Section 138 of the Accident Compensation Act 1985 (Vic) is a curly one.
It entitles the Victorian WorkCover Authority to indemnity from an employer or a third party tortfeasor whose errant or careless behaviour has resulted in the authority becoming liable to pay statutory benefits to a worker injured at work.
The authority’s indemnity consists of the lesser of what it has paid out and a sum derived from the application of a formula which includes an assessment of “notional” common law damages. The formula also includes a factor to apportion liability between tortfeasors and the hapless worker from whose injury the “notional” common law action springs.
If the authority has a continuing liability to an injured worker then it has a particular interest in pursuing a “notional” award to cover the future cost of benefits to a worker.
Herein lies a rich irony, at least from the perspective of the “notional” worker upon whom the authority’s case rests – particularly if that worker was injured in the “black hole” period between 1997 and 1999.
That person has to come to court to help the authority prove its entitlement to “notional” common law damages, the very remedy which Victorian workers were expressly deprived of between 1997 and 1999 and are now entitled to claim only if they can first establish 30 percent whole person impairment within the strictures of the AMA Guides (4th edition) or they are suffering from a “serious injury” within the terms of section 134AB of the Act.
After assisting the authority in that endeavour, “notional” workers are permitted to gaze upon all that “compensation” which will be denied them if they happen to fall into either of the above-mentioned categories.
A few months ago, the Victorian Court of Appeal (Chernov and Ashley JJA and Mandie AJA) in VWA v Carrier Air Conditioning Pty Ltd  VSCA 63 unanimously allowed an appeal by the VWA against a determination by a County Court judge that Carrier was not guilty of any breach of duty in relation to an injured worker, Gary Simmons, who was supplied to it by Workforce on Tap, a labour hire company.
On October 8, 1999, with just 12 days of the “black hole” period left to run, Simmons turned up at 7.30 am at Carrier’s Bayswater factory to break up some wooden pallets and put the resulting waste into a skip. He was provided with a hammer and told to get on with it. He received no instruction or equipment from his employer, Workforce, and, but for the hammer, nothing from Carrier.
He had to check the level of waste in the skip but the lip of the skip was higher than he was. In the absence of any ladder, ramp or platform which would have enabled him to do so safely, Simmons used some hessian bags lying beside the skip as a platform. He checked the level of waste inside, but fell when he was climbing down. The VWA paid out $47,185.20 in statutory benefits for injuries he suffered.
Without too much difficulty the Court of Appeal reversed the finding by the trial judge of no breach of duty by Carrier. Justice Ashley found:
“It was for Carrier to devise, implement and maintain a safe system of work, to provide a safe place of work, proper plant, equipment and appliances, and to suitably instruct, supervise and warn the worker. It was no answer to those obligations to say that, had it known the particular method which the worker would choose of performing a task, it would not have thought there to be risk of injury…”
As to the responsibility of the labour hire company Workforce on Tap, Ashley got out the 12 gauge and let fly:
“I consider, on the other hand, that the conduct of Workforce was considerably blameworthy. So far as the evidence revealed the situation, it probably took a phone call from Carrier, and then sent the man on site, no more. There was no evidence that it – by contrast with other labour hire companies – had ever made a site assessment as would have revealed, particularly, the adequacy or otherwise of Carrier’s induction process, and its safety regime. There was no evidence that it had any idea, or that it enquired, what work its employee would be put to do; or where, or with what equipment. In essence, so far as the evidence revealed the situation, it sent its employee to work at Carrier without showing any interest or concern for his safety.”
In apportioning liability for the injury the court found Carrier liable for 65 percent and Workforce liable for 35 percent.
It found no contributory negligence on the part of Simmons who, of course, doesn’t get a look in on any common law damages for the breach of duty unanimously found by the court.
To add insult to injury, so to speak, he may well have to give evidence again because the judge failed to assess all the relevant factors, having dismissed the VWA’s claim at the first jump.
I’m all for the policy behind the provision, but the injured might be forgiven for thinking that the authority is getting “compensation” for their, injury to which they are not entitled.
At least, that’s how it must appear. In any event, surely we don’t have to rub the workers’ noses in it, do we?
* * *
Last year it was Telstra monstering a minnow called Stickybeak Australia Pty Ltd.
Now Justice Allsop’s June 30 decision in the Federal Court has found another Big Australian, Woolies, guilty of anti-competitive behaviour.
Desperate to prevent any competition for their liquor outlets in various parts of NSW, Woolworths developed a novel and effective solution.
According to The Australian Financial Review’s Chanticleer column of July 6, 2006, it went like this:
“An independent operator would lodge an application for a licence, which Woolies would object to, forcing the matter to go to court.
Then, at the court’s doorstep, the applicant would get a list of demands that could be signed to negate the possibility of lengthy court fights, with the knowledge that Woolies had a bit more financial firepower to finance a few senior counsel to argue its case.
The demands included not keeping more than $55,000 worth of liquor on site, not to advertise that liquor was available for sale, no deliveries within a certain distance of the site, only mail orders to be accepted, to supply only specified products – and so the list went on.”
The precise terms of the various restrictive conditions extracted by Woolies from the minnows it tried to neuter as competitors are set out in appendices to Allsop’s judgment.
Although initially Coles was a joint-conspirator, after the ACCC got into the act it saw the error of its ways and folded. Woolies pressed on and went down for the count.
P.S. A press release from the patron saint of small businesspersons, John Winston Howard, extolling the virtues of Justice Allsop’s decision has not yet been sighted. But then Little Johnnie helped put Woolies’ man of God Roger Corbett on the Reserve Bank board, replacing that other adornment to corporate life, Robert Gerard AO.