Workers Rehabilitation and Compensation Act 1988 (Tas), ss 29, 138AA(5), 138AD.

Supreme Court Rules 2000 (Tas), r 367(3)(a).

Judgment Number: [2022] TASSC 44

1. On 29 May 2018 the plaintiff, Robert Clark, was working with a road construction crew at Ellendale when a member of that crew named Ben Hall reversed a truck which collided with him and injured him. Mr Hall was employed by the defendant, AWC Pty Ltd. The plaintiff was employed by a different company, RMJ Contracting Services Pty Ltd, which had supplied his labour for use by the defendant company. The plaintiff has sued the defendant for damages in respect of his injuries.
2. The defendant has applied for summary judgment in the action. It contends that the plaintiff cannot possibly succeed because s 138AD of the Workers Rehabilitation and Compensation Act 1988 ("the Act") precludes him from recovering damages in this action. The plaintiff has responded by applying to amend his statement of claim. The purpose of the proposed amendments is to make clearer one of two bases upon which the plaintiff contends that he can succeed in the action.
3. Section 138AD of the Act reads as follows:

"138AD No damages if claim settled by agreement

A worker is not entitled to damages in respect of an injury if the worker has settled in accordance with section 132A the worker's outstanding entitlements to compensation."

1. On 19 April 2021 the plaintiff executed a deed by which he released and discharged his employer and its insurer from all liability under the Act in respect of compensation in respect of the relevant injury. He thereby entered into a settlement that was in accordance with s 132A of the Act.
2. But the plaintiff contends that it is not as simple as that. His counsel relied on two arguments each of which, if successful, would prevent the defendant from obtaining summary judgment. One argument concerns the tort of battery. The other concerns the situation when an entity is deemed to be a worker's employer when in fact it is not that worker's employer.

1. When a person or entity engages a labour hire company to provide the services of an employee of that company, there are circumstances in which that employee may claim compensation under the Act not only from his or her immediate employer, but also from the person or entity who contracted with the labour hire company. That situation exists because of s 29 of the Act, which contains the following relevant sub-sections:

"(1) Where a person (in this section referred to as 'the principal') in the course of, or for the purposes of, his trade or business contracts with any other person (in this section referred to as 'the contractor') for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is liable to pay to a worker employed in the execution of the work any compensation under this Act that he would have been liable to pay if that worker had been immediately employed by him.

(2) Where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Act, a reference to the principal shall be substituted for a reference to the employer, and the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom he is immediately employed."

1. When a worker settles his or her claims under the Act in accordance with s 132A, the prohibition on the recovery of damages imposed by s 138AD does not apply in relation to every potential defendant, but only to the worker's immediate employer or a "principal" within the meaning of s 29. That is because of s 138AA(1) of the Act, which reads as follows:

"(1) This Division applies to the awarding of damages against an employer independently of this Act in respect of an injury suffered by a worker if -

(a) the injury was caused by the negligence or other tort of, or a breach of contract or statutory duty by, an employer; and

(b) compensation has been paid or is payable in respect of the injury under this Act or would have been paid or be payable but for section 25(2)."

1. The effect of that sub-section is that Division 2, which includes s 138AD, applies only in relation to damages claims against "an employer". By virtue of s 29(2), that term includes a person or entity who is a principal by virtue of s 29(1).
2. In order for the plaintiff's claim against the defendant to be defeated by s 138AD, findings must be made that establish the defendant to be a principal by virtue of s 29(1).
3. The defendant contends that, by virtue of admissions on the pleadings in this case, none of the prerequisites for the application of s 29 are in dispute. The plaintiff however contends that, despite substantial admissions having been made on the pleadings, the applicability of s 29 remains a live issue in the action.
4. The admissions on the pleadings can be summarised as follows:
   • The plaintiff asserts, and the defendant has admitted, that the plaintiff was an employee of RMJ Contracting Services Pty Ltd at all material times.
   • The plaintiff asserts, and the defendant has admitted, that at all material times the plaintiff's labour was supplied to the defendant on one of the defendant's road construction crews. The plaintiff has pleaded that his labour was supplied for use as a site foreman. The defendant has pleaded that the plaintiff's labour was supplied for use as a supervisor, which incorporated the duties of a foreman.
   • The plaintiff asserts that on 29 May 2018 he was contracted to be foreman of a work crew carrying out road resurfacing work on Ellendale Road, Ellendale. The defendant admits those allegations, save that it says that the plaintiff was the supervisor of the work crew, that his duties incorporated the duties of a foreman, and that the works were stabilisation and overlay works, not resurfacing work.
   • The plaintiff asserts, and the defendant has admitted, that Mr Hall was a member of the work crew and at all material times an employee of the defendant.
   • The defendant has admitted than on 29 May 2018 Mr Hall identified that the plaintiff's legs were pinned under the "front wheels of the truck" and reversed the truck off them to release the plaintiff.
   • The defendant has admitted that the plaintiff suffered personal injury on the day in question, but has not made any more detailed admissions as to the plaintiff's injury or injuries.
5. Counsel for the plaintiff submitted to me that the facts asserted by the plaintiff and admitted by the defendant are not sufficient to establish a defence based on s 29(1) of the Act. In particular he submitted that it was not established that the defendant had entered into a contract with RMJ, that it did so in the course of or for the purposes of its trade or business, or that any such contract was for the execution by or under RMJ of the whole or any part of any work undertaken by the defendant. He referred me to Frauenfelder v Reid [1963] HCA 3; (1963) 109 CLR 42, in which Dixon CJ said the following in relation to a provision with similar wording to our s 29(1), at 46-47:

