Haasy v Town & Country Demolition Pty Ltd
[2002] WADC 81
•3 MAY 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: HAASY -v- TOWN & COUNTRY DEMOLITION PTY LTD [2002] WADC 81
CORAM: HH JACKSON DCJ
HEARD: 25 FEBRUARY 2002
DELIVERED : 3 MAY 2002
FILE NO/S: CIV 2273 of 2000
BETWEEN: MARK ANDREW HAASY
Plaintiff
AND
TOWN & COUNTRY DEMOLITION PTY LTD
DefendantRECYCLED BRICK CLEANING COMPANY
First Third PartyUNIVERSAL CONSTRUCTIONS PTY LTD
Second Third Party
Catchwords:
Torts - Negligence - Contribution - Workers' Compensation and Rehabilitation Act 1981 - Preliminary question of law
Legislation:
Workers' Compensation and Rehabilitation Act 1981
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Application to dismiss claim to contribution dismissed but contribution notice struck out, given present state of pleadings and agreed facts
Representation:
Counsel:
Plaintiff: No appearance
Defendant: Mr R J L McCormack
First Third Party : Mr G R Hancy
Second Third Party : No appearance
Solicitors:
Plaintiff: Michael Seaman
Defendant: Srdarov Richards Burton
First Third Party : Basile Hawkins
Second Third Party : Pynt McKay
Case(s) referred to in judgment(s):
Australian Turf Industries Pty Ltd v Dalet Pty Ltd, unreported; FCt SCt of WA; Library No 980658; 12 November 1998
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Maxwell v Murphy (1957) 96 CLR 261
Musgrove v Minister for Transport [2000] WASCA 232
Smith v Wesfarmers Transport Limited [2002] WADC 46
Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131
Unsworth v Commissioner for Railways (1958) 101 CLR 73
Case(s) also cited:
Alexander v Westrail [2000] WADC 119
Andrews v Ziersch (1994) 61 SASR 521
Austral Pacific Group Limited v Airservices Australia [2000] HCA 39
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 173 ALR 619
Bonser v Melnacis [2000] QCA 13
Burton v Shire of Bairnsdale (1908) 7 CLR 76
Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers' Compensation) Limited (1991) 5 WAR 208
Commonwealth of Australia v Flaviano & Anor (1996) 40 NSWLR 199
Container Handlers Pty Ltd v Insurance Commission of Western Australia [2001] WASCA 304
Coomblas v Gee (1998) 72 SASR 247
Dalgety Australia Ltd & Anor v de Vahl Rubin & Ors, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Kimberley Downs Pty Ltd & Ors v State of Western Australia & Anor, unreported; SCt of WA; Library No 6414; 25 August 1986
Lightbody v Fluor Australia Pty Ltd (1988) A Tort Rep 80-204
Manners v Transfield Pty Ltd (1992) 8 WAR 111
Minproc Ltd v Killinger & Ors [2001] WASC 347
Niven v Grant (1903) 29 VLR 102
Nottingham v BHB Engineering Pty Ltd [1984] WAR 25
Packhard & Ors v Transport, Trading & Agency Co Ltd & Weir (1912) 14 WALR 191
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139
APPLICATION BY FIRST THIRD PARTY TO DISMISS
DEFENDANT'S CLAIM AGAINST FIRST THIRD PARTY
HH JACKSON DCJ:
The issue
The plaintiff in these proceedings sues the defendant in negligence for damages arising from injuries suffered on 18 December 1996. The injuries were suffered at a building site during the use of a tracked excavator operated by a servant or agent of the defendant. The excavator crushed the plaintiff's legs.
The defendant defends the proceedings but joins two third parties.
The first third party was, at the material time, the plaintiff's employer. The defendant seeks contribution or indemnity pursuant to the provisions of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 from the first third party alleging negligence, breach of contract and breach of statutory duty against it.
The defendant seeks similarly to obtain an order for contribution or indemnity against the second third party as the principal contractor on site.
By chamber summons filed 7 September 2001, the first third party sought orders that the defendant's claim against it be struck out on the grounds that it is vexatious, frivolous and discloses no cause of action. That application was out of time. An amended chamber summons was filed on 26 September 2001 seeking extension of time to bring the application and also adding a claim for orders striking out the entire pleading. Submissions were filed in writing pursuant to orders by a Registrar.
By chamber summons filed on 23 November 2001, the first third party "then sought an order that the question as to" whether the defendant has any cause of action against the first third party by reason of the operation of s 93F(4) of the Workers' Compensation and Rehabilitation Act be determined as a preliminary "question of law". An order to that effect was made by a Registrar on 5 December 2001. The solicitors for each of the defendant and first third party then filed a statement of agreed facts which states:
"1.The plaintiff was employed by the first third party on the 18th December 1996 and as a consequence is a worker as defined pursuant to the Workers' Compensation & Rehabilitation Act 1981 as amended.
