Scott v Thorp
[2006] TASSC 30
•10 May 2006
[2006] TASSC 30
CITATION: Scott v Thorpe [2006] TASSC 30
PARTIES: SCOTT, Sharon
v
THORPE, Patricia
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 227/2004
DELIVERED ON: 10 May 2006
DELIVERED AT: Hobart
HEARING DATE: 12, 13 & 19 April and 5 May 2006
DECISION OF: Master S J Holt
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under the Rules of Court - Proceedings in lieu of demurrer – Application to strike-out statement of claim on ground that it discloses no reasonable cause of action – Point of law.
Supreme Court Rules 2000 (Tas), r259.
Aust Dig Procedure [274]
REPRESENTATION:
Counsel:
Plaintiff: S Taglieri
Defendant: K E Read
Solicitors:
Plaintiff: Phillips Taglieri
Defendant: Dobson Mitchell & Allport
Judgment Number: [2006] TASSC 30
Number of paragraphs: 37
Serial No 30/2006
File No 227/2004
SHARON SCOTT v PATRICIA THORPE
REASONS FOR DECISION MASTER S J HOLT 10 May 2006
The application is for an order pursuant to the Supreme Court Rules 2000, r259, striking out the statement of claim for want of a cause of action. Rule 259 is as follows:
"If a pleading does not disclose a reasonable cause of action or answer or shows that the cause of action or defence is frivolous or vexatious, the Court or a judge may order –
(a) that the action be stayed or dismissed or the pleading be struck out; and
(b) that judgment be entered accordingly."
The plaintiff's claim is for damages for personal injury suffered in the course of her employment as a result of the defendant's breach of statutory duty. It is alleged that the plaintiff and the defendant were employees employed by the same employer with the defendant being the responsible officer within the meaning of the Workplace Health & Safety Act 1995, s10, and an accountable person within the meaning of the Workplace Health & Safety Regulations1998, r5. Under the Act and the Regulations the responsible officer and accountable person had obligations relating to the health and safety of workers. It is alleged that the defendant breached her obligations with resultant injury to the plaintiff.
The defendant says that as a result of amendments made to the Workers Rehabilitation & Compensation Act 1988 ("the Act"), which came into effect on 1 July 2001, the plaintiff cannot succeed unless she can establish that as a result of her injury she suffers from a degree of permanent impairment agreed by her employer or determined by the Workers Rehabilitation & Compensation Tribunal to be a percentage of the whole person of not less than 30%. The defendant says that as there is no plea relating to percentage impairment the statement of claim fails to disclose a reasonable cause of action. Satisfaction of the legislative requirement concerning the degree of impairment forms part of the cause of action. Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd [2005] TASSC 86 at par 21, and Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd [2005] TASSC 39 at par 46.
The provisions concerning the degree of impairment requirement are contained in the Act, s138AB, which is in Division 2 of Part X. That division only applies to damages claims of the types specified in s138AA. As at the time of the alleged injury, namely, 8 October 2001, s138AA and s138AB(1) and (2) were as follows:
"S138AA Application of Division
(1) This Division applies to the awarding of damages against an employer independently of this Act in respect of an injury suffered by a worker if –
(a) the injury was caused by the negligence or other tort of, or a breach of contract by, the worker's employer; and
(b) compensation has been paid or is payable in respect of the injury under this Act or would have been paid or be payable but for section 25(2).
(2) This Division applies even if the damages resulting from the negligence or other tort of the worker's employer are sought to be recovered in an action for breach of contract or other action.
(3) A reference in this section to the worker's employer includes a reference to a person for whose acts the employer is vicariously liable."
"S138AB Election to claim damages
(1) Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against his or her employer must lodge with the Tribunal an election to claim damages.
(2) A worker is not to make an election unless the degree of his or her permanent impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%."
The plaintiff says that the amendments to the Act as they stood at the time she alleges her injury occurred, namely, 8 October 2001, have no application to her claim which is not a claim against her employer, but a claim against a co-worker for damages not for negligence or other tort or breach of contract, but for breach of statutory duty.
