Spark v Rogers
[2014] WADC 164
•28 NOVEMBER 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SPARK -v- ROGERS [2014] WADC 164
CORAM: GOETZE DCJ
HEARD: 10 SEPTEMBER 2014
DELIVERED : 28 NOVEMBER 2014
FILE NO/S: CIV 2835 of 2011
BETWEEN: JULIA DEBRA SPARK
Plaintiff
AND
MATTHEW BRUCE ROGERS
Defendant
Catchwords:
Plaintiff employed by a football club - Defendant a registered player of that club - Defendant allegedly assaulted plaintiff - Settlement of plaintiff's claim arising out of that alleged assault with the football club and its insurer by deed under workers' compensation legislation and by writ at common law - Preliminary issue of whether such deed also compromises this claim by the plaintiff against the defendant
Legislation:
Workers' Compensation and Injury Management Act 1981
Result:
Preliminary issue answered in favour of plaintiff
Representation:
Counsel:
Plaintiff: Mr R W Bower
Defendant: Mr R P Camm
Solicitors:
Plaintiff: Corser & Corser
Defendant: Camm & Associates
Case(s) referred to in judgment(s):
Gravil v Carroll and Redruth Rugby Football Club [2008] EWCA Civ 689
GOETZE DCJ:
Introduction
On 25 September 2009, the defendant, Matthew Rogers, allegedly assaulted the plaintiff, Julia Spark, by throwing her to the floor at a function held at Perth Football Club (Inc). At that time, Ms Spark was employed by the Club.
Ms Spark duly sought payments of weekly workers' compensation from the Club, through its insurer. Those payments were made. Ultimately, Ms Spark and the Club agreed for her to be paid a fixed sum of money to settle any claim which she may have had under the Workers' Compensation and Injury Management Act 1981 and at common law. That compromise was recorded in a deed. A consent judgment was entered into between Ms Spark and the Club in an action in this court.
Ms Spark now brings a common law claim against Mr Rogers for damages for personal injury arising out of the same alleged assault.
A preliminary issue has arisen as to whether Ms Spark's claim against Mr Rogers is barred by operation of the deed of settlement.
Julia Debra Spark
Ms Spark was employed by Perth Football Club (Inc) as a function event and bar manager. She was born on 21 October 1958.
Matthew Bruce Rogers
Mr Rogers played football for the Club. In 2009, he was a Colts player. Later, he was a reserve grade player and ultimately, a league player. On 3 June 2010, he entered into a league playing contract as an employee of the Club.
Ms Spark's injury
On 25 September 2009, the Club hosted the Butcher Medal count. That function was without incident until about 1.30 am. It had mostly wound up. Ms Spark and her staff were clearing away for another function to be held on the following day. Some guests however, had been permitted to remain whilst that clearing was undertaken. One guest still present was Mr Rogers.
Whilst walking from the Phoenix Lounge into the Lathlain Hall within the Club buildings, Mr Rogers is alleged to have grabbed Ms Spark and thrown her over his shoulder in a kind of wrestling body slam. She landed flat on her back and was temporarily winded.
As a result of the alleged assault, Ms Spark claims to have suffered injury, loss and damage.
Workers' compensation
Ms Spark made a claim against the Club for weekly payments of compensation and statutory allowances under the Act. The Club, through its insurer, accepted the claim.
The settlement
After some time of receiving weekly payments of workers' compensation, Ms Spark reached a settlement with the Club and its insurer by which, and without any admission of liability, a fixed sum of money was agreed to be paid to Ms Spark to compromise her entitlement to future weekly payments and statutory allowances.
By a deed of settlement and release dated 19 August 2010 and sealed by the Dispute Resolution Directorate of WorkCover WA on 31 August 2010, Ms Spark discharged the Club and its insurer
and each of them absolutely from and against all suits, actions, claims, applications, liabilities, demands, damages and costs of whatsoever kind and howsoever arising which Spark may presently have or at any time hereafter might have against PFC and Allianz or either of them in any way relating to the injury (including any sequelae, aggravations or recurrences or exacerbations thereof).
By the deed, Ms Spark undertook and agreed
not to commence or proceed with any suit, action, proceedings, application or complaint in relation to the alleged injury against PFC and Allianz or either of them and acknowledges that this deed may be pleaded as a bar to any such action, suit, proceedings, application or complaint commenced or taken by Spark now or hereafter against the parties hereto.
