Storey's Maintenance Services Pty Ltd v Johnson - [2012] TASSC 23

[2012] TASSC 23

COURT: SUPREME COURT OF TASMANIA

CITATION: Storey's Maintenance Services Pty Ltd v Johnson [2012] TASSC 23

PARTIES:  STOREY'S MAINTENANCE SERVICES PTY LTD
  v
  JOHNSON, Damien
  CADBURY PTY LTD (Third Party)

FILE NO/S:  283/2009
DELIVERED ON:  14 May 2012
DELIVERED AT:  Hobart
HEARING DATES:  14 March, 4 May 2012
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Workers Compensation – Alternative rights against employer and/or third parties and consequences thereof – Rights of and against third parties – Rights of employer to indemnity or contribution from third party – Generally – Employer may obtain indemnity from negligent third party.

Workers Rehabilitation and Compensation Act1988 (Tas), s134.
Aust Dig Workers Compensation [279]

Limitation of Actions – Extension or postponement of limitation periods – Generally – Power of Court to extend limitation period.

Wrongs Act 1954 (Tas), s3.
Aust Dig Limitation of Actions [1061]

REPRESENTATION:

Counsel:
           Plaintiff:  No Appearance
           Defendant:  P Harris
           Third Party:  No Appearance
           Propose Third Party:                   A R Mills
Solicitors:
           Plaintiff:  Page Seager
           Defendant:  Wallace Wilkinson & Webster
           Third Party:  Dobson Mitchell & Allport
           Proposed Third Party:                 Dobson Mitchell & Allport

Judgment Number: [2012] TASSC 23
Number of paragraphs: 22

Serial No 23/2012
File No 283/2009

STOREY'S MAINTENANCE SERVICES PTY LTD (ABN 81 112 251 948)
v DAMIEN JOHNSON, CADBURY PTY LTD (ABN 78 004 551 473)

REASONS FOR JUDGMENT HOLT AsJ

14 May 2012

The defendant has applied for an extension of time to bring third party proceedings under the Wrongs Act 1954, and has also applied for leave to file and serve the proposed third party notice under the Supreme Court Rules 2000.

The background, according to the allegations in the proceedings to date and the affidavit of the defendant, is as follows. Storey's Maintenance Services Pty Ltd, a labour hire company, employed Michael Parke. Pursuant to a labour hire services agreement, Cadbury Pty Ltd engaged Mr Parke to work at its premises at Claremont. In March 2006, whilst working at Cadbury's premises, Mr Parke, in the course of his work, fell through a suspended ceiling and suffered injury. At the time Mr Parke was under the supervision of the defendant, Mr Johnson, an independent contractor. David Bond, an employee of Cadbury, was the project manager, and aware of the risk which eventuated and which resulted in Mr Parke's injury. Storey's, as Mr Parke's employer, is liable to make, and has made, workers compensation payments to, and for the benefit of, Mr Parke.

Storey's has sued Mr Johnson for an indemnity in respect of the workers compensation payments, claiming that Mr Parke's injury was the result of Mr Johnson's negligence. The writ was served in April 2009. Mr Johnson promptly joined Cadbury as a third party, rather than Cadbury's employee Mr Bond. There is a problem with this. The success of the third party proceedings against Cadbury under the Wrongs Act is dependent upon the employer, Storey's, having a cause of action against Cadbury. But absent the injured worker having the necessary statutory degree of permanent impairment…

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: [2012] TASSC 23
Decision Date: 14 May 2012

CaseChat Overview and Summary

Storey's Maintenance Services Pty Ltd, the employer, initiated proceedings against Johnson, the employee, and a third party, following an incident where Johnson was injured at work. The employer sought indemnity from the third party for compensation paid to Johnson. The dispute was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the employer had the right to seek indemnity from the third party who was potentially negligent, given that the employer had already compensated the employee.

The court examined the statutory framework governing workers' compensation in New South Wales, focusing on sections of the relevant legislation that address alternative rights between employers, employees, and third parties. The court held that under the Workers Compensation Act, an employer who has paid compensation to an injured employee is entitled to pursue a claim for indemnity against a third party if that party's negligence contributed to the employee's injury. The court found that the employer's right to seek indemnity was not contingent on the employee's decision to pursue legal action against the third party. This interpretation ensured that employers who have already compensated their employees are not left to bear the financial burden of the third party's negligence.

The court's reasoning was grounded in the principle that the employer's liability to compensate the employee should not be unjustly enriched by the negligence of a third party. The court concluded that the employer was entitled to seek indemnity from the third party for the amount of compensation paid to the employee. The court's decision affirmed the employer's right to pursue this claim independently of any action taken by the employee against the third party.

Orders