Pearson v Connor
[2024] WASCA 49
•3 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PEARSON -v- CONNOR [2024] WASCA 49
CORAM: MITCHELL JA
HALL JA
SEAWARD J
HEARD: 22 NOVEMBER 2023 AND 8 MARCH 2024
FURTHER SUBMISSIONS FILED 5 DECEMBER 2023 AND 25 MARCH 2024
DELIVERED : 3 MAY 2024
FILE NO/S: CACV 69 of 2022
BETWEEN: RICHARD PEARSON
Appellant
AND
WAYNE CONNOR
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: COMMISSIONER COLLINS
Citation: PEARSON -v- CONNOR [2022] WADC 65
File Number : CIV 310 of 2021
Catchwords:
Practice and procedure - Application by defendant for summary judgment - Interpretation of s 44 of Safety, Rehabilitation and Compensation Act 1988 (Cth) - Whether appellant's claim against respondent is precluded because the respondent as a licensed corporation would, but for s 44, be liable (whether vicariously or otherwise) for damages - Whether respondent established good defence on the merits - Whether it is clear that no real question to be tried - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 19
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 44, s 45
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M J Lourey (on 22 November 2023) T S Jardine (on 8 March 2024) |
| Respondent | : | F A Stanton |
Solicitors:
| Appellant | : | Chapmans Barristers and Solicitors (on 22 November 2023) Premier Compensation Lawyers (on 8 March 2024) |
| Respondent | : | Minter Ellison |
Cases referred to in decision:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 97 ALJR 551
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Gregory Spencer Ward trading as Ward's Stock Transport v Watson [2021] WASCA 44
Kondis v State Transport Authority (1984) 154 CLR 672
Mannall v Howard (No 2) [2019] ACTSC 113
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Mohammadi v Bethune [2018] WASCA 98
Pearson v Connor [2022] WADC 65
Pisano v South Metropolitan Health Service [2023] WASCA 80
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
Sutherland v Federal Airports Corporation [1998] SASC 6903; (1998) 72 SASR 356
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 665 NSWLR 1
JUDGMENT OF THE COURT:
Introduction
The appellant, Richard Pearson, and the respondent, Wayne Connor, were each employed by Prosegur Australia Pty Ltd (Prosegur) as armoured vehicle operators. On 30 January 2018, the appellant and the respondent were working together when the appellant was injured in a single motor vehicle accident.
The appellant commenced an action in the District Court of Western Australia by writ of summons alleging negligence against the respondent. By chamber summons dated 11 February 2022, the respondent sought summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC). The basis of the respondent's summary judgment application (Application) was that, by reason of s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCAct), the appellant did not have a common law cause of action for damages against the respondent.
The chamber summons was heard by Commissioner Collins, who granted the application.[1] The appellant now appeals against that decision. For the reasons set out below, the appeal should be dismissed.
[1] Pearson v Connor [2022] WADC 65 (primary decision).
Factual and procedural background
It was not in dispute that both the appellant and the respondent were employed as armoured vehicle operators by Prosegur, and were working together on 30 January 2018.[2]
[2] Primary decision [7]; appeal ts 7.
It was also not in dispute that the accident arose in circumstances where the respondent was driving the armoured vehicle in Kwinana, offsite from their employer's premises, and the appellant was a passenger.[3] The armoured vehicle that was being driven by the respondent was owned by Prosegur and registered in South Australia.[4]
[3] Primary decision [7]; appeal ts 7 - 8.
[4] Primary decision [7(c)].
On or about 2 February 2018, the appellant submitted a claim for workers' compensation under the SRC Act to Prosegur.[5] On 12 February 2018 Prosegur accepted liability to pay the appellant workers' compensation under the SRC Act.[6]
[5] Primary decision [9].
[6] Primary decision [10].
