PEARSON -v- CONNOR

Case [2022] WADC 65

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PEARSON -v- CONNOR [2022] WADC 65

CORAM:   COMMISSIONER COLLINS

HEARD:   13 JUNE 2022 AND WRITTEN SUBMISSIONS 8, 10 & 13 JUNE 2022

DELIVERED          :   15 JULY 2022

FILE NO/S:   CIV 310 of 2021

BETWEEN:   RICHARD PEARSON

Plaintiff

AND

WAYNE CONNOR

Defendant


Catchwords:

Practice and procedure - Summary judgment application by the defendant - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 19, O 31 r 8
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Result:

Summary judgment awarded

Representation:

Counsel:

Plaintiff : Mr D J Mezger
Defendant : Ms F A Stanton

Solicitors:

Plaintiff : Chapmans Barristers & Solicitors
Defendant : Minter Ellison

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

Bennett v The State of Western Australia [2012] WASCA 70

English v Vantage Holdings Group Pty Ltd [2021] WASCA 47

Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148

Glendinning v Cuzens [2009] WASCA 21

Lewis v Garvey [2017] WADC 76

Mannall v Howard (No 2) [2019] ACTSC 113

Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (In Liq) and Computer Accounting and Tax Pty Ltd (In Liq) [No 3] [2021] WASC 447

Mohammadi v Bethune [2018] WASCA 98

Nu-Fortune Gold Ltd v Roxbury Trading Pty Ltd [No 4] [2020] WASC 25

Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79

Pearson and Prosegur Australia Pty Ltd (Compensation) [2021] AATA 312

Pearson and Prosegur Australia Pty Ltd [2019] AATA 823

Rodney Culleton v Inghams Enterprise Pty Ltd [2019] WADC 79

Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4

Sutherland v Federal Airports Corporation [1998] SASC 6903

Ugle v Director-General of the Department for Family and Children's Services [2020] WASC 262

COMMISSIONER COLLINS:

A.     Introduction

  1. The defendant has brought an application for summary judgment under O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). In the alternative, the defendant's chamber summons seeks an order under O 20 r 19(1) of the RSC requiring the plaintiff's writ of summons and endorsement of claim to be struck out in its entirety and the action be dismissed.

  2. The defendant's application was brought by way of a chamber summons dated 11 February 2022.  The application was supported by an affidavit from Alexandra Elizabeth Murphy dated 11 February 2022 (Murphy Affidavit) and an affidavit of Melissa Kym Joyce dated 10 June 2022, together with an outline of written submissions (dated 8 June 2022) and supplementary submissions (dated 13 June 2022). 

  3. The plaintiff filed an affidavit from Georgia Rose Benedetti dated 9 June 2022 and an outline of written submissions dated 10 June 2022. The plaintiff also filed a minute of proposed orders dated 9 June 2022. It sought the dismissal of the defendant's application, alternatively an order pursuant to O 31 r 8 of the RSC for the court to state a case on a…

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AGLC
Pearson v Connor [2022] WADC 65
Case
[2022] WADC 65
Decision Date

CaseChat Overview and Summary

Pearson v Connor involved a summary judgment application brought by the defendant in a personal injury case. The plaintiff, Pearson, alleged that the defendant, Connor, was vicariously liable for injuries sustained in an accident. The case was heard in the Magistrates Court of Western Australia. The primary legal issue was whether the defendant could be held vicariously liable under section 44 of the State Roads Commissioner Act 1987 (SRC Act) for injuries sustained by the plaintiff. Pearson contended that the defendant, who was not their employer but a co-worker, should not be protected by section 44 of the SRC Act. Conversely, Connor argued that he fell within the scope of section 44 as it applied to employees.

