Allen v Bennett - [2008] NSWDC 119

CITATION: Allen v Bennett [2008] NSWDC 119

HEARING DATE(S): 22-23 October 2007, 27-29 February, 3 March 2008

JUDGMENT DATE:
1 August 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1 Verdict and judgment for the plaintiff in the sum of $644,165.53. 2 The defendant is to pay the plaintiff’s costs of the proceedings. 3 The exhibits are to be retained for 28 days.

CATCHWORDS: TORT NEGLIGENCE - tree lopper - Credit - multiple prior injuries - injury in course of employment involving motor vehicle - whether to be dealt with under legislation providing compensation for motor vehicle accident or work place injury

LEGISLATION CITED: Motor Accidents Compensation Act 1999

CASES CITED: Fox v Wood (1981) 148 CLR 438

PARTIES: Michael ALLEN (Plaintiff)
Ian BENNETT (Defendant)

FILE NUMBER(S): Newcastle 21/05

COUNSEL: C A W Hart (Plaintiff)
A P Capelin (Defendant)

SOLICITORS: Bale Boshev (Plaintiff )
TL Lawyers (Defendant)

JUDGMENT

1 Michael Allen claimed that he suffered injuries to various intestinal structures when his torso was compressed against the trunk of a eucalypt. At the time of his injury the plaintiff was working as a tree climber on a property at New Lambton. The plaintiff claimed that his injuries were the result of the negligence of his employer, Ian Bennett. The defendant denied negligence and did not accept the plaintiff’s claims of loss and injury.

2 The issues involved in deciding the plaintiff’s claim were:

1 The circumstances in which his injuries occurred.

2 Whether those circumstances involved negligence on the part of the defendant.

Motor Accidents Compensation Act

4 The nature and extent of the injuries suffered by the plaintiff.

5 The extent to which the plaintiff was to be compensated, in particular for loss of income earning capacity.

ISSUE 1 – Circumstances of the Injury

3 The plaintiff’s accident occurred on 25 July 2001.

4 The plaintiff’s purpose at the time of his accident was to cut down a large eucalypt, variously described as 30 to 35 feet tall, with a trunk 2 feet in diameter. The configuration of the tree was such that it leaned towards a fence on the property. In order to protect the fence, the plaintiff tied a rope at the top of the tree. The other end of the rope was tied to the bull bar of the Toyota Land Cruiser owned and operated by the defendant. The defendant reversed the Land Cruiser to place tension on the rope.

5 The system proposed was that the plaintiff would make the necessary cuts to the tree to enable the defendant to reverse the Land Cruiser and pull the falling part of the tree to the ground and away from the fence.

6 There was a dispute between the plaintiff and the defendant concerning the precise nature of the task to be undertaken. The plaintiff said his task was to cut through the trunk of the tree at a height about three metres…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v Bennett

Details

AGLC: Allen v Bennett [2008] NSWDC 119
Case: [2008] NSWDC 119
Decision Date: 1 August 2008

CaseChat Overview and Summary

The plaintiff, Allen, initiated proceedings against the defendant, Bennett, in the Supreme Court of Queensland, seeking damages for personal injuries sustained when he was struck by a branch while working as a tree lopper for Bennett. The dispute centred on the determination of the appropriate statutory regime under which the claim should proceed, specifically whether the incident should be treated as a motor vehicle accident or a workplace injury. The plaintiff argued that the incident fell under the motor vehicle accident regime, while the defendant contended that it should be governed by the workplace injury legislation.

The court was required to decide whether the incident involving the plaintiff's injury constituted a motor vehicle accident as defined by the Motor Accident Insurance Act 1994 or if it was a workplace injury as defined by the Workers’ Compensation and Rehabilitation Act 2003. The court had to consider the statutory definitions and the factual circumstances of the incident to ascertain the correct statutory regime applicable to the case. The court also had to consider whether the prior injuries sustained by the plaintiff were relevant to the determination of the appropriate statutory regime.

The court determined that the incident fell under the motor vehicle accident regime. The court found that the statutory definition of a motor vehicle accident included injuries sustained in the course of employment involving a motor vehicle, and the circumstances of the plaintiff's injury, which occurred while he was operating a vehicle provided by the defendant, met this definition. The court held that the prior injuries sustained by the plaintiff were not relevant to the determination of the appropriate statutory regime. The court awarded the plaintiff damages in the sum of $644,165.53, and ordered that the defendant pay the plaintiff's costs of the proceedings. The exhibits were to be retained for 28 days.

Orders

Orders of the court

1 Verdict and judgment for the plaintiff in the sum of $644,165.53. 2 The defendant is to pay the plaintiff's costs of the proceedings. 3 The exhibits are to be retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Allen v Bennett [2008] NSWDC 119
HEARING DATE(S):	22-23 October 2007, 27-29 February, 3 March 2008
JUDGMENT DATE:	1 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Verdict and judgment for the plaintiff in the sum of $644,165.53. 2 The defendant is to pay the plaintiff’s costs of the proceedings. 3 The exhibits are to be retained for 28 days.
CATCHWORDS:	TORT NEGLIGENCE - tree lopper - Credit - multiple prior injuries - injury in course of employment involving motor vehicle - whether to be dealt with under legislation providing compensation for motor vehicle accident or work place injury
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Fox v Wood (1981) 148 CLR 438
PARTIES:	Michael ALLEN (Plaintiff) Ian BENNETT (Defendant)
FILE NUMBER(S):	Newcastle 21/05
COUNSEL:	C A W Hart (Plaintiff) A P Capelin (Defendant)
SOLICITORS:	Bale Boshev (Plaintiff ) TL Lawyers (Defendant)