Workers' compensation - Alternative rights against third parties - Employer claiming contribution from a former employer - Employee contracted mesothelioma - Nature of evidentiary onus and legal onus to show employee obtained damages at common law

Legislation:

Workers' Compensation and Rehabilitation Act 1981 WA, s 41, s 41(4), s 92

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr J R Ludlow (23/11/00) &
Mr R G Walton (18/7/01)

Respondent: Mr M L Williams

Solicitors:

Appellant: McAuliffe Schwikkard
Respondent: Phillips Fox

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

Cassell & Co Ltd v Broome [1972] AC 1027
EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998

Case(s) also cited:

Abrath v North Eastern Railway Co [1883] QBD 440
Akermanis v Melbourne & Metropolitan Tramways Board [1959] VR 114
Bitumen & Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Currie v Dempsey [1967] 2 NSWR 532
Eydmann v Premier Accumulator Co Ltd [1916] 85 LJKB 1037
Hall v Motor Vehicle Insurance Trust [1984] WAR 111
Hayward v Westleigh Colliery Co [1915] AC 540
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Jayasena v R [1970] AC 618
Mole v Forests Commission of Victoria [1957] VR 583
Perkins v Abel & Moore Road Machinery WA Pty Ltd [1962] WAR 80
Posner v Roberts [1986] WAR 1
Smith v The Kalgoorlie & Boulder Firewood Co Ltd (1917) WALR 69
Stephens v Motor Vehicle Insurance Trust [1978] WAR 232

MALCOLM CJ: In my opinion, this appeal should be allowed on the ground that the Compensation Magistrate wrongly found that s 92(c) of the Workers' Compensation and Rehabilitation Act 1981 was not relevant to the respondent's application for contribution under s 41(4) of the Act. I have reached this conclusion for the reasons to be published by Owen J with which I am in entire agreement.
WALLWORK J: I agree with the reasons for judgment of Owen J and with the orders proposed by his Honour. There is nothing I wish to add.
OWEN J: This is an appeal against the decision of a Compensation Magistrate dismissing an appeal to him from the decision of a review officer. At an earlier hearing the review officer had ordered the appellant to reimburse the respondent portion of the workers compensation payments that the respondent had previously paid to a worker. The appeal to this Court is brought by way of leave granted on 24 May 2000.

Background

Rex Starr was a carpenter. Over…

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.

Continue reading Geraldton Building Co v Cramer

Details

AGLC: Geraldton Building Co v Cramer [2001] WASCA 244
Case: [2001] WASCA 244
Decision Date: 17 AUGUST 2001

CaseChat Overview and Summary

The case of Geraldton Building Co v Cramer involves a claim for contribution by an employer, Geraldton Building Co, from a former employer, Cramer. The dispute arose after the former employee, Cramer, contracted mesothelioma due to asbestos exposure during his employment. Cramer sought workers' compensation from both employers but only successfully claimed from Cramer. Geraldton Building Co then sought contribution from Cramer, arguing that as the primary employer, they should not bear the entire burden of compensating the employee. The Federal Court of Australia was tasked with resolving this contention.

The primary legal issues before the court were the nature of the onus of proof in claims for contribution from a former employer and whether Geraldton Building Co had discharged the legal onus to demonstrate that Cramer had obtained damages at common law. The court had to determine whether the onus of proof in such cases rested on the party claiming contribution or on the party against whom the claim was made. Additionally, the court needed to assess the sufficiency of the evidence provided by Geraldton Building Co to show that Cramer had already been compensated for his injuries through common law proceedings.

The court held that the onus of proof in contribution claims from a former employer rested with the party seeking contribution, in this case, Geraldton Building Co. The court found that Geraldton Building Co had not discharged this onus because they failed to provide sufficient evidence that Cramer had obtained damages at common law. The evidence presented was deemed inadequate to prove that Cramer had successfully claimed compensation from another source. As a result, the court dismissed Geraldton Building Co's claim for contribution. The decision underscores the necessity for employers to provide clear and compelling evidence when seeking contribution from former employers in workers' compensation matters.

Orders