McCormick v BP Australia & Ors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11327 of 2003 Kerry Vlada McCormick v BP Australia Limited & Ors

JUDGMENT 1 MASTER: The plaintiff alleges that she suffered personal injury when she fell down a step on or about 9 January 2000. At the time of the incident, she was employed by the second defendant (Hungry Jack's). It is said that the incident took place at a site in Marulan which was occupied by a BP Service Station and a Hungry Jack's establishment. 2 On 26 November 2001, she commenced proceedings in the District Court for the recovery of damages. She named two defendants (Hungry Jack's and the first defendant BP). There is inter alia a Cross-Claim between Hungry Jack's and its insurer (the insurer). 3 By Summons filed on 29 May 2003 the plaintiff seeks an order that the District Court proceedings be removed into this Court. The application is supported by an affidavit sworn by her solicitor (together with the many Exhibits thereto) and Exhibit A (which deals with domestic care). 4 BP opposes the application. The other parties support it. 5 The power to make an order for removal is conferred by s 145 of the District Court Act 1973 (the Act). 6 In the arguments that were presented, discretionary considerations such as delay, explanation for delay and prejudice were not canvassed. 7 One basis upon which BP opposed the application is that the plaintiff's claim is a "work injury damages claim" within the meaning of s 145 (3) of the Act and that the amount to be awarded the plaintiff in the case, if successful, is not likely to exceed $1,000,000 and the case does not involve complex legal issues or issues of general public importance. The other basis is that should such submission not find favour with the court, the plaintiff's claim, if successful, is not likely to exceed $750,000 and there is no other sufficient reason for trying the action in the Supreme Court. 8 The Workers Compensation Legislation Further Amendment Act 2001 (the Amendment Act) made amendments to the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensation Act 1998 and the Act itself (pursuant to inter alia Schedule 1).

9 Apart from amending s 145 (2) and (3) of the Act, it also amended s 44 (1) thereof (which confers jurisdiction) by inserting the following:- "(d1) any work injury damages claim, irrespective of the amount claimed,"

The words "or work injury damages claim" were inserted in each of (2) and (3) of s 145. 10 The argument advanced in support of the first basis was dependent on the making of these amendments and the Amendment Act being regarded as procedural in nature. This characterisation was not really in issue. The other parties took the approach that the Amendment Act expressly dealt with the question in its savings and transitional matters. 11 Thus the matter in dispute on this question came to be whether as a matter of statutory construction the amendments have application to proceedings commenced in the District Court before 1 January 2002 (the court was informed that it was common ground that Schedule 1 of the Amendment Act commenced on that date). For the determination of this matter, it is necessary to look at Schedule 4 to the Amendment Act (which amends Schedule 6 Part 18C clause 9 to the Workers Compensation Act 1987). For present purposes, the relevant part of clause 9 is in the following terms:- "………. Amendments relating to common law damages

(1) An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 applies in respect of the recovery of damages after the commencement of the amendment (and so applies even if the injury concerned was received before the commencement of the amendment) but does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment. ……………………………………………." 12 This new clause also prescribed the transitional arrangements to apply in respect of proceedings for the recovery of damages commenced in a court after the commencement of Schedule1.1 and before the commencement of Schedule 1.2 of the Amendment Act. 13 Further it contained the following:- "(4) In this clause: damages has the same meaning as in Part 5 of this Act."

This clause 9 was inserted in lieu of the existing clause 9. 14 Section 149 (which is to be found in Part 5 contains a definition of "damages". Save for specified exclusions which are not presently relevant "damages" is defined to include inter alia "any form of monetary compensation". 15 In the present case, damages claimed against Hungry Jack's are governed by Division 3 of Part 5 of the Workers Compensation Act 1987 (Modified common law damages). The assessment of damages against BP are at large. 16 After having considered the relevant statutory provisions and the arguments advanced by counsel I have come to the view that the recovery of damages by the plaintiff in the present proceedings is not affected by the amendments made pursuant to Schedule 1 to the Amendment Act. In my view, the language of clause 9 is clear. The amendments do not have application because the proceedings for their recovery were commenced in the District Court before the commencement of the amendment. 17 Accordingly, the application for removal is not to be dealt with pursuant to s 145 (3). It is to be considered pursuant to s 145 (2) as it was prior to the amendment. 18 The present form of s 145 (2) is as follows:- " (2) An action for damages in respect of personal injury or death (other than a motor accident claim or work injury damages claim) may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court." 19 Prior to the amendment, the words "or work injury damages claim" had not been inserted. 20 The relevant provisions impose threshold requirements which must be satisfied by the plaintiff (Parry v WGE Engineering [2003] NSWSC 337). When these threshold requirements have been satisfied, the court has a discretionary power to make the orders sought. It is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. 21 The plaintiff is 43 years of age. She has been disabled by a serious injury. The only material before the court directed to the question of quantification is that which has been tendered by the plaintiff. There are many heads of damage (including substantial claims for care, domestic assistance and a component pursuant to the principles of Sullivan v Gordon). One of her children was 10 years of age at the time of the commencement of the proceedings. He suffers from Attention Deficit Disorder. Another of her children was 8 years of age at the time of the commencement of the proceedings and he is autistic. 22 In the light of the material that is before the court, I am satisfied that the amount to be awarded to the plaintiff in this case, if successful, would be likely to exceed $750,000. 23 It is also argued that there is other sufficient reason for trying the action in this Court. This is said to arise by reason of the issues raised in the Cross-Claim brought by Hungry Jack's against the insurer. The insurer has declined indemnity on the basis of liability allegedly acquired by contract. Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd (1994) 8 ANZ Insurance Cases 61-235 is authority for the proposition that where an employer is not negligent and only acquires liability by reason of contractual provisions, a workers compensation insurer is not liable to indemnify with respect to that liability. It is said that Nigel Watts may now be held to be incorrectly decided. It is also said that there is no current authority on the issue of how indemnity is affected by liability acquired by contract where there is also a tortious liability in the employer. 24 It is true that the present uncertainty has subsisted for some time. Be that as it may, it seems to me that there are issues in this case that have the potential to throw up important questions of law and that it is appropriate for such questions to be dealt with in this Court. 25 Accordingly, I also find that there is other sufficient reason for trying the action in this Court. 26 The threshold requirements have been satisfied. In the light of the way in which the case was argued before me, the determinations that I have made resolve the matters in issue between the parties. I consider that the plaintiff has satisfied the onus borne by her and that she is entitled to the relief sought. 27 I order that District Court proceedings 807 of 2001 be removed into this Court. The first defendant is to pay the costs of the Summons. The Exhibit may be returned.

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