Ferguson v WorkCover Queensland

Case [2013] QSC 78

SUPREME COURT OF QUEENSLAND

CITATION:

Ferguson v WorkCover Queensland [2013] QSC 78

PARTIES:

TRENT LESLIE FERGUSON
(applicant)
v
WORKCOVER QUEENSLAND
(respondent)

FILE NO/S:

10984 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2013

JUDGE:

Applegarth J

ORDER:

The application is dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – INSURANCE AND LEVIES – LIABILITY OF INSURERS AND STATUTORY AUTHORITIES – OTHER MATTERS – where applicant employed as a delivery driver – where deliveries made from employer’s warehouse in Tweed Heads – where applicant delivers stock in Queensland and in New South Wales – where majority of applicant’s deliveries made in Queensland ­– where applicant injured during employment – whether applicant’s employment connected with Queensland for the purpose of s 113 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether applicant’s employment connected with New South Wales for the purpose of s 155 of the Workers’ Compensation Act 1987 (NSW) – whether applicant “usually works” in New South Wales as well as in Queensland – whether applicant “usually based” in Queensland or in New South Wales

Workers’ Compensation Act 1987 (NSW), s 9AA, s 155
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 10, s 48, s 113

Avon Products Pty Ltd v Falls (2009) 236 FLR 212; [2009] ACTSC 141, cited
Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34; [2010] ACTCA 21, considered
Hanns v Greyhound Pioneer Australia Ltd (2006) 196 FLR 361; [2006] ACTSC 5, considered
Martin v R J Hibbens Pty Ltd (2010) 8 DDCR 535; [2010] NSWWCCPD 83, considered
RHG Home Loans Pty Ltd v Employers Mutual New South Wales Ltd [2012] 1 Qd R 262; [2011] QSC 28, cited
Tamboritha Consultants Pty Ltd v Knight (2008) 58 SR (WA) 291; [2008] WADC 78, considered
Weir Services Australia Pty Ltd v Allianz Australia Insurance Ltd [2013] NSWSC 26, cited

COUNSEL:

L M Willson for the applicant
R M Treston for the respondent

SOLICITORS:

Parker Simmonds for the applicant
DibbsBarker for the respondent

  1. The applicant was injured on 5 May 2010 when he was employed by Reece Pty Ltd (“Reece”) as a delivery driver.  The truck he drove was based at Reece’s Tweed Heads Onsite warehouse, just over the New South Wales border.  Organisationally, the Tweed Heads Onsite branch formed part of Reece’s Queensland operations, with the Warehouse Manager reporting to Reece’s State Manager – Queensland.

  1. The applicant’s duties as a delivery driver included delivering products in an area that extended to Beenleigh in the north, Jimboomba, Beaudesert and Springfield Lakes in the west and Casino and Lismore in the south.  The applicant’s evidence is that in the last six months before his injury, 70 or 80 per cent of his deliveries were in Queensland, with many of them to Springfield Lakes.  The applicant’s manager at the time, Mr Cuddeford, confirmed that the applicant would make deliveries two or three times…

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Details
AGLC
Ferguson v WorkCover Queensland [2013] QSC 78
Case
[2013] QSC 78
Decision Date

CaseChat Overview and Summary

The case of Ferguson v WorkCover Queensland involved the applicant, who was employed as a delivery driver, making deliveries from his employer's warehouse in Tweed Heads. The majority of his deliveries were made in Queensland, but he also made deliveries in New South Wales. The applicant was injured during the course of his employment and sought to determine his entitlement to workers' compensation under the respective acts of Queensland and New South Wales. The central issue before the court was whether the applicant's employment was sufficiently connected to Queensland or New South Wales to entitle him to compensation under the relevant workers' compensation legislation.

The court had to decide whether the applicant's employment was connected with Queensland for the purposes of section 113 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and whether it was connected with New South Wales for the purposes of section 155 of the Workers’ Compensation Act 1987 (NSW). The court also needed to determine whether the applicant "usually works" in New South Wales as well as in Queensland and whether he was "usually based" in Queensland or New South Wales. The court considered the applicant's work patterns, the location of his employer's warehouse, and the nature of his job in making these determinations.

The court held that the applicant's employment was not sufficiently connected with Queensland to entitle him to compensation under the Queensland Act. The court found that the majority of the applicant's work was performed in New South Wales, and thus, he was entitled to compensation under the New South Wales Act. The court concluded that the applicant was not "usually based" in Queensland, and therefore, the application was dismissed. The court did not find it necessary to determine whether the applicant "usually works" in New South Wales as well as in Queensland, as the primary issue was resolved by the finding that the applicant was not "usually based" in Queensland.

The court's final order was that the application was dismissed. This decision meant that the applicant's claim for workers' compensation under the Queensland Act was unsuccessful, and the case was closed. The applicant was, however, entitled to pursue a claim for workers' compensation under the New South Wales Act, as the court found that his employment was connected with New South Wales.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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