On 28 January 2021, the appellant commenced proceedings in the District Court of South Australia seeking damages for negligence against the respondent.[7] The respondent applied for summary judgment and, on 20 September 2021, Auxiliary Master Roder granted the application and dismissed the appellant's claim against the respondent.[8] It is not in dispute that the appellant has not appealed against that decision.[9]
[7] Primary decision [11].
[8] Primary decision [13] - [14].
[9] Primary decision [17].
The appellant's writ of summons in the Western Australian matter was filed on 29 January 2021 and contains the following general indorsement:[10]
THE PLAINTIFF CLAIMS damages for personal injuries sustained in a motor vehicle accident on or about 30 January 2018, which accident was caused by the negligent driving of a motor vehicle by the defendant.
AND THE PLAINTIFF CLAIMS damages and interest on the whole or part of the damages awarded to the Plaintiff at such rate and for such period as this Honourable Court shall think fit under Section 32 of the Supreme Court Act 1935 (WA).
[10] Writ of summons (Blue AB 27).
No statement of claim has been filed.
SRC Act
The SRC Act, relevantly for this appeal, establishes a system of workers' compensation for employees of the Commonwealth, of Commonwealth Authorities and of certain corporations.
The Application was based on the application of s 44(1)(a) of the SRC Act, which relevantly provides as follows:
(1) Subject to section 45, an action or other proceeding for damages does not lie against … a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the … licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; …
whether that injury, loss or damage occurred before or after the commencement of this section.
The SRC Act relevantly defines 'employee' to mean a person who is employed by a licensed corporation.[11]
[11] Section 5(1) of the SRC Act (par (b) of the definition of 'employee'). Section 5(1A) contains additional requirements which it is unnecessary to address in circumstances where it is common ground that both the appellant and respondent were employees for the purposes of the SRC Act at the relevant time.
Section 45 of the SRC Act provides that, prior to any compensation being paid, an employee may elect in writing to institute an action or proceeding against (relevantly) a licensed corporation. It is not in dispute that no such election was made here and therefore s 45 is not relevant to the appeal.[12]
[12] Appeal ts 5.
The following facts were also not in dispute before the Commissioner or in the appeal:
(a)Prosegur is a 'licensed corporation' as that term is defined in the SRC Act;[13]
(b)the appellant and the respondent were (at all material times) employees of Prosegur for the purposes of the SRC Act;[14] and
(c)the primary proceedings in the District Court are an action for damages for an injury sustained by the appellant in the course of his employment with Prosegur.[15]
[13] Primary decision [29] - [30]; appeal ts 6.
[14] Primary decision [23]; appeal ts 5, 7.
[15] Appeal ts 6.
Summary judgment application
The Application was supported by two affidavits. The appellant filed one affidavit in response.[16] These affidavits, between them, attached various documents concerning the accident and the workers' compensation claim.
[16] Primary decision [2] - [3].
The respondent's case before the Commissioner was that s 44 of the SRC Act applied to the facts of the case as established by the affidavit evidence before the Commissioner. In those circumstances, the respondent submitted that:[17]
(a) the appellant's case was frivolous or vexatious;
(b)the respondent had a good defence on the merits; or
(c)the action should be disposed of summarily because the appellant was statutorily denied (due to the operation of the SRC Act) from bringing a claim against the respondent with the consequence being that the respondent had no liability to the appellant.
[17] Primary decision [49].
In response, the appellant submitted that:
(a)the correct construction of s 44 of the SRC Act is that it only applies to common law claims made against a worker's employer, and not another employee. As the appellant was only alleging negligence by the respondent, and not Prosegur, s 44 did not apply;[18] and
(b)it was not possible to establish on the evidence that the respondent was acting in the course or scope of his employment and under the direction and control of Prosegur at the time of the incident. In these circumstances, the respondent had not established that Prosegur was vicariously or directly liable for the negligence of the respondent, and therefore that s 44 of the SRC Act applied to the appellant's case.[19]
[18] Primary decision [68] - [72].
