| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JONES -v- SNF (AUSTRALIA) PTY LTD & ANOR [2002] WADC 207 CORAM : MARTINO DCJ HEARD : 16 SEPTEMBER 2002 DELIVERED : 3 OCTOBER 2002 FILE NO/S : CIV 2833 of 2000 BETWEEN : BRADLEY IVAN EDWARD JONES Plaintiff
AND
SNF (AUSTRALIA) PTY LTD
First Defendant
WESFARMERS LIMITED
Second Defendant
SEELEY AUTO ELECTRICAL PTY LTD
First Third Party
DON PATRICK BINGHAM t/as DP BINGHAM & ASSOCIATES
Second Third Party
Catchwords: Workers' compensation - Statutory interpretation - Deemed employer
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Legislation:
Workers' Compensation & Rehabilitation Act 1981,s93E, s 175
Result: First defendant not plaintiff's deemed employer
Second defendant is plaintiff's deemed employer Representation:
Counsel:
Plaintiff : Mr T N Cullity
First Defendant : Mr G T Stubbs
Second Defendant : Mr D R Clyne
First Third Party : No appearance
Second Third Party : No appearance
Solicitors:
Plaintiff : Trewin Norman & Co
First Defendant : Dwyer Durack
Second Defendant : McAuliffe Williams & Partners
First Third Party : Michael Paterson & Associates
Second Third Party : Mr Michael Rennie
Case(s) referred to in judgment(s):
Andrews v Andrews & Mears [1908] 2 KB 567
Container Handlers Pty Ltd v Insurance Commission of Western Australia (2001) 25 WAR 42
Frauenfelder v Reid & Ors (1963) 109 CLR 42
Hewitt v Benale Pty Ltd [2000] WASCA 163
Moir v Schrader (1936) 56 CLR 310
Powers v Maher (1959) 103 CLR 478
State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434
Textron Pacific Ltd v Collector of Customs (Qld) (1987) 78 ALR 547
The Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
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Case(s) also cited:
Boath v The Central Queensland Meat Export Company Proprietary Limited and State Government Insurance Office (Queensland) [1986] 1 Qd R 139
Bobbey v W M Crosbie & Co Ltd (1915) 114 LT 244
Bryce v Denclean, unreported; Conciliation and Review Directorate; No 55/95; 24 July 1995
Dittmar v Owners of Ship V 593 [1909] 1 KB 389
Hayes v S J Thompson & Co (1913) 6 BWCC 130
Hockley v West London Timber and Joinery Company [1914] 3 KB 1013
Mowling v Justices of Hawthorn (1891) 17 VLR 150
Skates v Jones & Co [1910] 2 KB 903
Spiers v Elderslie Steamship Co Ltd [1909] SC 1259
Technical Products Pty Ltd v State Government Insurance Office (1989) 85 ALR 173
Turner and Others v York Motors Proprietory Limited (1951) 85 CLR 55
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Introduction 1 In November 1998 the plaintiff ("Mr Jones") was an automotive electrician employed by the first third party ("Seeley"). On 25 November 1998 and in the course of that employment Mr Jones suffered head injuries when he was struck on the head by a steel air pressure pipe. 2 Mr Jones received workers compensation payments from Seeley in respect of his injuries. On 1 September 2000 an agreement between Mr Jones and Seeley whereby Seeley agreed to pay to Mr Jones a lump sum in redemption of its liability to make weekly payments of compensation to Mr Jones was recorded by the Director of Conciliation and Review under s 76 of the Workers' Compensation and Rehabilitation Act 1981 ("the Workers' Compensation Act"). 3 By this action Mr Jones claims against the first defendant ("SNF") and the second defendant ("Wesfarmers") damages for the injuries suffered in the accident on 25 November 1998. Each of SNF and Wesfarmers contend that Mr Jones is precluded from pursuing this action on the grounds that each of them is deemed to be Mr Jones' employer by s 175 of the Workers' Compensation Act. 4 On 24 July 2002 Viol DCJ ordered that the following questions be tried as preliminary issues before the trial of this action: 5 Viol DCJ ordered that the same questions be tried in respect of Wesfarmers. 6 It was common ground that the answer to the first question determines the answer to the second question. Counsel for Mr Jones accepted that if a defendant is deemed to be Mr Jones' employer by s 175 of the Workers' Compensation Act then, by reason of the decision of the Full Court in Hewitt v Benale Pty Ltd [2000] WASCA 163, Mr Jones
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would be precluded from pursuing his claim for damages against that defendant. 7 Counsel for SNF and counsel for Wesfarmers accepted that s 93E (13) of the Workers' Compensation Act would only preclude Mr Jones from obtaining an award of damages from a defendant if that defendant were Mr Jones' employer for the purposes of the Act. 8 The trial of the preliminary issues took place on the basis of a statement of agreed facts and documents that were tendered into evidence by consent. There was no oral evidence.
