Hall v Martin

[2020] ACTSC 233

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hall v Martin

Citation:

[2020] ACTSC 233

Hearing Dates:

20 July 2020 – 27 July 2020

DecisionDate:

26 August 2020

Before:

Mossop J

Decision:

See [187]

Catchwords:

CIVIL LAW – NEGLIGENCE – Personal injury – plaintiff injured when boom of crane hit him – first defendant uninsured – first defendant denied any employment relationship – assessment of the credibility of the plaintiff and the first defendant’s evidence – on the balance of probabilities the plaintiff was an employee – consideration of the medical evidence – assessment of damages

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), s 43

Court Procedures Rules 2006 (ACT), r 440(2)
Evidence Act 2011 (ACT), s 106
Workers Compensation Act 1951 (ACT), ss 36B, 182D

Work Health and Safety Regulation 2011 (ACT), ss 33, 34, 35

Cases Cited:

Harris v Coles Supermarkets Australia Pty Ltd [2017] ACTSC 81 Lewis v Woolworths Ltd [2018] ACTSC 200; Aust Tort Reports 82-407

Pidcock v Milosis [2019] ACTSC 209

Ryrie v Tanner (No 2) [2020] ACTSC 104; 92 MVR 27

Parties:

Donovan Hall (Plaintiff)

William Martin (First Defendant)

Workers Compensation Default Insurance Fund Manager (Second Defendant)

Representation:

Counsel

A Stone SC and D Crowe (Plaintiff)

Self-represented (First Defendant)

D Richards (Second Defendant)

Solicitors

AC Lawyers (Plaintiff)

Self-represented (First Defendant)

Minter Ellison (Second Defendant)

File Number:

SC 30 of 2019

MOSSOP J:

Introduction

1. This is a common law claim for damages for personal injury.  The plaintiff alleges that on 30 January 2016 he was injured whilst employed by the first defendant, who conducted a scrap metal business.  That business was conducted from premises in Fyshwick, Australian Capital Territory (ACT).  On the day of the accident the plaintiff alleges that he and another employee, Paul McDonald, were tasked with making a delivery to a property of the first defendant at Cullulla Road in Tarago, New South Wales (NSW). (The correct address is Lower Boro rather than Tarago but as Tarago is referred to in the plaintiff’s claim the locality will be referred to as such in these reasons).  The plaintiff alleges that he was standing on the back of a truck when Mr McDonald operated a crane that was located on the back of the truck in a way that knocked the plaintiff from the vehicle.  He alleges that he fell off the side of the truck and broke his left patella. 

1. The first defendant is the plaintiff’s uncle.  It is alleged that he had employed the plaintiff in his scrap metal business on a cash‑in‑hand basis for about two weeks prior to the accident.  The first defendant did not hold workers compensation insurance. 

1. The second defendant is the Default Insurance Fund (DIF) established under the Workers Compensation Act 1951 (ACT) (WC Act). It requested to be joined as second defendant in the proceedings in anticipation of the first defendant not defending them.

1. On the Friday prior to the commencement of the hearing on the following Monday, the plaintiff filed…