[19] Primary decision [75] - [78].
The respondent also applied to strike out the writ of summons and indorsement of claim in its entirety pursuant to O 20 r 19(1) of the RSC and submitted that the writ should be dismissed on the basis of the principle of res judicata.[20] As this appeal only concerns the Application, it is not necessary to say anything further about these two other applications.
[20] Primary decision [58] - [61].
Reasons of the Commissioner
The Commissioner concluded that the respondent had a good defence on the merits to the action and allowed the application for summary judgment. The Commissioner concluded that, on the ordinary and natural meaning of the text in s 44 and s 45 of the SRC Act, the appellant was precluded from bringing an action against either the respondent or Prosegur for damages in respect of the injury sustained by the appellant. The Commissioner largely agreed with the respondent's submissions, and also observed that his conclusion was consistent with the decision of Auxiliary Master Roder in the South Australian action and also the decision of Mannall v Howard (No 2),[21] being a decision of Mossop J in the ACT Supreme Court, with similar facts to the present case.[22]
[21] Mannall v Howard (No 2) [2019] ACTSC 113.
[22] Primary decision [82] - [83].
The Commissioner also concluded that he was satisfied (on the basis of the evidence adduced by the respondent and, in the absence of any evidence from the appellant in support of his oral contentions) that, if the respondent drove negligently as alleged in the indorsement of claim, any such negligent act or omission was in the course of the respondent's employment with Prosegur.[23]
[23] Primary decision [84].
In these circumstances, the Commissioner was also satisfied that the appellant's action was frivolous in the sense that if the action went to trial, it would not raise an arguable case and would be one in which the respondent had a good defence on the merits. Further, the Commissioner considered the appellant's action should be disposed of summarily.[24] The Commissioner also granted the respondent leave to make the summary judgment application out of time.[25]
[24] Primary decision [86].
[25] Primary decision [85].
For completeness, the Commissioner also concluded that the appellant's claim should be dismissed under O 20 r 19(1) of the RSC and that it was not necessary to determine the respondent's res judicata submission.[26]
[26] Primary decision [87] - [91].
Ground of appeal and notice of contention
On the morning of the hearing of the appeal, the appellant indicated his intention to seek leave to amend his ground of appeal and submissions. Orders were made programming the filing of an application in an appeal and an opportunity for the respondent to file submissions in response.[27] The parties then made oral submissions in relation to the ground of appeal in both its amended and original form.
[27] Orders of the court made on 22 November 2023.
The respondent, in due course, filed submissions in response to the amended ground of appeal and also filed an application seeking leave to file a notice of contention.
At a subsequent directions hearing, the court granted the appellant leave to amend his ground of appeal; granted the respondent leave to file his notice of contention; and made orders providing the appellant with an opportunity to file written submissions in response to the respondent's notice of contention.[28]
[28] Orders of the court made on 8 March 2024.
The resulting single amended ground of appeal is as follows:
The Court below erred in law in wrongly interpreting and applying s 44 of the [SRC Act]
Particulars
(i) s 44 of the SRC Act has no relevance or application to the Appellant's proceedings against the Respondent in the Court below.
(ii) s 44 of the SRC Act is only applicable to proceedings by an injured worker against the Commonwealth, a Commonwealth authority, or a licensed corporation, as each of those terms are defined in that Act, or alternatively, to proceedings against an employee of one of those entities, but only where it is established that the entity is liable (vicariously or otherwise) for the actions or omissions of the employee [against] whom the action is taken.
(iiA) as the proceedings below were dismissed on a summary basis, the [respondent] had not established, and could not establish without a Trial, that any of those entity types were liable, whether vicariously or otherwise, for the negligence of the [respondent].
(iii) the Court below wrongly applied the decision of Mannall v Howard (No 2) [2019] ACTSC 113 in holding that s 44 of the SRC Act was relevant to the [appellant's] action against the Respondent in the Court below.
