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Elazac Pty Ltd v Shirreff

Elazac Pty Ltd v Shirreff

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Case Copied 1 December 2011 35 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 121

ELAZAC PTY LTD
	Appellant
v
LINTON SHIRREFF	Respondent

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JUDGES:	REDLICH and MANDIE JJA, BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2011
DATE OF JUDGMENT:	1 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 405
JUDGMENT APPEALED FROM:	[2010] VSC 381 (Robson J)

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ACCIDENT COMPENSATION – Negligence – Personal injuries – Employee or independent contractor – Plaintiff employed own employees – Plaintiff conducted own business – Plaintiff not subject to control as to how to perform work – Plaintiff a contractor rather than an employee – No negligence – Occupational Health and Safety Act 1985, ss 21 and 28.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Curtain QC with Ms B Y Knoester	Hall & Wilcox
For the Respondent	Mr T Tobin SC with Ms M Pilipasidis	Slater & Gordon

REDLICH JA
MANDIE JA
BEACH AJA:

Introduction

On 25 June 2002, Linton Sherriff ( ‘the plaintiff’) fell from a ladder in a lift well at 401 Collins Street, Melbourne (‘401’) and suffered severe injuries. On 1 April 2009, the plaintiff commenced proceedings for damages against Elazac Pty Ltd ( ‘the defendant’) for the injuries the plaintiff received as a result of the accident. Specifically, the plaintiff alleged that the defendant was his employer and the accident was caused by its negligence.

Whilst the defendant did not deny that the plaintiff fell from the ladder and suffered injury, the defendant denied that it employed the plaintiff and denied that the accident was caused by any negligence or breach of duty on its part. Further, the defendant alleged that, in any event, the plaintiff was guilty of contributory negligence.

The proceeding came on for hearing before Robson J and a jury on 26 July 2010. During the trial the mode of trial was changed to judge alone. The trial concluded on 9 August 2010. On 1 September 2010, Robson J delivered judgment for the plaintiff. His Honour held that the plaintiff was an employee of the defendant and that the defendant’s negligence was a cause of the plaintiff’s injuries. His Honour also found that there was contributory negligence on the part of the plaintiff and assessed the plaintiff’s contributory negligence at 20 per cent. In the result, judgment was entered in favour of the plaintiff in the sum of $897,620.80.[1]
[1]Which sum was inclusive of interest to the date of judgment.

The defendant appeals from the judgment of Robson J. It makes complaint concerning his Honour’s findings that the plaintiff was its employee and that it was negligent. It also asserts that his Honour erred in the amount at which he assessed the plaintiff’s contributory negligence. The defendant’s grounds of appeal are as follows:

(1)The learned trial judge erred in finding that the plaintiff was an employee of the defendant.
(2)The learned trial judge erred in finding that the defendant breached its duty of care to the plaintiff.
(3)The learned trial judge erred in finding that…

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: [2011] VSCA 405
Decision Date: 1 December 2011

CaseChat Overview and Summary

Elazac Pty Ltd sought to have a claim for damages dismissed by the Supreme Court of Queensland. The plaintiff, who was injured at a worksite, claimed that Elazac Pty Ltd was negligent in its handling of the site and its failure to provide adequate safety equipment. The primary dispute was whether the plaintiff was an employee of Elazac Pty Ltd or an independent contractor at the time of the incident. The plaintiff argued that, as an employee, Elazac Pty Ltd was liable for the injuries sustained. The court was tasked with determining the nature of the relationship between the plaintiff and Elazac Pty Ltd, and whether this relationship imposed any duty of care upon the defendant towards the plaintiff.

The court considered several factors to determine the nature of the relationship. It examined whether the plaintiff was subject to the control of Elazac Pty Ltd, whether the plaintiff was free to subcontract the work, and whether the plaintiff provided their own equipment and employees. The court found that the plaintiff was not subject to the control of Elazac Pty Ltd in the performance of the work, had the freedom to subcontract the work, and provided their own equipment and employees. Based on these factors, the court concluded that the plaintiff was an independent contractor, not an employee, and therefore not subject to the control of Elazac Pty Ltd. As a result, Elazac Pty Ltd owed no duty of care to the plaintiff under the Occupational Health and Safety Act 1985.

The court dismissed the plaintiff's claim for damages, finding that there was no negligence on the part of Elazac Pty Ltd. The court held that, as the plaintiff was an independent contractor, Elazac Pty Ltd had no duty of care towards the plaintiff under the Occupational Health and Safety Act 1985. The court also found that the plaintiff was not an employee of Elazac Pty Ltd, and therefore the claim for damages based on negligence was not valid. The court's decision was based on the nature of the relationship between the plaintiff and Elazac Pty Ltd, and the factors considered in determining whether the plaintiff was an employee or an independent contractor. The court found that the plaintiff was an independent contractor and, as such, Elazac Pty Ltd owed no duty of care to the plaintiff under the Occupational Health and Safety Act 1985.

Orders