Whitehead v Carlton Football Club Limited
[2005] VSC 257
•22 July 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4905 of 2001
| ADRIAN WHITEHEAD | Plaintiff |
| v | |
| CARLTON FOOTBALL CLUB LIMITED (ACN 005 499 909) | First Defendant |
| and | |
| PHILLIP PERLSTEIN | Second Defendant |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2005 | |
DATE OF JUDGMENT: | 22 July 2005 | |
CASE MAY BE CITED AS: | Whitehead v Carlton Football Club | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 257 | |
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Workers Compensation – entitlement to compensation – professional footballer – whether worker entitled to remuneration for doing things other than playing football – whether common law claim for damages for compensable injury barred –
Accident Compensation Act 1985 ss 16 (1) and 135A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. H. Mighell and Mr P. Over | Slater & Gordon |
| For the Firstnamed Defendant | Mr A. G. Uren Q.C. and Mr B. M. Griffin | Deacons |
| For the Secondnamed Defendant | Mr B. R. McTaggart | John W Ball & Sons |
HIS HONOUR:
The plaintiff, Adrian Whitehead, was, in August 1997, a professional footballer and a member of the senior team of the firstnamed defendant, Carlton Football Club Ltd (“the Club”). In his statement of claim[1] the plaintiff alleges that, during a match in the twentieth round of the AFL 1997 Season, he suffered an injury to his right foot. He has sued the Club and the secondnamed defendant, Philip Perlstein, for damages for the injury, for consequent psychological suffering, anxiety and depression, and for economic loss.[2] In the statement of claim the plaintiff also sues the Australian Football League (“the AFL”) but that proceeding has been discontinued in March of this year.
[1]Further further amended statement of claim filed 12 March 2004
[2]Para 12
The circumstances as they appear in the statement of claim may be shortly stated. The plaintiff played for the Club in each of the years from 1993 to 1997.[3] In the 1996 Season he developed pain in the right foot which was diagnosed as right medial sesamoiditis. Dr Perlstein, a medical practitioner, was then employed by the Club, presumably as the Club doctor. He injected the plaintiff’s foot with local anaesthetic and cortisone on 18 March 1997 and 4 August 1997, and on 14 August 1997 with local anaesthetic. On 16 August 1997 he injected what the plaintiff describes as a local anaesthetic and what Dr Perlstein describes as “Marcaine” into the plaintiff’s right foot before the match on that day.
[3]The evidence shows that he played also one reserve match in the 1998 Season.
During the course of the match, the plaintiff suffered injury to his affected foot. I should add that both the Club and Dr Perlstein in their defences[4] deny this and Dr Perlstein adds that the plaintiff subsequently trained and played football before sustaining a further injury in a game on 28 March 1998. For my present purposes I am not concerned to resolve these issues. It is sufficient that I note that in this proceeding the plaintiff seeks against the Club and Dr Perlstein damages for breach of duty and/or negligence as a consequence of which he suffered that injury and his loss and damage.
[4]Amended defence of the Club filed 6 June 2005, para 12; amended defence of Dr Perlstein filed 30 June 2005, para 12.
The proceeding is fixed for trial commencing on 19 September 2005. On 1 June 2005, sitting in the Practice Court, I gave leave to the Club to deliver another amended defence making fresh allegations including the allegation that the plaintiff was at all material times an employee of the Club and that his claim against the Club was precluded by s. 135A of the Accident Compensation Act 1985. At the same time, I ordered, pursuant to r. 47.04, that these two issues be tried and determined before the trial of other questions in the proceeding. Subsequently, Dr Perlstein amended his defence to raise the same issues and they have been added to the preliminary trial. The questions now before me may be stated as follows:
(a)Was the plaintiff at the time of the injury a worker within the meaning of this Act.
(b)If yes to the question posed in (a), was the plaintiff entitled to compensation in respect of the injury claimed in his Statement of Claim within the meaning of s. 135A of the Accident Compensation Act 1985.
(c)If yes to the question posed in (a), is the plaintiff by reason of the operation of s.135A of the Accident Compensation Act 1985 precluded from bringing this proceeding against either the First or Second Defendant?
With respect to question (a) it was accepted by the parties that the plaintiff was at the relevant time a worker so that the question should be answered – Yes.
I should mention that, at the commencement of the hearing, upon my enquiry as to the factual basis of the determination of the preliminary questions, counsel for the plaintiff indicated a reluctance that the preliminary trial go ahead. Following my enquiry into this matter it appeared that the basis of this reluctance was that the defendants would not admit, for the purpose of the proceeding generally that the plaintiff had suffered an injury as he alleges in his statement of claim and, further, that the true nature of the defendant’s position upon the preliminary question had changed since June. But, since neither of these matters affected the utility of determining the questions before the main trial, and since all parties, the plaintiff included, were ready and able to present argument on the questions, I determined to proceed.
