Codmah Pty Ltd v Rice

[2018] ACTSC 191

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Codmah Pty Ltd v Rice 

Citation:

[2018] ACTSC 191

Hearing Date:

15 February 2018

DecisionDate:

29 June 2018

Before:

McWilliam AsJ

Decision:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs.

Catchwords:

APPEAL – STATUTORY INTERPRETATION – Workers’ Compensation Act 1951 (ACT), s 35 – where principal contractor deemed liable to pay compensation for injury suffered in the course of employment because the subcontractor employer was not insured in the Australian Capital Territory – whether principal is also an ‘employer’ for the purposes of s 35 and thus had obligations to find the employee alternative employment – whether employee had obligation to notify principal before liability to find alternative employment arose – whether suitable alternative employment found

Legislation Cited:

Legislation Act 2001 (ACT) s 151C

Workers’ Compensation Act 1951 (ACT) ss 13 and 35

Cases Cited:

Bird v The Commonwealth (1988) 165 CLR 1

Nash v Sunshine Porcelain Potteries Ltd (1959) 101 CLR 353
The Director of Public Prosecutions v Scheele [2016] ACTCA 23

Woden Valley Glass v Psaila (1993) 44 FCR 140

Parties:

Codmah Pty Ltd (First Appellant)

Ydennek Pty Ltd (First Respondent)

Leslie Rice (Second Respondent)

Representation:

Counsel

Mr L Morgan (Appellant)

Mr A Muller (First Respondent)

Solicitors

Gillis Delaney Lawyers (Appellant)

Slater & Gordon (First Respondent)

File Number:

SCA 73 of 2017

Decision under appeal: 

Court: Magistrates Court of the ACT

Before:  Chief Magistrate Walker

Date of Decision:         21 July 2017

Case Title:  Rice v Ydennek Pty Ltd & Ors

Court File Number:       WC 146 of 2015

Introduction

1. In March 2014, while unloading timber beams during the course of his employment as a labourer, Mr Rice stepped into a hole covered by long grass and injured his left knee and ankle. The present appeal is from a decision of the Chief Magistrate on 21 July 2017 (the orders being made on 10 August 2017).  It involves a dispute over whether a principal contractor is responsible for the payment of workers’ compensation to Mr Rice arising from that injury, and the amount of that payment under the workers’ compensation scheme set up by the Workers Compensation Act 1951 (ACT) (the Act), which was calculated based on the periods Mr Rice was deemed to be totally incapacitated under s 35 of the Act.

1. The order giving rise to the appeal (Order 3 of the orders made on 10 August 2017) is in the following terms:

The injury is productive of partial incapacity which is deemed total incapacity pursuant to s35 of the Workers Compensation Act 1951 during the periods he has been unable to find suitable employment, that is periods during which he has been unemployed post injury.

The parties

1. The appellant is Codmah Pty Ltd (Codmah). It was the principal or head contractor on a construction site for the building of a gas pipeline in the Australian Capital Territory (the Territory).

1. The first respondent on the appeal…