Re Monger;
[2004] WASC 248
RE MONGER; EX PARTE KAISER ENGINEERS (ASIA) PTY LTD & ORS [2004] WASC 248
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 248 | |
| Case No: | CIV:1830/2004 | 20 OCTOBER 2004 | |
| Coram: | MASTER SANDERSON | 23/11/04 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Order made absolute | ||
| B | |||
| PDF Version |
| Parties: | KAISER ENGINEERS (ASIA) PTY LTD WORSLEY ALUMINA PTY LTD BECHTEL AUSTRALIA PTY LTD MERVYN McDONALD |
Catchwords: | Workers Compensation & Rehabilitation Act 1981 Application by worker for determination of percentage disability Turns on own facts |
Legislation: | Workers' Compensation & Rehabilitation Act 1981 |
Case References: | Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19 Re Monger; Ex parte Swan Portland Cement Ltd [2001] WASCA 321 Dossett v TKJ Nominees Pty Ltd [2003] HCA 69 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
KAISER ENGINEERS (ASIA) PTY LTD
WORSLEY ALUMINA PTY LTD
BECHTEL AUSTRALIA PTY LTD
Applicants
Catchwords:
Workers Compensation & Rehabilitation Act 1981 - Application by worker for determination of percentage disability - Turns on own facts
Legislation:
Workers' Compensation & Rehabilitation Act 1981
Result:
Order made absolute
(Page 2)
Category: B
Representation:
Counsel:
Applicants : Mr H M O'Sullivan
Contradictor : Mr L Gandini
Solicitors:
Applicants : Srdarov Richards Burton
Contradictor : Chapmans
Case(s) referred to in judgment(s):
Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19
Re Monger; Ex parte Swan Portland Cement Ltd [2001] WASCA 321
Case(s) also cited:
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69
(Page 3)
1 MASTER SANDERSON: This is the return of applications by three separate applicants to have made absolute orders nisi for the issue of a writ of certiorari against Mr Ross Monger, as Director of the Conciliation and Review Directorate. Each of the applicants move for precisely the same order. It is convenient if I quote only the order sought in relation to Kaiser Engineers (Asia) Pty Ltd. The applicant seeks to have quashed the following decisions of the Director:
"1.1.1 Made on or about 13 June 2004, to accept the referral of Mervyn McDonald ('McDonald') pursuant to s 93D(5) of the Workers' Compensation & Rehabilitation Act 1981 ('the Act'), being application AP369/04, regarding whether his alleged degree of disability is not less than the relevant level, with the respondent employer being identified as Kaiser Engineers (Australia) Pty Ltd, the Director having erred in accepting the referral when McDonald had already redeemed his claim pursuant to s 67 of the Act. The Director ought to have rejected the referral on the ground that, in light of s 93E(13) of the Act, McDonald is not entitled to an award of damages in respect of the disability sustained by him on 16 September 1990;
1.1.2 Made on or about 30 June 2004, pursuant to s 93D(1) of the Act, to refer McDonald's referral for resolution under the provisions of Part IIIA of the Act, the Director having erred in that the Director made the referral when he ought to have found, on the grounds referred to in paragraph 2.1 above, that McDonald's referral under s 93D(5) was invalid, and as a consequence, a referral under s 93D(10) was not open to him."
2 On 10 August 2004 the State solicitor lodged on behalf of Mr Monger a notice of intention to abide by the Court's decision. Accordingly, Mr Monger was not represented at the hearing. By notice dated 12 August 2004 Mr McDonald did give notice that he wished to be heard. At the hearing, Mr McDonald was represented by counsel who acted as the contradictor to the application.
