Moore v Rybak
[2004] TASSC 113
•18 October 2004
[2004] TASSC 113
CITATION: Moore v Rybak [2004] TASSC 113
PARTIES: MOORE, Shane Peter
v
RYBAK, Richard
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 587/2003
DELIVERED ON: 18 October 2004
DELIVERED AT: Hobart
HEARING DATES: 4 October 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under the Rules of Court – Motions and other applications – Special case – Whether should be entered for argument – Absence of evidence or admissions.
Supreme Court Rules 2000 (Tas), r565.
Aust Dig Procedure [280]
REPRESENTATION:
Counsel:
Plaintiff: R J Phillips
Defendant: K E Read
Solicitors:
Plaintiff: Phillips Taglieri
Defendant: Dobson Mitchell & Allport
Judgment Number: [2004] TASSC 113
Number of Paragraphs: 7
Serial No 113/2004
File No 587/2003
SHANE PETER MOORE v RICHARD RYBAK
REASONS FOR JUDGMENT BLOW J
18 October 2004
The defendant wishes a question of law that is likely to arise in this action to be stated in the form of a special case for the opinion of the Court. Pursuant to the Supreme Court Rules 2000, r565(4), his solicitors have filed a request that a special case be entered for argument. That request is opposed.
The point of law concerns the Workers Rehabilitation and Compensation Act 1988, ss138AA and 138AB. Those sections were inserted by an amending Act in 2000. They commenced on 1 July 2001. They had the effect of severely restricting the rights of injured workers to claim common law damages in respect of work related injuries. It is common ground that the plaintiff suffered a personal injury whilst undertaking work as an employee of PMP Print Pty Ltd between 21 August 2001 and 25 February 2002 at a workplace occupied by that company at Moonah. It is common ground that that workplace was a workplace within the meaning of the Workplace Health and Safety Act 1995; that the defendant was the responsible officer for the company at the workplace within the meaning of s10 of that Act; and that, pursuant to s11 of that Act, it was the statutory duty of the defendant to perform the duties of the company under that Act at the workplace. The plaintiff has sued the defendant for damages for breach of statutory duty, contending that the defendant breached the duty imposed by s11 in various respects. The defendant denies the alleged breaches. He also contends that the plaintiff's claim is within the scope of the Workers Rehabilitation and Compensation Act, ss138AA and 138AB; that no election to claim damages has been lodged with the Workers Rehabilitation and Compensation Tribunal pursuant to s138AB(1); and that the action therefore cannot succeed.
The point of law that the defendant wants determined concerns ss138AA and 138AB(1) and (2). They provide as follows:
"138AA ¾ (1) This Division applies to the awarding of damages against an employer independently of this Act in respect of an injury suffered by a worker if ¾
(a) the injury was caused by the negligence or other tort of, or a breach of contract by, the worker's employer; and
(b) compensation has been paid or is payable in respect of the injury under this Act or would have been paid or be payable but for section 25(2).
(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) A reference in this section to the worker's employer includes a reference to a person for whose acts the employer is vicariously liable.
138AB ¾ (1) Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against his or her employer must lodge with the Tribunal an election to claim damages.
(2) A worker is not to make an election unless the degree of his or her permanent impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%."
Counsel for the defendant, Mr Read, submitted that it will be necessary to determine whether a defendant in his client's position is "a person for whose acts the employer is vicariously liable" within the meaning of s138AA(3). He told me that Darling Island Stevedoring and Lighterage Company Ltd v Long (1957) 97 CLR 36 is authority for the proposition that an employer is not vicariously liable for a breach of statutory duty by one of its employees when the statute imposing the duty imposes it on the individual employee. He told me that a number of other actions raising the same point are pending. He submitted that it would be appropriate for that point to be determined before the action proceeds any further, since a determination in the defendant's favour would bring the action to an end and save further work and costs.
Mr Phillips, for the plaintiff, submitted that the appropriate course was to order a "split trial", ie, to order that liability be determined before the assessment of damages. After I reserved my decision as to whether the special case should be entered for argument, I was advised that for present purposes the plaintiff admitted that he received workers compensation in respect of the injury to which the action relates and that, if he did make an election to claim damages, he would not succeed because he does not have a permanent impairment of the whole person of not less than 30% within the meaning of s138AB(2). No such admissions were made on the pleadings, nor when counsel were before me. No admission or concession has been made on the pleadings or otherwise to the effect that the defendant did no act, and made no omission, which caused or contributed to the injury of the plaintiff, in circumstances which, but for the enactment of ss138AA and 138AB, would have resulted in the plaintiff's employer being vicariously liable independently of the Workplace Health and Safety Act, s11. I therefore cannot rule out the possibility that the defendant did some such act, or made some such omission, and that he might thus be argued to be "a person for whose acts the employer is vicariously liable" within the meaning of s137AA(3).
As a result, I do not think a special case is the appropriate procedure for the defendant to use. If the defendant wants a determination of the question whether the defendant is "a person for whose acts the employer is vicariously liable", contends that the facts relevant to that question are simple, and contends that a determination of that question in his favour would dispose of the action, then I think a more appropriate course would be to apply for the action to be stayed or dismissed or the statement of claim struck out, pursuant to either the inherent jurisdiction of the Court or the Supreme Court Rules, r259. The principles relevant to such an application were explained by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 – 130. At 130 his Honour said:
"Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
Another alternative, subject to an enlargement of time being granted, would be for the defendant to apply for summary judgment pursuant to r367(1).
I see no reason why the issues raised on the pleadings as to breaches of statutory duty should be determined at the same time as the question of law that has been identified. However I do not consider it appropriate for that question to be determined in the absence of evidence or admissions in relation to the open factual questions that I have referred to. If the question of law were determined in the defendant's favour on a stated case, there would still need to be some sort of application, supported by evidence, to bring the action to an end. For these reasons, I order pursuant to r565(7)(c) that the special case not be entered for argument.
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