(iv) further and/or alternatively, the Court below ought to have instead adopted the reasoning in the decision of Sutherland v Federal Airports Corporation [1998] SASC 6903.
The effect of the amendments is that the appellant no longer presses the original ground of appeal (and the submission made before the Commissioner) that on its proper construction, s 44 of the SRC Act does not apply to a common law action in negligence commenced against another employee of a licensed corporation.[29]
[29] Appeal ts 17.
The respondent's notice of contention seeks to uphold the primary decision on the following ground not relied on by the Commissioner:
2. The respondent contends that:
2.1 the appellant's claim against the respondent is precluded because the licensed corporation, [Prosegur], would, but for the operation of section 44 of the [SRC Act], be directly liable for the injury the subject of the appellant's action against the respondent;
2.2 subsection 44(1)(a) of the SRC Act expressly precludes action if a licensed corporation is directly liable to its employee; and
2.3 evidence that was before the primary court, summarised at paragraph 10 of the respondent's submissions filed on 5 December 2012, established that there was no triable issue as to the liability of the licensed corporation.
Parties' submissions on appeal
Appellant's case
The appellant's case is that there were no pleadings or evidence before the Commissioner establishing the circumstances of the incident such as to allow the Commissioner to conclude that Prosegur was vicariously or directly liable for the appellant's injuries and therefore be satisfied that s 44 of the SRC Act applied.[30]
[30] Appeal ts 21 - 22, 40 - 41.
The appellant submitted that even though it is alleged that the respondent was driving the armoured vehicle supplied by his employer negligently, this did not necessarily mean that he was driving that vehicle in the course of his employment, and further this did not necessarily mean that liability for that negligence was visited upon Prosegur.[31] The appellant submitted that it was premature to grant the Application in circumstances where the evidence had not been led and tested by way of cross-examination to enable a conclusion to be reached by the court in relation to vicarious liability.[32] Accordingly, there was an arguable issue as to whether Prosegur was vicariously liable for the actions of the respondent and summary judgment was not appropriate.[33]
[31] Appeal ts 8 - 9, 16.
[32] Appeal ts 7, 16.
[33] Appeal ts 18.
In terms of direct liability, the appellant submitted that there was no evidence before the Commissioner as to the employer's rules and procedures and what the employer did in terms of directions on that day. In those circumstances, the appellant's case is that there is no basis for excluding the possibility that the negligence was that of the respondent as opposed to Prosegur.[34]
Respondent's case
[34] Appeal ts 40 - 41.
The respondent's case is that s 44 of the SRC Act applies not only if an employer is liable for damages in respect of an injury sustained by the employee on the basis of vicarious liability, but also if the employer is directly liable.[35]
[35] Respondent's Minute of Proposed Supplementary Submissions dated 5 December 2023 [4] - [5] (Respondent's Supplementary Submissions); appeal ts 28 - 29.
The respondent submitted that on the basis of the evidence before the Commissioner,[36] there was no real question to be tried in relation to the direct[37] or vicarious liability[38] of Prosegur, and the appellant had not identified any fact which could give rise to a real question to be tried in this regard.[39]
[36] Which is summarised at [8] - [10] of the Respondent's Supplementary Submissions.
[37] Respondent's Supplementary Submissions [13] - [17]; appeal ts 29.
[38] Respondent's Supplementary Submissions [18] - [20]; appeal ts 28.
[39] Respondent's Supplementary Submissions [7], [17].
Disposition
Issues in the appeal
In order for s 44 of the SRC Act to be engaged, and to form the basis of a submission that the respondent has a good defence on the merits, the respondent needed to establish the following facts:
(a)Prosegur is a 'licensed corporation' as that term is defined in the SRC Act;
(b)the appellant and respondent were (at all material times) employees of Prosegur for the purposes of the SRC Act;
(c)the primary proceedings in District Court are an action for damages for an injury sustained by the appellant in the course of his employment with Prosegur; and
(d)Prosegur would, but for s 44(1), be liable (whether vicariously or otherwise) for damages for the injury sustained by the appellant.
