Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221

Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221 - WASCA 2003 case summary — Zoe

[23]

"35 There are two difficulties that I have with this submission. The first is that I do not accept that it was legitimate for the defendant to await the discovery of the contract before seeking leave to join the employer as a third party, to plead that it did not operate the mine or to plead that it was a deemed employer. It seems to me that the defendant must have at all times known of the basic facts sufficient for it to instruct its solicitors to plead these matters. Further the fact that the contract had been 'archived' is hardly an excuse for the failure of the defendant to discover this document before February 2003, over twelve months after the proceedings had been instituted.

36 Secondly whilst I acknowledge that the plaintiff could not have been expected to know the precise relationship between the employer and the defendant prior to the discovery of the contract, that does not explain why the plaintiff decided not to pursue an action for common law damages against his employer on the basis of a breach of a non delegable duty of care to provide a safe place of work, safe system of work and safe plant for its employee, the plaintiff. Thus I do not accept that the belated discovery of the contract had the prejudicial effect claimed by the plaintiff.

37 Counsel for the plaintiff submitted that until the discovery of the contract the plaintiff did not know and could not be expected to know that the employer had obligations with respect to the plant at the mine. This proposition denies the existence of the non-delegable duties that I have referred to above. In the absence of the discovery of a document which would indicate that the employer had discharged those duties by contracting with the defendant or another party to provide the safe place, plant and system of work the correct assumption would be that liability for failure to provide those matters and to comply with those duties lay with the employer. Thus I do not accept the plaintiff's submissions in this regard."

[24]

"44 The defendant's argument is that the plaintiff had the opportunity to commence proceedings against his employer and perhaps because of difficulties in the referral process he made a decision not to commence such proceedings. This was his decision and not one for which the defendant bears any responsibility. I agree with this assessment. Basic principles indicated that there was a case against the employer for damages for injuries arising out of the accident. The plaintiff clearly foreshadowed such a claim by making an application for referral of his degree of disability to the Director and pursuing that to some degree. The fact that those proceedings may not have been able to be determined prior to an action against the employer being statute barred, merely meant that the plaintiff should have commenced his action prior to the six-year limitation period expiring, which he was entitled to do. On the other hand if the plaintiff did not believe he could ever obtain the medical evidence to comply with the requirement of s 93E(3) of the Act, then he had no right to commence an action against the employer and the fact it is now statute barred is irrelevant.

...

50 I conclude that allowing the proposed amendments will not result in injustice to the plaintiff. This is because it was the plaintiff who decided who he sued in relation to his injuries. This defendant has done nothing to prevent the plaintiff from proceeding with his claim against the employer. It was the plaintiff's decision alone not to proceed against the employer. It cannot be that the courts have a duty to protect the interests and decisions of a plaintiff by preventing a defendant from pleading a defence which is likely to be successful because, as a consequence of a separate decision, the plaintiff cannot sue any other person or body. If the plaintiff has decided to put his eggs in one basket, so to speak, by choosing to sue the defendant and not the employer, it is not an injustice for a court to allow the defendant to raise a successful defence. This is even so where the defence is raised at a late point in time after the action against the employer had become statute barred. The inability of the plaintiff to obtain damages against his employer arises from his decision not to commence proceedings within the six-year limitation period and not to pursue the referral to the Director, not from the defendants proposed plea.

51 If the claim against the employer and the difficulties in proving his entitlement to damages against the defendant could only have been discovered by the plaintiff through the contract the situation may have been different. But that is not the case. Any plaintiff, legally advised as this plaintiff was, should have been aware of the potential claim against the employer. The application to the Director for referral in 1999 indicates that this plaintiff was so aware. The potential claim was based on his relationship with his employer and not on the existence of the contract. Similarly the plaintiff, legally advised, should have been aware at least by 14 June 2002, the date of the Full Court's decision in Hewitt's case of the potential difficulties in this case. That gave him three months to take action against the employer."

[41]

"27 The delay in commencing third party proceedings is in part a result of difficulties experienced in obtaining a complete copy of the agreement between the defendant and the proposed third party. On 18 November 2002 Phillips Fox requested a copy of the agreement from the defendant so that Phillips Fox could advise as to the effect of the agreement.

28 Due to the defendant's archiving policy the defendant was unable to locate and provide the agreement until 12 February 2003.

29 Prior to locating the agreement the defendant did not commence third party proceedings against the proposed third party as any claim would be for contribution pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. The plaintiff has failed to obtain a relevant degree of disability under the Workers' Compensation & Rehabilitation Act 1981 (the 'Act') that would allow him to obtain an award for common law damages against his employer. Accordingly the defendant is prohibited by section 93F(4) of the Act from obtaining contribution from the proposed third party in relation to any award of common law damages that may be made in favour of the plaintiff.

30 I believe that the defendant now has a claim against the proposed third party pursuant to the indemnity granted by the agreement and that this claim is independent to the restrictions imposed by section 93F(4) of the Act. The defendant will be entitled to prosecute a claim against the proposed third party irrespective of whether the plaintiff obtains a relevant level of disability.

31 Further, based on the contractual terms contained within the agreement and the work to be performed by the proposed third party I believe that the defendant may be a deemed employer for the purposes of section 175 of the Act. Accordingly, based on the Full Court's authority of Hewitt v Benale Pty Ltd [2002] WASCA 163 the defendant may be entitled to rely upon the constraints imposed by Pt IV Division 2 of the Act. The defendant was not able to raise such a defence previously as it had not provided Phillips Fox with a copy of the agreement and had not been advised of its possible defence pursuant to the Act.

32 For similar reasons, once the agreement was provided, it became apparent that the defendant may have a defence to the plaintiffs claim pursuant to section 6 of the Occupiers' Liability Act 1985."

At a glance

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Before

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Judgment (49 paragraphs)

Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221 (19 September 2003)

Parties

Legislation Cited (2)

Cases Cited (3)