Citation Number : [2003] WADC 95

Occupiers' Liability Act 1985 (WA), s 5

Workers' Compensation and Rehabilitation Act 1981 (WA), ss 93D and 175

First Respondent : Mr W S Martin QC & Mr L F A Nixon

1 MALCOLM CJ: At the conclusion of the argument of this appeal on 5 April 2004, the Court was unanimously of the opinion that the appeal should be dismissed. Orders were then made that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal to be taxed. It was then indicated that the reasons for making those orders would be published later. I agree with the reasons to be published by Wheeler J and there is nothing that I wish to add.

2 MURRAY J: I have had the advantage of reading in draft the reasons for decision to be published by Wheeler J. They express completely for me the reasons why I joined in the dismissal of this appeal.

3 WHEELER J: These are my reasons for dismissing, on 5 April 2004, an appeal from orders made by Judge French on 29 April 2003 staying the proceedings below in the District Court.

4 The proceedings in the District Court arose out of an accident that occurred at a plant operated by the first respondent (the defendant to the action below) known at the time as RGC Mineral Sands. The appellant (the plaintiff) was performing welding duties at those premises on 30 June 1995 when he was injured as a result of a steel beam collapsing and striking him on the head. He was at that time an employee of Fisher Investments Pty Ltd, the second respondent (third party).

5 The appellant's statement of claim against the first respondent was for damages for injuries which were allegedly sustained at the defendant's premises in breach of s 5 of the Occupiers' Liability Act 1985. The first respondent filed a defence denying liability. The first respondent later filed an amended defence in which it pleaded that it had engaged the second respondent as an independent contractor, and in which it alleged that the first respondent was a deemed employer of the appellant pursuant to s 175 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"), so as to attract the restrictions on the awarding of damages prescribed in that Act.

"Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed ..."

7 The first respondent applied for the proceedings to be stayed until either there was an agreement between the parties, or a determination pursuant to the procedure under s 93D of the Act, that the injuries the subject of the proceedings constituted a degree of disability of not less than 30 per cent. In support of that application, the first respondent filed an affidavit of a Mr Conchie, a maintenance systems planner employed by the first respondent. He deposed that he was employed by the first respondent at the relevant time and that among his duties were the supervision of the first respondent's maintenance workforce and, from time to time, arranging service contracts with local contractors to provide labour to perform repair and maintenance work in and around the plant. The third party, he deposed, was one such contractor. To the best of Mr Conchie's recollection, some time before the day in question the managing director of the second respondent, Mr Fisher, attended the site to view the work to be performed and an oral agreement was made between the first and second respondents for the work in question to be performed. It was Mr Conchie's recollection that on the day in question Mr Fisher had brought a team of three or four boilermakers/welders to the site to perform the work. He became aware that the appellant was a "member of Brian Fisher's team" after he was injured.

8 Before her Honour, it had been common ground that there was no agreement and no determination as to the appellant's degree of disability. The appellant had submitted to her Honour (to quote from the appellant's written submissions made to her Honour) that the first respondent had "not established at trial, by adducement of evidence, that the plaintiff was engaged in work which his employer had been contracted by the defendant to perform ...". Looking at the transcript of the oral submissions made to her Honour, the whole thrust of the submission was that the first respondent's application was based upon the proposition that there was an engagement of the second respondent, of the type pleaded by the first respondent, and that that was an issue which should be tested at trial.

9 Before her Honour the appellant's counsel did not point to any deficiency in the affidavit filed on behalf of the first respondent; nor did the appellant file any affidavit of its own seeking to rebut any of the material in Mr Conchie's affidavit. The appellant had not sought to have Mr Conchie available for cross-examination; and, not surprisingly, the appellant's counsel conceded that her Honour was entitled to draw inferences from the uncontested affidavit which was before her.

10 Her Honour was concerned to understand the submission which was made to her, and explored it with the appellant's counsel. It was plain during the course of argument that the appellant contended that he should be permitted to go to trial, on the basis that if at some later stage after trial he was able to establish that he had a disability in excess of 30 per cent, he might apply to WorkCover to have a finding made, so that damages could then be awarded. Of course, if no such determination was made, as her Honour pointed out, the entire trial would have been a "complete and utter waste of time".

11 It is not surprising that her Honour found as she did. It is also not surprising that the appellant's argument to this Court is on an entirely different basis from that raised before her Honour.

12 The argument raised by the grounds of appeal was essentially that the agreement between the first and second respondents was a "labour hire contract"; that is, it was for the hire of the appellant's services to the first respondent and not for the execution of work by the appellant "by or under" the second respondent. Since the contract between the first and second respondents was one for the provision of the appellant's services, it was submitted that the second respondent was deemed by s 5 of the Act to continue to be the appellant's employer, rather than the first respondent being a deemed employer.

13 The first respondent's primary submission is that the appellant should not now be able to raise at all a point which it failed to raise before her Honour. It cites Metwally v University of Wollongong (1985) 60 ALR 68 for that proposition. Further, it submits that this is particularly the case where, had an issue been raised in the Court below, evidence could have been given which by any possibility might have prevented the point from succeeding (Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 6-8).

14 I accept that the law in this respect is as the first respondent submits. I also accept that this is a case in which it is clear beyond any possibility of mistake or misunderstanding that the point sought to be raised on this appeal was not raised, however obliquely, before her Honour. It is a point which could have been the subject of evidence in addition to, or in clarification of, the affidavit of Mr Conchie. It would, in my view, be sufficient to dispose of the appeal to dismiss it for this reason alone.

15 However, the first respondent submitted that if the Court were to entertain the appeal at all, it should be permitted on the hearing of the appeal to call further evidence which it might have called in the Court below. Since the witnesses were present, the Court considered it convenient to hear the evidence and to determine at the conclusion of the appeal what was the proper course to follow.

16 The first respondent read before us a further affidavit of Mr Conchie, in which he deposed that the work in question was conducted by the second respondent's personnel, independently of the first respondent, under the direction and supervision of an employee of the second respondent, using the second respondent's tools and welding equipment (except for some lifting equipment which the first respondent, pursuant to an informal arrangement, permitted the second respondent's personnel to use). There was also an affidavit of Mr Fisher sworn 19 December 2003 which was to similar effect. He deposed that he attended with two other employees of the second respondent to undertake the work which was performed under his direction and supervision.

17 Although both Mr Conchie and Mr Fisher were cross-examined, none of the cross-examination cast any doubt on the evidence which I have summarised. That evidence demonstrates that the contract between the first and second respondents was not a "labour hire contract" in any sense, so that the point sought to be raised by the appellant simply falls away. Were it appropriate to entertain the appeal, I would have dismissed it for that reason.