A pleading application under r259, is to be contrasted with proceedings under r249. The latter rule is as follows:
"Points of law may be raised by pleadings
249(1) A party may raise any point of law by a pleading.
(2) A point of law raised by a pleading is to be disposed of at or after the trial.
(3) With the consent of the parties, or by order of the Court or a judge, a point of law raised by a pleading may be set down for hearing and disposed of before the trial.
(4) If the decision on a point of law disposes of a whole action or a distinct cause of action within the action, the Court or judge may give judgment on that whole action or distinct cause of action."
In Kemsley v Foot [1951] 2 KB 34 at 38 – 39, Somervell LJ explained the distinction between an application to strike out a pleading and a proceeding to determine a question of law raised by a pleading as follows:
"The type of case appropriate for an application under these rules was considered in among other cases, London Corporation v Horner 111 LT 512 and Hubbuck & Sons v Wilkinson, Heywood & Clark Ltd [1899] 1 QB 86, a decision of this court. These cases are referred to in the Annual Practice under R S C, Ord 25, r 4, and Sir Walter Monckton at one time submitted that so strict a principle did not apply to Ord 19 r 27. An examination of the latter case makes it, I think, clear that, although the application, as here, was under both rules, it was Ord 19 r 27, which was substantially in question. The effect of the cases is accurately summarized in the Annual Practice, and I think applies to both rules. They should be applied only in plain and obvious cases, and if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Ord 25 r 2. Mr Gardiner relied on these cases, but he delivered a full argument on the merits, to which Sir Walter replied. The court must, of course, go into the merits to some extent to see whether the point is one for serious discussion. We all came to the conclusion that the point of law was one which required serious discussion and that the procedure under these rules was not appropriate. Both parties, however, desired us, if we felt able to reach a clear conclusion on the material before us, to treat the issue raised as one for our decision. The matter having reached this court and been fully argued, we propose to do so, though this must not be taken as a precedent justifying resort to these rules in other than plain cases."
In Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, Kirby J speaking of the High Court Rules equivalent of r259, said at 255 – 256:
"Approach: applicable principles
The approach to be taken by the court to the Commonwealth's application for summary relief is not in doubt:
1 It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.
2 To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action Munnings v Australian Government Solicitor (1994) 118 ALR 385f; 68 ALJR 169 at 171f per Dawson J or is advancing a claim that is clearly frivolous or vexatious Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.
3 An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination.Coe v Commonwealth (1979) 24 ALR 118, 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR 1 at 5-7. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4 Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.Coe v Commonwealth (1979) 24 ALR 118 at 132; 53 ALJR 403 at 409. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5 If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 79; 43 ALR 587. A question has arisen as to whether O 26, r 18 applies to part only of a pleading.Northern Land Council v Commonwealth (1986) 161 CLR 1 at 8; 64 ALR 493. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6 The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit."
The fact that extensive argument has been presented does not convert a strike-out application into the equivalent of a r249 proceeding. However, the mere fact that a contention may require extensive argument to test it is not necessarily of itself a sufficient reason to decline to make a strike-out order. It may be that such argument is needed and if at the end of the argument it has been clearly demonstrated that the plaintiff cannot succeed on the pleaded facts the pleading should be struck out for want of a reasonable cause of action. As Barwick CJ said in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130:
"… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
He then after considering a complex argument said at 134:
"These conclusions are, in my opinion, of that clear and definite nature which is requisite if an order based on them is to be made denying the plaintiff a right further to proceed with its claim against the Commissioner."
Where a point of law is raised and set down for early determination under r249 it must be determined. Where a point of law arises as part of a summary judgment or strike-out application a discretion based on the above principles may need to be exercised. As Gibbs J (as he then was) said in Theseus Exploration NL v Foyster (1972) 126 CLR 507 at 515:
"No doubt the remarks in these cases were not intended to preclude the exercise of some discretion by a judge to whom application for summary judgment is made in deciding whether the question of law raised is so difficult that it ought not to be decided summarily, …"
The disctinction between the two forms of proceeding was recently summarised by Underwood CJ in Perry v The Examiner Newspaper Pty Ltd [2006] TASSC 18, where he said at par10:
"The determination of the question of law calls for an approach different from that applicable on a strike-out application. With respect to the latter, the issue for the Court is whether it is unarguably clear, or manifestly apparent, that the facts pleaded give rise to no cause of action. See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 - 130; Coyne v West Australian Newspapers Ltd (No 1) (1995) 15 WAR 51 at 57; Vasta v Queensland Newspapers Pty Ltd [1991] 2 Qd R 354 at 358."
