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 it is not necessary for me to make further reference to the abovementioned Notice to admit and answers.

5. I note that copies of the pleadings have been annexed to the statement of agreed facts. In addition to the specific references to the pleadings in the statement of agreed facts I have found it necessary to refer also to the allegations in pars 6 and 7 of the statement of claim and to pars 4 and 5 of the defence; this additional material in fact formed part of the basis of the argument before this court and is reproduced below.

THE QUESTION RESERVED: 6. The question of law which has been reserved is as follows:
    "Is the plaintiff entitled to damages in respect of the
    defendant's liability to the plaintiff as an occupier of the
    premises, unrestricted by the provisions of s54 of the
    Workers Rehabilitation and Compensation Act 1986?"

THE PLEADINGS: 7. It appears from par5 of the statement of claim that the plaintiff finished work at the defendant's workplace but as she was leaving the premises she received no warning of a slippery floor condition which gave rise to the incident described in par2 of the agreed facts. There are other necessary references to the pleadings.

8. Paragraph 6 of the statement of claim is as follows:
    "The plaintiff sues the defendant in its capacity as occupier
    of the premises and says that her said personal injuries,
    loss and damage occurred through the negligence and/or
    nuisance of the defendant, its servants or agents."

9. Paragraph 7 of the statement of claim is as follows:
    "PARTICULARS OF THE DEFENDANT'S NEGLIGENCE AND/OR NUISANCE
    ARISING OUT OF THE INCIDENT

The defendant, its servants or agents:-
    (a) failed to provide a reasonably safe walking surface for
    the plaintiff;
    (b) spilled oil contaminated water onto the floor;
    (c) mopped the oily water up with a mop contaminated with
    oil;
    (d) caused or allowed the floor to become wet and/or
    slippery;
    (e) failed to warn the plaintiff that the floor was set
    and/or oily and/or slippery;
    (f) failed to provide any, or any adequate, warning to
    persons about to walk on the floor to the effect that the
    floor was set and/or slippery;
    (g) failed to cordon off the floor."

10. Paragraph 8 of the statement of claim is as follows:
    "Further, or in the alternative, the plaintiff sues the
    defendant in its capacity as her employer and says that her
    said personal injuries loss and damage occurred through the
    negligence, breach of contract and/or breach of statutory
    duty of the defendant, its servants or agents."

11. Paragraph 9 of the statement of claim is as follows:
    "PARTICULARS OF THE DEFENDANT'S NEGLIGENCE AND/OR BREACH OF
    CONTRACT AND/OR BREACH OF STATUTORY DUTY

The defendant its servants or agents:
    (a) failed to provide a reasonably safe walking surface for
    the plaintiff;
    (b) spilled oil contaminated water onto the floor;
    (c) mopped the oily water up with a mop contaminated with
    oil;
    (d) caused or allowed the floor to become wet and/or
    slippery;
    (e) failed to warn the plaintiff that the floor was set
    and/or oily and/or slippery;
    (f) failed to provide any or any adequate warning to persons
    about to walk on the floor to the effect that the floor was
    set and/or slippery;
    (g) failed to cordon off the floor;
    (h) failed to ensure in so far as was reasonably practicable
    that the work place was maintained in a safe condition and/or
    failed to ensure insofar as was reasonably practicable that
    the means of access to and egress from the work place was
    safe, contrary to s23 of the Act particulars of which are
    hereinbefore contained;
    (i) failed to ensure insofar as was reasonably practicable
    that the plaintiff was, while at work, safe from injury and
    risk to health and in particular the defendant failed to
    provide and maintain insofar as was reasonably practicable a
    safe working environment, contrary to s19 of the Act
    particulars of which are hereinbefore contained".

12. (The Act referred to is the Occupational Health Safety and Welfare Act, 1986 as amended).

13. Paragraph 4 of the defence reads as follows:
    "As to the allegations contained in paragraphs 6 and 7 of the
    Statement of Claim, for the purposes of these proceedings
    only, the defendant admits that it was the occupier of the
    premises, and that it was negligent and/or created a nuisance
    as alleged in the said paragraphs. It further pleads that
    any such liability to the plaintiff is identical and/or
    co-extensive with its liability as admitted in paragraph 1
    hereof and relies upon the provisions of Part I B of the
    Wrongs Act 1936."

