McGrath v Geraldton Meat Exports Pty Ltd

[2003] WADC 229

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   McGRATH -v- GERALDTON MEAT EXPORTS PTY LTD [2003] WADC 229

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   5 SEPTEMBER 2003

DELIVERED          :   29 OCTOBER 2003

FILE NO/S:   CIV 268 of 2000

BETWEEN:   LEONIE McGRATH

Plaintiff

AND

GERALDTON MEAT EXPORTS PTY LTD
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of Supreme Court of Western Australia - Application of the defendant's summary judgment - Impact of the provisions of the Workers' Compensation and Rehabilitation Act 1981

Legislation:

Occupiers' Liability Act 1985

Workers' Compensation and Rehabilitation Act 1981

Result:

Nil

Representation:

Counsel:

Plaintiff:     Mr L Gandini

Defendant:     Mr M Seaman

Solicitors:

Plaintiff:     Chapmans

Defendant:     Jackson McDonald

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

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 561

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HARMAN:  The application presently before me for determination is that brought by the defendant seeking summary judgment.  In putting that case the defendant relies upon the impact of the Workers' Compensationand Rehabilitation Act 1981 and a redemption agreement entered into between the parties under that Act.

2. The plaintiff's claim is for damages for personal injury sustained by her in or about June 1998.  According to the terms of the statement of claim, at all material times the defendant employed the plaintiff and whilst engaged in that employment was exposed to the organism which causes Q fever.  She puts alternative cases against the defendant for breach of duty of care, breach contract, breach of statutory duty and breach of the Occupiers' Liability Act 1985.   

3. In its amended defence the defendant pleads that the plaintiff entered into an agreement which was registered in accordance with the provisions of the Workers' Compensation and Rehabilitation Act 1981 which has had the effect of conferring immunity on the defendant in accordance with s 93D(13) of that Act.

4. It is as follows:

   "If the liability for an incapacity resulting from the disability has been redeemed under s 67, damages are not to be awarded in respect of the disability."

5. The plaintiff accepts that the only basis on which the claim is put that would survive the impact of that provision is that under the Occupiers' Liability Act 1985.

6. The onus is on the applicant.  The issue raised by the defendant is simply one of the applicability of the statutory provision to the circumstances of the case.  On the flavour of the plaintiff’s concession and submissions she contended that the immunity the subject of the provision is properly considered to be limited. 

7. The starting point of any analysis is to scrutinise the terms by which the immunity claimed in order to ensure that it could justify the result sought by the applicant.  In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 561 at 565, the High Court considered to be "well settled" principle "that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect."

8. On the basis of the definition of the term "disability" in the Act there can be no doubt that the disability referred to in the provision would embrace the physical injury for which the plaintiff seeks damages.  The plaintiff pleads as much.  She defines the term "accident" as her having contracted Q fever and developed and suffered the symptoms of Q fever.  The relevant consequence of the accident is pleaded as either simply residual and consequential disabilities or the contraction of Q fever and the development of its symptoms and residual and consequential disabilities.

9. There was no dispute that the disability the subject of the agreement was the injury for which the plaintiff has sought damages and that it was a redemption for the purposes of the provision. 

10. The fact that it is possible to distinguish the role of an individual as an employer from the designation of that person as an occupier does not mean that it is appropriate so to do.  There is no consideration that may emerge from the fact that the defendant may be found to be an occupier that would detract from the admitted fact that it was the plaintiff’s employer.  Additional responsibilities may be cast upon the defendant as occupier yet it would remain the plaintiff's employer.  It would appear to me that it is only a consideration that would tend to erode its status as an employer that would put into question the defendant's entitlement to rely upon the immunity claimed.  The plaintiff alluded to no such consideration and I cannot conceive what consideration could satisfy that condition. 

11. There is no reason why the legislature should have considered that an individual could not be both an employer and occupier.  It seems to me to be artificial to contend that the intention of the legislature was to limit the scope of immunity so as to exclude reliance upon it in circumstances where the terms of its provision were satisfied simply because the acts or omissions of that person are amenable to other classification.  The immunity is broadly provided.

12. In my opinion it was clearly the intention of the legislature to confer immunity on employers in circumstances where the employer otherwise may have been at risk.  Accordingly I find that there is no issue raised by the context on which the defendant seeks to draw which would create any issue as to the applicability of the provision or indeed raise any issue as to interpretation.  I am satisfied that there is no other basis upon which any useful analysis could be conducted.  The issue put before me for determination is the only issue that remains to be considered in the action as it is presently pleaded.   

13. In the course of submissions the plaintiff put an alternative case where she would withdraw the concession made in relation to the other causes of action and amend the statement of claim in order to plead exemplary or punitive damages.  Although the defendant contemplated what the terms of any proposed amendment might be and speculated that the terms of any such amendment would amount to an insufficient pleading, in my opinion it is appropriate to give the plaintiff the opportunity to plead such a case prior to having the application finally determined.

14. I accept that there may be determinations made in similar contexts which suggest that it would have been appropriate for the plaintiff to propose such amendments prior to the application being argued.  Be that as it may it is my understanding that it is never too late to make an application to amend.