2.The plaintiff has not had a degree of disability assessed in accordance with Section 93D of the Workers' Compensation & Rehabilitation Amendment Act 1999."
The matter was then set down for hearing as a special appointment before a judge and came before me on 25 February 2002. Mr Hancy appeared at the special appointment briefed to argue the preliminary question so stated on the basis that he was not to deal with the issue on the chamber summons to strike out the pleading, which he had been instructed had been adjourned sine die, but rather as an application for final determination of the preliminary question. On a striking out application, of course, the defendant would merely have to show an arguable case that the pleading raised a cause of action.
Mr McCormack appeared for the defendant briefed that the application was on the chamber summons to strike out but consented to having the matter dealt with finally on the merits.
Accordingly, I heard argument and reserved my decision.
The issue, therefore, was whether in the circumstances of the present case, accepting the statement of agreed facts, the defendant's claim against the first third party should be dismissed by reason of the operation of the present provisions of the Workers' Compensation and Rehabilitation Act.
The circumstances of the present case
As recited already, the present case arises out of an industrial accident on 18 December 1996. The plaintiff was employed by the first third party, but says the injury was caused by another, the defendant, through its employee's negligence in operating the tracked excavator. The writ of summons was filed on 30 August 2000.
The defendant seeks contribution or indemnity from both the first third party and the second third party. Given the agreed facts referred to above, the first third party relies on the amendments to the Workers' Compensation and Rehabilitation Act made in 1999 to ban the claim for contribution or indemnity against it.
The 1999 amendments
The relevant provisions of the Workers' Compensation and Rehabilitation Act are all found within Div 2 of Pt IV. The division was added to the Act in 1993. Since 1993, so that both prior to and since 1999, the Workers' Compensation and Rehabilitation Act has contained the following provisions:
"Section 93B(1)
(1)This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if -
(a)the disability was caused by the negligence or other tort of the worker's employer; and
(b)compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable bur for section 22."
Section 22 is irrelevant in the present case:
"(2)This Division applies even if the damages resulting from the negligence or other tort of the worker's employer are sought to be recovered in an action for breach of contract or other action.
(3)This Division does not apply to the awarding of -
(a)damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies;
..."
By s 93C:
"Limit on powers of courts
If this Division applies a court is not to award damages to a person contrary to this Division."
Prior to the 1999 amendments, an employee required leave from the District Court under s 93D before the employee could commence an action for damages for personal injuries against the employer. The plaintiff had not applied for leave under s 93D.
The provisions for requiring leave and the provisions as to when leave was to be granted were repealed and replaced as from October 1999.
Section 93E(3) of the Act now provides:
"(3)Damages can only be awarded if -
(a)it is agreed or determined that the degree of disability is not less than 30% 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."
By s 93E(4):
"(4)For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."
By s 93F(4):
"(4)If -
(a)section 93E(3) does not allow damages to be awarded in respect of the disability; or
(b)damages in respect of the disability have been awarded in accordance with subsection (1),
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 disability."
The third party's submissions
Mr Hancy argues that the express terms of s 93F(4) are a complete and obvious answer to the defendant's claim against the first third party.
First, it is common ground that damages have not been awarded in accordance with s 93F(7).
Secondly, he says, s 93E(3) does not allow damages to be awarded, because it has not been agreed or determined that the plaintiff's degree of disability is "not less than 30%" or is "a significant disability". It is not in dispute that no such agreement or determination has been made. That being so, s 93C provides that a court is not to award damages so that by s 93F(4), the employer is not liable to make contributions under the Law Reform (Contributory Negligence and Tortfeasors' Contributions) Act. That sub‑section is a clear repeal of the right to claim contribution from an employer recognised in Australian Turf Industries Pty Ltd v Dalet Pty Ltd, unreported; FCt SCt of WA; Library No 980658; 12 November 1998.
Some possible difficulties
A number of questions arise from this submission.
One is whether the plaintiff might still be able to obtain an agreement or determination to satisfy s 93E(3). Mr Hancy argues that the question must be answered on the facts as they now are. That, I think, is so but only sufficiently to strike out the pleading, not to finally dismiss the claim.
Another is whether the employer might be still liable to make contribution but not under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act, for example, under a contractual obligation. Again, that is not pleaded, but as with the previous point, I was left with inadequate information to provide a satisfactory conclusion that it was not a possibility.