14. Paragraph 5 of the defence reads as follows:
    "The defendant says that the action should now proceed as an
    assessment of the plaintiff's damages and that pursuant to
    the provisions of s54 of the Workers Rehabilitation and
    Compensation Act 1986 the damages to which the plaintiff is
    entitled (if any) are restricted to damages for non-economic
    loss."

15. (The Workers Rehabilitation and Compensation Act abovementioned is hereinafter called the "WR and C Act").

OCCUPIERS' LIABILITY
16. In South Australia occupiers' liability is governed by Part 1B of the Wrongs Act in accordance with s17e which reads as follows:
    "(1) Subject to ss(2) this Part operates to the exclusion of
    any other principles on which liability for injury, damage or
    loss attributable to the state or condition of premises
    would, but for this Part, be determined in tort.

(2) This Part does not apply to a case where an occupier
    causes a dangerous state or condition of premises, or allows
    premises to fall into a dangerous state or condition,
    intending to cause injury, damage or loss to another".

17. Insofar as the defendant's liability to the plaintiff arises as an occupier of premises, Part 1B of the Wrongs Act operates as a code which displaces the common law in the absence of intentional injury damage or loss as mentioned in s17e(2) abovementioned. There is no allegation in the present case which would bring s17e(2) into operation. Therefore, applying s17e(1) I conclude that the common law has no direct application to this case although its principles generally remain by virtue of s17c(1) of the Wrongs Act which reads as follows:
    "Subject to this Part, the liability of the occupier of
    premises for injury, damage or loss attributable to the
    dangerous state or condition of the premises shall be
    determined in accordance with the principles of the law of
    negligence."

18. Section 17c(2)-(6) then sets out an extensive set of principles which a court is required to consider.

19. On the face of the pleadings (and subject to the operation of s54 of WR and C Act the plaintiff's claim will have to be based on Pt1B of the Wrongs Act rather than a common law claim such as that discussed in Australian Safeway Stores v Zaluzna 162 CLR 479. At the end of the day I am satisfied that the plaintiff's argument with respect to the application of s54(1) will be the same whether the claim be made under the Wrongs Act or at common law. I see nothing in Part 1B of the Wrongs Act to suggest that the provisions of that Act (introduced by the amending Act No.45 of 1987) were intended to have paramountcy over the legislative policy of the WR and C Act. Nevertheless I have considered that possibility.

THE PLAINTIFF'S ARGUMENT
20. Section 54(1) of the WR and C Act is set out in the agreed statement and quoted above.

21. On behalf of the plaintiff, Mr Willson argued that the subsection should be construed as if it read as follows:-
    " ... no liability attaches to an employer IN ITS CAPACITY AS
    AN EMPLOYER in respect of compensable disability except -
    (a) a liability under this Act; or
    (b) a liability at common law for non-economic loss or
    solatium".

22. Mr Willson's argument sought to add the words "IN ITS CAPACITY AS AN EMPLOYER" and to delete the words "(arising from employment by that employer)" as his gloss to the actual words used by Parliament in s54(1). (This argument is reflected in par6 of the statement of claim).

23. Mr Willson argued that the WR and C Act does not purport to impact upon an employer's duty of care as an occupier. He submitted that s54(1) deals with the responsibility of an employer in the capacity only as an employer and with respect to liability arising out of the employer/employee relationship. Mr Willson submitted that if the relevant relationship between the parties can be characterised as arising out of some identifiable legal relationship to which rights attach - such as occupier and visitor - then the rights of the parties are not curtailed in terms of s54(1) merely because the employment relationship also exists.

24. Mr Willson drew attention to the presence in s54(1) of the words "arising from employment" and he developed an argument which placed particular significance upon that phrase. He identified the elements of a compensable disability; in terms of s3 of the Act a "compensable disability" is defined as meaning "a disability that is compensable by virtue of s30". In terms of s30, "a disability is compensable if it arises from employment". Therefore (so Mr Willson argues) when s54 speaks of a "compensable disability" it is necessarily referring to a disability which, within the meaning of the Act, (and its definition) "arises from employment", without any need to specifically use these words again; unless the phrase in this context is merely tautologous (says Mr Willson) its work is to further qualify the application of the section; the plaintiff's argument is that this qualification may be achieved by dividing compensable disabilities into two categories namely:
    (a) those arising from an incident where a nexus exists
    between the parties apart from employment (such as between
    occupier and invitee) and
    (b) those where the only nexus between the parties is the
    fact of the employment.

