Nancy Jean Errington v Target Australia Pty Ltd No. SCGRG 95/1034 Judgment No. 5332 Number of Pages 10 Workers' Compensation (1995) 65 Sasr 378 - [1995] SASC 5332

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(2), PRIOR(3) AND WILLIAMS(1) JJ

CWDS
Workers' compensation - alternative rights and election between different remedies - alternative rights against employer for damages at common law or by statute.

Entitlement to damages in respect of occupier's liability - whether restricted by Workers Rehabilitation and Compensation Act - s54 restricts damages to which plaintiff entitled to damages for non-economic loss.

District Court Act 1991s44; Workers Rehabilitation and Compensation Act 1986ss 3, 30, 30(3)c, 46(1), 46(3), 52(2), 54(1), 54, 105; Occupational Health Safety and Welfare Act 1986s23; Wrongs Act 1936 ss l7c, l7e, 17e(2), referred to. Australian Safeway Stores v Zaluzna 162 CLR 479; Andrews v Ziersch (1994) 61 SASR 521, distinguished.

HRNG ADELAIDE, 5 October 1995 #DATE 10:11:1995 #ADD 13:12:1995

Counsel for appellant: Mr D Willson

Solicitors for appellant: Lee and Partners

Counsel for respondent: Mr S Walsh QC

Solicitors for respondent: Piper Alderman

ORDER
Question reserved answered in the negative.

JUDGE1 WILLIAMS J Pursuant to s44 of the District Court Act 1991, a Judge of the District Court reserved a question of law for the determination of this Full Court upon agreed facts.

THE AGREED FACTS: 2. The parties have agreed the facts as follows:-
"1. At all material times, the plaintiff was employed by the
defendant.

2. On the 27th March 1990 the plaintiff sustained injury
    when she slipped and fell at the defendant's premises in the
    circumstances described in par5 of the plaintiff's Statement
    of Claim. (copy attached).

3. By par1 of the Defence (copy attached) the defendant
    admits that the plaintiff's injury occurred as a result of
    its negligence, breach of contract and/or breach of statutory
    duty as alleged in pars8 and 9 of the Statement of Claim.

4. The plaintiff admits that the WorkCover Corporation paid
    her certain payments of compensation pursuant to the Workers
    Rehabilitation and Compensation Act in respect of her injury
    but denies that at the time of the incident she was acting in
    the course of her employment.- See Notice to Admit and
    Answers (copies attached), paragraph 5 and 2.

5. As at the date s54(1) of the Workers Rehabilitation and
    Compensation Act 1986 provided:
    "Subject to ss(2), no liability attaches to an employer in
    respect of a compensable disability arising from employment
    by that employer except -
    (a) a liability under this Act; or
    (b) a liability at common law for non-economic loss or
    solatium".

3. The Workers Rehabilitation and Compensation Acts30(3)(c) provides:
    (3) A workers' employment includes-
    ...
    (c) attendance at the workers place of employment but after
    work ends for the day while the worker is preparing to leave,
    or in the process of leaving, the place ...

4. It is apparent from the material annexed to the agreed statement of facts that the abovementioned provision applied to the circumstances of the case notwithstanding the terms of par4 of the statement set out above. In view thereof…

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

AGLC: Nancy Jean Errington v Target Australia Pty Ltd No. SCGRG 95/1034 Judgment No. 5332 Number of Pages 10 Workers' Compensation (1995) 65 Sasr 378 [1995] SASC 5332
Case: [1995] SASC 5332
Decision Date: 10 November 1995

CaseChat Overview and Summary

In the case of Nancy Jean Errington v Target Australia Pty Ltd, the Full Court of the Supreme Court of South Australia considered whether the plaintiff, who had received workers' compensation, could claim additional damages from the employer for injuries sustained due to the employer's negligence as an occupier of the premises. The court examined the applicability of the Workers Rehabilitation and Compensation Act 1986 (WR and C Act) to the employer's liability as an occupier. The key legal issue was whether the employer's liability as an occupier was restricted by the provisions of s54 of the WR and C Act, which limits the employer's liability to damages for non-economic loss.

The court concluded that s54(1) of the WR and C Act, which restricts the employer's liability to the compensation provided by the Act and common law damages for non-economic loss, applied to the employer's liability as an occupier. The court rejected the plaintiff's argument that the employer's liability as an occupier should be distinguished from the employer's liability under the Act. The court found that the language of s54(1) and the overall policy of the WR and C Act, which aims to create a comprehensive compensation regime for employees, supported the conclusion that the employer's liability as an occupier was also restricted by the Act.

The court's reasoning was based on the interpretation of the statutory language and the legislative policy underlying the WR and C Act. The court held that the phrase "arising from employment" in s54(1) qualified "compensable disability" and not the word "liability", meaning that the employer's liability as an occupier was subject to the restrictions of the Act. The court also noted the extraterritorial effect and the paramountcy of s54 as intended by Parliament, which reinforced the conclusion that the employer's liability as an occupier was restricted by the Act.

The final orders of the court were that the reserved question should be answered in the negative, and the plaintiff was not entitled to damages in respect of the defendant's liability as an occupier, unrestricted by the provisions of s54 of the WR and C Act. The court's decision aligned with the legislative policy of the Act to provide a comprehensive compensation regime for employees and to limit the employer's liability to the compensation provided by the Act and common law damages for non-economic loss.

Orders