It might be worth adding the comment here that such possibilities illustrate the difficulties often encountered when it is sought to deal with matters as preliminary issues.
A further possible difficulty lies in the fact that the plaintiff's injuries were said to be directly caused by the use of a tracked excavator. Neither counsel could assure me that the accident was one potentially involving "the awarding of damages to which the Motor Vehicle (Third Party Insurance) Act 1943 applies". That involves the question whether the vehicle was a "motor vehicle" a defined in that Act. I might add reference here to the fact that Martino DCJ faced a similar situation recently in Smith v Wesfarmers Transport Limited [2002] WADC 46. Again, the attempt to deal with the matter as a preliminary issue without adequate agreed facts or information raises difficulties.
Retrospectivity and preservation of pre‑existing claims and entitlements
The substantial issue on which the matter was argued before me, however, was whether there is any basis on which the claim to contribution has been or is preserved.
Mr Hancy argued that the only basis on which a pre‑existing claim was protected from having to comply with the provisions of the 1999 amendments was that the claim had been the subject of proceedings or of a grant of leave prior to the commencement in operation of s 32(7) of the 1999 amendments, or an appeal had been instituted in respect of refusal of such leave prior to that commencement of operation: Musgrove v Minister for Transport [2000] WASCA 232; Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131.
Since, in the present case, neither proceedings nor an application for leave had been brought, there is no basis, Mr Hancy argued, either in general principle or by utilisation of the provisions of the Interpretation Act to in some way preserve a potential claim against the employer third party given the plain words of the 1999 legislation. Neither any of the judgments based on such approaches nor the approach suggested by Wheeler J in Toolan v Metropolitan (Perth) Passenger Transport Trust (supra) was any support for the defendant's claim.
In written submissions, the third party's position was put thus:
"A general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer, impose or otherwise affect rights or liabilities which the law had defined by reference to past events: eg Maxwell v Murphy (1957) 96 CLR 261, 267 per Dixon CJ. To a similar effect is section 37(1) of the Interpretation Act 1984. Section 93F(4) expressly deals with the topic of the right of a tortfeasor to recover contribution from an employer. It shows the intention of the legislature. To the extent material to this case, the right to recover contribution from the employer does not exist where section 93E(3) does not allow damages to be awarded to the worker.
The effect of the 1999 amendments was to set up a scheme that prohibited the awarding of damages whenever the injury occurred and whether or not proceedings were commenced unless the award complied with section 93D and following sections: Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131, per Wheeler J para 80. A construction of section 93F that likewise limits any right to recover contribution conforms with that scheme. The contrary construction does not.
Section 37(1)(c) of the Interpretation Act 1984 does not assist the defendant. It only protects ("unless the contrary intention appears") "any right ... created, acquired, accrued, established or exercisable ... prior to the repeal". Prior to the 1999 amendments the defendant did not have a right that was "created, acquired, accrued, established or exercisable". No proceedings had been brought against the defendant at that stage. Nor had the defendant taken any steps to avail itself of any contingent right to contribution: cf Toolan v Metropolitan (Perth) Passenger Transport Trust per Parker J paras 59 and 60.
Pursuant to section 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 a tortfeasor liable in respect of damage suffered as a result of a tort may recover contribution from another tortfeasor who is or would if sued have been liable for the same damage. The right does not arise if there was no time when the defendant, if sued, would have been liable: cf Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; Australian Turf Industries Pty Ltd v Dalet Pty.
In the present case there was no time when, if sued, the first third party would have been liable to pay damages to the plaintiff."
In Smith v Wesfarmers Transport Ltd (supra), Martino DCJ refused to strike out the defendant's claim for contribution because of the possibility that the Motor Vehicle (Third Party Insurance) Act applied to the plaintiff's claim. He accepted, however, in circumstances on foot with the present matter, that arguments that the 1999 legislation did not apply or that s 37(1) of the Interpretation Act saved a claim for contribution from the employer, were inconsistent with the Full Court decision in Toolan v Metropolitan (Perth) Passenger Transport Trust (supra):
"In Toolan v Metropolitan (Perth) Passenger Transport Trust (supra), the Full Court held that s 37(1)(c) of the Interpretation Act 1984 only protects a right if it has been 'created, acquired, accrued, established or exercisable' before the amending Act came into force. The defendant had taken no steps to avail itself of the contingent right it had against the third party before the 1999 amendment came into force and so the amending Act applies to the defendant's claim against the third party: Toolan v Metropolitan (Perth) Passenger Transport Trust (supra) per Parker J at par 60."