The evidentiary basis upon which it was agreed I should determine the preliminary questions was, first, the admissions in the pleadings; second, the affidavits which were filed pursuant to my directions on 1 June or in anticipation of these directions and, statement of agreed facts and legal conclusions; and, finally, the collective bargaining agreement made between the AFL and the Australian Football League Players Association dated 6 November 1995 which was marked as Exhibit 1. The affidavits were that of Nicole Joy Warne sworn 26 May 2005, that of James Alexander Sutherland sworn 30 May 2005 and that of Rhonda Ann Stephens sworn 31 May 2005. The content of these affidavits which were filed on behalf of the Club, was not challenged or contradicted by any other party.
The statement of agreed facts and legal contentions is in the following terms:
“1. The plaintiff was at all material times a ‘worker’ within the meaning of Section 5 of the Accident Compensation Act 1985 (Vic) (“the Act”).
2.If the plaintiff was injured as alleged in his Statement of Claim, that injury arose in the course of his employment with the first defendant on or about 16 August 1997.
3.The plaintiff has not complied with the provisions of Section135A of the Act in respect of the claimed injury. In consequence, if Section 135A applies to the Plaintiff’s proceeding it should be dismissed.
4.Whether Section 135A applies to the Plaintiff depends upon whether he was entitled to compensation for the claimed injury.
5.Whether the Plaintiff was entitled to compensation under the Act depends on the provisions of the Act enacted at the time his claimed injury was suffered.
6.The plaintiff was a person engaged by an employer to participate as a contestant in a sporting or athletic activity within the meaning of Section 16(1) of the Act.
7.If the Plaintiff was injured as alleged in his Statement of Claim, the injury was sustained whilst the Plaintiff was doing a thing described in section 16(1) of the Act.”
The Background
The point raised by the defendants in their June amendments is that this proceeding was commenced in the face of a prohibition contained in s. 135A. This section, which was introduced into the Accident Compensation Act in 1992, has been much amended. It was agreed by all parties that the provision, in the circumstances of this case, had the effect that a worker was not entitled to bring a common law claim in respect of an injury arising out of or in the course of employment in respect of which he or she was entitled to compensation, without first having satisfied the procedural requirements of that section. It is not necessary that I identify these requirements, for it was common ground that they have not been satisfied in this case.
The responses of the plaintiff to this were to deny that he was a worker and, second, to assert that by reason of s. 16 he was not entitled to compensation in respect of the injury. And so, I was faced with the anomalous situation of an injured worker arguing that he was not entitled to compensation and an employer arguing that he was. As I have mentioned, the plaintiff accepted that he was not a worker so that the first question is not in controversy.
Section 16
Section 16 was introduced in 1978 by the Workers Compensation (Special Provisions) Act 1978[5] and has been much amended both before and after the date of the plaintiff’s injury. In the form it stood at the relevant time, it was in these terms:
[5]Act No. 9135.
“16. Sporting contestants
(1)Except as provided in sub-section (4)[6], where a person is engaged by an employer to participate as a contestant in a sporting or athletic activity, neither the employer or self-insurer nor the Authority or authorised insurer is liable to pay compensation for an injury received by the person if-
[6]This qualification is of no present relevance
(a)the injury is received while the person is-
(i) participating as a contestant in a sporting or athletic activity;
(ii)engaged in training or preparation with a view to so participating; or
(iii)travelling between a place of residence and the place at which the person is so participating or so engaged.
(b)the person is not entitled to any remuneration other than for the things specified in paragraph (a) under the contract under which the person does any of those things or under any other contract with the employer.”
The significance of this provision for present purposes, was accepted by all parties. If it operates so that neither the employer nor the self-insurer is liable to pay compensation to the plaintiff, he is not a worker who is entitled to compensation in respect of his injury, the subject matter of this common law claim in this proceeding. The consequence is that s. 135A does not apply to limit or preclude those claims. On the other hand, if s. 16 does not so operate, this claim for damages must fail.
The scheme of s. 16, so far as is here relevant, is that a person loses an entitlement to compensation in respect of an injury where each of three conditions is satisfied. First, the person is engaged by an employer to participate as a contestant in a sporting activity. This was accepted to be the case in this proceeding. The contract of engagement was agreed to be the standard playing contract in writing dated 26 March 1996 entered into between the plaintiff and the Club and the AFL, and the documents incorporated in this. Second, the injury is received while the person is doing one or other of three specified things. Again, it was accepted that the present claim depended upon facts which fell within at least one of those descriptions. Third, that the person is not entitled to remuneration other than for the things specified in paragraph (a) under the contract under which he does those things. It was upon this argument that attention was fastened.
