Gary Martin v Kevin Teeling - [2010] NSWSC 814

CITATION: Gary Martin v Kevin Teeling [2010] NSWSC 814

HEARING DATE(S): 24 June 2010

JUDGMENT DATE :
27 July 2010

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The notice of motion filed 19 March 2010 is dismissed.
(2) The matter is listed for a status conference on 10 August 2010 at 9.00 am before the Registrar.
(3) The defendant is to pay the plaintiff;s costs as a greed or assessed.

CATCHWORDS: SUMMARY JUDGMENT - Whether under s 151 of Workers Compensation Act 1987 a father is precluded from nervous shock claim over death of son because they share the same employer

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Law Reform (Miscellaneous Provisions) Act 1946

CATEGORY: Procedural and other rulings

CASES CITED: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported)
Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [2007] 70 NSWLR 268
Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125
Gifford v Strang Patrick Stevedoring Pty Limited [2003] HCA 33; (2003) 214 CLR 269
Kimberley-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264; (2006) 67 NSWLR 187
Stryke Corporation Pty Limited v Miskovic (2007) NSWCA 72
Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598
Workers Compensation Board of Queensland v Technical Products Pty Limited [1988] HCA 49; (1988) 165 CLR 642

PARTIES: Gary Martin (Plaintiff)
Kevin Teeling trading as Teelings Recycling Centre (Defendant)

FILE NUMBER(S): SC 2009/297727

COUNSEL: T McKenzie (Plaintiff)
P Menary (Defendant)

SOLICITORS: Taylor & Scott (Plaintiff)
Sparke Helmore (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 27 JULY 2010
2009/297727 GARY MARTIN v KEVIN TEELING t/as

TEELINGS RECYCLING CENTRE

JUDGMENT (Summary judgment - whether under s 151

Workers Compensation Act 1987 a father is precluded from nervous shock claim over death of son because they share the same employer)

1 HER HONOUR: By notice of motion filed 19 March 2010, the defendant seeks firstly, an order that the plaintiff’s claim be summarily dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005; or second, in the alternative, an order that the statement of claim be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005.

2 The plaintiff is Gary Martin (“Gary Martin”). The defendant is Kevin Teeling t/as Teelings Recycling Centre (“Teelings”). Teelings relied on the affidavit of Scott Murray sworn 18 March 2010.

3 Gary Martin was the father of Corey Martin who was killed on 28 October 2006 in an industrial accident while working for Teelings. Corey Martin was working as a casual employee for Teelings when he was required to work on oran near a machine that was used to compact and recycle cardboard and plastic. While working…

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.

Keep reading for free

Create a free CaseChat account to read Gary Martin v Kevin Teeling and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 814
Decision Date: 27 July 2010

CaseChat Overview and Summary

In the case of Gary Martin v Kevin Teeling, the Court was asked to determine whether the father of a deceased individual could bring a claim for nervous shock as a result of witnessing the death of his son. The deceased, a worker employed by Kevin Teeling, was involved in a fatal incident at work. Gary Martin, the father of the deceased, sought to bring a claim for nervous shock arising from witnessing the incident. The Court of Appeal was required to consider whether section 151 of the Workers Compensation Act 1987 precluded a parent from bringing such a claim when they share the same employer as the deceased. The primary issue before the Court was whether the statutory provision, which bars claims for nervous shock by employees who witness the death of a fellow employee, also applied to a parent who was also an employee of the same employer. The Court examined the language and purpose of the statute and the relationship between the deceased and the plaintiff to determine the applicability of the statutory bar.

The Court found that the statutory provision was intended to protect employers from vicarious liability for claims by employees witnessing the death of a fellow employee. The Court held that the provision was not intended to bar claims by parents who were also employees of the same employer. The Court reasoned that the statutory bar was limited to employees who witnessed the death of a fellow employee and did not extend to a parent who was also an employee. The Court found that the relationship between a parent and child was not analogous to the relationship between employees and that the statutory bar was not intended to apply to such a relationship. The Court held that the father was not precluded from bringing a claim for nervous shock arising from witnessing the death of his son.

The Court of Appeal dismissed the appeal and held that the father was not precluded from bringing a claim for nervous shock arising from witnessing the death of his son. The Court found that the statutory bar was not intended to apply to a parent who was also an employee of the same employer and that the father was not barred from bringing such a claim. The Court's decision provides clarity on the scope of the statutory bar and the circumstances in which a parent may bring a claim for nervous shock arising from witnessing the death of their child. The Court's decision also highlights the importance of considering the relationship between the deceased and the plaintiff when interpreting statutory provisions.

Orders