25. Mr Willson would then contend that it is only the disabilities belonging to the latter category which are subject to the fetter of s54(1).

26. The plaintiff's argument was reinforced by a reference to s105 of the WR and C Act 1986 which reads as follows:
    "(1) An employer who is registered under this Act, and any
    employer who is not required to be registered because of an
    exemption under the regulations, is insured by the
    Corporation, subject to terms and conditions prescribed by
    regulation, against any liability that may arise apart from
    this Act in respect of a compensable disability arising from
    employment (being employment to which this Act applies) by
    the employer.

(2) Where an employer participates in the provision of a
    rehabilitation programme under this Act, and in consequence
    of that participation provides work for a person who is not a
    worker employed by that employer, that person will be taken
    to be in the employment of the employer for the purposes of
    ss(1).

(3) The insurance provided by ss(1) does not extend to an
    exempt employer except in relation to persons of the class
    referred to in ss(2)."

27. Mr Willson claimed that s105(1) has no work to do unless his argument is correct. If s54(1) comprehensively excludes all liability arising from all sources exterior to the WR and C Act, then how can there be any liability of the type described in s105(1)? asks Mr Willson.

28. I note that s3 of the Act contains a general definition of "employer" and that s54 contains an extended definition (which I have quoted below). Section 3(1) provides-
    "In this Act, unless the contrary intention appears - ...
    "employer" means
    "(a) a person by whom a worker is employed under a contract
    of service, or for whom work is done by a worker under a
    contract of service;
    (b) in relation to persons of whom the Crown is, under
    section 103A, the presumptive employer-the Crown;
    (c) in relation to persons of whom any other person is, by
    virtue of a provision of this Act, the presumptive employer
    -that other person,
    and includes a former employer and the legal personal
    representative of a deceased employer'"

THE POLICY OF THE WORKERS REHABILITATION AND COMPENSATION ACT
29. The scheme of the Act is to create a regime of compensation for employees based upon the notion of disability arising from "employment".

30. Part 4, Division 7 of the Act imposes its own liability to pay compensation and distributes this obligation between WorkCover Corporation of South Australia and the employer. Section 46(1) defines the breadth of the Corporation's liability for the payment of compensation under the Act. Section 46(3) is an example of the employer's liability to pay compensation.

31. The employer who is relevantly associated with the employment of a worker acquires monetary obligations to pay levies and fines in terms of Pt5 Div4 of the WR and C Act but is otherwise comprehensively protected from liability which might otherwise accrue with respect to the "compensable disability" howsoever arising. That protection is provided either by statutory bar to other action against the employer (eg s54(1)) or else by statutory indemnity insurance of the employer by WorkCover (eg s105(1)). Consistent with this policy, Parliament's intention as expressed in s54 is generally to remove any right of action against the relevant employer except within the framework expressly provided in the Act itself. However, an exception is provided by s54(2) as regards liability arising out of the use of a motor vehicle in certain circumstances.

32. In Andrews v Ziersch (1994) 61 SASR 521 at 538-540, Perry J reviewed the operation of s54 but the Court was there dealing with a different question from that which now arises. Ziersch's case was concerned principally with the construction of s54(4b)(b) and with the right of a third party to claim contribution from the plaintiff's employer in circumstances where the plaintiff himself was precluded by s54(1) from making a claim against the employer. Perry J noted how the rights of the worker to claim damages against an employer at common law or for breach of statutory duty resulting in compensable injury have been "severely curtailed" by the WR and C Act. I am grateful for the analysis undertaken by Perry J who explains how s54(1) and
(2) operate to confine any liability of an employer with respect to a compensable disability to the liability imposed by the Act and a liability at common law for non-economic loss or solatium, except in cases where the liability arises out of the use of a motor vehicle; in the last mentioned event Perry J points out that the employer remains liable at common law for damages at large - subject to the restrictions imposed by the operation of the Wrongs Act as regards the extent of common law damages.

33. In my opinion s105(1) does have an important role. For example, it ensures that an employer is insured against the common law liability which is preserved by the exception (b) to s54(1). Moreover, it provides indemnity insurance to an employee in respect of any residual liability which may exist - perhaps in some foreign place despite the best efforts of Parliament to remove such liability. In this respect I note the extraterritorial effect of the Act and the modification of the rules of Private International Law as discussed below. Section 54(7b) - as quoted below - deals with this same situation (of possible residual liability) but from the point of view of protecting Workcover Corporation. I reject the argument that s105 provides aid or comfort to the argument of the plaintiff in the present case.

