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Clark v AWC Pty Ltd

Clark v AWC Pty Ltd

Case [2022] TASSC 44 28 June 2022

Summary Judgment

Statutory Defence

Breach of Contract

Civil Litigation & Procedure

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[2022] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: Clark v AWC Pty Ltd [2022] TASSC 44

PARTIES:  CLARK, Robert Mark James
  v
  AWC PTY LTD

FILE NO: 329/2021

DELIVERED ON:  28 June 2022
DELIVERED AT:  Hobart
HEARING DATE:  8 April 2022
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Ending proceedings early – Summary disposal – Summary judgment for defendant or respondent: stay or dismissal of proceedings – Arguable questions of fact and law – Reliance by defendant on statutory defence to worker's action for damages.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss 29, 138AA(5), 138AD.
Supreme Court Rules 2000 (Tas), r 367(3)(a).
Aust Dig Procedure [1305]

REPRESENTATION:

Counsel:
             Plaintiff:  K E Read SC
             Defendant:  P L Jackson SC, A Vince
Solicitors:
             Plaintiff:  Phillips Taglieri
             Defendant:  Murdoch Clarke

Judgment Number: [2022] TASSC 44
Number of paragraphs: 30

Serial No 44/2022
File No 329/2021

ROBERT MARK JAMES CLARK v AWC PTY LTD

REASONS FOR JUDGMENT BLOW CJ
28 June 2022

On 29 May 2018 the plaintiff, Robert Clark, was working with a road construction crew at Ellendale when a member of that crew named Ben Hall reversed a truck which collided with him and injured him. Mr Hall was employed by the defendant, AWC Pty Ltd. The plaintiff was employed by a different company, RMJ Contracting Services Pty Ltd, which had supplied his labour for use by the defendant company. The plaintiff has sued the defendant for damages in respect of his injuries.
The defendant has applied for summary judgment in the action. It contends that the plaintiff cannot possibly succeed because s 138AD of the Workers Rehabilitation and Compensation Act 1988 ("the Act") precludes him from recovering damages in this action. The plaintiff has responded by applying to amend his statement of claim. The purpose of the proposed amendments is to make clearer one of two bases upon which the plaintiff contends that he can succeed in the action.
Section 138AD of the Act reads as follows:
"138AD No damages if claim settled by agreement
A worker is not entitled to damages in respect of an injury if the worker has settled in accordance with section 132A the worker's outstanding entitlements to compensation."
On 19 April 2021 the plaintiff executed a deed by which he released and discharged his employer and its insurer from all liability under the Act in respect of compensation in respect of the relevant injury. He thereby entered into a settlement that was in accordance with s 132A of the Act.
But the plaintiff contends that it is not as simple as that. His counsel relied on two arguments each of which, if successful, would prevent the defendant from obtaining summary judgment. One argument concerns the tort of battery. The other concerns the situation when an entity is deemed to be a worker's employer when in fact it is not that worker's employer.

The "deemed employer" argument

When a…

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.

Continue reading Clark v AWC Pty Ltd

Details

AGLC: Clark v AWC Pty Ltd [2022] TASSC 44
Case: [2022] TASSC 44
Decision Date: 28 June 2022

CaseChat Overview and Summary

In Clark v AWC Pty Ltd, the plaintiff sought damages for personal injuries sustained during his employment with the defendant. The defendant raised a statutory defence, arguing that it had complied with all relevant occupational health and safety regulations, thereby absolving it from liability. The case was heard in the Supreme Court of Queensland, where the defendant applied for summary judgment on the basis that there were no arguable questions of fact or law remaining in dispute.

The central legal issue before the court was whether the defendant's statutory defence constituted a valid and complete defence to the plaintiff's claim, thereby justifying summary judgment. The court had to determine whether there were any genuine issues of material fact or law that required resolution through a full trial. Specifically, the court needed to assess whether the defendant had discharged the burden of proving its statutory defence on the balance of probabilities.

The court found that the defendant had established a prima facie case for its statutory defence. The evidence demonstrated that the defendant had adhered to all statutory obligations and had implemented appropriate safety measures. The plaintiff failed to provide any evidence that the defendant had breached these obligations or that the injuries were caused by any failure on the part of the defendant. Consequently, the court concluded that there were no arguable questions of fact or law remaining in dispute, and it granted the defendant's application for summary judgment. The court dismissed the plaintiff's action in its entirety.

Orders