Ellis v Weldcraft Engineering Act Pty Ltd and Construction Control Holdings Pty Ltd

[2011] ACTSC 164

MATTHEW JOHN ELLIS v WELDCRAFT ENGINEERING ACT PTY LTD AND CONSTRUCTION CONTROL HOLDINGS PTY LTD [2011] ACTSC 164  (30 September 2011)

DAMAGES – personal injury – claim by employer against employee – choice of law – determination of Territory or State of connection – whether worker usually performed work solely in the ACT.

Workers Compensation Act1951 (ACT) s36B, s182D, 182E, 182C.

Hanns v Greyhound Pioneer Australia Limited (2006) 196 FLR 361.
Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34.

No. SC 770 of 2007

Judge:             Master Harper
Supreme Court of the ACT

Date:              30 September 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 770 of 2007
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:MATTHEW JOHN ELLIS

Plaintiff

AND:WELDCRAFT ENGINEERING ACT PTY LTD

First Defendant

AND:CONSTRUCTION CONTROL HOLDINGS PTY LTD

Second Defendant

ORDER

Judge:  Master Harper
Date:  30 September 2011
Place:  Canberra

THE COURT DECLARES THAT:

1. the Territory or State of connection in relation to the plaintiff’s employment by the first defendant for the purposes of the Workers Compensation Act1951 at 14 June 2005 was New South Wales.

1. This is an interlocutory application in an application for damages for personal injury. The plaintiff claims that he was injured while working on a building site at Manuka in June 2005. He sues his then employer, a subcontractor on the site, and also the builder. The plaintiff was at the time a labourer and apprentice boilermaker. He asserts in the statement of claim that at all material times he usually worked in the Australian Capital Territory. This assertion is admitted on the pleadings by the second defendant but denied by the first defendant. The first defendant asserts that New South Wales is the state of connection for the purposes of s 182D of the Workers Compensation Act 1951 (ACT).  The first defendant says that in these circumstances the substantive law of New South Wales applies to the determination of the plaintiff’s claim.

1. If this defence is made out, it seems to me that it will apply to the claim generally, notwithstanding the second defendant’s admission.

1. In October 2010, the solicitors for the plaintiff filed an application seeking the following orders:

(a)     That the court determine that the plaintiff usually worked in the Australian Capital Territory and therefore that the common law workers’ compensation claim arising out of the negligence of the first defendant should be determined by the law of the Australian Capital Territory.

(b)     In the alternative, that the court determine that the Australian Capital Territory is the appropriate jurisdiction with respect to the common law workers’ compensation claim arising out of the negligence of the first defendant.

1. Notwithstanding the wording of the orders sought, the application was heard on the understanding that the orders related to the plaintiff’s claim in the present action, a claim for damages under the general law and not a “workers’ compensation claim”.

1. The application came before the court on 26 November 2010, in the course of a Friday applications list.  It became apparent during the hearing that issues had been raised which the plaintiff needed further time to deal with, and that the hearing would take somewhat longer than was appropriate for that list.  On the plaintiff’s application, and without opposition by the first defendant, I adjourned the application part heard, for further hearing.  In the event, due in large measure to the state of the lists, the hearing did not resume until 26 September 2011.

1. During the period of the adjournment, in January 2011 the solicitors for the first defendant made a written application for an order that the plaintiff’s application be dismissed or alternatively stayed until the hearing of the suit.  The short ground for this application was that evidence on the hearing of the application would include questions of credit, so that it was inappropriate for the application to be determined before all of the evidence in the suit had been given.

1. The second defendant has not participated in the hearing of either application.

1. The question raised by the plaintiff’s application is of importance to the parties because application of the substantive law of New South Wales would be likely to result in a significantly lower award of damages than if the substantive law of this Territory were applicable.