3 In each of the three applications the applicants relied on an affidavit of Colin Robinson ("Mr Robinson"), sworn 7 July 2004. None of the material contained in the affidavit is contraversial. Mr Robinson identifies himself as the risk management administrator for Worsley
(Page 4)
- Aluminium Pty Ltd. He says that at all material times, Mr McDonald was employed by United Construction Pty Ltd ("United") as a boilermaker/pipefitter. In 1997 United was engaged by Kaiser Engineers (Australia) Pty Ltd and Bechtel Australia Pty Ltd, as agents for Worsley Alumina Pty Ltd to assist with the expansion of an alumina refinery owned and operated by Worsley Aluminium Pty Ltd near Collie in the south-west of Western Australia. On 16 September 1999 Mr McDonald allegedly sustained neck and back injuries while working on the expansion project. In December 2001 Mr McDonald issued District Court proceedings against each of the three applicants. A statement of claim was endorsed on the writ. Each of the three applicants defended the District Court action and each has lodged a defence. I will come back to the pleadings in the District Court action later in these reasons.
4 On 3 January 2001 Mr McDonald entered into an agreement pursuant to s 67 of the Workers' Compensation & Rehabilitation Act 1981, the effect of which was to redeem his entitlement under the Act. A copy of the Memorandum of Agreement is to be found as annexure "C" to Mr Robinson's affidavit. It is important to note that this agreement was between United and Mr Robinson. There is no mention in it of the three applicants.
5 Mr McDonald has now filed with the Conciliation and Review Directorate pursuant to s 93D(5) of the Act, applications against each of the three companies seeking, in each case, a determination that he has, for the purposes of s 93E(3) of the Act, a disability rating of not less than 30 per cent. By letter dated 4 June 2004 the Director of the Conciliation and Review Directorate wrote to each of the applicants enclosing a copy of the application under s 93D(7) and attaching supporting medical evidence for the purposes of s 93D(6) of the Act. Each of the applicants advised the Director for the purposes of s 93D(8) of the Act that they were not prepared to concede that Mr McDonald had a disability rating of not less than 30 per cent. On 9 June 2004 the solicitors for each of the applicants wrote to the Director, drawing his attention to the redemption and any consequent loss of entitlement to damages at common law. The Director responded by letter dated 14 June 2004. After acknowledging receipt of the solicitor's correspondence, the Director continued:
"I note the issue raised in your letter and agree that given the provisions of Section 93E(13) of the Act, it appears damages cannot be awarded in this matter. However, I am unaware of any provisions of the Act, which would preclude a worker from
(Page 5)
- referring the question as to their degree of disability if the claim has been redeemed.
Accordingly, in my view I am required to continue to progress these matters in the normal manner."
6 It is appropriate at this point to note that it is the decision of the Director quoted above which is under attack in these proceedings. The applicants say that any determination made pursuant to the referral is a "futile and entirely wasteful exercise". That being the case, it is said that the Director erred in law in accepting the applications: see Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19 per Parker J at 17 and 18; Re Monger; Ex parte Swan Portland Cement Ltd [2001] WASCA 321 per Malcolm CJ at 61.
7 Under s 67 of the Act there is a procedure which allows a worker entitled to weekly payments for a permanent total or permanent partial incapacity resulting from a disability to redeem his entitlement to weekly payments on the payment to him of a lump sum. If a worker chooses to take this course, then he is not entitled to further compensation for the disability from which the incapacity resulted: see s 67(5)(a). So in this case, there could be no question of Mr McDonald claiming any further compensation from United. Moreover, under s 93E(13) Mr McDonald is precluded from claiming damages at common law against United. That section reads as follows:
"If the liability for an incapacity resulting from the disability has been redeemed under Section 67, damages are not to be awarded in respect of the disability".
8 The statement of claim in District Court Action No 1578 of 2001 is dated 21 December 2001 and appears as annexure "A" to Mr Robinson's affidavit. Mr McDonald seeks damages for the injuries he allegedly sustained. So far as Kaiser Engineers (Asia) Pty Ltd and Bechtel Australia Pty Ltd are concerned, the allegations put against them which are said to give rise to the duty of care are as follows:
"6. At all material times the First and Second Defendants carried on a joint venture business known as Kaiser Bechtel (ADITYA) Joint Venture and provided engineering services to the Third Defendant at the premises ('the joint venture') pursuant to a contract.
