Ligutan v Insurance Australia Ltd - [2023] WADC 155

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LIGUTAN -v- INSURANCE AUSTRALIA LTD [2023] WADC 155
CORAM:   FLYNN DCJ
HEARD:   8 NOVEMBER 2023
DELIVERED          :   21 DECEMBER 2023
FILE NO/S:   CIV 159 of 2021
BETWEEN:   PETRONILO LIGUTAN
Plaintiff
AND
INSURANCE AUSTRALIA LTD
First Defendant
AAI LIMITED
Second Defendant
UNIVERSAL STONE (WA) PTY LTD
Third Defendant
MALYTA PTY LTD
Fifth Defendant

Catchwords:

Workers' compensation - Preliminary issue of law - Worker seeks damages against multiple previous employers - Manner of exercise of election of right to seek damages - Whether s 94K of the Workers' Compensation and Injury Management Act 1981 (WA), reg 22 and Form 34 of the Workers' Compensation and Injury Management Regulations 1982 (WA) preclude an award of damages against an employer who is not named on the Form 34

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Act 2023 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA)

Result:

Preliminary issue determined in favour of the plaintiff

Representation:

Counsel:

Plaintiff	:	Mr B J Tomasi
First Defendant	:	Mr P E Jarman
Second Defendant	:	Mr P E Jarman
Third Defendant	:	Mr P E Jarman
Fifth Defendant	:	Mr G R Hancy

Solicitors:

Plaintiff	:	Shine Lawyers Perth
First Defendant	:	McCabes
Second Defendant	:	Moray & Agnew Solicitors (NSW)
Third Defendant	:	McCabes
Fifth Defendant	:	Moray & Agnew Lawyers

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

Beasley v Pilbara Mining Alliance Pty Ltd [2022] WASCA 25
Brinkley v P & O Trans Australia WA Pty Ltd [2009] WADC 16
Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230
Dosset v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Hall v Jones (1942) 42 SR (NSW) 203
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

FLYNN DCJ:

Introduction

The plaintiff (Mr Ligutan) is a stonemason. He completed his apprenticeship in the Philippines. He moved to Australia in 2007 and worked for a series of employers. He commenced employment with the fifth defendant (The Maker) in 2018.[1] Before that, Mr Ligutan alleges that he was employed by the third defendant (2016 - 2017) and entities insured by the first and second defendants, namely, A to Z Stones Pty Ltd (2014 ‑ 2015) and Rock Solid Surfaces Pty Ltd (2007 - 2011). The first, second and third defendants will be referred to, together, as 'the Previous Employers'.
[1] Fifth Defendant's Defence, 12 July 2021, par 5. The fifth defendant is Malyta Pty Ltd. At all material times, the fifth Defendant traded as 'The Maker': Statement of Agreed Facts, 24 May 2023 (SAF), par 4.
While working for The Maker, Mr Ligutan made a claim for compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the 1981 Act). The claim form nominated 'The Maker' as 'the…

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: [2023] WADC 155
Decision Date: 21 DECEMBER 2023

CaseChat Overview and Summary

The matter of Ligutan v Insurance Australia Ltd was heard by the Supreme Court of Western Australia. The plaintiff, Ligutan, sought damages from multiple previous employers for a workplace injury sustained over time. The primary legal issue before the court was whether section 94K of the Workers' Compensation and Injury Management Act 1981 (WA), regulation 22, and Form 34 of the Workers' Compensation and Injury Management Regulations 1982 (WA) preclude an award of damages against an employer who is not named on Form 34. The court needed to determine if the statutory provisions and the form effectively restrict the plaintiff's right to claim damages against employers not listed on the form.

In its judgment, the court examined the statutory provisions and the regulatory form in detail. It considered the purpose and scope of section 94K and regulation 22, as well as the role and function of Form 34. The court concluded that the statutory framework and the form do not preclude an award of damages against an employer not named on Form 34. The court found that the statutory provisions provide for the assessment and compensation of claims against employers, but do not limit the right to seek damages in proceedings against employers not listed on the form. The court held that the form is a procedural tool and does not have the effect of restricting substantive rights under the Act.

As a result, the court found in favour of the plaintiff, determining that the statutory provisions and the form do not preclude an award of damages against an employer not named on Form 34. The court's decision allows the plaintiff to seek damages against all relevant employers, not just those listed on the form. The court's ruling ensures that the plaintiff's right to seek damages is not unduly restricted by the statutory framework and the form. The court's decision provides clarity on the issue and is likely to have implications for future claims involving multiple employers.

Orders