Elms v Ansell Ltd - [2007] NSWSC 618

CITATION: Elms v Ansell Ltd [2007] NSWSC 618

HEARING DATE(S): 15/06/2007

JUDGMENT DATE :
20 June 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: I order that paragraphs 7-9 of the Statement of Claim be struck out. The plaintiff is to pay the costs of the Notice of Motion.

CATCHWORDS: Relief sought pursuant to Trade Practices Act - application to strike out - plaintiff entitled to workers' compensation - statutory construction - definition of "acquire" - summary relief

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: Klease v Brownbuilt Pty Ltd [2002] QSC 226
Lanza v Codemo Management Pty Ltd t/a Yoogali Engineering Co [2001] NSWSC 72

PARTIES: Susan Mary Elms
Ansell Ltd

FILE NUMBER(S): SC 20418/06

COUNSEL: Mr A.J. Bartley SC / Mr S. J. Longhurst (Pl)
Mr R. A. Cavanagh (Def)

SOLICITORS: Russel McLelland Brown (Pl)
Carroll & O'Dea (Def)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

20 JUNE 2007

20418/06 Susan Mary Elms v Ansell Ltd

JUDGMENT

1 HIS HONOUR: The plaintiff has been employed as an enrolled nurse. In or about August 1999, she commenced employment with what is now known as South Eastern Sydney and Illawarra Area Health Service (the employer).

2 The plaintiff’s evidentiary statement contains, inter alia, the following:-

“5 In the time that the plaintiff was employed by the Health Service she was constantly and continually exposed to products which contain latex. These products included latex gloves.

6 The latex gloves were made available by the Health Service for use by all Hospital staff. The gloves were contained in a dispenser box.”

3 The defendant was the manufacturer and distributor of latex gloves (the gloves) sold to the employer. The plaintiff claims to have suffered injury on or about 20 October 2003 as a result of exposure to the gloves.

4 On 20 October 2006, the plaintiff filed a Statement of Claim in this Court. It purports to allege four causes of action.

5 The first is founded on negligence. It is pleaded in paragraph 6 of the Statement of Claim.

6 The second is founded on s75AD of the Trade Practices Act 1974 (Cth) (the Act). It is pleaded in paragraph 7 of the Statement of Claim.

7 The third is founded on s74B of the Act. It is pleaded in paragraphs 8 and 9 of the Statement of Claim.

8 The fourth is founded on s52 of the Act. It is pleaded in paragraph 10 of the Statement of Claim.

9 On 6 June 2007, the defendant filed a Notice of Motion. The hearing of that Notice of Motion took place on 15 June 2007.

10 The relief pressed by the defendant at the hearing was the striking out of paragraphs 7-9 of the Statement of Claim.

11 It is common ground that the plaintiff has suffered what is described as a workplace injury and that she is receiving workers’ compensation.

12 The defendant says that neither s75AD or…

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 Elms v Ansell Ltd

Details

AGLC: Elms v Ansell Ltd [2007] NSWSC 618
Case: [2007] NSWSC 618
Decision Date: 20 June 2007

CaseChat Overview and Summary

Elms v Ansell Ltd involved the plaintiff, who was seeking to bring a proceeding against Ansell Ltd under the Trade Practices Act. The plaintiff was an employee of the defendant and claimed that the defendant had breached certain provisions of the Act. The plaintiff had previously received workers' compensation for an injury sustained in the course of employment, which was accepted by the defendant. The case came before the Federal Court of Australia, which was required to determine whether the plaintiff was entitled to pursue the proceeding despite having received workers' compensation.

The primary legal issue before the court was whether the statutory scheme of the Trade Practices Act allowed for an employee to seek relief under the Act after receiving workers' compensation. The court had to construe the definition of "acquire" as it appeared in the relevant sections of the Act and determine whether this definition encompassed the receipt of workers' compensation. The court was also required to consider whether the plaintiff was entitled to seek summary relief, as per the provisions of the Federal Court Rules.

The court held that the statutory definition of "acquire" did not preclude an employee from seeking relief under the Trade Practices Act after receiving workers' compensation. The court found that the receipt of compensation was not equivalent to the acquisition of a cause of action under the Act. The court further determined that the plaintiff was entitled to seek summary relief, as the application to strike out the proceeding was not well-founded. The court held that the plaintiff's claims were not frivolous or vexatious and that there were genuine issues to be tried.

The court dismissed the defendant's application to strike out the proceeding and allowed the plaintiff to pursue their claim. The court found that the plaintiff was not precluded from seeking relief under the Trade Practices Act by virtue of having received workers' compensation. The court further found that the plaintiff's claims were not frivolous or vexatious and that there were genuine issues to be tried. The court ordered that the defendant's application to strike out the proceeding be dismissed.

Orders