Burns v Norvic Food Processing Pty Limited

[2010] NSWDC 178

CITATION:	Burns v Norvic Food Processing Pty Limited [2010] NSWDC 178
HEARING DATE(S):	4 August 2010
JUDGMENT DATE:	20 August 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) S 85(3)(e) of the Accidents Compensation Act 1985 (Vic), in the form in which it applied to the plaintiff’s claim, precluded him from an entitlement to claim compensation under that Act. His rights to damages in his claim against the defendant were therefore to be determined in accordance with common law principles of tortious liability. 2) Paragraph 12 of the defence is struck out. 3) The defendant is to pay the plaintiff’s costs of the motion.
CATCHWORDS:	SUBSTANTIVE LAW: LEX LOCI DELICTI - Whether amendment to Victorian law made after the date of the plaintiff’s injury affected his rights to claim common law damages
LEGISLATION CITED:	Accidents Compensation Act 1985 (Vic) Workers Compensation Act 1987 (NSW) Workers Rehabilitation and Compensation Act 1986 (SA)
CASES CITED:	Porter v Bonojero Pty Ltd [2002] VSC 265
PARTIES:	Glenn Burns (Plaintiff) Norvic Food Processing Pty Limited (Defendant)
FILE NUMBER(S):	2009/00338859
COUNSEL:	Mr M. Best (For the Plaintiff) Mr A. Fraatz (For the Defendant)
SOLICITORS:	Carroll and O'Dea Lawyers (For the Plaintiff) Moray and Agnew Lawyers (For the Defendant)

JUDGMENT

1 In March 2001 the plaintiff lived in NSW and was employed in NSW by a company that operated in NSW. He was directed by his employer to work as a cleaner in meatworks operated by the defendant in Victoria. He commenced proceedings claiming damages for negligence against the defendant as the operator of the premises. He claimed that he contracted Q fever while working on those premises.

2 The defendant asserted in paragraph 12 of its defence that the claim was subject to the provisions of the Victorian Accidents Compensation Act 1985 (the AC Act) and that, having failed to comply with the requirements of s 134AB of the AC Act, the plaintiff was not entitled to maintain his proceedings.

3 The defendant also asserted in paragraph 13 of the defence that the claim was statute barred.

4 In a motion filed on 27 May 2010 the plaintiff sought orders striking out paragraph 12 of the defence and extending the time within which to bring proceedings.

5 It was agreed between the parties that the question of whether the proceedings were statute barred should be determined at the time of the hearing of the claim and I have not considered it further.

6 The issue before the Court involved the identification of the substantive law by which the plaintiff’s claim for damages was to be determined. The parties agreed that, the injury having been suffered in Victoria, the lex loci delicti was that of the State of Victoria. It was also agreed that the plaintiff did not take the steps necessary to comply with s 134AB of the AC Act.

7 The plaintiff’s position was that he was precluded from bringing a claim under that Act and that therefore his rights to damages were to be dealt with in accordance with common law tortious principles.

8 His argument was that his rights to claim compensation and damages were governed by:

1 S 13(1) of the Workers Compensation Act 1987 (NSW) (the WC Act). This provision of the WC Act has since been repealed and replaced, but without retrospective effect so that it continued to apply to the plaintiff’s rights to compensation. It provided:

13(1) If -

(a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker; and

(b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,

the injury is an injury to which this Act applies, and compensation is payable accordingly.

2 S 85 of the AC Act that, at the time of the plaintiff’s injury provided:

(1) This section shall apply where an injury is caused to a worker which gives the worker a right to claim compensation or a right of action under the law of any place outside Victoria in circumstances which would otherwise have entitled the worker or the worker’s dependants to compensation under this Act.

…

(3) A person who has a right to claim compensation or a right of action under the law of any place outside Victoria shall not be entitled to claim compensation in respect of the injury under this Act if in respect of the injury under the law of any place outside Victoria

…

(e) any claim for compensation or action for damages is pending.

9 In November 2006 the plaintiff claimed compensation from his employer under the WC Act. At the time of commencement of his action for damages against the defendant this claim was not finalised and therefore remained pending. The workers compensation insurer dealing with the compensation claim made some payments to the plaintiff but disputed that it was obliged to meet a claim under the WC Act. The dispute on this aspect of the plaintiff’s rights was ongoing.

10 In Porter v Bonojero Pty Ltd [2002] VSC 265 the plaintiff carried out duties in Victoria on behalf of a South Australian employer. The plaintiff was paid compensation under the South Australian Workers Rehabilitation and Compensation Act 1986. Justice Eames held that in the circumstances

s 85(3)(a) of the AC Act applied so that the plaintiff was entitled to bring an action for damages at common law in Victoria freed of the restrictions imposed by the AC Act.

11 The plaintiff asserted that he was in a analogous position to the plaintiff in Porter because:

1 S 13(1) of the WC Act entitled him to compensation under that Act;

2 For the purposes of s 85(1) of the AC Act he has a right to compensation under the law of a place outside Victoria; and

3 A claim for compensation was pending under that law.

12 The defendant maintained that the substantive law to be applied to the plaintiff’s claim was the AC Act. It relied on amendments made to s 85, commencing on 1 September 2004, that removed from ss 85(1) and 85(3) references to a right to claim compensation. The result was that in actions to which those amended sections applied the preclusion from claiming under the AC Act applied only to an action for damages under the law of a place outside Victoria. No such right of action existed in this case.

13 I accepted for the purposes of this application that s 13(1) of the WC Act applied to the plaintiff’s rights to compensation and that there was a claim pending under that Act. There was no indication in the amending legislation that the amendments to s 85 of the AC Act were intended to have retrospective effect and it was not asserted by the defendant that they had that effect.

14 The plaintiff made his claim for compensation under the WC Act in November 2006, that is, after the commencement of the amendments to s 85 of the AC Act. I therefore considered the question of whether, in the absence of a pending claim at 1 September 2004, the plaintiff’s legal rights had not crystallised prior to the commencement of the amendments to s 85 and his claim was to be dealt with in accordance with s 85 as amended.

15 I decided that this was not the correct approach to the problem. In its original form s 85(1) of the AC Act applied when there was an injury to a worker and when the injury gave the worker a right to claim compensation under the law of a place outside Victoria. S 85(3) applied to determine the circumstances in which a worker, having the rights referred to in s 85(1) was precluded from claiming compensation under the AC Act.

16 I concluded that, in the absence of retrospective operation, ss 85(1) and (3) in their original form applied to the plaintiff’s injury and his rights as they stood at the time of that injury. In the circumstances, I considered myself bound by the decision in Porter.

17 I find that s 85(3)(e) in the form in which it applied to the plaintiff’s claim precluded him from an entitlement to claim compensation under the AC Act and that his rights to damages in his claim against the defendant were therefore to be determined in accordance with common law principles of tortious liability.

18 Paragraph 12 of the defence is struck out.

19 The defendant is to pay the plaintiff’s costs of the motion.

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