COWARA Contractors Pty Ltd v Turner
[2004] WADC 4
•23 JANUARY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: COWARA CONTRACTORS PTY LTD -v- TURNER [2004] WADC 4
CORAM: BLAXELL DCJ
HEARD: 15 DECEMBER 2003
DELIVERED : 23 JANUARY 2004
FILE NO/S: CIV 1805 of 2002
BETWEEN: COWARA CONTRACTORS PTY LTD
Appellant (Defendant)
AND
DARREN JAMES TURNER
Respondent (Plaintiff)GIO GENERAL LIMITED
Third Party
Catchwords:
Practice and procedure - Appeal from refusal of Registrar to stay prosecution of action - Stay sought by reason of non-compliance with s 93E of Workers' Compensation Rehabilitation Act 1981 - Whether compliance unnecessary because claim is for damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3(7), s 7, s 16, and s 29
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93B and s 93E
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (Defendant) : Mr A J Prentice
Respondent (Plaintiff) : Mr D M Bruns
Third Party : No appearance
Solicitors:
Appellant (Defendant) : Beere May & Meyer
Respondent (Plaintiff) : Separovic & Associates
Third Party : No appearance
Case(s) referred to in judgment(s):
George Douglas v Baulderstone Hornibrook Engineering Pty Ltd (No 2395 of 2000); 25 July 2003
Western Metals Zinc NL v Wesfarmers Transport Ltd & Smith [2003] WASCA 152
Case(s) also cited:
Alexander v Cambridge Credit Corp Ltd (1985) 10 ACLR 42
Belcher v Austal Ships Pty Ltd [2002] WADC 259
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
De San Miguel v Ryanex Pty Ltd [2003] WADC 147
Gluhic v Prok [2002] WADC 110
Hewitt v Benale Pty Ltd [2002] WASCA 163
Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175
Smith v Wesfarmers Transport Limited [2002] WADC 46
Thomas v Arimco Mining Pty Ltd (2000) 24 SR (WA) 142
BLAXELL DCJ: This is an appeal from the refusal of a Deputy Registrar to grant the defendant a stay of the prosecution of the action. The ground on which the stay was sought was that the action was one to which Division 2 of the Workers' Compensation and Rehabilitation Act 1981 ("the Compensation Act) applied and that the plaintiff had failed to comply with s 93E of that Act. Section 93E(3) provides that damages can only be awarded to a plaintiff if:
"(a)it is agreed or determined that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations."
However, pursuant to s 93B(3) of the Compensation Act this bar on the awarding of common law damages does not apply in respect of damages to which the Motor Vehicle (Third Party Insurance) Act 1943 ("the Insurance Act") applies. Although there are no written reasons for decision from the learned Deputy Registrar, I understand that the defendant's application for a stay was refused on the basis that the plaintiff's claim for damages is one to which the Insurance Act applies.
The grounds of the present appeal are that the learned Deputy Registrar erred:
"(a)in failing to make any determination as to whether the claim set out in the plaintiff's statement of claim was either exclusively a common law claim for damages which was subject to the provisions of (the Compensation Act) or alternatively included a damages claim which would otherwise come within the meaning of that Act;
(b)in concluding that it was too early to issue a stay of proceedings notwithstanding the non‑compliance by the plaintiff with s 93E of the (the Compensation Act) particularly given the fact that the plaintiff has already entered the matter for trial."
The nature of the plaintiff's claim
At all material times the plaintiff was a truck driver employed by the defendant at a transport yard in Margaret River. The statement of claim pleads that on 7 May 2001 the plaintiff was instructed by his supervisor to move a "dolly" owned and registered in the name of the defendant from one part of the transport yard to another. It is alleged that this operation was conducted with the assistance of the supervisor and that:
"Standard procedure required the brake air hoses to be attached between the dolly and the truck which would have resulted in the brakes on the dolly automatically activating when the dolly was disengaged from the truck."
The supervisor assisted the plaintiff by attaching the dolly to the back of the truck and it is pleaded that when he did so he failed to connect the brake air hoses. Consequently, after the dolly had been disconnected from the truck and while the plaintiff was standing nearby, the dolly suddenly rolled towards him crushing his right arm against the rear of the truck. The negligence alleged against the defendant's supervisor includes:
(a)The failure to connect the air hoses between the dolly and the truck.
(b)Failure to warn the plaintiff that the air hoses had not been connected.
(c)Failing to place blocks under the wheels of the dolly to ensure that it would not move.
