Fishpool v Incat Tasmania Pty Ltd - [2013] TASFC 6

[2013] TASFC 6

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Fishpool v Incat Tasmania Pty Ltd [2013] TASFC 6

PARTIES: FISHPOOL, Damien Scott

v
INCAT TASMANIA PTY LTD

FILE NO/S: 245/2008
JUDGMENT

APPEALED FROM: Fishpool v Incat Tasmania Pty Ltd [2012] TASSC 80

DELIVERED ON:  14 June 2013
DELIVERED AT:  Hobart
HEARING DATE:  14 May 2013

JUDGMENT OF: Porter, Wood and Estcourt JJ

CATCHWORDS:

Workers Compensation – Alternative rights against employer and/or third parties and consequences thereof –Actions for damages against employer – Statutory constraint on actions for damages – Generally – Worker required to make election to claim damages from employer before commencing proceedings – "Employer" included principal liable to pay compensation in contract labour hire situation – No claim for compensation against principal but proceedings for damages brought without prior election – Whether principal an employer for the purposes of the election provision – Whether election required.
Morris v George [1977] 2 NSWLR 552, applied.

Geddes v Dunfermline District Committee [1927] SLT 571; [1927] BWCC 815; Herd v Summers (1905) 7 F 870, not followed.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss25, 29(1), 32, 80A, 132, 138AB, 134.
Aust Dig Workers Compensation [237]

REPRESENTATION:

Counsel:
             Appellant:  R Grueber
             Respondent:  M Wilkins
Solicitors:
             Appellant:  Ogilvie Jennings
             Respondent:  Page Seager

Judgment Number: [2013] TASFC 6
Number of paragraphs: 57

Serial No 6/2013
File No 245/2008

DAMIEN SCOTT FISHPOOL v INCAT TASMANIA PTY LTD

REASONS FOR JUDGMENT FULL COURT

PORTER J
WOOD J
ESTCOURT J
14 June 2013

Order of the Court

Appeal dismissed.

Serial No 6/2013
File No 245/2008

DAMIEN SCOTT FISHPOOL v INCAT TASMANIA PTY LTD

REASONS FOR JUDGMENT FULL COURT

PORTER J
14 June 2013

I agree with Estcourt J. The appeal should be dismissed. However, I want to make a few additional comments. The relevant provisions of the Workers Rehabilitation and Compensation Act 1988 (the Act), are set out in Estcourt J's reasons and there is no need for me to repeat them in any detail.

I do not think that there can be any doubt that the liability of "any person … under section 29" as referred to in s132 of the Act is the inchoate or foundational liability which arises on the suffering of an injury within the meaning of s25. That provision provides that on the suffering of an injury in particular circumstances, "the employer is, … liable to pay compensation in accordance with this Act …". To put s29 in its context, it appears, as does s25, in Division 1 of Part 3 headed "Entitlement to Compensation. Section 29(1) provides that in certain circumstances, the person described as "the principal", is "liable to pay to a worker any compensation … that he would have been liable to pay if that worker had been immediately employed by him". [Emphasis added.]

Sections 25 and 29 refer to a liability "to pay compensation". This is to be contrasted with s32 which provides a bar to an entitlement to compensation unless certain things…

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.

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Details

Case: [2013] TASFC 6
Decision Date: 14 June 2013

CaseChat Overview and Summary

Fishpool (the appellant) brought proceedings for damages against Incat Tasmania Pty Ltd (the respondent), alleging personal injury sustained during his employment. The central dispute concerned whether the appellant was required to make an election to claim workers' compensation before commencing his action for damages against the respondent, who was alleged to be a principal liable to pay compensation under a contract labour hire arrangement. The matter was heard in the Supreme Court of Tasmania, Court of Appeal.

The primary legal issue before the Court of Appeal was whether the respondent, as a principal in a labour hire situation, constituted an "employer" for the purposes of the statutory provision requiring a worker to elect between claiming compensation and commencing proceedings for damages against their employer. The Court had to determine if this election requirement applied to the appellant's circumstances, given he had not made a claim for compensation against the respondent.

The Court reasoned that the definition of "employer" in the relevant legislation extended to a principal who was liable to pay compensation in a contract labour hire situation. Consequently, the statutory constraint requiring an election before commencing proceedings for damages applied to the respondent. The Court found that the appellant's failure to make the requisite election meant his action for damages was precluded.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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