Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7)

[2006] VSC 390

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5825 of 2004

JOHN RAEBURN	Plaintiff
v
TENIX DEFENCE SYSTEMS PTY LTD	Defendant

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Ruling No. 7

JUDGE:	CUMMINS, J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2006
DATE OF RULING:	20 October 2006
RULING MAY BE CITED AS:	Raeburn v Tenix Defence Systems Pty Ltd
MEDIUM NEUTRAL CITATION:	[2006] VSC 390

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Accident compensation – s.93CC Accident Compensation Act 1985 – whether determination by Victorian Workcover Authority founds request by plaintiff that defendant admit worker having no work capacity – considerations applicable.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards, SC and Mr A Ingram	Clark and Toop
For the Defendant	Mr R Gillies, QC and Mr B McKenzie	Herbert Geer and Rundle

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HIS HONOUR:

1. The plaintiff, Mr John Raeburn by proceeding filed on 6 May 2004 has sued his then employer, Tenix Defence Systems Pty Ltd, for damages for injury sustained during the course of employment at the Williamstown dockyards, Melbourne on 6 March 2000.  The plaintiff was a fitter and turner and commenced employment in that capacity with the defendant in July 1999, working on the construction of Anzac Class frigates.  On 6 March 2000 while working below deck on Anzac frigate number 6, he injured his right knee.  As a consequence he was unable thereafter to work.  At 6 March 2000 the plaintiff was employed by the defendant pursuant to a fixed-term contract from 21 February 2000 to 15 September 2000.  His employment by the defendant ceased on 15 September 2000.  He has been on accident compensation since the sustaining of the injury and as I have stated has now brought common law proceedings against the defendant for negligence.  The resultant trial in this Court is by jury.

1. The negligence alleged essentially is failure to provide a safe workplace and failure to provide a safe system of work by the defendant in that the plaintiff was required to access his work area by stepping onto a circular propeller shaft which had a non-skid strip at its apex but no flat steps thereover and no handrails.  It was in effectuating that manoeuvre on 6 March 2000 that the plaintiff twisted his right knee.  The plaintiff contends that the injury occurred as he overbalanced (and thus the relevance of absence of a flat stepping surface and of handrails).  The defendant denies negligence and says that the workplace and system of work was safe.  Although there is no issue that the defendant twisted his knee while stepping over the propeller shaft, there is heated dispute as to whether the plaintiff overbalanced which the defence says is a late invention in order to assert negligence.  The defendant says that the injury to the knee was not related to any workplace unsafety but rather to pre-existing osteoarthritis.  The plaintiff was almost 57 years of age at the time of the twisting event and is now 63 years of age. The defendant further says that the plaintiff has exaggerated his symptoms to the doctors and to the jury.

1. During the trial, the plaintiff gave evidence and numerous other witnesses were called on behalf of the plaintiff.  During the course of the case for the plaintiff, counsel for the plaintiff sought a formal admission from the defendant.  After brief discussion thereon the matter was temporarily stood over.  It was resurrected before the close of the plaintiff’s case.  The admission sought was in documentary form and was as follows:

“Admission Requested

The Plaintiff asks the Defendant to admit that the Plaintiff’s entitlement to payments of weekly compensation continues at the present time pursuant to s.93CC of the Accident Compensation Act 1985 because it has been determined on behalf of the Defendant that the Plaintiff has ‘no current work capacity’ and is ‘likely to continue indefinitely to have no current work capacity’ and further that the Plaintiff has participated ‘in assessments of [his] capacity, rehabilitation progress and future employment prospects when requested to do so by or on behalf of the Defendant’ and further that the Plaintiff has made ‘every reasonable effort to return to work in suitable employment’ and ‘every reasonable effort to participate in an occupational rehabilitation service or a return to work plan’.”

Counsel for the defendant resisted the sought-for admission.  Having heard submissions upon the matter, I ruled:

“…the admission sought on behalf of the plaintiff is misconceived in law and unsupported by fact.”  (T. 909)

As the jury trial was proceeding apace and the matter involved a statutory provision I stated that I shall publish my reasons, which now I do.

