The Health Insurance Commission;
(iii)Any workers' compensation or personal accident/disability insurer;
(iv)Centrelink or the Department of Social Security; and
(v)Any nursing home, medical practitioner, physiotherapist, psychologist, chiropractor or other provider of medical services of whatsoever nature,
relating to, or arising out of, or in connection with, the Disability and/or Compensation Claim.
6.2The indemnity extends to any present or future liability whether or not the facts or law giving rise to such actual or potential liability are known to either party or have been discussed between them."
The agreement referred to in recital H was made on 1 October 2003. It was an agreement under the Workers' Compensation & Rehabilitation Act 1981 for the payment by St John of God Health Care to Mr Butler of a lump sum of $26,121.80 in finalisation of his claim for workers' compensation for a disability and a recurrence which were described in that agreement as follows:
"1Date of (a) disability and (b) recurrence:
(a)In or about November 2002;
(b)On or about 19 February 2003.
Which occurred by way of:
(a)The contraction of a disease in the course of employment at or away from the worker's place of employment and to which the employment was a significant contributing factor and contributed to a significant degree; and
(b)A recurrence of the disability referred to above.
2When the disability/recurrence occurred:
(a)the worker was 42 and 43 years of age, respectively. Date of birth: 28 December 1959
(b)the worker was employed by the employer as a patient care assistant
(c)his weekly earnings were $523.78
3The nature of the disability and recurrence was a stress related injury and now is a stress related injury, which occurred whilst working as a patient car assistant."
St John of God Health Care contends that the deed provides a complete defence to Mr Butler's claims in this action.
The power to grant summary judgment
The power to grant summary judgment should not be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.
Where, as in this case, a defendant contends that a deed provides it with a defence to the plaintiff's claim it is for the defendant to plead the deed and for the plaintiff to file a reply if appropriate: Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233. Mr Butler has not yet filed a statement of claim. By this application St John of God Health Care has indicated that it does rely upon the deed of release. The issue for me to decide therefore is whether there is no real question to be tried that the deed provides a complete defence to Mr Butler's claims.
The construction of documents
This involves construction of the deed: Australian Broadcasting Commission v Australian Performing Rights Associates Ltd (1973) 129 CLR 99 at 109.
"It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate' … Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument."
The parties' cases on the application
The case for St John of God Health Care is that the deed provides a complete defence to all claims by Mr Butler in connection with all the matters arising out of his employment by St John of God Health Care, other than workers' compensation entitlements. Alternatively it contends that the deed provides a complete defence to the first and third cause of action, described in the indorsement of claim as the first accident and the third accident.
The case for Mr Butler is that his claims in this action are not for causes of action released by the deed but are for causes of action described in Mr Butler's outline of submissions as being:
"2.… Firstly, … a cause of action that derives from events that occurred during the course of employment up to when loss was sustained on 1 December 1999; and secondly, from the commencement of employment up to November 2002; thirdly in respect of a back injury on 18 October 2002."
It is also Mr Butler's case that there is a triable issue as to whether the fact that there has been no degree of disability determination under the former provisions of the Workers' Compensation & Rehabilitation Act 1981 means that there was no entitlement to damages and so the compromise could not be effective. In support of this argument counsel for Mr Butler relies upon the reasons of Wheeler JA in Kirika at par 10.
The deed of release
The deed records that on 25 September 2002 Mr Butler made a complaint to the Human Rights and Equal Opportunity Commission alleging that he had been subject to sex discrimination and racial discrimination at St John of God Health Care's Hospital and that on 30 January 2003 he included in that complaint a further allegation of victimisation (recital B). It also records that Mr Butler has also alleged that in or about November 2002 and on or about 19 February 2003 he suffered depression as a result of victimisation and discrimination during his employment which was caused by St John of God Health Care's negligence (recital C). The deed also records that Mr Butler and St John of God Health Care had agreed to settle the application that Mr Butler had made to the Federal Magistrate's Court in which he alleged discrimination and victimisation and all other matters between them arising from, relating to or in connection with the complaint to the Commission, the application to the Magistrate's Court, the employment of Mr Butler by St John of God Health Care and his claim that he had suffered depression as a result of victimisation and discrimination during that employment caused by St John of God Health Care's negligence (recital G).
By cl 2.1 of the deed St John of God Health Care agreed to pay to Mr Butler $5,618.20 to compensate him for any hurt or humiliation Mr Butler may have suffered as a result of the alleged discrimination and victimisation and for any liability at common law that St John of God Health Care may have had to Mr Butler in respect of them. That payment was made in consideration of the release and indemnity in cl 4 and cl 6.
The release and indemnity in cl 4 and cl 6 and the bar contained in cl 5 were in respect of rights and claims "in connection with the Complaint or the Application or the circumstances giving rise to the allegations forming the basis of the Complaint or the Application, or any matters arising out of the Employment."
In my view by the deed the parties intended to compromise Mr Butler's claim that he had suffered discrimination and victimisation during his employment by St John of God Health Care and his claim that the discrimination and vilification had caused him to suffer depression in or about November 2002 and on or about 19 February 2003. As part of the compromise Mr Butler released St John of Good Health Care from all claims and liability in connection with those claims or the circumstances giving rise to them.
The claims made by Mr Butler in this action, which he describes as being the first accident and the third accident in his indorsement of claim, in my view clearly fall within claims from which Mr Butler released St John of God Health Care. They are claims that Mr Butler suffered "victimisation and vilification" and "further racial vilification, victimisation and discrimination" in his employment. It is my view that there is no triable issue that the deed provides a complete defence to those claims because they are claims in connection with the claims of discrimination and victimisation which were compromised by the deed.
When the whole deed is looked at it is in my view arguable that the references in cl 4, cl 5 and cl 6 to "any matters arising out of the Employment" are references to matters arising out of that employment that related to or were connected with the claims of discrimination and victimisation, the matters for which St John of God Health Care was compensating Mr Butler.
Mr Butler's claim that he has suffered back injuries on 18 October 2002 appears unrelated to the alleged discrimination and victimisation. In my view it is arguable that the deed does not provide a defence to that claim because it is not a claim related to or connected with the claims of discrimination and vilification.
The absence of a determination of a degree of disability
The former s 93C of the Workers' Compensation & Rehabilitation Act 1981 provided:
"If this Division applies a court is not to award damages to a person contrary to this Division."
It is arguable that judgment in favour of a worker contrary to Pt IV, Div 2 of the former legislation would be beyond a court's power and the judgment ineffective for all purposes including the purposes of res judicata and issue estoppel: Kirika at par 10. However there was nothing in the legislation to prevent a worker and an employer agreeing that the worker would not pursue a claim for damages before there had been a determination of a degree of disability. I conclude that the absence of a determination does not prevent the deed providing a complete defence to the claims covered by it.
Conclusion
For these reasons it is my view that St John of God Health Care is entitled to summary judgment in respect of the claims described as the first accident and the third accident in the indorsement of claim but is not entitled to summary judgment in respect of the claim described as the second accident.
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