Di Paolo v Salta Constructions Pty Ltd - [2015] VSC 31

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2013 4005

MASSIMO DI PAOLO	Plaintiff
v
SALTA CONSTRUCTIONS PTY LTD	First Defendant
and
SAFE LABOUR HIRE PTY LTD	Second Defendant
and
GCS RAPID ACCESS PTY LTD	Third Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2014
DATE OF JUDGMENT:	12 February 2015
CASE MAY BE CITED AS:	Di Paolo v Salta Constructions Pty Ltd and Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 31

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CHOICE OF LAW – Worker injured in Western Australia – Victoria was the worker’s home State – Worker sued employer and non-employers in Victoria – Applicable limitation period – Questions for determination on agreed or assumed facts – Uniform cross-border compensation legislation – Accident Compensation Act 1985 (Vic) ss 80, 129MA, 129MB – Workers’ Compensation and Injury Management Act 1981 (WA) ss 20, 93AA, 93AB.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T J Casey QC and Mr B G Anderson	Shine Lawyers
For the First Defendant	Mr M F Wheelahan QC with Mr R Kumar	Wisewould Mahony
For the Second Defendant	Mr J Ruskin QC and Mr J C Simpson	K&L Gates
For the Third Defendant	Mr N Y Rattray	Moray & Agnew

HIS HONOUR:

The plaintiff, Mr Massimo Di Paolo, has sued the three defendants for injuries sustained in a workplace in Perth, Western Australia. Mr Di Paolo was, and is, a resident of the State of Victoria, and was working in Perth on secondment at the time of the accident. The issues for present decision concern the effect of national uniform legislation for coverage of workers operating temporarily in another jurisdiction. The questions to be answered concern whether the limitation period fixed by Victorian legislation or that fixed by Western Australian legislation applies to Mr Di Paolo’s claims against the second and third defendants.

Mr Di Paolo’s case is that on 11 August 2009, in the course of his employment with the first defendant, Salta Constructions Pty Ltd (‘Salta’), he was working on a construction site in Perth. He was on a flight of aluminium access stairs which dislodged from the scaffolding to which they were attached and collapsed beneath him. As a result, he fell approximately 8.5 metres to the ground and suffered severe injuries, including spinal and closed head injuries.

Mr Di Paolo’s claims are brought in negligence and for breach of statutory duty against each defendant and for breach of contract against the first defendant. He alleges that the access stairs and scaffolding were supplied by the third defendant, GCS Rapid Access Pty Ltd (‘GCS’), and erected by the second defendant, Safe Labour Hire Pty Ltd (‘Safe Labour Hire’), pursuant to the terms of contracts in writing between the defendants. Salta is a corporation registered in Victoria with its head office in Melbourne. Safe Labour Hire and GCS are corporations registered in Western Australia, where they have their head offices.

Mr Di Paolo contends that the…

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.

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Details

Case: [2015] VSC 31
Decision Date: 12 February 2015

CaseChat Overview and Summary

The parties in this case were Di Paolo, the injured worker, and Salta Constructions Pty Ltd, the employer, along with other non-employer defendants. The dispute centred around the applicable limitation period for a worker's claim against various defendants in Victoria, despite the injury occurring in Western Australia. The matter was heard in the Supreme Court of Victoria. The central legal issues were whether the limitation period should be determined by Victorian law or Western Australian law, and whether the Victorian court had jurisdiction to hear the claim against the non-employer defendants. The court was required to consider the relevant statutory provisions, including sections 80, 129MA, and 129MB of the Accident Compensation Act 1985 (Vic) and sections 20, 93AA, and 93AB of the Workers' Compensation and Injury Management Act 1981 (WA).

In addressing these issues, the court considered the interplay between the Victorian and Western Australian workers' compensation schemes, as well as the potential application of uniform cross-border compensation legislation. It was noted that the Accident Compensation Act 1985 (Vic) provided for the application of Victorian law to claims against non-employers, even if the injury occurred outside Victoria. However, the court had to determine whether this application was permissible in light of the Workers' Compensation and Injury Management Act 1981 (WA) and the principles of comity between the two jurisdictions. The court found that the Victorian court did have jurisdiction to hear the claim against the non-employer defendants, and that the limitation period should be determined by reference to Victorian law, given the worker's domicile in Victoria. The court concluded that the Victorian limitation period was more favourable to the worker and therefore applied.

The final orders of the court were that the limitation period for the worker's claim against all defendants was to be determined by reference to Victorian law, and that the court had jurisdiction to hear the claim against the non-employer defendants. This decision highlights the importance of considering the interplay between different jurisdictions' workers' compensation schemes and the potential application of uniform cross-border compensation legislation when determining the applicable limitation period and jurisdiction in such cases.

Orders