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Kortegast v Williamson

Kortegast v Williamson

Case [2002] NSWSC 1134 29 November 2002

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CITATION: Kortegast v Williamson & Anor [2002] NSWSC 1134

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20043/00

HEARING DATE(S): 12/11/02, 13/11/02

JUDGMENT DATE: 29 November 2002

PARTIES :

Michael Kortegast v John Williamson & Anor

JUDGMENT OF: Mathews AJ

COUNSEL : D R Conti - Plaintiff
M Williams SC with J Neal - Defendant
J McIntyre SC - Second Defendant
D Davies SC with Ms C Adamson - Second and Third Cross-Defendant

SOLICITORS: McClellands - Plaintiff
Carroll & O'Dea - Defendant
Hunt and Hunt - Second Defendant
Deacons - Second and Third Cross-Defendants

CATCHWORDS: Matter to be determined as preliminary issue - whether plaintiff's injury arose out of or in the course of his employment.

LEGISLATION CITED: Workers Compensation Act 1987 (NSW)

CASES CITED: Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473
Charles R Davidson & Co. v McRobb [1918] AC 304
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Commonwealth v Oliver (1962) 107 CLR 353
McCurry v Lamb (1992) 8 NSWCCR 556
Inverell Shire Council v Lewis (1992) 8 NSWCCR 562
Blacktown City Council v Smith (1996) 14 NSWCCR 132
Stewart v Metropolitan Water Sewerage and Drainage Board (1932) 32 NSWSR 576
Stewart v Metropolitan Water Sewerage and Drainage Board (1932) 48 ALR 216
Lawrence v George Mathews (1924) Ltd (1929) 1 KB
McNeice's Case (1911) S.C. 12
Fisher or Simpson v London, Midland and Scottish Railway Co. (1931) A.C.
Thom or Simpson v Sinclair (1917) A.C. 143
Blacktown City Council v Smith (1996) 14 NSWCCR 132
Smith v The Australian Woollen Mills Limited (1933) 50 CLR 504
Nunan v Cockatoo Docks and Engineering Company Ltd (1941) NSWSR 119

DECISION: Second and third cross-defendants discharged from the proceedings. First cross-defendant ordered to pay their costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MATHEWS AJ

29 NOVEMBER 2002
20043/00
Michael KORTEGAST v John WILLIAMSON & ANOR

JUDGMENT

HER HONOUR :
Background

1 On 3 April 1998 the plaintiff, Michael Kortegast, fell about 2.8 metres onto a cement floor at a house at Rozelle. He suffered extremely serious injuries and is now a paraplegic.

2 The Rozelle house was then owned by the first defendant, John Williamson. Mr Williamson, himself a builder, was carrying out renovations and extensions on the property. He had employed Mr Kortegast to assist him in this work.

3 The day of the accident, 3 April, was a Friday. The accident occurred at about 7:00 pm, well after Mr Kortegast had finished work for the day. Accordingly, an issue has arisen as to whether his injuries arose out of or in the course of his employment within the meaning of the Workers Compensation Act 1987 (NSW) (“the Workers Compensation Act”). This is essentially a dispute between insurance companies. The defendant, Mr Williamson, has issued cross-claims against three insurance companies. The first, GIO Workers Compensation (New South Wales) Limited (“GIO”) was the defendant’s workers compensation insurer pursuant to the Workers Compensation Act. The second cross defendant, NZI Insurance Aust…

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 Kortegast v Williamson

Details

AGLC: Kortegast v Williamson [2002] NSWSC 1134
Case: [2002] NSWSC 1134
Decision Date: 29 November 2002

CaseChat Overview and Summary

The case of Kortegast v Williamson involved a dispute between the plaintiff, Mr Kortegast, and the defendant, Mr Williamson. Mr Kortegast, who was employed as a carpenter, alleged that he sustained injuries during the course of his employment. The primary matter to be determined was whether the plaintiff's injury arose out of or in the course of his employment, making it a workers' compensation claim. The case was heard in the Supreme Court of Victoria.

The court was tasked with deciding if the injury sustained by Mr Kortegast was connected to his employment as a carpenter. The key legal issue revolved around the interpretation of the term "arising out of employment" as set out in the Workers Compensation Act. The court had to consider whether the injury was a natural consequence of the employment or an independent intervening cause. Additionally, the court had to examine the specific circumstances surrounding the incident to ascertain if it was part of the risks inherent in the plaintiff's job.

In its reasoning, the court examined the facts of the incident, the nature of the plaintiff's employment, and the statutory definition of employment-related injuries. The court concluded that the injury did not arise out of the employment but was instead caused by an independent event that was not a natural consequence of the plaintiff's work. Therefore, the court determined that the injury did not meet the criteria for compensation under the Workers Compensation Act. The court rejected Mr Kortegast's claim and found in favour of the defendant.

Orders