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Bedelph v Protective Security Pty Ltd

Bedelph v Protective Security Pty Ltd

Case [2004] TASSC 35 22 April 2004

Contract Formation

Breach of Contract

Compensatory Damages

Workers Compensation Law

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[2004] TASSC 35

CITATION: Bedelph v Protective Security Pty Ltd [2004] TASSC 35

PARTIES:  BEDELPH, Kylie
  v
  PROTECTIVE SECURITY PTY LTD

(trading as TASMANIAN PROTECTIVE SERVICES)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 122/2003
DELIVERED ON:  22 April 2004
DELIVERED AT:  Hobart
HEARING DATES:  22 March 2004
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation ‑ Entitlement to and liability for compensation ‑ Persons entitled to compensation ‑ Who is a worker ‑ Contract of service of independent contractor ‑ Generally ‑ Impact of written contract on employer/employee relationship.

Global Plant Ltd v Secretary of State for Social Services [1972] 1 QB 139; Ferguson v John Dawson & Partners(Contractors) Ltd [1976] 1 WLR 1213; Hollis v Vabu Pty Limited (2001) 207 CLR 21, considered.

Workers Rehabilitation and Compensation Act1988 (Tas), s3(1)(a).

Aust Dig Workers Compensation [87]

Workers Compensation ‑ Proceedings to obtain compensation ‑ Appeals and stated cases ‑ Question of law ‑ What constitutes ‑ Whether determination of Tribunal necessarily outside the definition of worker in statute.

Vetter v Lake Macquarie City Council (2001) 202 CLR 429, applied.
Marney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1, followed.

Workers Rehabilitation and Compensation Act1988 (Tas), s63.

Aust Dig Workers Compensation [161]

REPRESENTATION:

Counsel:
             Appellant:  A I Gaggin
             Respondent:  I L Hallett
Solicitors:
             Appellant:  Murdoch Clarke
             Respondent:  Page Seager

Judgment Number: [2004] TASSC 35
Number of Paragraphs: 57

Serial No 35/2004
File No LCA 122/2003

KYLIE BEDELPH v PROTECTIVE SECURITY PTY LTD
(trading as TASMANIAN PROTECTIVE SERVICES)

REASONS FOR JUDGMENT UNDERWOOD J

22 April 2004

Introduction

On 1 March 2002, David Bedelph ("the deceased") died in a car crash. His daughter, the appellant, was then only 14 years old. She and the deceased had lived together ever since her mother died when she was 5 years old. There was no doubt that at the date of the deceased's death the appellant was his dependant within the meaning of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s3(1).

The appellant made a claim against the first respondent ("the respondent") on 18 November 2002. It was not made within the period of six months prescribed by the Act, s32(1)(b). The respondent did not accept the claim. By notice dated 19 December 2002, the appellant referred the following matters to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"):

(a)whether she was entitled to relief pursuant to the Act, s38(1), from the failure to make a claim within the statutory period; and
(b)her entitlement to workers compensation.

The Tribunal heard the referral on 29 July 2003. The principal issue was whether the deceased was a worker within the meaning of the Act, s3(1) which relevantly defines a worker to mean:

"any person who has entered into, or works under, a contract of service … agreement with an employer, whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, or is…

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 Bedelph v Protective Security Pty Ltd

Details

AGLC: Bedelph v Protective Security Pty Ltd [2004] TASSC 35
Case: [2004] TASSC 35
Decision Date: 22 April 2004

CaseChat Overview and Summary

The appeal was brought by Kylie Bedelph, the daughter of David Bedelph who died in a car crash while working for Protective Security Pty Ltd. Kylie sought compensation under the Workers Rehabilitation and Compensation Act 1988. The appeal was against a decision of the Workers Rehabilitation and Compensation Tribunal that David was not a "worker" within the meaning of the Act and therefore not entitled to compensation. The appeal was based on the proposition that the Tribunal had erred in placing too much weight on the written agreement between David and the respondent, and not enough weight on the other matters. The Supreme Court allowed the appeal and found that David was a worker within the meaning of the Act. The Court found that the Tribunal had placed too much weight on the written agreement and not enough weight on the other indicia of the relationship. The Court concluded that in the totality of the relationship, the written contract was of very little significance. The appeal was allowed and the order of the Tribunal was quashed. The Court further ordered that David was a worker of the respondent and that he died in the course of his employment with the respondent.

Orders