(d)Exposing the plaintiff to an unsafe system of work.
The plaintiff further pleads that as a result of the defendant's negligence he sustained a gross compound comminuted fracture dislocation in the right arm in respect of which he has suffered damages.
Whether the claim is for damages to which the Insurance Act applies
Although the "dolly" is not described in the pleadings, I think I can take judicial notice of the fact that such a device is an independently articulated set of wheels onto which the front of a trailer can be mounted. A dolly also can be separately towed without a trailer in situ and it thus falls within the definition of a "motor vehicle" within the meaning of the Insurance Act. That Act defines a motor vehicle to include "a caravan, trailer or semi‑trailer drawn or hauled by a motor vehicle".
Section 16 of the Insurance Act was inserted by way of amendment in 1972, and it abolished the Third Party Claims Tribunal which had previously exercised jurisdiction in respect of motor vehicle damages claims. At the same time subsections (1), (3) and (4) conferred jurisdiction on the Courts to hear and determine any action or proceedings:
"…making a claim for damages, in respect of the death of or bodily injury to a person directly caused by, or by the driving of, a motor vehicle, against the owner or driver of the vehicle…"
Subsection 3(7) of the Insurance Act also provides that:
"For the purposes of this Act the death of or bodily injury to any person shall not be taken to have been caused by a vehicle if it is not a consequence of the driving of that vehicle or of the vehicle running out of control." (Emphasis added).
Turning now to the Compensation Act, s 93B(3)(a) provides that the constraints on awards of common law damages stipulated in Division 2 of that Act do not apply "to the awarding of…damages to which (the Insurance Act) applies". Accordingly, if this Court has jurisdiction to award damages in the present action pursuant to s 16 of the Insurance Act, Division 2 of the Compensation Act will not in any way restrict that award. (The restrictions in s 3A and following of the Insurance Act will nevertheless apply – see Western Metals Zinc NL v Wesfarmers Transport Ltd & Smith [2003] WASCA 152.)
The plaintiff's statement of claim pleads a cause of action in negligence which is essentially an allegation that the defendant employer had an unsafe system of work in the manner in which the dolly was moved. The pleading is not in the usual form for claims the subject of the Insurance Act, and this is perhaps understandable given that the facts alleged do not involve the usual driving situation and there is an assertion of vicarious liability for the negligence of the supervisor. It is nevertheless clear that the plaintiff's bodily injury is said to have been caused by the dolly rolling backwards and crushing his right arm against his truck.
It is implicit from the facts as pleaded that the dolly was not under any person's control at the time it rolled backwards, and accordingly it cannot be suggested that the supervisor was the "driver" within the meaning of the Insurance Act. Nevertheless if the plaintiff is successful in proving his claim, he will have established that his bodily injury was "directly caused by" the dolly as a consequence of it running out of control. In this event he will be entitled to an award of damages pursuant to s 16 of the Insurance Act, notwithstanding that the accident will have occurred in the context of a claim arising from an allegedly unsafe system of work.
It necessarily follows that the learned Deputy Registrar was correct in coming to the view that on the facts as pleaded in the statement of claim s 93E of the Compensation Act does not restrict an award of damages.
The defendant has submitted on appeal that the plaintiff's statement of claim pleads two causes of action in negligence, one under the Compensation Act, and the other under the Insurance Act. It is further submitted that in these circumstances s 93E of the Compensation Act still needs to be complied with, and it is suggested that support for this proposition can be found in a remark by Macknay DCJ in the course of proceedings in George Douglas v Baulderstone Hornibrook Engineering Pty Ltd (No 2395 of 2000) on 25 July 2003. Having perused the relevant transcript I do not accept that Macknay DCJ's remark provides such support, and in any event note that there was not a considered determination of the issue.
In my view it is plain that the plaintiff's statement of claim in the present action pleads a single cause of action at common law (and not pursuant to any statute) for negligence by his employer. It happens to be a component of that cause of action that the bodily injury is said to have been caused by a motor vehicle, thus subjecting the claim tor the Insurance Act and bringing it within the exemption contained in s 93B(3) of the Compensation Act.
I can well understand that in these circumstances the defendant will feel that it has fallen between two stools, and that it may have difficulty in determining whether either or both of the workers' compensation and motor vehicle insurers should be joined as third parties. While this situation is regrettable, it is a consequence that arises from the legislative provisions that I have referred to, rather than of any deficiency in the statement of claim.
For all of the above reasons the appeal will be dismissed.
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