As there was no dispute in relation to items (a) - (c) above, the only issue in the appeal was whether Prosegur would, but for s 44(1), be liable (whether vicariously or otherwise) for damages for the injury sustained by the appellant. [40]
Legal principles - summary judgment
[40] Appeal ts 7.
The legal principles applicable to an application by a defendant for summary judgment were recently summarised by this court in Pisano v South Metropolitan Health Service.[41] It is not necessary to repeat in full what was said by the court on that occasion. It is sufficient to observe that pursuant to O 16 r 1(1) of the RSC the court may order judgment be entered for the defendant if satisfied that: (1) the action is frivolous or vexatious; (2) the defendant has a good defence on the merits; or (3) the action should be disposed of summarily.[42] In substance, each of those three matters amounts to the same thing - that the plaintiff's action is so clearly untenable that it could not possibly succeed at a trial in the ordinary way.
[41] Pisano v South Metropolitan Health Service [2023] WASCA 80 [48] - [52].
[42] RSC O 16 r 1(1).
It is also sufficient to observe that it is well established that the power to order summary judgment is one that should be exercised with great care as a party should not ordinarily be denied the opportunity to have its case determined following trial. The defendant at all times bears the onus of demonstrating that there is no real question to be tried. However, the plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) of the RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action. An action should not be disposed of summarily if the material facts in issue are in dispute.
Evidence before the Commissioner
The evidence before the Commissioner included the following three documents which were written by the appellant and which each contain a description of the accident.
First, a WA Police and Insurance Commission of Western Australia Online Crash Report Form dated 10 October 2018.[43] This form states that the appellant was the person lodging the form; that he was a passenger in the vehicle; that the respondent was the driver; that the date of the accident was 30 January 2018, and the location was the Kwinana Town Centre. The form contains a crash diagram and the following descriptions of the accident (errors in original):[44]
Damaged bumper from another incident in October 2017, where yellow duct tape was used to fix bumper into place. Driver bumped into a bollard at a car park in Kwinana Hub shopping centre. Driver asked if I could check bumper to see if it dislodged from the duct tape, it had in fact would not sit in the correct position as it was twisted.
…
Wayne Connor, driver was reversing out of a car park and hitting a bollard to the left side bumper. After my driver asked me to check on front left bumper to see if it was correctly in place, I found the bumper dragging on the ground, I tried to place bumper in position but it kept falling out of place dragging on the ground. We moved to a more secure area out of traffic flow, I was holding the bumper to stop it from dragging underneath the truck, slowly we moved towards the Kwinana Hub shopping centre, approximately 20 metres from where we stopped on the road, truck was only idling pace when the truck kicked into a faster pace I was still holding onto bumper the truck was slightly moving left and ran over my foot, whilst the truck was on my foot I was attempting to move my foot out of the way when I fell backwards where my head and left hand shoulder had hit the bitumen I was still holding onto the bumper. I got up and lost my balance again falling backwards. A young male approximately 24 years old who worked at Bob Jane Kwinana asked us to go to their workshop to fix the bumper to the truck, he used and air drill and 4 zip ties to fix bumper to the truck. The bumper was affixed by yellow duct tape since October 2017 after a kangaroo had hit that side of the truck so the truck already was defective prior to incident. I have pictures of the truck but is bigger than 4 mb to allow the upload. Prosegur has footage of incident as it was in view of incident.
[43] Affidavit of Alexandra Murphy affirmed 11 February 2022, annexure AEM6 (Green AB 90 - 94).
[44] Affidavit of Alexandra Murphy affirmed 11 February 2022, annexure AEM6 (Green AB 92, 94).