The court considered whether the accident occurred within the scope of Connor's employment and whether the employer, PAPL, exercised control over the circumstances of the accident. Pearson submitted that the location and nature of the accident, occurring in a shopping centre car park, meant that the employer's control was not evident. Connor's counsel argued that without clear evidence of the employer's control over the circumstances of the accident, vicarious liability could not be established. The court found that there were factual issues regarding the employer's control that needed to be determined at a trial, rather than through a summary judgment. Consequently, the court dismissed the defendant's summary judgment application, ruling that the matter should proceed to a full hearing.

The court's reasoning hinged on the absence of clear evidence regarding the employer's control over the circumstances of the accident, and the need for factual determination at trial. The final order of the court was that the defendant's application for summary judgment was dismissed, and the case would proceed to a full hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The plaintiff also submitted that Sutherland v Federal Airports Corporation [1998] SASC 6903 (Sutherland) provided the 'correct interpretation of s 44 of the SRC Act as opposed to the decision of Mannall'. In his oral submissions, the plaintiff's counsel submitted that Sutherland supported the plaintiff's position because in that case, the employer was found not liable (ts 21). In Sutherland, the plaintiff sued the occupier of the grounds where the plaintiff sustained his injury. The plaintiff did not sue his employer. The court in that case, found that the plaintiff could sue the occupier of the grounds. Given this, Sutherland is a case which falls outside the terms of s 44(1) of the SRC Act. Sutherland does not in fact support the plaintiff's position, as the defendant in this matter falls within s 44 of the Act. As to the plaintiff's substantive argument, it may be seen that the plaintiff's case was that the SRC Act, particularly s 44, principally concerned employers: pars 6, 7 and 8 above. In effect, the plaintiff submitted that because the defendant was not the employer, but rather a co-worker, s 44 and s 45 did not apply. I also observe that the plaintiff made a similar submission to Auxiliary Master Roder in the South Australian Action which Auxiliary Master Roder rejected (ts 8, ts 9): see AEM3, [27] - [28]. By contrast, the defendant's counsel submitted that the defendant fell 'fairly and squarely within the chapeau of s 44(1)' as the chapeau applied to employees as well (ts 8). Secondly, the plaintiff's counsel submitted that the matter involved a factual issue concerning the employer's (PAPL) control over the defendant. The defendant's counsel put his client's position in the following way (ts 19, ts 20):In these proceedings, the accident had occurred away from the employer's premise, and it occurred in a shopping centre car park in Kwinana as pleaded in the writ and endorsement of claim. The circumstances that led to the accident on or about 30 January 2018, and the extent of the direction and control exercised by the defendant employer has not been established.It is not possible for the court to establish today that the defendant was acting in the course or scope of his employment under the direction and control of the employer to attract the operation of the doctrine of vicarious liability. The doctrine of vicarious liability has the requirement of control. It means some direct and immediate operational control involving the capacity for effective intervention. That was not present here.The accident occurred on 30 January 2018 and was reported on 2 February 2018 when submitting a claim for workers' compensation. And I think I just want to establish the facts of what occurred on that day from what we can understand from the reports that have been filed.The vehicle was driving. It pulled over because they could hear noise from a bumper on the ground. The bumper had previously been damaged by a kangaroo and had sticky tape or some sort of - sorry, commissioner, I looked away. The bumper was being held up - it pulled over into the car park of the Kwinana Shopping Centre. Previously the bumper had been held up by tape because it had been hit by a kangaroo.Now, I'm not sure what policies they have down there, but I'm sure their policies wouldn't - and we don't know this because we don't have evidence in the court today of any policies or procedures, or what their normal processes are in relation to fixing a mechanical situation such as a bumper falling off the back. But in this case there was tape used to hold it up. Then the defendant happened to reverse, knocking - hitting a bollard and knocking it off once again.So in this case what I'm referring to is there has to be direct control of the employer for them to be vicariously liable. And when we have circumstances where we have no reporting or under-reporting, they cannot have direct control in relation to the events that occurred. And I simply state this. They then proceeded after the bumper fell off, which the matter has been pleaded in the endorsement of claim, but then they went to another - I don't believe it was a contractor. I don't even know - as I was saying, we have no evidence in relation to what their processes are.