In each proceeding, the cross-defendant, Wayne Bahr Pty Ltd (WBPL) has filed a Notice of Motion seeking summary dismissal of the First Cross-Claim brought by the defendant/cross-claimant Tyrepower Ltd (Tyrepower). In the First Cross-Claim Tyrepower seeks contribution or indemnity pursuant to s5 Law Reform (Miscellaneous Provisions) Act 1946 (LRMPA).
The two proceedings relate to the same incident, raise the same issues and it is appropriate to deal with the matters together.
[2]
Factual background
On or about 20 January 2014, Gregg Bush (the deceased) was employed by WBPL.
WBPL operated a business selling and fitting tyres at its premises in North Albury, New South Wales (the premises).
WBPL operated the business under the Tyrepower brand pursuant to an agreement with Tyrepower, under which it is alleged by the plaintiffs that Tyrepower was responsible for providing training manuals and safety documentation relating to the system of work used by WBPL at the premises.
On 30 March 2015 the deceased suffered fatal injuries when a tractor tyre exploded whilst he was attempting to inflate it with the use of an air hose.
The plaintiffs in the two proceedings are the deceased's parents. On 3 April 2018 they each commenced proceedings by filing a Statement of Claim seeking damages for personal injury from Tyrepower, alleging that their son's death was caused by the negligent design of the system of work by Tyrepower that was implemented by WBPL at the premises. Each of the plaintiffs make a claim for pure mental harm within the meaning of Part 3 Civil Liability Act 2002.
ML and BK Bush v Tyrepower Limited [2020] NSWDC 36 | Case summary | Zoe
On 12 April 2019 Tyrepower issued a cross-claim in each proceeding against WBPL seeking indemnity and/or contribution to the claims made by the plaintiffs.
On 3 December 2019 WBPL filed a Notice of Motion in each proceeding seeking summary dismissal of the cross-claims.
It was common ground that WBPL has paid compensation pursuant to s25 Workers Compensation Act 1987 (WCA) in relation to the deceased's death.
It was common ground that the plaintiffs' claims were not 'work injuries', within the meaning of the WCA.
[3]
WBPL's submissions
WBPL contends that s151AD WCA operates to defeat any claim that the plaintiffs would have against it, and it would therefore not be a person who 'would if sued have been liable' in terms of s5(1)(c) LRMPA.
[4]
Tyrepower's submissions
Tyrepower contends that there is a distinction to be drawn between the word 'damage' as it appears in s5(1)(c) LRMPA and the word 'damages' in s151AD WCA, relying on what the High Court said in Mahony v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527.
Put simply, WBPL is a tortfeasor that 'would, if sued have been liable' for the same damage thereby entitling it to make a claim for contribution or indemnity that is not a claim for damages that would be precluded by s151AD WCA.
Tyrepower further contended that s151AD WCA is a type of provision that would not operate to determine the position between the plaintiffs and WBPL on its merits and thereby does not preclude a claim for contribution: CSR Ltd v Page [2002] NSWCA 365.
Finally, Tyrepower submitted that s151AD WCA was enacted by the legislature with knowledge of the action provided for by s5 LRMPA and that s151AD WCA by its terms does not clearly express a legislative intention to remove a claim for contribution in cases to which it applies.
[5]
The relevant law
Section 151AD WCA provides:
(1) No damages for pure mental harm may be awarded against an employer liable to pay compensation under this Act in respect of the death of or injury to a worker if the pure mental harm arises wholly or partly from mental or nervous shock in connection with the death of or injury to the worker unless the pure mental harm is a work injury (that is, an injury to the worker or to another worker).
Note. This section prevents a claim for damages for nervous shock when the nervous shock is not a work injury. It prevents claims for damages by relatives of an injured or deceased worker because their injuries are not work injuries.
(2) In this section, pure mental harm has the same meaning as in Part 3 of the Civil Liability Act 2002.
The effect of s151AD WCA is to preclude claims for damages for pure mental harm by non-workers, such as the plaintiffs: WorkPac Pty Ltd v Thearle [2016] NSWCA 303 at [94] per McColl JA (Ward JA and Adamson J agreeing).
Section 5 LRMPA relevantly provides:
(1) Where damage is suffered by any person as a result of a tort (whether a crime or not):
(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.
Section 5(1)(c) LRMPA creates the entitlement to seek contribution and identifies the parties for whom and against whom there is conferred a statutory right to seek contribution. Entitlement to the remedy (contribution) is only conferred if the criteria in s5(1)(c) LRMPA are satisfied. The content of the entitlement and the mechanism for its enforcement are found in s5(2) LRMPA. The requirements should be kept distinct: James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 at [24] per Gaudron and Gummow JJ.
A party is not entitled to seek contribution on a cross-claim if the other tort-feasor is not liable to the plaintiff by reason of a judgment entered in its favour after a hearing on the merits or by agreement between the parties: James Hardie v Seltsam per Gaudron and Gummow JJ and Callinan J.
In Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 219 Barwick CJ said:
The effect of s5(1)(c), in my opinion, is that a tort-feasor who has come under an enforceable obligation to pay money for the damage caused by his tortious act may successfully recover contribution from another tort-feasor who has also come under an obligation to pay money in respect of the same damage and he may also recover contribution from any other tort-feasor who, not having been sued by the injured party, had he been sued, would have been found to have caused or contributed to the same damage by a tortious act.
Statutory construction begins with a consideration of the language used. Its meaning may require consideration in context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47] and also s33 Interpretation Act 1987.
Determination of the purpose of a statute or of a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate, by reference to extrinsic materials. However, this process does not involve a search for what the legislature had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131 at [23]-[26].
Rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR) provides:
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
The power to summarily dismiss a claim at an interlocutory stage of the proceedings should only be exercised where it is so clearly deficient that it would be inappropriate to allow the proceedings to continue: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Summary dismissal should be refused if there is a material issue on a question of law.
[6]
Consideration
In the present case, the plaintiffs have not sued WBPL. Accordingly, it will be necessary for Tyrepower to establish on the hearing of the cross-claim that it is entitled to bring a claim for contribution under the terms of s5(1)(c) LRMPA by proving that WBPL would, if it had been sued by the plaintiffs at any time, have been liable to them.
Section 5(1)(c) LRMPA Act requires a determination that the prospective cross-defendant is or would be liable to the plaintiff. As Barwick CJ expressed it in Brambles Constructions v Helmers, liability in an action for damages for personal injury requires the potential cross-defendant to 'come under an obligation to pay money in respect of the same damage'.
Section 151AD WCA operates to disentitle the plaintiffs to the only utile remedy that they have in a claim for personal injury, namely damages. Accordingly, if the plaintiffs did sue WBPL, WBPL would not come under an obligation to pay money and would not be liable within the meaning of s5(1)(c) LRMPA. Section 151AD WCA would operate to require the entry of a verdict in favour of WBPL against the plaintiffs.
For these reasons, Tyrepower will not be able to establish on the merits of the case that WBPL would, if sued have been liable to the plaintiffs. Accordingly, Tyrepower cannot establish that it is entitled to bring a cross-claim for contribution against WBPL pursuant to s5(1)(c) LRMPA. In terms of rule 13.4 UCPR, Tyrepower cannot demonstrate that it has a cause of action.
For the sake of completeness, I will now turn to Tyrepower's submissions.
Tyrepower's submission relating to Mahony v Kruschich is not based on the ratio decidendi of that case. The issue in that case was whether or not the plaintiff's employer could be liable for the damage caused by the alleged negligent medical treatment of the work-related injury by the plaintiff's doctor, that is was it the same damage. The High Court decided that it was possible that the employer and the doctor could potentially be liable for the 'same' damage, but it was also possible that they were responsible for different damage, for which neither of them could seek contribution against the other. The case is not authority for the proposition that s5(1)(c) LRMPA is satisfied if it is arguable that the prospective cross-defendant is a cause of the same damage. The prospective cross-defendant must also be liable for that damage.
Tyrepower's reliance on CSR Ltd v Page is also misplaced. In that case the primary judge dismissed the cross-claim after the plaintiff's proceedings were dismissed because he failed to comply with procedural requirements of the Motor Accidents Act 1988. The Court of Appeal overturned the primary judge's decision on the basis that the order to dismiss the plaintiff's claim was not a decision on the merits of the kind that prevented a claim for contribution, applying Brambles Constructions v Helmers.
Finally, Tyrepower's submission that the legislature did not intend to remove a claim for contribution by enacting s151AD WCA involves considerable speculation. If s151AD WCA has the effect of preventing WBPL being liable to the plaintiffs, as was determined by the Court of Appeal in WorkPac v Thearle, then it follows that Tyrepower cannot satisfy the criteria in s5(1)(c) LRMPA to bring a claim for contribution. The right to bring a contribution claim is a statutory remedy as opposed to a common law right and no clear words are required to remove it. In any event, the enactment of s151AD WCA does not remove the remedy from Tyrepower but makes the liability criteria impossible to establish in a claim against WBPL. This result is consistent with the prevention of claims for pure mental harm against employers by non-workers. It would be odd, if despite the terms of s151AD WCA, employers ended up bearing the burden of damages claims for pure mental harm by non-workers, as a result of being ordered to contribute to claims against non-employers by operation of section 5 of the LRMPA.
This is an appropriate case for an order for summary dismissal because no other outcome is possible on the applicable legislation, as interpreted by appellate courts by which this Court is bound.
[7]
Orders
In each matter:
1. The First Cross-Claim is dismissed.
2. Tyrepower is to pay WBPL's costs of the proceedings on the ordinary basis.
3. I grant liberty to the parties to approach my Associate within 7 days to relist the matter if a different costs order is sought.
[8]
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Decision last updated: 06 March 2020