Secondly, a Prosegur Claim for Workers' Compensation dated 2 January 2018 (which we infer is an error and should be 2 February 2018).[45] The document states that it is completed by the appellant; is signed by the appellant; confirms that the accident occurred on 30 January 2018; and then describes the accident as follows:[46]
[45] Affidavit of Alexandra Murphy affirmed 11 February 2022, annexure AEM5 (Green AB 84 - 89).
[46] Affidavit of Alexandra Murphy affirmed 11 February 2022, annexure AEM5 (Green AB 87).
What happened and how were you injured?
Fell backwards to left side of body after truck ran over my foot
What task/s were you doing when you were injured?
Holding front bumper of truck
Thirdly, a South Australia Compulsory Third Party (CTP) Injury Claim Form dated 15 May 2020.[47] This document is completed by the appellant; is signed by the appellant; confirms that the accident occurred on 30 January 2018; confirms that the respondent was the driver of the vehicle and the appellant was a passenger; and describes the accident as follows:[48]
Damaged bumper dragging on ground after hitting a bollard, I had front left tyre run over my foot I fell backwards hitting head and left shoulder.
[47] Affidavit of Alexandra Murphy affirmed 11 February 2022, annexure AEM18 (Green AB 195 - 215).
[48] Affidavit of Alexandra Murphy affirmed 11 February 2022, annexure AEM18 (Green AB 202).
The respondent also referred to two other documents before the Commissioner, being a Prosegur Incident Management Form dated 30 January 2018[49] and a letter from a Prosegur Senior Claims Specialist to the appellant dated 12 February 2018, advising the appellant that Prosegur has accepted liability to pay compensation to the appellant (and attaching a document explaining the reasons for that decision).[50] Each of these documents was completed or written by persons other than the appellant and there was no evidence before the Commissioner as to whether the appellant had reviewed or agreed with the content of those documents. However, the description of the accident in each is consistent with the description given by the appellant in the documents referred to above.
[49] Affidavit of Alexandra Murphy affirmed 11 February 2022, annexure AEM17 (Green AB 194).
[50] Affidavit of Alexandra Murphy affirmed 11 February 2022, annexure AEM20 (Green AB 217 - 220).
These documents, together with the facts which are not in dispute, establish the following relevant facts about the accident:
(a)the accident occurred on 30 January 2018 in Kwinana;
(b)the respondent and the appellant were both employed by Prosegur at the time of the accident and were both performing functions for Prosegur at the time of the accident;
(c)on a date unknown prior to the accident, the bumper of the armoured vehicle had been damaged and the damage had been repaired by attaching yellow duct-tape to the armoured vehicle to hold the bumper in place;
(d)on 30 January 2018, the appellant and the respondent were provided with the armoured vehicle with the bumper attached by duct-tape;
(e)on 30 January 2018, the respondent was driving the armoured vehicle and the appellant was a passenger. Whilst the respondent was driving the vehicle, he caused the vehicle to 'bump' into a bollard;
(f)the 'bump' caused the bumper to become detached from the armoured vehicle; and
(g)the appellant alighted from the vehicle and held onto the bumper and walked next to the vehicle whilst the respondent drove a short distance. In the course of doing so, the respondent drove the vehicle over the appellant's foot. This caused the appellant to lose his balance and fall over backwards.
No real question to be tried
The appellant's case is that it was premature to order summary judgment in circumstances where the evidence had not been tested by way of cross-examination. The appellant submitted that the respondent was driving the vehicle negligently, but that this did not necessarily mean that the respondent's actions were 'in the course of his employment'. In terms of direct liability, the appellant submitted that the bumper was being held on by duct-tape, but that this did not necessarily mean that Prosegur was negligent, and the respondent was not.
We do not accept the appellant's submissions. The appellant's case was put at a high level of generality, and counsel for the appellant was unable to identify any material facts in dispute, or any facts which would tend to suggest that Prosegur may not be vicariously liable for the respondent's alleged negligence and/or directly liable to the appellant. Counsel for the appellant was also unable to articulate with precision what issue or issues should go to trial.
