Leite v State of Western Australia

[2000] WADC 103

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   LEITE -v- STATE OF WESTERN AUSTRALIA & ANOR [2000] WADC 103

CORAM:   WILLIAMS DCJ

HEARD:   7 APRIL 2000

DELIVERED          :   20 APRIL 2000

FILE NO/S:   CIV 3882 of 1998

BETWEEN:   ANNETTE ELIZABETH LEITE

Plaintiff

AND

STATE OF WESTERN AUSTRALIA
First Defendant

THE MINISTER FOR EDUCATION
Second Defendant

Catchwords:

Torts - Dangerous premises - Plaintiff suing both defendants as occupiers of premises - Whether plaintiff needs leave to proceed.

Legislation:

Crown Suits Act 1947 (WA)

Education Act 1928 (WA)

Limitation Act 1935 (WA)

Occupiers Liability Act 1985 (WA)
Public Sector Management Act 1994 (WA)

Public Service Act 1978

Rules of the Supreme Court
School Premises Regulations 1981 (WA)

Workers' Compensation and Rehabilitation Act 1981 (WA)

Result:

Writ of summons set aside against both defendants.

Representation:

Counsel:

Plaintiff:     Mr Stubbs

First Defendant             :     Mr Barton

Second Defendant         :     Mr Barton

Solicitors:

Plaintiff:     Dwyer Durack

First Defendant             :     State Crown Solicitor

Second Defendant         :     State Crown Solicitor

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

Bryant v Fawdon Pty Ltd (1993) Aust Torts Reports 81-203

Newcombe v AME Properties Ltd (1995) 14 WAR 259

Northern Sandblasting Pty Ltd v Harris (1997) 146 ALR 572

Randel v Brisbane City Council (1990) 2 Qld R 440

Schiller v Mulgrave Shire Council (1972) 129 CLR 116

Western Australia v Dale (1996) 90 LEGERA 307

Wheat v Lacon Co Ltd (1966) AC 552

Case(s) also cited:

Attorney General for NSW v Perpetual Trustee Co Ltd (1951-1952) 85 CLR 237

Burton v Melbourne Harbour Trust Commission [1954] VLR 353

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Downs v Williams (1972) 126 CLR 61

Ellis v Commissioner of Main Roads (1991) 74 LGRA

General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125

Haines v Tempesta (1995) 37 NSWLR 24

Harris v Birkenhead Corporation [1976] 1 All ER 341

Margaret Louise Sullivan v Minister for Health, unreported; SCt of WA, Library No 7401; 11 August 1988

Minister for Works (Western Australia) v Gulson (1944) 69 CLR 338

Smith v Yarnold (1969) 90 WN (Pt 1) (NSW) 316

Theodore v Duncan [1919] AC 696

Thompson v The Commonwealth (1969-1970) SR (NSW) 398

Western Australia v Watson (1990) WAR 248

Williams v Howarth [1905] AC 551

WILLIAMS DCJ: 

Introduction

1. This is a Chamber Summons on the part of the defendant under O12 r6 of the Rules of the Supreme Court to set aside the Writ of Summons in these proceedings.

2. The defendants entered a conditional appearance on the grounds that:

   1.The plaintiff had not obtained the leave of the Court to commence the action in accordance with the provisions of s93D of Workers' Compensation and Rehabilitation Act and

   2.The plaintiff had not obtained the leave of the Court to commence the action in accordance with the provisions of s47A of the Limitation Act 1935 (WA).

3. In my view O12 r6 is an appropriate procedure for dealing with this type of matter. Commencement of proceedings without leave where such leave is required constitutes a nullity: Newcombe v AME Properties Ltd (1995) 14 WAR 259 per Malcolm CJ at 269.

Background

1. The plaintiff's Statement of Claim dated 15 February 1999 claims damages against the first defendant and/or the second defendant as a result of an accident alleged to have occurred on or about 14 October 1997 at the Swanbourne Senior High School, Narla Road Swanbourne.

2. The Statement of Claim alleges that the school:

   (a)was owned and/or occupied and/or controlled by the first defendant; and further and in the alternative

   (b)was owned and/or occupied and/or controlled by the second defendant.

