Nikola Stepic v Sydney Water Corporation and ors [2005] NSWDDT 65

Dust Diseases Tribunal of New South Wales

CITATION : Nikola Stepic v Sydney Water Corporation and ors [2005] NSWDDT 65

Nikola Stepic Sydney Water Corporation PARTIES : Christopher John Plummer, Denis William Edwards and Michael Joseph David Kissane trading as Walker Kissane and Plummer Francis D M Curran

MATTER NUMBER(S) : 464 of 2002

JUDGMENT OF: Curtis J at 1

CATCHWORDS: :- Construction of Deed of Release

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & ors (2004) 219 CLR 165; CASES CITED: Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; Wilton v Farnsworth (1948) 76 CLR 646

DATES OF HEARING: 12 December 2005

EX TEMPORE JUDGMENT DATE : 12/12/2005

FOR PLAINTIFF: Mr DRJ Toomey instructed by McLaughlin & Riordan LEGAL REPRESENTATIVES: FOR DEFENDANT: Ms LP McFee instructed by Sparke Helmore

JUDGMENT:

Dust Diseases Tribunal of New South Wales Matter Number DDT464 of 2002 Nikola Stepic v Sydney Water Corporation

and

Christopher John Plummer, Denis William Edwards and Michael Joseph David Kissane Trading as Walker Kissane & Plummer