By action number 2517 of 2010, a consent judgment was entered into between Ms Spark and the Club. The writ in that action was generally indorsed claiming damages against the Club and
its servants, employees and agents.
The issue
In the present action, the parties have consented to an order that there be a trial of an issue in this matter being:
Is the plaintiff's claim barred by operation of the Deed of Settlement and Release executed by the plaintiff, the Perth Football Club Incorporated and Allianz Australia Insurance Ltd on 19 August 2010, and if the answer be yes, should judgment be entered for the defendant with costs?
The issue can be determined by reference to the terms of the deed itself. The recitals to the deed include reference to the injury suffered by Ms Spark on 25 September 2009. A term of the deed provided that reference to the Club included its
agents, successors, assigns, employees, officers and related entities.
This term referred to those whom it covered as at the date of the alleged assault.
Mr Rogers was not an agent of the Club at the relevant time. He then had no authority from the Club to do anything other than to wear its uniform and play football in its Colts team. He had no authority to act on behalf of the Club. He also was/is not a successor, assignee or officer of the Club or a related entity of it.
It is also clear that Mr Rogers was not an employee of the Club until 3 June 2010. In Gravil v Carroll and Redruth Rugby Football Club [2008] EWCA Civ 689, the Supreme Court of England and Wales held that only under a contract of employment would a contracted rugby player be liable for an on‑field indiscretion against a player from an opposing team for the reason that, the player was employed to play rugby and the striking of his opponent arose from a very close connection between his employment as a rugby player and his act of punching and injuring an opponent from the opposing team. The close relationship between the employment and the assault was such that it was fair to hold the employer club liable for the employed player's indiscretion.
Mr Rogers may well have been a registered player whose role it was to play Colts football but, he was not employed by the Club at the time of the alleged assault. There was not a sufficiently close relationship between the alleged assault at a club function and his mere registration to play football such that it would be fair and just to hold the Club liable for his alleged assault of Ms Spark.
Ms Sparks' undertaking and agreement in the deed referred to at [13] above was only in favour of the parties to that deed; not to Mr Rogers. Further, Mr Rogers does not fit within that term of the deed extending cover to protect those parties included in 'the Club' as set out at [16] above.
The fact that the Club consented to a judgment against itself in action 2517 of 2010 does not excuse Mr Rogers from further action by Ms Spark against him directly. The indorsement of claim in that action was as follows:
The plaintiff's claim is for damages for injury to the plaintiff sustained during the course of her employment with the defendant on 25 September 2009 including all sequelae, recurrences, aggravations, accelerations and exacerbations thereof, which injury, sequelae, recurrences, aggravations, accelerations and exacerbations were caused by the negligence and/or breach of contract and/or breach of statutory duty and/or breach of the Occupier's Liability Act 1985 (WA) (of the defendant) its employees, servants and/or agents.
As noted, Mr Rogers was neither an employee nor an agent of the Club. There is no evidence that the Club and Mr Rogers were in a master and servant relationship. To so hold would be to stretch the meaning of the term registered player too far.
That the Club entered into a judgment against itself is a matter for the Club and its insurer, which no doubt paid the settlement sum. However, that judgment only concerns the Club and Ms Spark. It does not concern Mr Rogers or any action which Ms Spark has now subsequently determined to bring against Mr Rogers.
The deed is clear in its terms. A reasonable person would not have understood it to include Mr Rogers or to protect him from future action. It follows that evidence of surrounding circumstances is not admissible to assist in the interpretation of the deed. Had the intention of the parties been to protect Mr Rogers then, that could have been easily accommodated by the draftsman.
However, assuming there is some ambiguity in the terms of the deed then, it need only be said that, following a compromise of a workers' compensation claim, it is usual for a common law discharge to be effected between the worker and the employer. That in itself does not indicate a finalisation of claims against third parties. All that might then happen is that the employer, through its insurer, might seek indemnity from a plaintiff to the extent of any successful action against a third party.
Conclusion
For these reasons, the question raised in the preliminary trial issue should be answered to the effect that Ms Spark's claim is not barred by operation of the deed.
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