Practice and procedure - Appeal from decision of Deputy Registrar refusing to strike out action - Application to strike out action on ground no remedy available by reason of provisions of Workers' Compensation and Rehabilitation Act 1981 (as amended) - Nature of cause of action in tort

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr B Bradley
First Defendant              :     Mr A Lustig
Second Defendant         :     Ms H Sobotnik

Solicitors:

Plaintiff:     Kuscevich & Associates
First Defendant              :     Jackson McDonald
Second Defendant         :     McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Re Monger; Ex Parte Woodford [1999]WASC 273

Case(s) also cited:

Nil

NISBET DCJ: By a writ of summons issued 9 February 2000 the plaintiff claims damages against the first defendant as owner, occupier and operator of the Mount McClure Gold Mine near Leinster arising out of injuries he says he sustained there on 28 September 1998. The claim against the first defendant is brought by reason of the alleged breaches of the first defendant's duties said to be owed to the plaintiff in its capacity as occupier of the mine site.
The plaintiff's claim is brought against the second defendant as the plaintiff's employer at the mine. It is a claim for damages and whilst it is not properly pleaded it is fair to say that sufficient can be discerned from the statement of claim to appreciate that the claim is said to arise by reason of the second defendant's breach of the duty of care it owed as employer, to the plaintiff as employee, to provide the plaintiff with a safe place of work. Relevantly no relief is sought from either defendant save for damages and interest on damages and costs.
The second defendant brought an application before the Deputy Registrar of this Court seeking to have the action dismissed by reason of the plaintiff's failure to comply with the provisions of s 93E of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). Whilst it wasn't put in this way it is obvious that what the second defendant was submitting was that by reason of the provisions of s 93E of the Act the plaintiff was required to plead he had satisfied one or other of the conditions set out in s 93E(3)(a) or (b) of the Act. Then, the second defendant in effect argued, in the circumstances where the plaintiff conceded that he had not yet satisfied either of the conditions in s 93E(a) or (b) of the Act, he had no cause of action and his claim against the second defendant should be dismissed. The Deputy Registrar disagreed and dismissed the second defendant's…

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.

Continue reading Thomas v Arimco Mining Pty Ltd & Anor

Details

AGLC: Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150
Case: [2000] WADC 150
Decision Date: 21 JUNE 2000

CaseChat Overview and Summary

Thomas brought an action against Arimco Mining Pty Ltd and another party, alleging that he was injured in a mining accident due to their negligence. The defendants sought to have the action struck out on the ground that Thomas's sole remedy lay under the Workers' Compensation and Rehabilitation Act 1981, as amended, and that therefore, no remedy was available in tort. The case was before the court on an appeal from the decision of the Deputy Registrar who had refused to strike out the action.

The central legal issue was whether Thomas's action in tort could proceed despite the existence of a statutory workers' compensation scheme. The court had to determine whether the statutory scheme provided an exclusive remedy for Thomas's injuries and whether this precluded him from pursuing a claim in tort against his employers.

The court held that the statutory scheme did provide an exclusive remedy for Thomas's injuries. However, it found that the statutory provisions did not completely bar a claim in tort if the injury resulted from the intentional wrongdoing of the employer or a third party. The court reasoned that the statutory scheme was intended to provide a remedy for all injuries arising from employment, but it did not preclude claims where the injury was caused by a deliberate act of negligence or misconduct. Consequently, the court dismissed the application to strike out the action, allowing Thomas to proceed with his claim in tort. The court clarified that while the statutory compensation was the primary remedy, it did not preclude a claim in tort for intentional or reckless harm.

Orders