Counsel on behalf of the defendants submitted that this third requirement requires an examination of the entitlement of the plaintiff under the standard playing contract. I agree. Next, it was said that under this playing contract the plaintiff receives remuneration for assuming all of the obligations and for complying with all of the terms of that contract. I was referred to this document which includes an obligation in the plaintiff to play football for the Club for three years including 1997[7]; to attend training sessions[8]; to maintain a standard of fitness[9]; and to comply with lawful and reasonable requirements of the Club relating to preparation for matches[10]. But the agreement obliges the plaintiff to perform acts other than these. There is a variety of other things which the plaintiff is obliged under the agreement to do, including to comply with directions to attend club functions[11], to submit to drug testing[12], to make himself available for appearances and photography or motion picture sessions by way of promotion and publicity[13]. Moreover, the plaintiff assigns to the Club or to the AFL his intellectual property in these appearances, photography or motion picture sessions[14] and authorises the Club and the AFL to use his name, likeness or reputation for certain purposes[15] and to use his name, signature, likeness and reputation in relation to players cards[16].
[7]Clause 2.1.
[8]Clause 2.2.
[9]Clause 2.9.
[10]Clause 2.5.
[11]Clause 2.5.
[12]Clause 2.14.
[13]Clause 4.1.
[14]Clause 4.3.
[15]Clause 4.2.
[16]Clause 5.1.
The Club, for its part, agrees to pay to the plaintiff an agreed base salary by monthly instalments, match payments at an agreed rate per match[17], an amount equivalent to the cost of certain hospital and medical benefits insurance[18] and employer contributions for superannuation[19]. Mr Sutherland in paragraph 17 of his affidavit, says that the contract also provided for a payment of certain incentives, but this does not appear in the executed document before me.
[17]Clause 6.1.
[18]Clause 6.2.
[19]Clause 6.3.
The answer to this offered on behalf of the plaintiff was that the essential and fundamental thing for which the plaintiff is entitled to receive remuneration under the playing contract is the playing of football. The other obligations and terms are all to be seen as ancillary to this. Counsel pointed out that the commercial value of a football player to a club in the modern environment is more than that of merely kicking a ball at training or in matches; he and his reputation are marketable commodities and have a value for the advancement of the interests of the club generally. Furthermore, they said, if the analysis of the defendants were accepted, s. 16 would have little application in the modern football environment. It will be a rare case where a modern professional footballer received remuneration only for participating as a contestant and for engaging in training or preparation with a view to so participating and for travelling from his residence to the place where he did those things.
Turning to the text of the statute, counsel for the plaintiff contended that the objective of s. 16, that of relieving football clubs from the burden of liability for compensation and for the payment of compensation premiums, could be achieved by construing the various parts of paragraph (a) generously. Accordingly, a person should be seen as participating as a contestant in a sporting activity if he was merely present, ready to participate if called upon[20] or where he provides not only sporting services, but also “matters incidental thereto”[21].
[20]Compare Rosebery-Toorak Football Club v Fitzallen [2004] TASSC 65 at [13].
[21]Dern v Metropolitan Water Sewerage and Drainage Board (1988) 12 NSWLR 208 at 210, per McHugh JA, Kirby P and Priestly JA concurring.
Likewise, I was urged to construe generously the expression in paragraph (a)(ii) “engaged in... preparation with a view to... participating [as a contestant in a sporting activity]”. It was contended that the various things other than playing football, which the plaintiff was obliged to do under the playing contract, could be seen as matters incidental to this activity or as preparation with a view to engaging in that activity.
I am not persuaded to construe s. 16(1) in this way. To my mind, the section removes from the benefits of the compensation scheme only those sporting contestants who are paid remuneration only for the activities of participating as a contestant as mentioned in part (i) of paragraph (a) and those ancillary activities which are described in parts (ii) and (iii). I bear in mind that this is beneficial legislation where any ambiguity should be construed in favour of the enlarging rather than the diminishing of an injured person’s entitlement to receive compensation under the statutory scheme. It is clear that some or all of the things which the plaintiff does or is obliged to do under the playing contract fall outside the things described in paragraph (a) of s. 16(1). Accordingly, the section does not apply to relieve the Club or the self-insurer of the obligation to pay compensation for the plaintiff’s injury.
It follows that the injury which is the subject of this proceeding and the circumstances in which the injury was suffered by the plaintiff are such that he is a worker who is entitled to compensation in respect of that injury arising out of or in the course of his employment with the Club.
The agreed consequence of this conclusion is that the plaintiff was not in 2001 entitled to bring this proceeding and it should be dismissed.
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