3. The Statement of Claim further alleges that the accident:

   (a)was caused by the negligence and/or breach of duty as an occupier of the first defendant; and further and in the alternative.

   (b)was caused by the negligence and/or breach of duty as an occupier of the second defendant.

Requirements of the Workers' Compensation and Rehabilitation Act 1981

1. Part IV Division 2 of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the WCRA") applies to the awarding of damages against a worker's employer independently of the WCRA, in any action in which damages are sought to be recovered in respect of a disability suffered by the worker if:

   (a)the disability was caused by the negligence or other tort of the workers employer;

   (b)compensation has been paid in respect of the disability under the WCRA; s93B (1) and (2) of the WCRA.

2. Where Part IV Division 2 of the WCRA applies, proceedings are not to be commenced without the leave of the District Court: s93C of the WCRA.

3. It is common ground that the plaintiff has not sought and obtained the leave of this Court to commence these proceedings pursuant to s93D(4) of the WCRA.

4. The plaintiff is a "worker" within the meaning of the WCRA: s5(1) of the WCRA and affidavit of Sean Michael D'Cruz (1/4/99) para 3 and annexures "A" and "B".

5. The plaintiff has been paid compensation pursuant to the WCRA in respect of a disability alleged in para 12 of the Statement of Claim to have been suffered as a result of the accident: s5 (1) (Definition of "Disability") of the WCRA; affidavit of Sean Michael D'Cruz, para 4.

6. For the purposes of s93B of the WCRA:

   (a)     "Employer" includes the body corporate; and

   (b)"Worker's employer" includes a person for whose acts the employer is vicariously liable: s5 (1) (Definition of Employer) and s93B (4) of the WCRA.

7. It is the submission of counsel for the defendants that this is an action in which damages are sought to be recovered in respect of a disability suffered by a worker caused by the negligence or other tort of the worker's employer and for which compensation has been paid in respect of the disability under the WCRA.  It is said that this conclusion can be drawn because the plaintiff seeks to recover damages for a personal injury which can only have been caused, if at all by the negligence or other tort of a person or persons falling within the scope of the definition of "worker's employer" under the WCRA.

8. In the alternative it is said that the leave of the District Court cannot be given as there is no agreement between the parties that the degree of the plaintiff's disability would be 30 per cent of more, as required by s93D(5)(a) of the WCRA, and no evidence that the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount as required by s93D(5)(c).

9. This is a submission which I accept.

The position of the second defendant

1. The second defendant is a statutory body corporate with power to:

   (a)       Sue and be sued;

   (b)Acquire, hold, lease and alienate real and personal property;

   (c)Do and allow to be done or such acts and things as may be necessary or expedient for carrying out the purposes of the Education Act 1928 (WA) 1928 (WA) ("the EAI"): s5 of the EA.

2. The second defendant has a statutory responsibility to establish, carry on and maintain such secondary schools as he or she deems necessary or convenient for public education and the purposes of the EA:  s9 of the EA.

3. The school is situated on Reserve 28634 which was set apart as a public reserve for the purpose of establishing a school under the EA:  Affidavit of Sean Michael D'Cruz (1/4/99), para 4 and annexure "C".

4. The second defendant has the statutory power to appoint teachers to the Education Department of Western Australia (the Department) and to transfer promote or dismiss teachers:  s7(2), (3) and s7C(13) of the EA.

5. The plaintiff was appointed by the second defendant as a teacher for the purposes of the EA on 21 July 1997:  Affidavit of Sean Michael D'Cruz (1/4/99) para 3, annexures "A" and "B".

6. The Acting Principal at the school at the time of the accident alleged in para 7 of the Statement of Claim was Mr Stephen Fisher a teacher appointed by the second defendant to the Department on 1 February 1983.  Mr Fisher was the person responsible for the day to day administration of the school at the material time:  Affidavit of Sean Michael D'Cruz (1/4/99) para 8.

7. The "employing authority" of the plaintiff and Mr Fisher for the purposes of the Public Sector Management Act 1994 (WA) ("the PSMA") is the second defendant: s5(1)(c)(iii) and s(1) (Definition of promote) of the PSMA.