(Page 6)
- 7. At all material times the First and/or Second Defendants or either of them entered into a contract with the employer whereby the employer provided labour hire services at the premises ('the contract')."
9 So far as Worsley Alumina Pty Ltd are concerned, the material facts pleaded against it which are said to give rise to the duty of care are as follows:
"10. At all material times, the Third Defendant:
(a) had overall responsibility for supervising all work conducted on the premises whether performed by its' employees, employees of the employer, employees of the First and/or Second Defendants or employees of other contractors on the premises (all workers');
(b) had overall responsibility for the safety of all workers undertaking work on the premises."
"9. Kaiser Engineers (Asia) Pty Ltd, Worsley Alumina Pty Ltd and Bechtel Australia Pty Ltd have defended the aforementioned writ on the basis that:
9.1 Worsley Alumina Pty Ltd is, for the purposes of s 175 of the Workers' Compensation and Rehabilitation Act 1981 ('the Act') a deemed employer.
9.2 Kaiser Engineers (Australia) Pty Ltd and Bechtel Australia Pty Ltd are, for the purposes of s 93B(4) of the Act, entities for whose conduct the employer (in this case, Worsley Alumina Pty Ltd as deemed employer) is vicariously liable."
(Page 7)
- of the applicants is a deemed employer under the provisions of the Act, Mr McDonald will not be precluded from maintaining his claim for damages.
12 Section 175 of the Act is found in Pt X Div 2 and is headed "Principle contractor and sub-contractor deemed employers". Relevant, the section reads as follows:
"(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act.
…
(5) Where compensation is claimed from or proceedings are taken against the principal, in the application of this Act a reference to the employer shall be read as a reference to the principal except where, for the purpose of calculating the amount of compensation, a reference is made to the earnings of a worker, the reference shall be read as a reference to the earnings of the worker under the contractor.
(6) For the purposes of this section, where sub-contracts are made -
(a) 'principal' includes the original principal for whom the work is being done and each contractor who constitutes himself a principal with respect to a sub-contractor by contracting with him for the execution by him of the whole or any part of the work;
(b) 'contractor' includes the original contractor and each sub-contractor; and
(Page 8)
- (c) a principal's right to indemnity is a right against each contractor standing between the principal and the worker."
13 It is the applicants' position that each of them are deemed employers under the provisions of s 175. In support of that proposition, reference is made to the pleading in the District Court action. That being so, it is said that the applicants are protected by the provisions of s 93E(13). Therefore, any determination as to the degree of disability is of no utility.
14 In my view, that argument is made out. Mr McDonald must be taken to have made his case in the District Court proceedings. That is to say, he cannot advance the propositions put in his statement of claim and then resile from them when dealing with the Act. Indeed, the only reason that Mr McDonald could have for referring the question of his level of disability to the Director is that he takes the view the applicants are employers under the terms of the Act. The only way that they can be employers based upon the pleading is because they are deemed employers under s 175. Once the applicants are deemed employers, damages cannot be awarded under s 93E(13) as there has been a redemption.
15 It is, perhaps, worth reinforcing the point I made above with respect to the District Court proceedings. This application has nothing to do with those proceedings. Mr McDonald may well be able to argue in the District Court proceedings that the applicants are not deemed employers under s 175 of the Act. But for the purposes of seeking an assessment of his disability under s 93D of the Act, he has to assume that the applicants are deemed employers. In other words, Mr McDonald has to rely on s 175 of the Act. But once he takes that step in the context of an application under s 93D, he runs up against the restrictions found in s 93E(13). He is precluded from seeking damages and an assessment of his level of disability is not relevant.
16 For these reasons the order nisi ought be made absolute. I will hear the parties as to costs.
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