SNF 9 SNF carried on business, among others, supplying industrial chemicals. In 1998 it had a contract to supply and deliver flocculant to the Bulong Nickel Project, 35 kilometres from Kalgoorlie. Flocculant is a chemical used for industrial waste water treatment. 10 The flocculant was manufactured by the first defendant in dry powder form. It was vital for the viability of the flocculant that it was not contaminated by any other materials and in particular by any liquids. As a consequence it was necessary for the flocculant to be delivered in a pressurised bulk transport trailer. Without pressurisation the flocculant could not be unloaded. In or about July 1997 SNF purchased a bulk transport trailer ("the trailer") for the purposes of its contract to supply flocculant to the Bulong Nickel Project. The trailer was fitted with its own compressor and compressor motor which pressurised the container on the trailer.
Wesfarmers 11 One of the businesses carried on by Wesfarmers was that of a transport contractor. One of the premises from which Wesfarmers carried on business was a depot situated at Hopkins Street, Boulder. From that depot Wesfarmers operated a fleet of trucks and trailers. For the purpose of maintaining its fleet Wesfarmers had a number of employees who would perform mechanical works. When specialised work was required Wesfarmers would contract with specialist businesses to have them carry out the specialised work. One of those specialised businesses was Seeley which was an automotive electrical business. In the six months prior to the accident Seeley had performed automotive electrical works on various
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vehicles in Wesfarmers' fleet. This work was carried out on an average of twice per week.
The contract between SNF and Wesfarmers 12 In or about June 1998 SNF and Wesfarmers entered into a contract by which Wesfarmers agreed to transport and store shipments of SNF's flocculant using the trailer to make the deliveries. Wesfarmers connected one of its prime movers to the trailer. 13 The transport contract between SNF and Wesfarmers required Wesfarmers to service and maintain the trailer. The contract was partly written and party oral made between Stewart Craven on behalf of SNF and Simon Beresford on behalf of Wesfarmers. In so far as the contract is evidenced in writing it is contained in a letter from Wesfarmers to SNF dated 9 April 1998, a memorandum from Mr Beresford to employees of Wesfarmers dated 9 June 1998 and an invoice from Wesfarmers to SNF dated 18 December 1998. Under the contract Wesfarmers agreed to arrange a service schedule for the trailer and to keep it in good working order. Wesfarmers acknowledged that the trailer was required to be kept dry internally and that it would take all necessary precautions in loading and unloading the flocculant.