8. It is the submission of counsel for the defendants that Mr Fisher was a person for whose acts the second defendant was vicariously liable within the terms of s93B (4) of the WCRA.

9. It is said that the principal of the school is responsible for controlling access to school premises, and in particular access to any part of school premises which may pose a hazard to any person: Reg 5 of the School Premises Regulations 1981 (WA).

10. Again this is a submission which I accept.

The plaintiff's submission on who is the employer

1. The defendant's position is the Minister for Education is the employer.  It is the plaintiff's submission that it can be argued that there is reasonable prospect that a Court will not find this to be the case.

2. The party cited as the plaintiff's employer on a payment advice slip for the relevant financial year is not the Minister of Education but the Education Department of WA (see annexure "B" of the affidavit of Gregory Doug Burgess sworn 8 December 1999).

3. It is said the purposes of the Education Act 1928 (WA) a Department means "the Department of the Public Service principally assisting the Ministry in the administration of this Act."

4. It is submitted that the reference to the Public Service Act 1978 now includes a reference to the Public Sector Management Act 1994 (WA) and that by virtue of s3(12) of the latter that a department means a department established under s35 of the Public Service Management Act 1994 (WA).  It is submitted that on that interpretation of the Education Act 1928 (WA) and the Public Sector Management Act 1994 (WA) there is an argument that if the employer of the plaintiff is the Education Department, that department would appear to be a department established by the Governor and accordingly and appropriately described as the State of Western Australia for the purposes of litigation pursuant to s5 of the Crown Suits Act 1947 (WA).

5. In my view there is nothing in this argument.  It is clear that the Education Department does not have the power to appoint teachers.  Under the Education Act 1928 (WA)  it is simply the administrative body that assists the Minister for Education (s3).

6. In my view the defendant's have clearly established that the second defendant is the employer of the plaintiff.

Plaintiff's submissions as to occupation of the school

1. It is the plaintiff's submission that there is an arguable case that whilst the second defendant is the legal owner of the school it is arguable that there was an occupation of the school by the first defendant in the sense that the first defendant was the beneficial owner of the school.

2. The Occupiers' Liability Act 1985(WA) (the "OLA") prescribes the standard of care that an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering onto the premises in respect of dangers to that person which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of the premises is by law responsible: s4(1) of the OLA.

3. However the OLA does not alter the rules of the common law which determine the person on whom, in relation to the premises, a duty to show the required standard of care is incumbent, and the central element at common law is the power to exercise control over the premises: s4 (2) of the OLA, Bryant v Fawdon Pty Ltd (1993) Aust Torts Reports 81-203; Wheat v Lacon Co Ltd (1966) AC 552; Northern Sandblasting Pty Ltd v Harris (1997) 146 ALR 572 at 584, 605, 637.

4. Where land to be used for a public purpose is placed under the control and management of a statutory body corporate, and the statutory body corporate exercises a substantial or sufficient degree of control over the land it may properly be regarded as the "occupier" of the land:  Schiller v Mulgrave Shire Council (1972) 129 CLR 116 at 124; Randel v Brisbane City Council (1990) 2 Qld R 440 at 452; Western Australia v Dale (1996) 90 LGERA 307 at 314-15, 321.

5. Section 6(3) of the Education Act 1928 (WA) provides that all property vested in the Minister shall be held by him in trust for the purposes of that Act, and for and on account of the Crown.

6. In my view it is clear that the occupier of the land was the second defendant.

7. In my view the defendant's have established that it was second defendant who was the plaintiff's employer at the relevant time and that it was the second defendant who was the only occupier of the school at the relevant time and by reason of provisions of the Workers' Compensation Act the plaintiff is precluded from claiming damages without the leave of the District Court.

Conclusion

1. In the circumstances it becomes unnecessary for me to consider the question of whether or not the plaintiff is required to obtain the leave of the Court to commence the action in accordance with the provisions of s47A of the Limitation Act 1935 (WA).

2. In my view the appropriate order to be made is that that the Writ of Summons in this action be set aside as against both the first and second defendants.