and

Francis D M Curran 12 December 2005 JUDGMENT CURTIS J 1. Pursuant to Pt 28 r2 of the Uniform Civil Procedure Rules I have conducted a separate trial of the following issue: Whether the deed of release referred to in par 11 of the first defendant's statement of defence filed on 21 February 2003 properly construed operates as a bar to the plaintiff's proceedings. Background 2. Between 1968 and approximately 1974 the plaintiff was employed by the defendant as a labourer and jackpick operator working in sandstone. In 1974 he became a nipper and in 1980 a gardener. In 1998 he retired from all employment. By that time he was in receipt of a pension from the Dust Diseases Board in respect of partial incapacity resulting from the disease of silicosis. On 5 November 1999 he issued an Application for Determination in the Compensation Court claiming compensation by way of weekly payments and lump sums in respect of certain injuries which did not include silicosis. 3. In Paragraph 1 of this Application, in response to questions requiring particulars as to the "Date of the of injury; Place where the injury happened; What work was being done at the time of injury; and How did the injury occur" the plaintiff's solicitors wrote: From 1968 the applicant was employed by the respondent to perform work of an arduous physical nature involving repeated and constant lifting, bending, carrying, twisting movements, working in confined spaces and uneven surfaces, activities which placed undue strain on his spine, particularly the neck, back, upper limbs and lower limbs. Furthermore on or about August 1978 in the course of his employment with the respondent the applicant suffered injury to his neck, back, upper limbs when he fell from the back of a truck. Furthermore on or about 4.10.90 in the course of his employment the applicant was driving a tractor when the brakes failed causing the tractor to hit a fence whereby the applicant suffered injuries to the head back upper limbs and spine. Furthermore the applicant relies upon the nature and conditions of his employment. 4. In Paragraph 2, which required particulars of the "Nature of injury", the solicitors recited injuries to "Neck, back, upper limbs, lower limbs and neurological system". 5 This claim for compensation came before the Compensation Court on 15 June 2000 when Mr Stepic agreed to a redemption and a commutation of his workers' compensation entitlements for the total sum of $30,000. 5. In order to effect this settlement Mr Stepic agreed that his Application for Determination should be amended in accordance with short minutes of order which included the following order: Amend par 2 of the application for determination to add injuries to the back, lower back, thoracic spine, cervical spine, neck region, both hands, both wrists, both arms, both elbows, both shoulders, head, skin, cardiovascular system, respiratory system, lungs, both ankles, both knees, both legs, feet, toes, both hips, pelvis, hernias, eyes, ears, internal organs, stomach, chest as well as suffering from industrial deafness, depression, anxiety, psychiatric condition, psychological condition and functional overlay, caused and/or aggravated by the incidents referred to in par 1 hereof . 6. Before the court made orders effecting the settlement, Mr Stepic signed forms of consent which read as follows: I Nikola Stepic consent to the making of an award in accordance with the annexed short minutes of order. I acknowledge that the total effect of the making of this award has been explained to me by my counsel/solicitor with the assistance of an accredited interpreter who has read these documents to me in my language. In giving this consent I appreciate that the payment of the lump sum referred to in the short minutes will bring to an end as from 4 pm on 30 June 1987 my right to all entitlements under the Workers Compensation [Acts] in respect of the injuries the subject of the said short minutes which I have or may have in the future;- including (1) Weekly payments of compensation of all kinds including those pursuant to [the relevant provisions] in the event of a failure by my employer to provide suitable employment. (2) Medical, hospital and such like expenses provided by [the relevant provisions]. (3) Any lump sum provided by s 66 and s 67 of the Act. I agree to execute if called upon to do so, a document wherein I shall release the employer from all liability at common law or for breach of statutory duty which may be used to prevent me from succeeding in any action for damages in any other court in respect of the above mentioned injuries. 7. In accordance with this consent and pursuant to the agreement between the parties Mr Stepic on the 16th day of June 2000 executed the deed of release which is now pleaded against him: This deed made 16th day of June 2000 Between Nicholas Stepic of 76 First Avenue, Berowra in the State of New South Wales (hereinafter called 'the releasor') and Sydney Water Corporation of 115 to 123 Bathurst Street, Sydney in the said state (hereinafter called 'the releasee' and/or the employer') Whereas (1) At all material times the releasor was employed by the employer as a nipper and a gardener. (2) The employer was at all material times the licensed self insurer pursuant to the provisions of the Workers Compensation Act 1987. (3) On or about the dates referred to in the schedule of injuries which is annexed hereto and marked "A" and as a result of the nature and conditions of his employment, which includes exposure to dust, powder, air substances, industrial noise and chemical substances, the releasor sustained personal injury in the nature of injury to the back, lower back, thoracic spine, cervical spine, neck region, both hands, both wrists, both arms, both elbows, both shoulders, head, skin, cardiovascular system, respiratory system, lungs, both ankles, both knees, both legs, feet, toes, both hips, pelvis, hernias, eyes, ears, internal organs, stomach, chest as well as suffering from industrial deafness, depression, anxiety, psychiatric condition and functional overlay arising out of or in the course of the employment of the releasor with the employer and thereby has suffered and continues to suffer incapacity (4) The Releasor claims that the said injuries were caused by the negligence of the employer and/or its predecessors in title and/or its subsidiary companies and/or their servants or agents or as a result of breach of statutory duty by the employer and/or its predecessors in title and/or its subsidiary companies and/or their servants and agents. (5) The employer denies the occurrence of such injury and denies such negligence or breach of statutory duty and maintains that the said injuries was (sic) caused or contributed to by the negligence of the releasor. (6) It has been agreed between the releasor and the releasee with the approval of the Compensation Court of New South Wales that without admission of any liability by the releasee, the releasee will pay and the releasor will accept the sum of $30,000 clear of workers compensation payments already made, (which sum shall hereinafter be called the agreed sum) in full settlement and final satisfaction and discharge of all or any rights of action, claims, costs and demands in respect of claims for damages which the releasor may now or at any time hereafter have against the releasee, the servants or agents of the employer, its predecessors in title and its subsidiary companies or any of them arising out of the injuries herein before recited. NOW THIS DEED WITNESSES That in consideration of this deed and in payment by the releasee to the releasor of the agreed sum (receipt whereof is hereby acknowledged) the releasor, himself, his executors, his administrators, his heirs and his assigns forever hereby releases and discharges the releasee, the employer, the employer's predecessors in title, the employer's subsidiary companies, their servants or agents or any of them from all causes of action, claims and demands whatsoever which the releasor now has or but for this deed could or might have had against the releasee, the employer, the employer's predecessors