Work required on the trailer 14 On 17 November 1998 Mr Craven attended Wesfarmers' depot in Boulder and inspected the trailer. The inspection revealed that the trailer had not been cleaned out adequately and that a quantity of cement like material remained inside it. Mr Craven pointed that out to Wesfarmers' yard manager. Wesfarmers made arrangements to have the trailer cleaned. On 18 November 1998 Mr Craven returned to Wesfarmers depot and inspected the trailer. He found that it had been washed out and left to dry with the aid of the fans inside the tanker cavity. 15 On 19 November 1998 Mr Craven observed Wesfarmers unloading a load of flocculant at the Bulong Nickel Project. The control valves on one side of the trailer were operated but it was not possible to discharge the flocculant from that side as water had mixed with the flocculant causing it to swell up and block the discharge tube. The delivery was stopped and the trailer returned to Wesfarmers' depot. 16 On 20 November 1998 Mr Craven attended at Wesfarmers' depot and requested that the remaining flocculant be removed from the trailer and all
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associated pipe work be removed and cleaned. He also requested that all control valves and connecting rubber hoses be replaced and that the trailer be fully inspected and tested. 17 On 25 November 1998 in the course of servicing and maintaining the trailer Wesfarmers discovered that the starter motor fitted to the tanker's compressor motor had starting problems. Wesfarmers telephoned Seeley and requested the services of an auto electrician. In response to that request Mr Jones attended Wesfarmers' depot in Boulder and investigated faults with the starter motor on the tanker. Mr Jones left Wesfarmers' depot, returned to Seeley's premises and then returned to the depot with an exchange starter motor unit. Mr Jones fitted the replacement starter motor to the air compressor motor and then commenced to start the engine. In the course of operating the engine on the trailer Mr Jones suffered injuries when he was struck on the head by a steel air pressure pipe causing him to suffer a fractured skull and associated injuries. 18 As part of the contract between SNF and Wesfarmers, Wesfarmers was permitted to engage the services of third parties to effect necessary repairs which were outside the experience and competence of its own employees. At the material time Wesfarmers had no employees with suitable experience or competence to investigate an apparent fault in the starter motor. It was a term of the contract between SNF and Wesfarmers that SNF would pay costs incurred by Wesfarmers which related to the maintenance, service and repair of the tanker. Seeley issued an invoice in respect of the work carried out by Mr Jones in the sum of $385. On 18 December 1998 Wesfarmers issued an invoice to SNF for $423.50 being the sum of $385 charged by Seeley plus a 10 per cent administration charge. SNF paid the sum of $423.50 due to Wesfarmers.
Section 175 of the Workers' Compensation Act 19 The relevant provisions of s 175 of the Workers' Compensation Act are as follows: "(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any
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compensation which he contractor if he were the sole employer would be liable to pay under this Act. … (3) The principal is not liable under this section unless the work on which the worker is employed at the time of this occurrence of the disability is directly a part or process in the trade or business of the principal. … (6) For the purposes of this section, where sub-contracts are made — (7) Where the disability does not occur in respect of premises on which the principal has undertaken to execute the work or which are otherwise under his control or management, subsections (1) to (6) inclusive do not apply." 20 It is clear in my view that in respect of each of SNF and Wesfarmers the provisions of s 175(1) were satisfied. In the case of SNF they had been satisfied by the extension to the meaning of the words principal and contractor contained in s 175(6). 21 The areas of dispute for both SNF and Wesfarmers is whether they are deemed to be Mr Jones' employer having regard to the provisions of s 175(3) and s 175(7). Section 175(3) requires that the work on which the worker was employed at the time of the occurrence of the disability was "directly a part or process in the trade or business of the principal".