I venture to repeat what I said in Spaulding v Adams [2005] TASSC 22, at par4, namely:
"Accordingly, for the purposes of r259, I regard the phrase “cause of action” as meaning a bundle of core allegations of fact which if established at trial would entitle the court to grant relief if no defence is established. For pleading purposes the question of whether or not a cause of action exists is answered solely by reference to the pleading in the statement of claim and it does not and cannot involve the court embarking upon any enquiry as to the truth or falsity of the facts alleged. On a strike out application it is not for the plaintiff to show that if he proves the facts alleged he will succeed. It is for the defendant to show that it is obvious that even if the plaintiff proves his allegations he cannot possibly have an entitlement to relief. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129."
Here, there is no consent to there being a determination of the questions of law before the trial and no order authorising such a determination under r249. There is no consent or order pursuant to r962(2)(a) authorising me as Master to hear and determine questions of law which would ordinarily be heard and determined by a judge at the trial of the action. The defendant's contention that the degree of impairment provision must be satisfied, even in actions against co-workers rather than employers, has the potential to put an end to the plaintiff's action. It may be that the degree of impairment provision, if it applies, cannot be satisfied by the plaintiff. Accordingly, I am bound to confine myself to the question, whether it is unarguably clear or manifestly apparent that the facts pleaded give rise to no cause of action.
The defendant relies upon s138AA(3), which provides:
"(3) A reference in this section to the worker's employer includes a reference to a person for whose acts the employer is vicariously liable."
The fact that the words "worker's employer" are given an enlarged meaning by virtue of s138AA(3) does not necessarily assist the defendant. If the words "(or) a person for whose acts the employer is vicariously liable" were added after the words "worker's employer" where those words occur in s138AA(1)(a) and (2) and subsection (3) deleted the relevant provisions being s138AA and s138AB(1) and (2), would read as follows:
"S138AA Application of Division
(1) This Division applies to the awarding of damages against an employer independently of this Act in respect of an injury suffered by a worker if –
(a) the injury was caused by the negligence or other tort of, or a breach of contract by, the worker's employer, or a person for whose acts the employer is vicariously liable; and
(b) compensation has been paid or is payable in respect of the injury under this Act or would have been paid or be payable but for section 25(2).
(2) This Division applies even if the damages resulting from the negligence or other tort of the worker's employer, or a person for whose acts the employer is vicariously liable are sought to be recovered in an action for breach of contract or other action." [added words in italics]
"138AB Election to claim damages
(1) Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against his or her employer must lodge with the Tribunal an election to claim damages.
(2) A worker is not to make an election unless the degree of his or her impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%."
It is to be noted that Parliament although defining the word "employer" in the Act, s3 and s132, has not in either of those provisions specified that for the purpose of Division 2 of Part X employer includes co-workers for whose acts or omissions the employer is vicariously liable.
Section 3, in its relevant part is as follows:
"Interpretation
(1) In this Act, unless the contrary intention appears –
"employer" means the person with whom a worker has entered into a contract of service or training agreement and may include –
(a)the Crown; and
(b)the employer of any person or class of persons taken to be a worker for the purposes of this Act; and
(c)the legal personal representative of a deceased employer."
Section 132 in its relevant part is as follows:
"Interpretation of Part X
In this Part, unless the contrary intention appears –
…
…
"employer", used in relation to an injury suffered by a worker, includes any person who, in respect of that injury, is liable, under section 29, to pay compensation or to indemnify any other person for any compensation paid by that other person."
[Section 29 attaches liability to principals as if they were the immediate employers in the case of workers employed by contractors.]