1. Mr Ingram, who with Mr Richards, SC appeared for the plaintiff, in an elegant submission put that it was appropriate for the defendant to be requested to make the admission sought.

1. The arch of Mr Ingram’s submission was s.93CC Accident Compensation Act 1985 (“the Act”) with the supports being s.20B(1)(c) and s.134AB. Mr Ingram submitted that the words “assessed by the Authority or self-insurer” in s.93CC(1) and the words “when requested to do so from time to time by the employer or the Authority or self-insurer” in s.93CC(3)(c) set up a scheme whereby the acts of the Authority in paying or enabling payment of a continuing sort to a worker are to be treated as acts of the employer which constitute an admission of relevant injury and incapacity. He called in aid the provisions of s.20B(1)(c) and of s.134AB to that end. He relied upon Ansett Australia Ltd & Anor v Taylor[1] and Grech v Orica Australia Pty Ltd & Anor[2].  He relied upon the following questions of the plaintiff by senior counsel, Mr Gillies, for the defendant (T. 172):

“Q.     How much are you getting in accident compensation now, what      is it, how much a fortnight? ... $1194, … $1134, I’m not sure.

So you’ve been getting … $1134 per fortnight, or the lower indexed amount basically ever since you stopped work? … That’s correct.

Yes, and I suggest that the reason why you’ve not personally tried to get a job.  You’ve been content to sit back on the $1134 per fortnight and not look for a job? … That is absolutely not true.”

[1][2006] VSCA 171 per Ashley, JA (with whom Maxwell, P and Bongiorno, AJA agreed) at [3], [40] and [46]-[57] (the eleven reasons).

[2][2006] VSCA 172 per Ashley, JA (with whom Buchanan and Chernov, JJA agreed) at [41].

1. As I said at T. 909 when I ruled upon the matter, I consider that the admission sought on behalf of the plaintiff is misconceived in law and unsupported in fact.

1. It is unsupported in fact because the defendant, hitherto or at trial, has not denied that an injury occurred at the workplace.  The primary issue litigated between the parties is the cause of the injury (overbalancing or not) and whether there was any negligence by the employer.  True it is that Mr Gillies asked the above quoted questions, and that the defendant says that the plaintiff has exaggerated his symptoms; but the fact of an injury occurring in the workplace is not in issue.  Nor has the matter of compensation been one for the defendant after 6 months following the injury, as in September 2000 the plaintiff’s contract was not renewed.

1. The sought-for admission also is misconceived in law. It confuses actions by one entity with those of another. It also confuses the purposes of such actions. Section 93CC involves assessment and payment by the Authority or self-insurer. The only reference to the employer is in s.93CC(3)(c) which here is inconsequential as the plaintiff after six months was no longer was employed by the defendant. The plaintiff’s submission convolutes statutory subrogation whereby the Authority conducts a case on behalf of a defendant into a reverse relationship of the defendant having as its agent the Authority. The illogicality of such proposition is clear; the fact that the Authority pays a medical bill or makes a weekly payment does not constitute an admission by the defendant. Further, s.20B(1)(c) does not lie in aid to the plaintiff, as it concerns the powers of the Authority; nor does s.134AB, as it concerns the gateway. Although discrete sections of the Act equate the actions of one entity (such as the Authority) with another (such as an employer), those provisions are specific and for finite purposes; neither by provision or scheme is there an holistic conflation of entities or of their actions one with the other. Finally, the authorities relied upon by the plaintiff do not assist the plaintiff. Ansett Australia Ltd & Anor v Taylor concerned the interrelationship between s.98C and s.134AB, not the common law situation.  Grech v Orica Australia Pty Ltd does not add anything on this point, dealing as it does with the interrelationship between s.134AB and s.134A.  The vice in the logic of the plaintiff’s submission  is revealed on the face of the sought-for admission itself – the words “on behalf of”.

1. For those reasons I refused the request of the plaintiff that the defendant be requested to make the sought-for admission.

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