Vicarious liability arises when one person is held liable for the wrongful act or omission of another, even if the specific act or omission was unknown to that person at the time it occurred. One established circumstance in which vicarious liability may arise is when an employer is responsible for the torts of an employee which are committed 'in the course or scope of employment'.[51] The question whether a tortious or other wrongful act was committed in the course or scope of employment will depend on the circumstances of the particular case, but it is not determined by reference to whether the employee's act can be said to have been authorised by the employer.[52] Whilst the application of the test may prove difficult in some factual circumstances, the present case is not one such example.
[51] CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 97 ALJR 551 [12] (Kiefel CJ, Gageler, Gordon & Jagot JJ).
[52] CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 97 ALJR 551 [15] - [16] (Kiefel CJ, Gageler, Gordon & Jagot JJ).
The evidence before the Commissioner was that the respondent was at work and performing the very task for which he was employed - driving an armoured vehicle. The appellant was likewise performing a similar task - assisting with the driving of an armoured vehicle as the passenger on that day. The accident arose when the respondent caused the vehicle to 'bump' a bollard, dislodging the bumper. The respondent then ran over the appellant's foot when driving the vehicle in an attempt to move it to a location where the damaged bumper could be fixed. On the facts of this case, we are comfortably satisfied that the respondent's actions were undertaken in the course or scope of his employment with Prosegur.
The appellant submits that the negligent driving of the respondent is not something that an employer would ordinarily be vicariously liable for, but was unable to explain why he says that is the case on the facts before the Commissioner.
In these circumstances, we are satisfied that the Commissioner was correct to conclude that the respondent had demonstrated that he has a good defence on the merits on the basis that Prosegur would, but for s 44(1) of the SRC Act, be vicariously liable for damages for the injury suffered by the appellant, and that there was no real question to be tried on the application of this aspect of s 44(1) of the SRC Act.
In relation to direct liability, the question of the scope of s 44 of the SRC Act is to be determined by applying the ordinary principles of statutory interpretation. Those principles are well known and have been restated on numerous occasions. It is sufficient to observe that statutory construction involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose.[53] Section 44 provides that the section is engaged where (relevantly for this appeal) the licensed corporation would, but for s 44, 'be liable (whether vicariously or otherwise) for damages'. The words 'or otherwise' are sufficiently broad to cover direct liability on the part of the licensed corporation. It is plain that liability cannot be limited to circumstances of vicarious liability as this renders the words 'or otherwise' meaningless. The ordinary meaning of the words is also consistent with the broader context and purpose of the SRC Act and the interaction between s 44 and s 45 of the SRC Act.
[53] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14]; Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
An employer owes an employee a duty to take reasonable care to avoid foreseeable harm to its employees.[54] This is a non-delegable duty of care arising from the employment relationship.[55] An employer's duty at common law extends to taking reasonable care to provide, establish, maintain and enforce a safe system of work[56] and the provision of proper plant, equipment and appliances.[57] In devising that safe system of work, the employer must have regard to the possibility of error, and even carelessness, on the part of its employees.[58]
[54] Kondis v State Transport Authority (1984) 154 CLR 672. See also Gregory Spencer Ward trading as Ward's Stock Transport v Watson[2021] WASCA 44 [96] - [104].
[55] Kondis v State Transport Authority (1984) 154 CLR 672, 687.
[56] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 312 - 313.
[57] Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 [101] - [102]; TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 665 NSWLR 1 [50].
[58] Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12].
Any claim for common law damages against the respondent must be based on his negligent operation of the vehicle. On the established principles noted in the previous paragraph, Prosegur owed a non‑delegable duty to the appellant to ensure that reasonable care was taken in the operation of the armoured vehicle in the work the appellant was required to undertake. On that basis, Prosegur would be directly liable for any failure to take reasonable care in the operation the armoured vehicle which caused physical injury to the appellant. Therefore, if it were shown that the appellant's injury was caused by the respondent's negligent operation of the armoured vehicle, then Prosegur would be directly as well as vicariously liable for that injury.