In short none of the interpretation provisions in the Act assist the defendant. Accordingly to succeed on this application the defendant must show that on recognised principles of statutory construction it is unarguably clear or manifestly apparent that the word "employer" first occurring in s138AA(1) and occurring in s138AB(1) includes persons for whose acts the employer is vicariously liable.
The defendant says that the s138AA(3) meaning ought to be applied to the word "employer" first occurring in s138AA(1) and occurring in s138AB(1), because of the statutory requirement to adopt the purposive approach to statutory interpretation. Section 138AB(1) provides that before proceedings can be commenced against an "employer" an election must be made. Section 138AB(2) which precludes election absent satisfaction of the degree of impairment requirement accordingly has no application unless the proposed action is against the "employer". The defendant says that the purpose of the provisions limiting access to common law damages would not be promoted unless the word "employer" in s138AB(1) is given the meaning set out in s138AA(3).
The Acts Interpretation Act 1931, s8A, is as follows:
"(1) In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object.
(2) Subsection (1) applies whether or not the purpose or object is expressly stated in the Act."
The defendant points out that the amendments introducing the degree of impairment requirement were accompanied by other amendments extending compensation entitlements under the Act. The defendant referred to the speech made to the House of Assembly by the member of the House moving the motion that the Bill be read a second time. In the course of the speech the member said that "The restriction on access to common law is necessary to be able to provide long-term support for all workers who need it." The defendant said that a very large number of actions against employers for work related injuries would also be maintainable against co-workers and the Act, s97, requires employers (who are not self-insurers) to hold insurance indemnifying all of their employees in respect of liabilities which they may incur to injured co-workers. On behalf of the defendant it was submitted that the purpose of restricting access to common law damages to ensure that long term support for workers can be provided by way of statutory compensation payments would be promoted by interpreting the word "employer" to include persons for whose acts the employer is vicariously liable, and would not be promoted by giving the word "employer" a narrower meaning.
The purposive approach only applies to choosing between a construction which promotes the purpose of the legislation and one which does not. In Shugg v Pacific Dunlop Ltd (1990) 170 CLR 249, Dawson, Toohey and Gaudron JJ said at 262:
The choice directed by s35(a) of the Interpretation of Legislation Act is not as to the construction which 'will best achieve' the object of the Act. Rather, it is a limited choice between 'a construction that would promote the purpose or object (of the Act)' and one 'that would not promote that purpose or object'."
However, the defendant says that although there may be cases where an injured worker could not find a co-worker to sue there are so many cases where a co-worker could be sued that to interpret the word "employer" in a way which excludes persons for whose acts the employer is vicariously liable would so undermine the purpose of reducing access to common law damages to free up funds for the payment of statutory compensation that in practical terms that purpose or object would not be promoted.
There are obstacles standing in the way of the defendant's contention. Even in the case of remedial legislation, which s138AB is not, the purposive approach does not give the Court liberty to give to words or provisions constructions which are unreasonable or unnatural. In I W v City of Perth (1996 – 1997) 191 CLR 1 at 12, Brennan CJ and McHugh J said:
"The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act is to be given a liberal construction West v AGC (Advances) Ltd(1986) 5 NSWLR 610 at 631. It is to be given 'a fair, large and liberal' interpretation rather than one which is 'literal or technical' Coburn v Human Rights Commission [1994] 3 NZLR 323 at 333. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural."
Arguably interpreting the word "employer" to include employees would be straining the meaning of the word to such an extent that the interpretation might be regarded as unreasonable or unnatural.
In addition, the interpretation of the word "employer" put forward by the defendant, if accepted, would have the effect of further taking away from the common law right to recover damages. In respect of derogation from common law rights Mason ACJ, Wilson J and Dawson J said in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341:
"… it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication: …"
See also Potter v Minahan (1908) 7 CLR 277 at 304 and Bropho v Western Australia (1990) 171 CLR 1 at 18.
I am not persuaded that it is unarguably clear or manifestly apparent that the word "employer" first occurring in s138AA(1) and occurring in s138AB(1) includes persons for whose acts the employer is vicariously liable. Accordingly, I am not persuaded that it is unarguably clear or manifestly apparent that the Act restricts access to common law damages to be awarded against an injured person's co-worker.
