Mt Lyell Mining and Railway Company Ltd v White

[1988] TASSC 91

Serial No. B23/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Mt Lyell Mining and Railway Company Ltd v White [1988] TASSC 91; B23/1988

PARTIES:MT LYELL MINING AND RAILWAY COMPANY LTD

v
  WHITE

FILE NO/S:  1267A/1987
DELIVERED ON:  23 June 1988
JUDGMENT OF:  Nettlefold J

Judgment Number:  B23/1988
Number of paragraphs:  13

Serial No. B23/1988

List "B"

File No 1267A/1987

MT LYELL MINING AND RAILWAY COMPANY LTD v WHITE

REASONS FOR JUDGMENT  NETTLEFOLD J

23 June 1988

1. The applicant applies for the following declaration:–

"A declaration that upon payment being made to Graham Clyde White pursuant to his notice of acceptance of the Mt. Lyell Mining and Railway Company Limited's payment into Court dated the 22nd April, 1988 in action number 1267A of 1987, his claims for damages and compensation under the Workers Compensation Act 1927 arising from the injury he suffered in the course of his employment on the 7th October, 1986 would be satisfied and all further proceedings in respect of the same would be stayed."

1. The statement of claim in the action is as follows:–

"1        The Defendant maintains and operates a copper mine at Queenstown in Tasmania and at all material times employed the Plaintiff as a miner.

2         The Defendant's mine was a mine within the meaning of the Mines Inspection Act 1968 and was subject to the Mines Inspection Regulations 1975 made under that Act.

3         The Defendant agreed with the Plaintiff or it was the duty of the Defendant as the Plaintiff's employer to take reasonable care for the safety of the Plaintiff, to provide and maintain a safe place of work, safe plant and equipment and a safe system of work.

4         On the 7th October, 1986 the Plaintiff was in the course of his employment with the Defendant removing explosives from the bucket of an Eimco Bogger at the North Footwall Access 10 sub level of the Defendant's mine.

5         The North Footwall Access 10 sub of the Defendant's mine was subject to flooding.

6         As the Plaintiff was removing explosives from the bucket of the Eimco Bogger his right foot became wedged between a submerged rock and the bucket of the bogger.

7         As a result the Plaintiff twisted his right ankle and thereby suffered personal injuries loss and damage.

PARTICULARS OF PERSONAL INJURIES LOSS AND DAMAGE

The Plaintiff suffered severe pain and swelling, because of his persistent symptoms the Plaintiff required an arthrotomy and debridement of his ankle joint. The Plaintiff has suffered a permanent impairment in function in his lower limb.

8         The Plaintiff's personal injuries, loss and damage were caused by the negligence and/or breaches of agreement and/or breach of statutory duty of the Defendant its servants and/or agents.

PARTICULARS OF NEGLIGENCE AND/OR BREACHES OF AGREEMENT AND/OR BREACHES OF DUTY

The Defendant its servants and/or agents were negligent and/or committed breaches of agreement in that it, he or they:–

(a)       failed to draw off the water accumulated at North Footwall Access 10 sub level of its mine;

(b)       failed to provide any or any adequate DP Pump to draw off the water accumulated at

North Footwall Access 10 sub level of its mine;

(c)       failed to ensure that the DP Pump installed at North Footwall Access 10 sub level of its mine was in proper working order;

(d)       failed to ensure that the footing at North Footwall Access 10 sub level of its mine was safe and secure.

PARTICULARS OF BREACHES OF STATUTORY DUTY

The Defendant committed breaches of statutory duty in that it:–

(a)       failed to comply with Regulation 32 of the Mines Inspection Regulations 1979 in that it allowed stagnant water to remain on the level of a mine that was in use.

AND the Plaintiff claims damages."

1. The defence put all matters of substance in issue and raised pleas of contributory negligence.

1. On 22 April 1988 the applicant paid into court. The relevant notice is as follows:–

"NOTICE OF PAYMENT INTO COURT

TAKE NOTICE that the Defendant has paid into Court the sum of Ten thousand dollars $10,000.00 with a denial of liability and says that that sum is sufficient to satisfy the Plaintiff's claim.

DATED this 22nd day of April, 1988."

1. By notice dated 12 May 1988 the respondent accepted the amount paid in, the relevant notice being as follows:–

"TAKE notice that the Plaintiff accepts the sum of ten thousand dollars ($10,000.00) paid by you into Court in satisfaction of the claim in respect of which it is paid in."

1. The notice of acceptance was enclosed with a letter dated 12 May 1988, the operative part of which is as follows:–

"Your client's payment into Court is accepted. We enclose a copy of a notice of acceptance.

In accepting this amount, our client reserves his right to make further claims for weekly compensation and medical expenses under the Workers Compensation Act 1927 and does not regard the payment into Court or its acceptance as being one to which section 8G(2) and (3) of the Workers Compensation Act 1927 applies."

1. The initial task is to construe the two notices. The plaintiff's "claim" referred to in the notices is the claim appearing in the Statement of Claim in the action. The Plaintiff was entitled to, and by his notice did, accept the money paid into court in satisfaction of that claim (O24 r2). By O4 r(2)(3), on giving the acceptance, the plaintiff became entitled, except and subject to certain provisions referred to in the sub–rule, to receive payment of the sum accepted in satisfaction of that claim. By O4 r(2)(4) upon payment of the amount to the plaintiff or on the plaintiff's written authority, to his solicitor, all further proceedings in the action shall be stayed.

1. It is common ground that a stay is not the equivalent of a judgment (Halsbury: Laws of England, 4th ed, vol, 37, para438).

1. The "claim" in respect of which the money has been accepted is the claim stated in the statement of claim only and not that claim together with the plaintiff's rights under the Workers' Compensation Act 1927. It was argued that a consideration of s9(3) of that Act and the decision of the High Court in Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642 leads to the conclusion that the claim in the statement of claim includes, or, in effect, includes a claim for workers' compensation. I do not accept that argument. The critical words in s9(3) for present purposes are the following:–

"... having given judgment therein shall, if the worker so desires and the employer is a party to those proceedings, proceed to assess the amount of that compensation."

1. On the face of it, that provision does not operate to produce the result alleged in the argument. The words underlined in the above extract militate strongly against the contention. The assessment contemplated is one made after judgment and, therefore, after the claim in the statement of claim has merged in that judgment and, therefore, has ceased to have an independent existence. But, ex hypothesi, the claim for workers' compensation continues to have an independent existence although the claim in the statement of claim does not. It continues to have an independent existence as there is to be the assessment.

1. The High Court decision, of course, is interesting but does not really assist in construing the local provision and the relevant documents in this case.

1. Mr Evans accepted that the problem here is not "expressly covered" by s8G of the Workers' Compensation Act 1927. It is not covered expressly or at all. Clearly s8G(1) does not cover the problem. Section 8G(2) does not because, upon acceptance of the money paid in, there is a stay and not a judgment. Section 8G(3) does not because the words "if by that settlement he agrees that all his further claims to compensation in respect of that injury are extinguished" are not satisfied on these facts.

1. I accept that, on the modern authorities, I should exercise the discretion conferred by O28 r5 in favour of dealing with the matter (see, in particular, Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 435). But, having considered the substance of the matter, my conclusion is that the declaration sought should be refused.