"Section 6(3) of the Workers' Compensation Act, 1926 (NSW) as amended, is of long standing. But difficulties of construction not altogether settled by judicial decision apparently remain. It relates to the liability of a person employing a contractor to pay workers' compensation to the contractor's employees if they are injured in the course of the work. The liability depends upon certain conditions which are not well defined. In the first place, the contract must be made by the principal in the course of or for the purpose of his trade or business. ... The words 'trade or business' are wide .... In the next place, the provision requires that he must contract with another person, the contractor, 'for the execution by or under the contractor of the whole or any part of any work undertaken by the principal'. Great difficulty has always been felt about the words 'work undertaken by the principal'. The phrase seems to suggest or imply that the principal must undertake with someone or other to do the work, yet that obviously is not the meaning. The question has been dealt with in England, where the provision originated, and in Australia. This Court had occasion to discuss it in Moir v Schrader [1936] HCA 69; (1936) 56 CLR 310, where some of the English authorities are collected. ... In Skates v Jones & Co, Farwell LJ says: 'The man of business or tradesman is not made a principal because he is in business or in trade, but because the particular work in question is his own trade or business.' [1] This means that he is regarded as having undertaken to execute or have executed the particular class of work because it is essential to the trade or business he has assumed to conduct. The form of the section suggests that something went wrong in the drafting in the manner in which it is expressed, but the courts have adopted an interpretation which appears to cover cases where the necessary conduct of the business involves the performance of particular work. If that be so the owner of the business is regarded as having 'undertaken' it for the purposes of the section."

1. It is possible, though perhaps very unlikely, that the defendant's reliance on s 29 could fail at trial as a result of it not establishing one or more of the matters referred to in the submissions of counsel for the plaintiff.

1. Section 138AD is located in Division 2 of Part X of the Act. Section 138AA(5) provides that Division 2 does not apply to an action by a worker for damages for trespass in certain circumstances. The plaintiff accepts that if the defendant is a principal for the purposes of s 29, then s 138AD provides it with a complete defence in relation to a claim in negligence, but contends that it does not provide a defence to a claim for damages for trespass because of s 138AA(5). That sub-section reads as follows:

"(5) This Division does not apply to an action by a worker for damages for trespass, or any other cause of action for which the employer is not vicariously liable, committed against the worker by a person -

(a) employed by the employer under a contract of service at the time the injury was suffered; or

(b) otherwise deemed to be a worker employed by the employer at that time."

1. The plaintiff contends that he was injured as a result of Mr Hall deliberately reversing the truck. He has pleaded that Mr Hall intended to injure him, but has also pleaded in the alternative that he did not intend to injure him. It is well settled that the tort of battery, which is a form of trespass to the person, will be committed whenever a defendant directly causes physical contact by an intentional act, even if the contact is unintended, and even if it is the result of negligence, provided the defendant is not entirely without fault.
2. The facts of a particular case may give an injured plaintiff both a cause of action in negligence and a cause of action in trespass to the person: Williams v Milotin [1957] HCA 83; (1967) 97 CLR 465. That case concerned South Australian legislation under which the limitation period for an action for negligence was six years, but that for an action based solely on trespass was three years. The High Court said the following, at 474:

"The essential ingredients in an action of negligence for personal injuries include the special or particular damage - it is the gist of the action - and the want of due care. Trespass to the person includes neither. But it does include direct violation of the protection which the law throws round the person."

1. The relevant principles were succinctly summarised by Leeming JA, with whom Beazley P and Ward JA (as she then was) agreed, in Croucher v Cachia [2016] NSWCA 132, 95 NSWLR 117 at [21] where his Honour said this:

"A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was 'utterly without fault'. The requisite direct contact will be present if the defendant uses an instrument (such as gardening shears): Darby v Director of Public Prosecutions [2004] NSWCA 431; 61 NSWLR 558 at [73]."

1. If Mr Hall reversed the truck deliberately, and it made contact with the plaintiff as a result, and Mr Hall was not "utterly without fault", then he committed a trespass. The plaintiff contends that Mr Hall committed such a trespass, and that the defendant, as his employer, was vicariously liable for it. The plaintiff contends that he therefore gets the benefit of s 138AA(5) and Division 2 does not apply.
2. The defendant contends that that argument involves an erroneous interpretation of s 138AA(5). It contends that, in that sub-section, the words "an action by a worker for damages for trespass" are qualified by the words "for which the employer is not vicariously liable". That is to say, it contends that the sub-section deprives a defendant of a s 138AD defence in two situations - the situation where the worker's action is for damages for a trespass for which the employer is not vicariously liable, and the situation where the worker relies on some other cause of action for which the employer is not vicariously liable. On the other hand the plaintiff contends that the sub-section precludes reliance on a s 138AD defence in every case in which a worker sues for damages for trespass whether there is vicarious liability or not, and when the worker relies on any other cause of action for which the employer is not vicariously liable.