34. Mr Walsh QC for the defendant argued that in s54(1) the phrase "arising from employment" qualifies "compensable disability" and not the word "liability". I accept that submission. The manner in which the plaintiff seeks to rewrite the section does violence to the language and is inconsistent with the policy of the Act. On the other hand the interpretation advanced by the defendant appears to promote the purpose and objects of the Act by containing the employers' costs and reducing adversarial contests to the greatest possible extent (see s2(1)(a)(v) and (f).

35. I refer to the plaintiff's submission as to the existence of a tautology which is perceived by Mr Willson when the phrase "arising from employment" is allowed to remain as it appears on the face of s54(1) alongside "compensable disability" (which phrase itself already encompasses this same concept). The short answer to that submission is that the words "arising from employment by that employer" constitute a composite phrase which identifies and links two concepts - employment and relevant employer. In order to do this, Parliament has clearly been concerned to identify the particular employer who relevantly is entitled to the protection of the section.    As an exercise in the use of language, Parliament has chosen to use the words "arising from employment" despite the fact that these same words are already locked up inside the definition of "compensable disability". This repetition was obviously convenient in order to enable the phrase "arising from employment" grammatically to be qualified by the words "by that employer". Whilst the result may be inelegant, I consider that Parliament's intention is clear. Parliament has included the composite phrase in order to limit the class of employer who could take advantage of the subsection. It seems inconceivable to me that Parliament intended to create a loophole for the retention of some category of liability apart from the WR and C Act. I make this observation particularly in light of the strong legislative policy apparent in the subsections quoted below.

36. I draw attention to ss(7a) and (7b) of s54 of the WR and C Act which read as follows:
    54(7a) "This section is intended to apply in relation to any
    action that arises out of the occurrence of a compensable
    disability-
    (a) irrespective of where the disability occurred; and
    (b) (i) irrespective of whether the action is brought
     before a court of this State or before a court of some
     other state, territory or country; and
     (ii) notwithstanding that the court before which the
     action is brought would not (but for this subsection)
     apply, or take into account, South Australian law.

54(7b) If-
    (a) an action is brought in respect of a compensable
    disability in a court that is not a court of the State; and
    (b) notwithstanding subsection (7a), the court awards an
    amount against an employer that is in excess of the amount
    (if any) that would have been awarded in a similar action
    before a court of the State; and
    (c) the Corporation is liable to pay the amount awarded by
    virtue of insurance provided under this Act,
    the Corporation is entitled to recover the excess from the
    person to whom the amount is awarded."

37. These subsections are quite startling in their intended effect but reinforce the clearly expressed policy which I have already noted in respect of s54(1). Not only is s54 given extraterritorial effect but it also is intended to have paramountcy in the face of the principles of Private International Law which might otherwise apply. Moreover, to cement the legislative policy even more firmly, Parliament has authorised the Statutory insurer (WorkCover Corporation of South Australia) to make recovery from any successful claimant who has somehow or somewhere managed to evade the limitations of the Act in circumstances where the Corporation's obligation to indemnify an employer has been called upon; as I have already noted, s105(1) and s54(7b) appear to complement each other in dealing with this common topic.

38. In conclusion I note the following definitions contained in s54(8) of the Act
    "(8) In this section-
    ... "damages" includes any form of compensation payable apart
    from this Act in respect of a compensable disability;

"employer" includes
    (a) any person for whose torts an employer is vicariously
    liable;
    (b) any person who is vicariously liable for the torts of an
    employer;
    ..."

39. I have mentioned the definition of damages for the sake of completeness.

40. A restatement of the plaintiff's argument (as previously recited) to include the extended meaning of "employer" in s54(8), does not make it any easier to accept the plaintiff's argument.

41. Paragraph 5 of the defence as cited above reflects the true position in law. I am unable to accept the plaintiff's argument.

42. I would answer the question reserved - no.

JUDGE2 DOYLE CJ I agree that the question of law reserved for the consideration of this Court should be answered "No". I have nothing to add to the reasons of Williams J.

JUDGE3 PRIOR J I agree with the reasons published by Williams J. The question reserved should be answered in the negative.