Bailey v Martin (Unreported, County Court of Victoria, Judge Lawson, 8 February 2008)
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ACCIDENT COMPENSATION – Common law proceedings – Whether proceeding barred by statute – Whether plaintiff worker entitled to statutory compensation – Whether injury ‘arose out of’ employment – Whether injury ‘arose in the course of’ employment – Whether dispute related to employer’s business – Worker made racist remark – Whether worker abandoned employment – Whether private quarrel – Accident Compensation Act1985 (Vic) ss 82, 134AB.
WORDS AND PHRASES – ‘arising out of employment’; ‘arising in the course of employment’.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr S R McCredie
Sofra Solicitors
For the Respondent
Mr R N J Young
J G Thompson Solicitors
MAXWELL P:
Background to the appeal and issues for determination
On 2 February 2007, the respondent (‘Bailey’) commenced proceedings in the County Court against the appellant (‘Martin’) seeking damages for assault. The statement of claim alleged three separate assaults, two on 16 September 2005 and the third on 5 September 2006.
Martin’s defence contended that the claim in respect of the September 2005 assaults was barred by s 134AB of the Accident Compensation Act 1985 (Vic) (the ‘Act’). That section prohibits – subject to specified exceptions – the commencement of a personal injury claim at common law if the plaintiff’s injury arose out of, or in the course of, his employment, unless certain preconditions are met.
By consent the issue raised by the defence came on for preliminary determination before her Honour Judge Lawson. The submission for Martin was essentially as follows. At the time of the 2005 assaults, Bailey was performing his duties as a manager of a farm. Any injuries suffered by Bailey therefore arose out of, or in the course of, that employment. Accordingly, since Bailey had not brought himself within any of the exceptions in s 134AB, he was prevented by the Act from commencing proceedings for damages at common law in respect of those assaults.
Her Honour rejected the defence contention. She ruled that Bailey’s injuries did not arise out of or in the course of his employment, and ordered that the relevant part of Martin’s defence be struck out. Her Honour said:
Given my finding that Martin was the perpetrator of the assault I find that there is not a sufficient connection between the employment and the plaintiff’s injury.
Martin now appeals against that ruling on two grounds, as follows:
1.Upon the facts found the learned trial judge was compelled to hold that any injury sustained by [Bailey] by reason of the assault which allegedly occurred on [16 September 2005] arose out of or in the course of his employment by Kaarimba Bulk…
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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AGLC
Martin v Bailey [2009] VSCA 263
Case
[2009] VSCA 263
Decision Date
CaseChat Overview and Summary
In the matter of Martin v Bailey, the plaintiff, Martin, sought compensation for injuries sustained in an altercation that occurred during his employment with Bailey. Martin, who was employed as a delivery driver, made a racist remark to his colleague, leading to a physical altercation. Martin sustained injuries during the fight and sought both common law damages and statutory compensation under the Accident Compensation Act 1985 (Vic). The court was required to determine whether the statutory compensation was barred by the common law proceeding and whether Martin was entitled to statutory compensation. The key legal issues were whether the injury arose out of employment, whether it arose in the course of employment, and whether the dispute related to the employer's business.
The court examined the definitions of "arising out of employment" and "arising in the course of employment" and determined that the injury did indeed arise out of the employment as it was a direct result of the altercation between the two employees. However, the court found that the injury did not arise in the course of employment because the dispute was not related to the employer's business. The court held that the altercation was a private quarrel between the two employees and did not relate to the employer's business. Therefore, Martin's claim for statutory compensation was barred by the common law proceeding.
The court found that Martin was not entitled to statutory compensation under the Accident Compensation Act 1985 (Vic). The court held that the injury did not arise in the course of employment, and therefore, Martin's claim for statutory compensation was dismissed. The court also found that Martin abandoned his employment by making the racist remark, which led to the altercation. Therefore, Martin was not entitled to any common law damages. The court held that the dispute was a private quarrel and not related to the employer's business.
The final orders of the court were that Martin's claim for statutory compensation was dismissed, and his claim for common law damages was also dismissed. The court held that the dispute was a private quarrel and not related to the employer's business, and therefore, Martin was not entitled to any compensation.