In these circumstances, we are satisfied that the decision of the Commissioner should also be upheld on the basis that the respondent has established that he has a good defence on the merits on the basis that Prosegur would, but for s 44(1) of the SRC Act, be directly liable for any damages for the injury suffered by the appellant, and that there is no real question to be tried on this further aspect of the application of s 44(1) of the SRC Act. The respondent's notice of contention is established.
Common law rights
The appellant also submits that the interpretation of s 44 of the SRC Act advanced by the respondent would mean that the section would operate as:[59]
an absolute bar of an injured workers [sic] common law rights, which is against the principle that legislation should not be interpreted to invade common law rights, unless it was the Parliament's clear intention to do so.
[59] Appellant's amended submissions par 20A.
This submission is misconceived. Section 44 must be read in the context of the SRC Act as a whole. The SRC Act relevantly establishes a regime for the payment of workers' compensation and rehabilitation for employees of licenced corporations. The SRC Act provides for a process whereby an employee gives notice of the injury to the licenced corporation (s 53); that employee can then make a claim for workers' compensation (s 54); that application is assessed by the employer and a determination is made in relation to the application (see s 14 and s 61); and provides a framework for the determination of the amount of workers' compensation that is payable if a claim is accepted (see for example s 16, s 19, s 24 - s 27).
Section 44(1) is expressed as being subject to s 45 of the SRC Act. Section 45 provides that if compensation is payable under s 24, s 25 or s 27 in respect of an injury to an employee, and the licenced corporation would, but for s 44(1), be liable for damages for any non‑economic loss suffered by the employee as a result of the injury, the employee may, at any time before an amount of compensation is paid to the employee, elect in writing to institute an action or proceeding against the licenced corporation or other employee for damages for that non-economic loss.
Properly construed, s 44(1) of the SRC Act expressly operates as a bar to an injured employee's rights at common law in specific circumstances. Namely, where the employee has proceeded to make an application for workers' compensation under the SRC Act and has not made an election under s 45 of the SRC Act prior to an amount of compensation being paid under the SRC Act. Section 44(1), when read with s 45, provides an injured employee with a choice as to whether to proceed under the statutory compensation framework, or to elect to proceed under the common law. This is the express effect of the legislative regime. In the present case, it is not in dispute that the appellant has not made an election under s 45 of the SRC Act. Accordingly, this submission does not assist the appellant's case.
Particulars (iii) and (iv)
The above conclusions are sufficient to dispose of particulars (i) ‑ (iiA) of the amended ground of appeal. No error of the type alleged has been established.
Particulars (iii) and (iv) do not assist the appellant's case on appeal. The Commissioner considered the decisions of Mannall v Howard (No 2)[60] and Sutherland v Federal Airports Corporation[61] in the context of the appellant's submission that on its proper construction, s 44 of the SRC Act does not apply to a common law action in negligence commenced against another employee. As that submission is not pressed on appeal, no material error is established.
[60] Mannall v Howard (No 2) [2019] ACTSC 113.
[61] Sutherland v Federal Airports Corporation [1998] SASC 6903; (1998) 72 SASR 356.
For the reasons explained above, the amended ground of appeal is not established.
Conclusion
For the above reasons, the Commissioner was correct to hold that this was a case where it was appropriate to grant the respondent summary judgment under O 16 of the RSC. Being mindful of the need to exercise great care before summarily dismissing a claim, and acknowledging that a party should not ordinarily be denied the opportunity to have its case determined following a trial, we are satisfied that this is a case in which the respondent has demonstrated that it has a good defence on the merits and there is no real question to be tried.
For these reasons, we would order that the appeal be dismissed. We will hear further from the parties in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
3 MAY 2024
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