1. Despite the defendant's reliance on s 138AD, the plaintiff contends that it remains possible for him to succeed in his action on two bases. First, he contends that the defendant might not establish that it was a principal for the purposes of s 29. Secondly, s 138AA(5) might be construed to apply to all actions for damages for trespass, and not just to trespass actions where the defendant is vicariously liable.
2. By virtue of rr 367(2)(b) and 367(3)(a) of the Supreme Court Rules 2000, a judge may order that summary judgment be entered for a defendant if satisfied that the defendant has a good defence on the merits. The principles relevant to the court's discretion to grant summary judgment have been discussed in a great many cases. The relevant principles can be summarised as follows:
   • "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried." Fancourt v Mercantile Credits Limited (1983) HCA 25; (1983) 154 CLR 87 at 99.
   • "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways ... but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." Agar v Hyde [2000] HCA 41, 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at [57]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27, 226 CLR 256 per Gleeson CJ, Gummow, Hayne and Crennan JJ at [46].
   • Summary judgment should be refused when there are triable issues of either fact or law: Bayne v Baillieu [1908] HCA 39; (1908) 6 CLR 382; Spencer v Commonwealth of Australia [2010] HCA 28, 241 CLR 118 per French CJ and Gummow J at [25].
3. The plaintiff's prospects of success on the s 29 issue may not be strong, but I accept that it is a live issue that should be determined at trial. The question of law as to the construction of s 138AA(5) will arise only if the plaintiff fails on the s 29 issue. It is a difficult question of statutory interpretation that might not need to be determined at all. It is appropriate that it be determined at trial, and not on this application for summary judgment.
4. The defendant filed its application for summary judgment outside the time limit fixed by r 367(1) - 10 days from the date when an appearance is entered. It sought an extension of time, which the plaintiff did not oppose. It would be pointless for me to now grant that extension of time since I have concluded that I should refuse summary judgment. I should also add that the proposed amendments to the statement of claim, if granted, will not place the plaintiff in a stronger position in relation to the application for summary judgment.
5. For these reasons, I have decided to dismiss the defendant's interlocutory application, by which it sought an extension of time and summary judgment.

1. In the statement of claim, the plaintiff's solicitors pleaded that there were two impacts when the truck driven by Mr Hall collided with the plaintiff - one when he was allegedly reversing the truck and it knocked the plaintiff to the ground and ran over his legs, and another when he moved the truck and ran over the plaintiff's legs a second time. The plaintiff has applied for leave to amend the statement of claim by inserting the following paragraphs:

"10 The first and/or second impact(s) were a direct application of force to the body of the Plaintiff.

1. The first and/or second impact(s) were a trespass to the person of the Plaintiff by either an intentional battery or negligent battery resulting in personal injury."
2. In the following paragraph, to which no amendment is sought, it is pleaded that as a result of the first and second impacts the plaintiff suffered personal injury, loss and expense. Very brief particulars are given.
3. In the next paragraph, in its original form, it is pleaded that the personal injury, loss and expense suffered by the plaintiff was caused by the negligent driving of the defendant's employee, Ben Hall. Eleven particulars of negligence are then set out. The plaintiff's solicitors have applied to amend that paragraph by commencing it with the words, "In the alternative".
4. No other amendments to the statement of claim have been sought. The defendant opposed the application to amend on the basis that the plaintiff's action could not possibly succeed, with or without the amendments, and that they were therefore futile. That submission must be rejected since there are two triable issues in relation to the s 138AD defence.
5. Ever since the adoption of the Judicature Act system of pleading, a plaintiff has been required only to plead facts that show an entitlement to relief, and has not needed to plead conclusions of law: Konskier v B Goodman Limited [1928] 1 KB 421 at 427; Jones v Clyde Welshpool Pty Ltd [2000] TASSC 130, 9 Tas R 391; Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4 at [15]. The proposed amendments are therefore unnecessary. However they make it clear that the plaintiff contends that the defendant is liable in trespass. The defendant is not prejudiced by the amendments, except that it has incurred the costs of defending the amendment application and will incur the costs of an amended defence. I will allow the amendments since they will make clear in an amended pleading a point that has been made clear to me in submissions.

1. For these reasons I make the following orders:
   1. The defendant's interlocutory application filed on 21 February 2022 is dismissed.
   2. Leave is granted to the plaintiff to amend the statement of claim in the form annexed to the letter from his solicitors to the Registrar dated 21 March 2022.
2. I will invite submissions from the parties as to whether the triable issues relating to s 138AD should be determined before the other issues in the action.

[1] [1910] 2 KB 906 at 910.