in title, the employer's subsidiary companies, their servants or agents or any of them separately or together either at law or in equity arising under the provisions of any statute for or in respect of the injuries herein before recited or for in respect of any matter or thing in any way related thereto. AND FURTHER; (1) The releasor shall discontinue any proceedings already commenced in any court. (2) In any future proceedings taken in any court, judgment shall be entered for the releasee in accordance with the provisions of this deed. 8. The defendant relies upon the executive clauses of this deed as sufficient to release the defendant from common law liability in respect of the injuries recited in par 3 which include those injuries to the respiratory system and lungs pleaded in the present Statement of Claim. Plaintiff's contentions 9. The plaintiff asserts that the general words of release contained within this must be constrained by the particular words contained in the recitations which relate only to employment of the plaintiff as "a nipper and a gardener" and that the release is ineffective to release the defendant from any liability which accrued prior to 1974 when he first became employed as a nipper. Principles 10. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & ors (2004) 219 CLR 165 at 179, the Court reaffirmed the principle of objectivity by which the rights and liabilities of parties to a contract are to be determined. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intentions of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties and the purpose and object of the transactions. 11. Further, as Latham CJ said in Wilton v Farnsworth (1948) 76 CLR 646 at 649: "in the absence of fraud or some other special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions" Relevant evidence 12. The Application for Determination brought by Mr Stepic, notwithstanding that it alleged work of an arduous physical nature from 1968, in paragraph 5 described the nature of his work at the time of injury as "gardener". As both Mr Stepic and the respondent knew, at the time this application issued, at the time he signed the consent, and at the time he executed the Deed of Release, Mr Stepic was not employed as a nipper until 1974 and not employed as a gardener until 1980. 13. The nature of the work particularised in Paragraph 1 of the Application for Determination as having caused the injuries, "work of an arduous physical nature involving repeated and constant lifting, bending, carrying, twisting movements, working in confined spaces and uneven services, activities which placed undue strains on his spine" is not work which a reasonable observer would understand as reflecting the duties of a nipper or a gardener. 14. In the present case Mr Toomey asserts that the consent of Mr Stepic should be understood in the context of evidence he gave in the Compensation Court pursuant to the application for commutation and redemption. The following evidence appears: Question: Mr Stepic, after rejoining the Board in 1972 and doing tumbling work you were diagnosed with silicosis in 1974. Is that so. Answer: Yes. Question: After that you were transferred to various depots including Leichhardt and Ryde where you did gardening. Answer: Yes, I do. Question: By the end of October 1998 the Board had you examined and you were retired from work on medical grounds. Answer: Yes. Question: You have been off work and in receipt of the full Dust Diseases Board pension since October 1998. Answer: Yes, right. Question: You have never received any social security. Answer: No. Question: All of the medical expenses for treatment of your other physical injuries have been paid. Is that so. Answer: Yes. Question: Did you suffer injuries to your head and neck and to some extent your back in the years that passed while employed by the Board. Is that right. Answer: Yes. Question: Your case came on for hearing at Parramatta on Wednesday and after a protracted negotiation at about 4.30 you agreed to accept settlement to a value of $30,000. (No Answer) Question: Mr Stepic, these four documents, two are headed "Consent Forms" the other two are headed "Short Minutes of Order" all of those four documents have been read by you here at court today. Answer: Yes. Question: Just looking at those. Answer: Yes. Question: You have read those through in the company of your adult daughter and your solicitor and myself. Answer: Yes. Question: After all of that you have signed the consent forms. Would you tell the Court they are your signatures on the consent form. Answer: Yes. Question: You understand that if the Court approves the settlements you would be able to continue on with your Dust Diseases Board entitlements, you understand that. Answer: Yes. Question: However, all of your entitlements under the Workers Compensation Act of 1987 would come to an end, you understand that. Answer: Yes, I understand. Question: You would have no further entitlement to weekly payments past or future under the Act, nor would you have entitlement to medical expenses for the future injuries, and finally, no available lump sum for bodily impairment, disability for pain and suffering, you understand all of that. Answer: I understand. Question: Mr Stepic, you ask the Court to approve the settlement, is that so, knowing the consequences. Answer: Yes. Question: You wish to continue with your retirement, continue to receive your Dust Diseases Board pension, is that right. Answer: Yes. 15. Mr Toomey points out that nowhere in that evidence has Mr Stepic been directly asked as to his understanding of the consequences of the agreement to provide a common law release. He was however advised by a counsel of some seniority and did assert that the short minutes and the consent forms had been read to him by his counsel and his solicitor. To the objective observer it would appear plain from the documents that he believed he had injuries to his lungs and respiratory system, and that he agreed to release the employer from all liability at common law in respect of those injuries. I can find within the transcript no hint of a reservation within his mind which may have conveyed to an objective bystander any belief that Mr Stepic thought himself thereafter entitled to proceed at common law for damages in respect of his pulmonary condition. 16. Such a bystander confronted with the suggested inconsistency between paragraph 1 of the deed, which recites that Mr Stepic was employed as a nipper and gardener, and the purpose and object of the transaction, as disclosed in the amendments to the Application for Determination and the Form of Consent, would conclude that Mr Stepic was to be paid money in consideration of his employer being acquitted of all future liability in respect of injuries suffered both before and after he became a nipper and a gardener, and understand the executive words of release as releasing the defendant from the liability which is now pleaded against Sydney Water. 17. In any event it is patent from the amendments to the Application for Determination and from par 3 of the recitations to the deed that the release was intended to apply also to latent injuries. It was Mr Stepic who bore the risk in this regard. It is not my place to express any opinion as to whether the bargain he struck was fair. As a matter of commercial reality, Sydney Water was entitled to dictate the terms upon which it was prepared to compromise the claim which Mr Stepic brought before the Compensation Court. 18. I find that the deed of release executed by the plaintiff on 16 June 2000 properly construed, operates to bar the plaintiff's present claim against Sydney Water Corporation. 19. I order that the proceedings by the plaintiff against this defendant be stayed pending the resolution of concurrent proceedings in equity. 20. I order the plaintiff pay the defendant's costs but order that that order be stayed pending the resolution of the proceedings against the remaining defendants. Mr DRJ Toomey instructed by McLaughlin and Riordan appeared for the Plaintiff Ms LP McFee instructed by Sparke Helmore appeared for the Defendant