His Honour went on to comment that:
"Section 93E(3) does not extinguish a cause of action. It provides that before damages can be awarded to a plaintiff one of two conditions must be satisfied. If one of those conditions is satisfied then s 93F(4) does not prevent the employer being liable to make contribution unless damages have been awarded in accordance with s 93F(1). In Thomas v Arimco Mining Pty Ltd (2000) 24 SR (WA) 142 Nisbet DCJ held that there is no impediment to a worker commencing an action and subsequently satisfying s 93E(3) and then being awarded damages. I agree with his Honour's conclusion.
The time limited for the plaintiff to satisfy s 93E(3)(b) has expired but I cannot determine on this strike out application that it would not be possible for the plaintiff to satisfy s 93E(3)(a) of the Act and obtain an agreement or determination that the degree of his disability is not less than 30 per cent. If the plaintiff were to obtain such an agreement or determination then the prohibition on the defendant obtaining contribution indemnity contained in s 93F(4) would not apply. It follows in my opinion that it could not be said that the defendant's claim against the third party is unsustainable and for that reason I would not have struck out the third party notice even if it was unarguable that the Workers' Compensation and Rehabilitation Act 1981 applied to the defendant's claim against the third party."
In Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150, Nisbet DCJ refused to strike out the claim for damages against the second defendant employer on the basis that the plaintiff might still obtain an agreement or determination, although accepting that a stay order may be appropriate.
The defendant's submissions
The defendant's written outline of submissions filed for the special appointment argues that there is a fundamental distinction to be drawn between the awarding of damages, as provided in s 32(7) of the 1999 amendments and proceedings in which contribution or indemnity are claimed under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act. "Indeed, the condition precedent to an entitlement to claim contribution or indemnity from the third party, at the suit of the defendant, is the existence of an award of damages in favour of the plaintiff against the defendant. However, by reason of the inchoate nature of claims brought by way of third party proceedings, there is no need for the said condition precedent to be satisfied at this stage." The courts recognise the right of a tortfeasor, other than the employer, to claim contribution from the employer, in circumstances where the worker was not able to recover damages from the employer.
Further, as the transitional provisions contained in s 32(7) are limited to "the awarding of damages", there is no expression of intention consistent with the legislature achieving an indirect cancellation of pre‑existing rights available to a party in the position of the defendant to claim contribution or indemnity against the third party. Moreover, there is no warrant for the amendments made to s 32 to be considered, as a matter of proper construction, retrospective with respect to contribution and indemnity claims. Section 93F(4) does not, expressly or impliedly, purport, as a matter of proper construction, to modify or amend the effect of s 92 and s 93, the effect of which is to provide that the extent of the reimbursement is to be reduced by an amount which represents the extent to which there was either contributory negligence or negligence on the part of the employer. Thus, to construe s 93F(4) in the limited manner contended for by the third party would not be in accordance with a proper construction of s 93F considered as a whole.
Given the way the matter had proceeded, Mr McCormack argued that I should stay the appointment to enable a more adequate consideration of the statement of agreed facts and determination of the preliminary question.
Dealing with the central issue raised by the third party, however, he argued that there is as yet no binding authority that the 1999 amendments are retrospective in the sense of applying to the facts in the present case. He stressed the central importance of the principle in Maxwell v Murphy (1957) 96 CLR 261 and the width of s 37 of the Interpretation Act and also the clear distinction between claims in tort for damages and claims to contribution illustrated in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 in relation to the operation of limitation periods and in Unsworth v Commissioner for Railways (1958) 101 CLR 73.
He argues also that the provisions of s 92 and s 93 of the Workers' Compensation and Rehabilitation Act are inconsistent with the third party's submissions on s 93F(4), pointing out that such matters have not been argued in proceedings binding on me.
Conclusions
The view I have formed is that given the factual issues on which I cannot yet be satisfied, I should refuse to deal with the final disposition of the preliminary question of law in the present case. Rather, I should deal with the present pleading in light of the presently pleaded and agreed facts. It seems to me plain enough on the face of the legislation and given the approaches to it taken in Musgrove v Minister for Transport (supra) and Toolan v Metropolitan (Perth) Passenger Transport Trust (supra) that as the proceedings presently stand, the defendant can have no present right to contribution against the first third party. However, that may, if other facts emerge, not remain the case. Accordingly, I strike out the defendant's claim to contribution or indemnity against the first third party on that basis whilst accepting that if in the course of the proceedings the facts as pleaded were to alter or emerge, such a right might arise. There will, therefore, be orders in terms of the chamber summons filed 7 September 2001 on the basis that the claim against the first third party discloses no cause of action on the facts presently pleaded. The defendant is to pay the costs of the application including costs of the matters relating to determination of the preliminary question.
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