1. Section 182D is in the following terms:

182D Applicable substantive law for damages claims

The substantive law of the Territory or State of connection governs—

(a)     whether or not a damages claim can be made in relation to a work-related injury to a worker; and

(b)     if a damages claim can be made—the determination of the damages claim.

1. Section 182E provides that part 9.2 of the Act (Choice of Law: sections 182A – 182E) applies only to a damages claim against the employer, a person who is vicariously liable for the acts of the employer, or a person for whose acts the employer is vicariously liable. It appears from the pleadings that the second defendant is sued as directly liable, so that part 9.2 will not apply to the plaintiff’s claim against the second defendant. This may require the court to make two assessments of damages, one against the first defendant under the law of New South Wales and the other against the second defendant under the law of the Australian Capital Territory, depending on the outcome of the present application.

1. Damages claim is defined in s 182C so as to include the plaintiff’s claim in the present action.

1. To work out the Territory or State of connection, one must look to part 4.2A of the Act (Employment connection with ACT or State: ss 36A - 36F).  Territory or State of connection is defined to mean the Territory or State with which the employment of the worker is connected, as determined under part 4.2A.

1. Subsection 36B (3) provides:

36B Employment Connection Test

.   .   .   .   .   .   .   .   .   .   .   .   .   .   .

(3)        A workers’ employment is connected with –

(a)        the Territory or State where the worker usually works in the employment; or

(b)        if no Territory or State, or no single Territory or State, is identified by paragraph (a) – the Territory or State where the worker is usually based for the purposes of the employment; or

(c)        if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b) the Territory or State where the employer’s principal place of business in Australia is located.

1. In the present matter, the plaintiff’s contention is that he usually worked in the Australian Capital Territory at the time of his injury.  The contention of the first defendant is that the plaintiff worked in both New South Wales and the Australian Capital Territory.  It is common ground that he was usually based in New South Wales for the purposes of the employment.

1. Affidavit and oral evidence was given by the plaintiff, and by a fellow employee and friend, Mr Yates.  Oral evidence was also given by Mr Boschert, a manager with the first defendant.  Whilst there were some areas of disagreement on the facts, it is common ground that the plaintiff started employment with the first defendant in February 2003 as a labourer.  He became an apprentice boilermaker and welder in January 2004.  He lived in the suburbs of Canberra.  He was required to report to the first defendant’s premises in Queanbeyan in New South Wales each morning.  Initially he worked mostly at the Queanbeyan workshop but was later sent to building sites with a team, generally in a company vehicle.  Most of the building sites were in the Australian Capital Territory although some were in New South Wales.  On the day of his accident, he was working on a residential site at Red Hill, a Canberra suburb. 

1. There is an issue between the plaintiff and Mr Yates on the one hand, and Mr Boschert on the other, as to whether the plaintiff spent most of his time at the Queanbeyan workshop or away on building sites.  Attendance records were tendered but these are equivocal.  If it were necessary for me to resolve the issue, it seems to me that it would be inappropriate to do so on an interlocutory application:  it is far from clear that my interlocutory decision would bind the trial Judge, who might conceivably come to a different decision, and would undoubtedly have additional evidence not before me, possibly including evidence relevant to the credit of the witnesses I have seen.  Accordingly I would proceed to determine the present application only if I were of the view that my decision was effectively inevitable and based on evidence not in contention.

