De COITO v Leonard - [2012] WADC 112

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DE COITO -v- LEONARD [2012] WADC 112

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 20 JUNE 2012

DELIVERED : 23 JULY 2012

FILE NO/S: CIV 317 of 2010

BETWEEN: ANGELO DA SILVA DE COITO
Plaintiff
AND
CLINT JOHN KEITH LEONARD
Defendant
ALCOA OF AUSTRLIA LIMITED
Defendant Third Party
TOTAL CORROSION CONTROL PTY LTD
Defendant Fourth Party

Catchwords:

Practice – Western Australia – Practice under the Rules of the Supreme Court 1971 (WA) – Application to strike out fourth party proceedings – Rules of the Supreme Court 1971 (WA) O 20 r 19 (1)

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)
Mines Safety and Inspection Act 1994 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Occupiers' Liability Act 1985 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Application unsuccessful

Representation:

Counsel:

Plaintiff:     No appearance
Defendant:     No appearance
Defendant Third Party :     Mr D Clyne
Defendant Fourth Party     :     Mr J P Wilson

Solicitors:

Plaintiff:     Truen Norman and Co
Defendant:     Jarman McKenna
Defendant Third Party :     Harman Legal Pty Ltd
Defendant Fourth Party     :     WHL Legal Pty Ltd

Case(s) referred to in judgment(s):

Brinkley v P & O Trans Australia WA Pty Ltd [2009] WADC 16

DEPUTY REGISTRAR HARMAN: By his defence the defendant admitted that on 7 April 2009 the Plaintiff was walking towards the power house at an Alcoa refinery when a truck driven by him reversed into the plaintiff knocking him to the ground. The judgment for damages entered by consent in favour of the plaintiff had by consent been reduced by 25% for contributory negligence.
The defendant has claimed against the third party on the basis of indemnity or contribution pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA). The third party denies the allegations that as the owner and controller of what is characterised as a mine, it owed the plaintiff a statutory duty under the Mines, Safety and Inspection Act 1994 (WA); as occupier of the mine, it owed a statutory duty under the Occupiers Liability Act 1985 (WA); and that it owed a duty of care to provide a safe system of work and not to expose him to risk of injury.
The third party has issued fourth party proceedings. In its notice it claims as follows:
In the event of the third party being found in any way liable to either the defendant or the plaintiff, the third party claims against you that the plaintiff's accident and injuries were caused or contributed to by your negligence and/or breach of statutory duty, in that you as the plaintiff's employer both at common law and pursuant to the Mines Safety and Inspection Act 1994 (WA) owed a duty to the plaintiff, or alternatively, as an occupier pursuant to the Occupiers Liability Act 1985 (WA) owed a duty to the plaintiff, and that you were negligent and/or in breach of statutory duty – and further that pursuant to an agreement between you and the third party you agreed to, inter alia;
(a)properly supervise the plaintiff and protect him from injury while carrying out work for you;
(b)indemnify the third party in respect of injuries such as those alleged by the plaintiff ('the Contractual Indemnity'); and
(c)arrange and/or hold insurance cover for the benefit of the third party so that it would be entitled to an indemnity from an insurer in respect of claims such as that which has been made by the plaintiff ('the Contractual Insurances')
…
In breach of that contract you have failed to indemnify the third party in relation to the claim against it and/or provide insurance cover for the benefit of the third party and/or failed to properly or at all supervise the plaintiff in his work or protect him from injury, as a consequence of which the third party has or may suffer damage being the extent to which, if any, it may be held liable to the plaintiff and/or the defendant.
The third party claims against you for breach of contract and/or indemnity pursuant to the Contractual Indemnity and/or pursuant to the Contractual Insurances and/or contribution or indemnity pursuant to s 7 of the LawReform (Contributory Negligence and Tortfeasors' Contribution) Act 1947.
In its defence to the third party's claim the fourth party has admitted that it was the 'occupier' and owner of the vehicle, an 'insured person' as defined by the Motor Vehicle (Third Party Insurance) Act; it owed the plaintiff a statutory duty under the Mines, Safety and Inspection Act; and that it owed a duty of care to provide a safe system of work and not to expose the plaintiff to risk of injury.
The fourth party does not admit that under the Occupiers Liability Act, as occupier of the truck it owed a duty to the plaintiff; and denies that it caused or contributed to the plaintiff's injury.
The fourth defendant pleads that it cannot be held liable to make contribution to the third party for breach of any duty because the plaintiff never made an election as provided in s 93K(4) of the Workers' Compensation and Injury Management Act and that s 93K(8) of that Act provides it with immunity to make contribution because it was the plaintiff's employer.
The fourth party has issued the application before the court to strike out pars 9, 10, 11, 15, 18.1, 18.2, 18.3 and 22 of the third party's pleading because they constitute a claim for contribution under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act in circumstances where damages could not be awarded against it in favour of the plaintiff. The applicant contends that the relevant pleadings are:
(a)scandalous, frivolous or vexatious; and/or
(b)may prejudice, embarrass or delay the fair trial of the action; and/or
(c)are otherwise, an abuse of the process of the court.
It is for the applicant to establish that the claim for contribution is unsustainable.
Section 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act is as follows:
(1)Subject to Part 1F of the Civil Liability Act 2002, where damage is suffered by any person as the result of a tort —
(a)…
(b)…
(c)any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise but so that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability for which contribution is sought.
The relevant provisions of s 93K of the Workers' Compensation and Injury Management Act are as follows:
(4)Damages in respect of an injury can only be awarded if -
(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek damages;
(b)the Director registers the election in accordance with the regulations;
(c)court proceedings seeking damages are commenced after the Director gives the worker written notice that the Director has registered the election;
and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
…
(8)If –
(a) subsection (4) does not allow damages to be awarded in respect of the injury; or
(b)damages in respect of the injury have been awarded in accordance with subsection 5;
the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (the 'Contribution Act') in respect of damages awarded against another person in relation to the injury.
The terms of s 93K(5) are not significant for present purposes.
The applicant relies on the affidavit of John‑Paul Wilson sworn 14 February 2012 in which he deposes to history relating to the plaintiff's entitlement to compensation under the Workers' Compensation and Injury Management Act. In particular, he deposes that the result of his enquiries relating to whether the plaintiff made an election revealed that there had been no election.
On the part of the third party it contended that neither the claim against it nor that which it puts is constrained by the operation of the Workers' Compensation and Injury Management Act because firstly they are not claims for damages in respect of an injury suffered by a worker; and secondly the claim put against the defendant was made on the basis of his alleged negligent driving.
The submissions put by the parties gave me reason to reflect on the reasons for decision in Brinkley v P & O Trans Australia WA Pty Ltd[2009] WADC 16, where in similar circumstances I dismissed a case put against an employer. In that case it does not appear that the plaintiff's claim engaged with the Motor Vehicle (Third Party Insurance) Act. The other point of difference is that in the case before me, the basis for the claim made by the third party would be established by judgment for contribution.
On the case put by the respondent, I am satisfied that it is open to consider that the constraints upon which the applicant relies at s 93K(4) would not apply to its claim for contribution and that the conditions upon which the immunity provided at s 93K(8) is founded have not been satisfied. It follows that I ought not to reach the conclusion that the claim is unsustainable.