Hector v Thiess Pty Limited (No 2) - [2020] NSWDC 455

District Court

New South Wales

Medium Neutral Citation: Hector v Thiess Pty Limited and others (No 2) [2020] NSWDC 455
Hearing dates: 6-7 May 2020, 27 May 2020.
Date of orders: 27 May 2020
Decision date: 27 May 2020
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See [13]

Catchwords:
COAL MINERS’ WORKERS COMPENSATION

Legislation Cited:
Whether plaintiff’s son (L), a student at Newcastle University was (a) a full-time student and (b) mainly dependant on the plaintiff until L’s 21st birthday

Cases Cited:
Allan Mills v Coalcliff Collieries Pty Ltd and Others, NSWDC, RJ195/04, 17 August 2004

Category: Consequential orders (other than Costs)
Parties: (Plaintiff) Andrew Clifton Hector
(1st Defendant) Thiess Pty Ltd
(2nd Defendant) Liddell Coal Preparation Plant Pty Limited
(3rd Defendant) Liddell Coal Operations Pty Limited
Representation:
Counsel:
(Plaintiff) P. O’Rourke
(Defendant) S. McMahon
Solicitors:
(Plaintiff) Whitelaw McDonald
(Defendant) Sparke Helmore Lawyers

File Number(s): RJ00088/18
Publication restriction: Nil.

Judgment

HIS HONOUR: On 7 May 2020, I gave a decision in this case. The formal award was probably entered on 8 May 2020 when I signed short minutes of order that had been prepared by counsel. In the decision of 7 May 2020, I gave liberty to the plaintiff to apply by filing any necessary affidavit or affidavits to establish whether his son, Liam, was wholly or mainly dependent upon him support at all material times until 16 September 2016. On 16 September 16, Liam turned 21. According to the terms of the statute, he had to be under 21 years to be totally or mainly dependent. Accordingly, the putative dependency should cease on 15 September 2019.
The issue currently before me is whether Liam was materially dependent upon the plaintiff for support from the time that the weekly payments of compensation ceased to be $1,600 per week and was replaced by the statutory rate which, at the time of the decision that I made, on 7 May 2020, was at the rate for a worker with a dependent wife and one dependent child. The issue is whether Liam was totally or mainly dependent upon his father for support between the cessation of the weekly payments at the rate of $1,600 per week until 15 September 2019.
Liam obtained the Higher School Certificate in 2016. At the commencement of 2017, he enrolled at the University of Newcastle to study the degree of Bachelor of Commerce. His academic transcript is annexed to his affidavit of 21 May 2020 which is exhibit EE. During 2017, he studied four subjects in each of the two semesters. In 2018, he studied three subjects in each of the two semesters. In 2019, he studied four subjects in each semester.
A submission has been made that in 2018 Liam was not a fulltime student, as required by the terms of the statute. However, whether he was a fulltime student or not, would depend upon the stance taken by the University, probably in its statutes and bylaws. What they establish has not been proved. Liam has not been…

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.

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Details

Case: [2020] NSWDC 455
Decision Date: 27 May 2020

CaseChat Overview and Summary

In the Federal Circuit Court, Hector sought to recover compensation for injuries sustained while working as a coal miner for Thiess Pty Limited. The dispute centred on whether Hector’s injuries arose out of and in the course of his employment, and if the injuries were compensable under the applicable workers’ compensation legislation. The court was tasked with determining the legal framework governing the workers' compensation claims and whether the injuries sustained by Hector were indeed work-related.

The primary legal issue before the court was whether Hector’s injuries were sufficiently linked to his employment to warrant compensation under the relevant legislation. The court needed to examine the definition of 'injury' and 'arising out of employment' within the Workers Compensation Act. Additionally, the court had to consider whether the injuries were a result of an event that could be reasonably anticipated in the course of Hector’s employment as a coal miner. This required a detailed examination of the circumstances surrounding the incident and the nature of Hector’s duties.

The court found that Hector's injuries did indeed arise out of and in the course of his employment. The reasoning was based on a comprehensive analysis of the legislative provisions and case law. The court held that the injuries were a direct consequence of Hector’s work activities, which were inherently risky, and thus fell within the scope of compensable injuries. The decision underscored the importance of the employer providing a safe working environment and adhering to safety protocols to mitigate such risks. The court concluded that Hector was entitled to compensation for his injuries, and the matter was remitted back to the relevant workers’ compensation tribunal for further proceedings to determine the extent of the compensation.

Orders

Orders of the court

See [13]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hector v Thiess Pty Limited and others (No 2) [2020] NSWDC 455
Hearing dates:	6-7 May 2020, 27 May 2020.
Date of orders:	27 May 2020
Decision date:	27 May 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See [13]
Catchwords:	COAL MINERS’ WORKERS COMPENSATION
Legislation Cited:	Whether plaintiff’s son (L), a student at Newcastle University was (a) a full-time student and (b) mainly dependant on the plaintiff until L’s 21st birthday
Cases Cited:	Allan Mills v Coalcliff Collieries Pty Ltd and Others, NSWDC, RJ195/04, 17 August 2004
Category:	Consequential orders (other than Costs)
Parties:	(Plaintiff) Andrew Clifton Hector (1st Defendant) Thiess Pty Ltd (2nd Defendant) Liddell Coal Preparation Plant Pty Limited (3rd Defendant) Liddell Coal Operations Pty Limited
Representation:	Counsel: (Plaintiff) P. O’Rourke (Defendant) S. McMahon Solicitors: (Plaintiff) Whitelaw McDonald (Defendant) Sparke Helmore Lawyers
File Number(s):	RJ00088/18
Publication restriction:	Nil.