1. This will turn on the correct interpretation of s 36B (3) of the Act.

1. Part 4.2A, which includes s 36B, was inserted in the Act in 2003, at the same time as part 9.2. Both parts came into effect in April 2004. Before that, the Act contained a section which was in similar terms, s 7A. Section 7A (2) is, it seems to me, of identical effect to s 36B (3) although the wording is slightly different. Gray J had occasion to consider the construction of s 7A in Hanns v Greyhound Pioneer Australia Limited (2006) 196 FLR 361, on appeal from the decision of a magistrate in a workers’ compensation arbitration. The appellant was a bus driver who was based in Canberra but who drove regularly on interstate routes. He was injured when his bus collided with a car in New South Wales. The respondent through its insurer contended that it should be found that the appellant had usually carried out the work of his employment in New South Wales. The magistrate found in the respondent’s favour because he found that the appellant spend the majority of his working time in New South Wales and not in the Australian Capital Territory. Gray J, in upholding the appeal, rejected this approach. His Honour’s reasoning was that such a test could simply have been expressed in the legislation. His Honour held that the word “usually” should be given the meaning of habitual or customary, or in a regular manner. The section could be given a logical operation by asking, in relation to paragraph (a), where the worker customarily or routinely was required to carry out his work. If this was in more than one State or Territory, the enquirer would move on to paragraph (b) to determine, if possible, the Territory or State in which the worker’s base was located.

1. Since the 2003 amendments, the construction of part 4.2A has been considered by the Court of Appeal (Gray P, Penfold and Marshall JJ) in Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34. This was also an appeal initially from a magistrate’s decision in an arbitration. The worker was a district sales manager for a cosmetics seller. She lived in New South Wales. The area for which she was responsible was entirely within the Australian Capital Territory. She spent time in both jurisdictions, undertaking record-keeping at her home. There was no requirement that this work be carried out in New South Wales, and the worker could have just as easily done that work in the Australian Capital Territory if she had lived there. The employer’s office was in Sydney.

1. The magistrate at first instance found that the Australian Capital Territory was the Territory of connection because the worker usually worked only in the Australian Capital Territory, where she performed her primary and essential duties, whilst the bookwork was performed at a place solely determined by her. The magistrate’s decision was upheld by a single judge but reversed by the Court of Appeal. The Court of Appeal held that it did not matter that the worker could have chosen to do all of her bookwork in the Australian Capital Territory. As a matter of fact she had carried out part of her work in New South Wales. The section did not depend on a finding that a worker was required to work in a particular jurisdiction. As a matter of fact, the worker had usually worked in the Australian Capital Territory and in New South Wales. Accordingly, the state of connection was to be determined by s 36B (3)(c), and was New South Wales because that was where the employer’s principal place of business was located.

1. In the present case it is common ground on the evidence that the plaintiff carried out some of his work in New South Wales and some of his work in the Australian Capital Territory. It is unnecessary and would be inappropriate to undertake the task of apportioning the time spent for the purposes of his work in each jurisdiction. Accordingly neither jurisdiction is identified by the “usually works” test in s 36B (3)(a). The plaintiff concedes, inevitably on the pleadings and the evidence, that he was at the time of his injury “usually based for the purposes of his employment” at Queanbeyan in New South Wales. Accordingly, New South Wales is the state of connection.

1. Because I am able to arrive at this conclusion on evidence which is common ground between the parties, it is unnecessary for me to consider further the first defendant’s application for me to dismiss the plaintiff’s application on the basis that the Territory or State of connection issue should be determined at trial.  Normally this will be the correct approach, but in the unusual circumstances of this case, having regard to the considerable additional expense to which the parties would be put by postponing a decision until trial, I am satisfied that it is appropriate for me to determine the application at this interlocutory stage.

1. The effect of the determination is that the substantive law of the State of New South Wales governs whether or not the plaintiff can make a damages claim against the first defendant, and if so the determination of that claim. 

1. In the absence of any statutory provision affecting the position under the general law, the plaintiff’s claim against the second defendant will be determined in accordance with the substantive law of the Australian Capital Territory, where the cause of action is said to have arisen. 

1. I shall hear the parties about costs.

   I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.

   Associate:

   Date:    30 September 2011

Counsel for the plaintiff:  Mr J R Sainty
Solicitor for the plaintiff:  Blumers Lawyers
Counsel for the first defendant:  Mr S H Pilkinton
Solicitor for the first defendant:  Moray and Agnew
Solicitor for the second defendant:               Hicksons Lawyers
Date of hearing:  26 September 2011
Date of judgment:  30 September 2011