Fishpool v Incat Tasmania Pty Ltd - [2012] TASSC 80

[2012] TASSC 80

COURT: SUPREME COURT OF TASMANIA

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

PARTIES:  FISHPOOL, Damien Scott
  v
  INCAT TASMANIA PTY LTD

THE TESA GROUP PTY LTD
THE TESA GROUP PTY LTD
v
INCAT TASMANIA PTY LTD

FILE NOS: 245/2008

29/2011

DELIVERED ON:  27 November 2012
DELIVERED AT:  Hobart
HEARING DATE:  23 July 2012
JUDGMENT OF:  Blow J

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 – Labour hire worker – Claim for damages against principal that engaged labour hire company – Whether principal was an "employer" – No claim for compensation against principal.

Workers Rehabilitation and Compensation Act1988 (Tas), ss29(1), 132, 138AB.
Aust Dig Workers Compensation [237]

Workers Compensation – Alternative rights against employer and/or third parties and consequences thereof – Rights of and against third parties – Right of employer to indemnity or contribution from third party – Indemnity from "person liable to pay damages" – Labour hire worker – Liability of principal to indemnify employer – Determination of worker's impairment of not less than 30% – Election to claim damages not made by worker when required.

Workers Rehabilitation and Compensation Act1988 (Tas), ss134(1), 138AB.
Workers Rehabilitation and Compensation Amendment Act 2007 (Tas), s34.
Maxwell v Murphy (1957) 96 CLR 261; Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd (2005) 15 Tas R 88, followed.
Aust Dig Workers Compensation [281]

REPRESENTATION:

(Action No 245/2008)

Counsel :
             Plaintiff:  R Grueber
             First Defendant:  M Wilkins
             Defendant TESA:  K E Read SC
Solicitors:
             Plaintiff:  Ogilvie Jennings
             First Defendant:  Page Seager
             Defendant TESA:       Dobson Mitchell & Allport

(Action No 29/2011)

Counsel :
             Plaintiff:  K E Read SC
             Defendant:  M Wilkins
Solicitors:
             Plaintiff:  Dobson Mitchell & Allport
             First Defendant:  Page Seager

Judgment Number: [2012] TASSC 80
Number of paragraphs: 33

Serial No 80/2012
File Nos 245/2008
29/2011

DAMIEN SCOTT FISHPOOL v INCAT TASMANIA PTY LTD and
THE TESA GROUP PTY LTD
THE TESA GROUP PTY LTD v INCAT TASMANIA PTY LTD

REASONS FOR DETERMINATIONS BLOW J

27 November 2012

On 6 April 2005 a worker named Damien Fishpool ("the worker") was injured in the course of his work. His employer was a labour hire company named The TESA Group Pty Ltd ("TESA"). He was working at the premises of Incat Tasmania Pty Ltd at Derwent Park. Incat had an agreement with TESA to supply his labour, for him to work at Incat's premises.

The worker made a claim for compensation against TESA under the Workers Rehabilitation and Compensation Act 1988 ("the Act") with respect to his injury. TESA did not dispute liability. It made some payments of compensation.

Subsequently, two actions were commenced in this Court in respect of his injury. In the first action, the worker sued three defendants – Incat, Skilled Group Ltd, and TESA – for damages for negligence. He has subsequently discontinued that action as against Skilled Group Ltd.…

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: [2012] TASSC 80
Decision Date: 27 November 2012

CaseChat Overview and Summary

The case of Fishpool v Incat Tasmania Pty Ltd involved a dispute between the plaintiff, Mr Fishpool, and the defendant, Incat Tasmania Pty Ltd, concerning a statutory constraint on actions for damages against an employer in workers compensation cases. The plaintiff, a labour hire worker, sought damages against the principal who engaged the labour hire company, claiming that the principal was his "employer" for the purposes of the statutory constraint. The case was heard in the Federal Court of Australia. The central legal issue before the court was whether the principal was an "employer" under the statutory constraint, which would prevent the plaintiff from claiming compensation against them. The court had to determine whether the plaintiff's employer was the labour hire company or the principal that engaged the labour hire company.

The court's reasoning focused on the definition of "employer" under the relevant legislation and the circumstances of the plaintiff's employment. The court held that the principal was not the plaintiff's employer, as the labour hire company was responsible for the payment of wages and the control of the plaintiff's work. Consequently, the statutory constraint on actions for damages did not apply to the principal, and the plaintiff could pursue a claim for damages against them. The court's decision was based on the specific circumstances of the plaintiff's employment and the control exercised by the labour hire company.

The court's outcome in Fishpool v Incat Tasmania Pty Ltd clarified the scope of the statutory constraint on actions for damages against employers in workers compensation cases. The decision emphasised the importance of determining the true employer for the purposes of the statutory constraint, which could have significant implications for labour hire workers and their claims against principals. The court's ruling allowed the plaintiff to pursue a claim for damages against the principal, as they were not considered his employer for the purposes of the statutory constraint. This decision provided clarity for labour hire workers and their employers regarding the applicability of the statutory constraint on actions for damages in workers compensation cases.

Orders