Suppose, however, that the defendant, despite these difficulties, were to succeed in her contention that "employer" includes persons for whose acts or omissions the employer is vicariously liable. The defendant would still have to satisfy the description of a person for whose acts or omissions the employer is vicariously liable.
Here, the plaintiff's allegations are confined to assertions of breaches of statutory duty by the defendant. It is not unarguably clear or manifestly apparent that vicarious liability can attach to an employer for an employee's breach of statutory duty which would not amount to a breach of a common law duty. In Darling Island Stevedoring and Lighterage Co Ltd v Long (1956 – 1957) 97 CLR 36, Williams J said at 53:
"If the statute or regulation creates a correlative civil right the employer is personally liable if any person whom the law was intended to benefit suffers injury from the failure to perform the duty whether it is the employer himself who fails to do so or his servant or even an independent contractor. But where the employer is only vicariously liable for the acts and omissions of his servant in the course of his employment, the employer could only be liable for the breach by his servant of a statutory duty laid on the servant alone if he was sued at common law and that breach was evidence of the negligence of the servant at common law."
The defendant says that Long's case is confined in its application to cases where the statutory duty imposed on the employee is not also imposed on the employer, but this is not borne out in the judgments. At p57 Fullagar J referred with approval to the following passage from the speech of Lord Morton of Henryton in Stavely Iron & Chemical Co Ltd v Jones (1956) AC 627 at 639:
"Cases such as this, where an employer's liability is vicarious, are wholly distinct from cases where an employer is under a personal liability to carry out a duty imposed upon him as an employer by common law or statute."
To get around this problem the defendant next says that the duties imposed by the Workplace Health & Safety Act and Regulations, which the plaintiff alleges have been breached are correlative with the common law duty of care in any event. The correctness of this proposition is not unarguably clear or manifestly apparent either.
There may be breaches of statutory duties where no breach of a common law duty of care would exist. In Downs v Williams (1971) 126 CLR 61, Windeyer J said at 74 – 75:
"In America breaches of statutory duties relating to safety in industrial operations tend to be regarded as a form of negligence. But in England and here they are generally considered as a sui generis tort. In London Passenger Transport Board v Upson [1949] AC 155 at p168, Lord Wright said:
'The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law in order to make effective, for the benefit of the injured plaintiff, his right to the performance by the defendant of the defendant's statutory duty. It is an effective sanction. It is not a claim in negligence in the strict or ordinary sense … whatever the resemblances, it is essential to keep in mind the fundamental differences of the two classes of claim.'
And his Lordship added that the two claims should be separately pleaded – as they were in the present case – as 'the due consideration of the claim for breach of statutory duty may be prejudiced if it is confused with the claim in negligence'. The need to keep the two causes separate is the more important in a case like the present, because s27(5) of the Act makes the duty to fence imposed on the occupier of a factory 'an absolute duty in no way qualified by any other provision of this Act'. And a statutory duty may be more rigorous, as well as more precise, than the requirements of reasonable care. The case of John Summers & Sons Ltd v Frost [1955] AC 740, is an illustration of that; and the resemblance of the facts there to those of the present case would no doubt encourage the plaintiff's advisers to pursue the counts based on the statute. The proprietor of a factory may by his conduct be in breach of both a common law duty of care and of a statutory duty: National Coal Board v England [1954] AC 403; or he may contravene one and not the other. They provide a plaintiff who is injured with alternatives in a sense, as they give rise to only one assessment of damages for personal injuries: Graham v C E Heinke & Co Ltd [1958] 1 QB 432."
Here, for example, the plaintiff's claim includes a claim for breach of the Workplace Health & Safety Act 1995, s9(1)(c), which speaks in terms of an employer's duty to provide information, instruction, training and supervision reasonably "necessary". Underwood J (as he then was) noted the possibility of the provision giving rise to a claim for breach of statutory duty which might not be sustainable in negligence. In Menzie v Les Walkden Enterprises [2000] TASSC 150, he said at par51:
"The requirement imposed by the Act, s9(1)(a) is governed by the words 'so far as is reasonably practicable' and is a statutory expression of the duty of an employer imposed by the common law. The Act, s9(1)(c) imposes an obligation to provide instruction, training and so forth that is reasonably necessary. Thus, the latter statutory obligation is unfettered by what is reasonably practicable, ie, the competing considerations expressed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48."
