Leo N Dunn & Sons Pty Ltd v McPhillamy - [2000] NSWCA 343

CITATION: LEO N DUNN & SONS PTY LTD v McPHILLAMY [2000] NSWCA 343

FILE NUMBER(S): CA 40964/99

HEARING DATE(S): 13 November 2000

JUDGMENT DATE:
13 November 2000

PARTIES :

LEO N DUNN & SONS PTY LTD v Paul Robert McPHILLAMY

JUDGMENT OF: Mason P at 1; Meagher JA at 22; Heydon JA at 23

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 5505/99

LOWER COURT
JUDICIAL OFFICER : Herron DCJ

COUNSEL: Claimant/Appellant: J D Hislop/ D Kelly
Opponent/Respondent: M Sneddon

SOLICITORS: Claimant/Appellant: McCulloch & Buggy
Opponent/Respondent: Lee Fevre Pike

CATCHWORDS: Workers compensation - truck driver suffers back injury over time in consequence of twisted seat shuddering - s151D Workers Compensation Act - outside three year limitation period - use or operation of the vehicle - definition of "claim" for purposes of Part 5 Motor Accidents Act - "claim" when used in Part 5 Motor Accidents Act means claim arising out of motor accident notwithstanding more limited definition in s40(1) - opponent’s claim is one relating to injury arising out of nature and conditions of employment - appeal dismissed. (ND)

DECISION: Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40964/99

MASON P
MEAGHER JA
HEYDON JA
Monday 13 November 2000

LEO N DUNN & SONS PTY LTD v Paul Robert McPHILLAMY
JUDGMENT

1 MASON P: In 1999 the opponent sought and was granted leave pursuant to s51D(2) of the Workers Compensation Act 1987 to commence proceedings against the claimant. The proceedings, as indicated in the draft ordinary statement of claim, alleged that the opponent was the employee of the claimant, in particular between 1 January 1996 and 1 August 1996. The evidence showed that during that period and perhaps for some time prior to then, the opponent had been employed as an interstate truck driver. As such, he was required to drive an International prime mover with attached triaxle tanker. It is pleaded that he suffered back injury in consequence of the claimant’s negligence, in particular through the shuddering of the cabin in the prime mover which occurred when driven at between ninety and one hundred kilometres per hour when the tanker was empty, and through sitting in a twisted seat. 2 The draft statement of claim does not plead that the claimant was the owner of the truck, although this fact was established in the hearing before Judge Herron. 3 Section 151D of the Workers Compensation Act provides:

Time Limit for Commencement of Court Proceedings Against Employer for Damages

(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this…

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: [2000] NSWCA 343
Decision Date: 13 November 2000

CaseChat Overview and Summary

Leo N Dunn & Sons Pty Ltd appealed to the New South Wales Court of Appeal against a decision concerning a workers compensation claim. The dispute involved a truck driver who suffered a back injury over time due to the twisting and shuddering of his vehicle's seat. The primary issue was whether the claim was barred by the three-year limitation period stipulated in section 151D of the *Workers Compensation Act 1987* (NSW).

The Court of Appeal was required to determine two key legal issues. Firstly, whether the injury sustained by the truck driver arose out of the "use or operation of the vehicle" for the purposes of section 151D. Secondly, the Court had to consider the definition of a "claim" within Part 5 of the *Motor Accidents Act 1988* (NSW) and whether it applied to the workers compensation claim, notwithstanding a more limited definition of "claim" in section 40(1) of the *Workers Compensation Act*.

The Court reasoned that the injury, while occurring over time due to the nature of the employment and the conditions of the vehicle, did not arise out of the "use or operation of the vehicle" in the manner contemplated by section 151D. Furthermore, the Court held that the definition of "claim" in Part 5 of the *Motor Accidents Act* was intended to encompass claims arising out of motor accidents, and this broader definition should apply even when considering a workers compensation claim under the *Workers Compensation Act*. The Court concluded that the opponent's claim was one relating to injury arising out of the nature and conditions of employment, rather than the direct use or operation of the vehicle.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

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.

CITATION:	LEO N DUNN & SONS PTY LTD v McPHILLAMY [2000] NSWCA 343
FILE NUMBER(S):	CA 40964/99
HEARING DATE(S):	13 November 2000
JUDGMENT DATE:	13 November 2000
PARTIES :	LEO N DUNN & SONS PTY LTD v Paul Robert McPHILLAMY
JUDGMENT OF:	Mason P at 1; Meagher JA at 22; Heydon JA at 23

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5505/99
LOWER COURT JUDICIAL OFFICER :	Herron DCJ

COUNSEL:	Claimant/Appellant: J D Hislop/ D Kelly Opponent/Respondent: M Sneddon
SOLICITORS:	Claimant/Appellant: McCulloch & Buggy Opponent/Respondent: Lee Fevre Pike
CATCHWORDS:	Workers compensation - truck driver suffers back injury over time in consequence of twisted seat shuddering - s151D Workers Compensation Act - outside three year limitation period - use or operation of the vehicle - definition of "claim" for purposes of Part 5 Motor Accidents Act - "claim" when used in Part 5 Motor Accidents Act means claim arising out of motor accident notwithstanding more limited definition in s40(1) - opponent’s claim is one relating to injury arising out of nature and conditions of employment - appeal dismissed. (ND)
DECISION:	Appeal dismissed with costs