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Counsel for the parties referred extensively to English authorities and to the decisions of the High Court in Moir v Schrader (1936) 56 CLR 310 and Frauenfelder v Reid & Ors (1963) 109 CLR 42. However there is a significant difference between the legislation considered in those cases and s 175(3) of the Workers' Compensation Act. In both the English legislation and the New South Wales legislation considered by the High Court the work agreed to be carried out by the contractor was required to be "in the course of or for the purposes of [the principal's] trade or business". In my view the words "directly a part or process in the trade of business of the principal" import a closer connection between the work on which the work was employed at the time of the occurrence disability and the principal's trade or business than that considered in the English cases and the High Court cases to which I was referred: Textron Pacific Ltd v Collector of Customs (Qld) (1987) 78 ALR 547; State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434; Container Handlers Pty Ltd v Insurance Commission of Western Australia (2001) 25 WAR 42. 22 The business of SNF was the supply of industrial chemicals. In the course of that business it contracted to supply and deliver flocculant to the Bulong Nickel Project and acquired the trailer for that business. 23 The business of Wesfarmers was that of transport company. In the course of that business it entered into an agreement with SNF to deliver SNF's flocculant to the Bulong Nickel Project. 24 The work on which Mr Jones was engaged at the time that he suffered his injury was the maintenance and repair of the trailer used to deliver SNF's flocculant to the Bulong Nickel Project In my view the maintenance and repair of the trailer used to deliver that flocculant was directly a part or process in the trade or business of both SNF, which agreed to supply and deliver flocculant to the Bulong Nickel Project, and of Wesfarmers, which agreed to transport the flocculant to the Bulong Nickel Project. I conclude therefore that the provisions of s 175(3) are satisfied in respect of both SNF and Wesfarmers. 25 The wording of s 175(7) of the Workers' Compensation Act also differs from the corresponding positions in the English legislation. That legislation required that the accident occur "on, or in, or about premises on which the principal has undertaken to execute the work or which are otherwise under his control or management." The legislation is quoted in Andrews v Andrews& Mears [1908] 2 KB 567. The corresponding provision in the previous workers' compensation legislation in this State
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was similar to the English legislation: s 16(7) Workers' Compensation Act1912. Section 175(7) requires that the disability occurs "in respect of premises on which the principal has undertaken to execute the work or which are otherwise under his control or management." The words "in respect of" have a wide meaning of connection in relation between the two matters to which the words refer: TheTrustees Executors & Agency Co Ltd v Reilly [1941] VLR 110; Powers v Maher (1959) 103 CLR 478. I conclude therefore that the words "in respect of" have a wider meaning than thewords "on or in or about premises." 26 The word "premises" is not defined in the Workers' Compensation Act.27 As I have mentioned it is a word that has been used in workers' compensation legislation from the earliest times. It has been held that a shipping vessel may be premises for the purpose of the legislation: Dittmar v Owners of Ship V 593 [1909] 1 KB 389. The dictionary meaning of the word is a house or building with its grounds, or other appurtenances – Oxford English Dictionary. Counsel for SNF submitted that the trailer was premises for the purposes of the Workers' Compensation Act. However, I can see no basis on which the premises could extend to include the trailer. Counsel for SNF referred to the definition of premises in Occupiers' Liability Act1985 which includes "any vessel, vehicle or aircraft". However, that definition does not apply to the Workers' Compensation Act and in my view the fact that the drafter of the Occupiers' Liability Act found it necessary to extend the meaning of the word in that definition tends to support my conclusion that a trailer is not premises within the ordinary meaning of that word. 28 I conclude therefore that premises in the context of this accident means Wesfarmers' depot at Boulder. That depot was under Wesfarmers' control and management. Mr Jones' injuries were caused while he was working on those premises and in my view there is sufficient connection between the premises and the accident for Mr Jones' injuries to be in respect of those premises. I conclude therefore that s 175(7) applies to the second defendant. 29 Having concluded that the trailer was not premises I conclude that Mr Jones' injuries did not occur in respect of any premises of SNF.
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Summary
30 For these reasons I conclude that the questions to be tried as preliminary issues should be answered as follows: 1. SNF is not deemed to be Mr Jones' employer for the purposes of Division 2 of Part IV of the Act; 2. Mr Jones is not precluded by reason of the operation of s 93E(13) of the Workers' Compensation Act from obtaining an award of damages from SNF; 3. Wesfarmers is deemed to be Mr Jones' employer for the purposes of Division 2 of Part IV of Workers' Compensation Act; 4. Mr Jones is precluded from obtaining an award of damages from Wesfamers by the operation s 93E(13) of the Workers' Compensation Act.
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