The defendant next says that s138AA(3) is concerned with identifying classes of persons rather than being directed to the appraisal of particular acts or omissions to see if a vicarious liability arises. Again, this proposition is far from being capable of characterisation as unarguably clear or manifestly apparent. A worker might commit a criminal assault on another worker at the place of work during working hours, but not in circumstances where it might be argued that the assailant, albeit in an improper way, was engaged in an activity sufficiently connected with his or her work duties and responsibilities. In such a case the employer would not be vicariously liable for injuries resulting from the assault because the assault would not have occurred in the course of employment. Deatons Pty Ltd v Flew (1949) 79 CLR 370. See also New South Wales v Lepore (2002 - 2003) 212 CLR 511 at pars74 and 326. It could hardly be said that it is unarguably clear or manifestly apparent that the legislation when properly construed extends to restricting access to common law damages in circumstances where liability could not possibly attach to an employer.
Even if the defendant is able to reach a point where the proceedings here are to be treated as proceedings against an employer, for the degree of impairment provisions to apply, the s138AA(1)(a) requirement needs to be satisfied. In particular, it needs to be a case where the plaintiff's injury was caused "by the negligence or other tort of, or a breach of contract by, the worker's employer". I have already found that it is arguable that a breach of the statutory duty imposed by the Workplace Health & Safety Act, s9(1)(c) will not necessarily also be a breach of a common law duty. It follows also that it is arguable such a breach is not necessarily a breach of the employer's contractual duty to the employee. The defendant in order to meet this problem says that a breach of statutory duty comes within the meaning of the words "other tort" in s138AA(1)(a).
There is some authority for the proposition that a breach of a statutory duty is not a tort. In Darling Island Stevedoring & Lighterage Co Ltd v Long (supra), Fullagar J said at 56:
"I do not think that any serious question could ever have arisen in the case if that most unfortunate expression, 'statutory negligence', had not gained a certain currency. If that expression is used merely as a convenient label, it may do no harm, but it is inaccurate and misleading in the extreme. It is a misuse of a term with a long established meaning to call a breach of a statutory duty a 'tort', and it is, I think a harmful invention to call it 'statutory negligence' Duties of the kind now under consideration are imposed without regard or reference to the common law standard of reasonable care, and a breach of such a duty may or may not, according to circumstance, amount to negligence."
Although the Act was amended by the Workers Rehabilitation & Compensation Amendment (Miscellaneous) Act 2004, s30, to specifically include in s138AA reference to breach of statutory duty those amendments only have effect in the case of causes of action arising after the amending Act came into effect on 17 December 2004. So far as this action is concerned, the plaintiff's injury allegedly having occurred on 8 October 2001, the extent of the meaning of the words "other tort" in s138AA(1) still needs to be considered. In light of what Fullagar J said in Long I am not prepared to conclude that it is unarguably clear or manifestly apparent that the words "other tort" in s138AA(1)(a) include breaches of statutory duty.
This is a pleading application. If the degree of impairment provisions of the Act apply the plaintiff's claim as pleaded is bound to fail, there being no allegation of an agreement or determination that the plaintiff suffers from a degree of permanent impairment being a percentage of the whole person of not less than 30%. However, the defendant has not demonstrated that it is unarguably clear or manifestly apparent that the degree of impairment provisions apply to an action against a co-worker as well as to an action against an employer. Nor has it been clearly demonstrated that the degree of impairment provisions will necessarily apply to each of the alleged breaches of statutory duty. The contentions of the defendant, if accepted, had the potential to put an end to the plaintiff's action. Accordingly, for the defendant's strike-out application to succeed clear and definite answers in the defendant's favour had to emerge on the questions of law arising to justify summary disposition of the matter. Such answers in the defendant's favour have not emerged. The strike-out application must be dismissed.
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