Bourke v Hassett & Ors; Bourke v Victorian Workcover Authority & Anor [1998] VSCA 24

Bourke v Hassett & Ors; Bourke v Victorian Workcover Authority & Anor [1998] VSCA 24 - VSCA 1998 case summary — Zoe

These are two related appeals, brought in each instance by the appellant David Bourke, against judgments and orders given and made in the County Court by the same judge respectively on 16 October 1996 and 18 December 1996. The first judgment was given in proceedings commenced by writ numbered 99200481 (the "principal proceedings"), in which the respondent Hassett ("Hassett") sued his employer Gayval Investments Pty Ltd ("Gayval") and David Bourke, who was sued as nominal defendant for and on behalf of the Victoria Racing Club ("VRC"), seeking damages for injuries arising from an incident which occurred in February 1986 when Hassett was "riding trackwork" for Gayval at the Flemington racetrack. In this action the defendant Bourke joined Victorian Workcover Authority and FAI Workers Compensation (Vic) Pty Ltd (the "insurers") as third parties in circumstances which I shall hereafter describe. The second judgment was given in proceedings numbered 9600481 (the "second proceedings") in which the insurers sued VRC claiming to be entitled to an indemnity pursuant to s.138 of the Accident Compensation Act 1985 ("the Act") in respect of compensation paid by them to Hassett arising from the negligence of a third party, namely the VRC. The principal proceedings, in which Hassett was the plaintiff, were heard first, commencing on 9 October 1996. The trial lasted for five days and resulted in judgment being entered for Hassett against the VRC in the sum of $165,000. In those proceedings judgment was entered for Gayval, the learned judge having found that the plaintiff had not established liability on its part. Entry of judgment was deferred pending determination of the issues on the third party notice and the issues raised in the second proceedings; that is the claim by the insurers for indemnity against the VRC. However, on 8 November 1996, his Honour entered judgment in favour of Hassett for the sum of $165,000 together with interest of $8,000; but on 22 November 1996 that judgment was, by consent of the parties, set aside and, in lieu, judgment was entered for Hassett against the VRC in the sum of $134,180 being the judgment sum less the amount awarded and paid to Hassett pursuant to s.98 of the Act, namely $30,820. When interest was added the total sum entered by judgment in favour of Hassett was $142,180.

[39]

Having rejected the VRC's contention that Hassett was its "deemed employee", his Honour found that the VRC was a negligent third party in respect of the injury caused to Hassett on 13 February 1986 and accordingly found that the insurers were entitled to be indemnified by the VRC for such amounts of compensation which it had paid to Hassett. It was submitted on behalf of the VRC that, in so finding, his Honour was in error because the injury suffered by Hassett was not "the injury" referred to in s.138, for which compensation had been paid. The thrust of the submission, which was also made to the judge below, was that following the track-riding injury suffered on 13 February, Hassett had returned to work over a period, variously estimated at between 10 and 20 days, during which the evidence disclosed he had received what were called "further insults" to his back and that it was the combination of injuries suffered as a result of his employment that led to his incapacity for work. Because compensation pursuant to the Act is only paid, so the argument ran, for incapacity, his Honour was in error in finding that the compensation paid by the insurers in this case was paid in respect of the injury suffered in the track-riding incident. It was the submission of the VRC that his Honour was confronted in this case with what was called a "Section 82(6) injury" - that is an injury "which occurs by way of a gradual process over time and which is due to the nature of employment". This submission was largely based on a claim form which had been signed by Hassett on 19 March 1986 in which he had described his injury as occurring through "riding track work and stable duties" and also upon various answers given by Hassett during the course of cross-examination in which he conceded that his back had become worse as the result of work which he had performed in the employer's stables over the period of some 10 days following the riding injuries which he had suffered on 13 February. It was accepted at the trial that Hassett had a pre-existing spondylolisthesis at the L3/4 level in the lumbar spine but that, before the track-riding incident, such condition had been asymptomatic.

[70]

One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors. But this was a case where his Honour had found that the risk was one of magnitude and the foreseeable injury serious. Smith, as a prominent trainer, was very familiar with the track and, as his Honour found, should have been aware of the danger posed by the crossing but was "dismissive of it". In those circumstances it was, in my view, incumbent upon a prudent employer to consider whether the risk to his employee could be avoided or minimised by the employment of reasonable means, notwithstanding the occupier's control over the condition of the crossing. It was not, in my view, a sufficient performance of the duty, as it would appear his Honour found, to forego the exercise of any independent control of the way in which his employee worked the horses on the course simply because he was entitled to consider that the course was in the hands of experts. This was, in my view, tantamount to suggesting that the employer was justified in delegating his personal duty as employer to the VRC. This, of course, the employer was not entitled to do (Wilsons & Clyde Coal Co. v. English [1937] UKHL 2; [1938] A.C. 57 at 78; Kondis v. State Transit Authority [1984] HCA 61; (1984) 154 C.L.R. 672 at 680). In making the comments which I have just made I am conscious of the fact that, in the course of his second judgment delivered some two months later, his Honour observed that, in making the remarks to which I have referred, he was not concluding that the employer "had somehow disposed of its duty of care" but rather was saying that, in the circumstances, there had been no breach of that duty. However, and with respect to the learned judge, it seems to me that his assessment of the employer's liability was closely confined to the opportunity which the employer had to rectify the danger when it was in the control of the VRC. It does not seem to me that he considered, and if he did he does not mention them, whether there were other precautions which the employer could have taken to prevent injury to his employee in pursuit of his overriding duty. Thus his Honour said that, although the employer should have recognised the potential danger of the crossing, he "did not have the same obligation to assess that danger and consider options as did [the VRC]", and, further, that because the employer was not in control of the venue "he did not have the obligation or opportunity to consider the issue with the same degree of concern". If these statements mean only that the employer could not have interfered with or directed reconstruction of the crossing, then they may be justified. But, in my view, that was too limited a view of the performance of the employer's duty, particularly where the judge had found the danger posed by the crossing to be one of magnitude capable of producing serious injury. However, in assessing the employer's performance of his duty in this manner, it seems to me that his Honour was tending to place the employer in the shoes of the occupier and, in doing so, ran the risk of confusing two differing standards of care.

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Legislation Cited (2)