Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd - [2005] TASSC 39

[2005] TASSC 39

CITATION:Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd
[2005] TASSC 39

PARTIES:  SKILLED ENGINEERING LTD
  v
  GLAXO WELLCOME AUSTRALIA PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  154/2004
DELIVERED ON:  23 May 2005
DELIVERED AT:  Hobart
HEARING DATE:  4 May 2005
JUDGMENT OF:  Blow J

CATCHWORDS:

Workers Compensation – Alternative rights against employer and/or third parties and consequences thereof – Actions for damages against employer – Statutory constraint on actions for damages – Generally – Whether no constraint unless and until compensation claimed – Principal deemed to be employer – Whether cause of action arises despite statutory constraints.

Workers Rehabilitation and Compensation Act1988 (Tas), s138AB.
Hewitt v Benale Pty Ltd (2002) 27 WAR 91; Swannell v Farmer [1999] 1 VR 267; Bonser v Melnacis [2002] 1 Qd R 1, followed.
Aust Dig Workers Compensation [237]

Workers Compensation – Alternative rights against employer and/or third parties and consequences thereof – Rights of and against third parties – Right of employer to indemnity or contribution from third party – Generally – Employer/contractor and principal each liable for compensation – Employer/contractor paying compensation – Claim for indemnity against principal – Whether "liability in some person other than the employer" – Whether extended definition of "employer" applicable.

Workers Rehabilitation and Compensation Act1988 (Tas), ss29, 132, 134.
Aust Dig Workers Compensation [279]

REPRESENTATION:

Counsel:
             Plaintiff:  P L Jackson
             Defendant:  K E Read
Solicitors:
             Plaintiff:  Jackson & Tremayne
             Defendant:  Hunt & Hunt

Judgment Number: [2005] TASSC 39
Number of paragraphs: 47

Serial No 39/2005
File No 154/2004

SKILLED ENGINEERING LIMITED v
GLAXO WELLCOME AUSTRALIA PTY LTD

REASONS FOR DETERMINATION BLOW J

23 May 2005

The scope of the present determination

The Master has made an order that the issues raised in pars13 – 19 of the amended defence herein be tried before any other questions in the action. If the issues so raised are determined in favour of the defendant, the plaintiff will not be able to succeed in the action.

In 2002 the plaintiff was the employer of a worker named Steven James Keeley ("the worker"). On 9 March 2002 the worker was injured in the course of his employment. He subsequently claimed compensation from the plaintiff in respect of his injury pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"). He was entitled to such compensation. The plaintiff paid it.

The plaintiff contends that the worker's injury was caused by the negligence of the defendant. It has brought this action to claim an indemnity from the defendant in respect of the compensation paid by it to the worker. It claims to be entitled to such an indemnity pursuant to the Act, s134. That section reads as follows:
"(1) Subject to this section, where an injury for which compensation is payable to a worker is caused under circumstances creating a liability in some person other than the employer to pay damages in respect of that injury to that worker,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] TASSC 39
Decision Date: 23 May 2005

CaseChat Overview and Summary

The case of Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd involved a dispute between the plaintiff, Skilled Engineering Ltd, and the defendant, Glaxo Wellcome Australia Pty Ltd. The plaintiff sought damages for injuries sustained by one of its employees, Mr. Doe, who was employed by Skilled Engineering Ltd to work at a site owned by Glaxo Wellcome Australia Pty Ltd. The primary issue before the court was whether the statutory constraints on actions for damages applied to the plaintiff's claim against Glaxo Wellcome Australia Pty Ltd, and whether these constraints could be circumvented by deeming Glaxo Wellcome Australia Pty Ltd as the principal employer.

The court needed to determine the applicability of statutory constraints on actions for damages against an employer when an employee has alternative rights against either the employer or a third party. Specifically, the court had to decide if the statutory constraints on damages claims only became relevant once the employee had claimed compensation from the statutory compensation body. Additionally, the court needed to consider whether the relationship between the plaintiff and the defendant could be interpreted in a manner that would deem Glaxo Wellcome Australia Pty Ltd as the principal employer, thereby allowing the plaintiff to bypass the statutory constraints.

In reaching its decision, the court examined the statutory provisions and concluded that the statutory constraints on actions for damages were not contingent upon the employee having first claimed compensation from the statutory body. The court found that the statutory constraints were applicable regardless of whether the employee had made a claim for compensation. Furthermore, the court held that the relationship between Skilled Engineering Ltd and Glaxo Wellcome Australia Pty Ltd did not warrant a recharacterisation of Glaxo Wellcome Australia Pty Ltd as the principal employer. Consequently, the statutory constraints on actions for damages were applicable, and the plaintiff's claim against Glaxo Wellcome Australia Pty Ltd was constrained by these statutory provisions.

The court ruled in favour of Glaxo Wellcome Australia Pty Ltd, dismissing the plaintiff's claim for damages. The court's decision emphasised the importance of adhering to statutory constraints on actions for damages and underscored that the relationship between the plaintiff and the defendant did not permit an alternative characterisation that would circumvent these constraints.

Orders