McMahon Services Pty Ltd v Cox - [2001] SASC 33

McMAHON SERVICES PTY LTD v COX
[2001] SASC 33

Full Court: Olsson, Duggan and Williams JJ

1................ OLSSON J....... I have had the advantage of reading the judgment of Duggan J in draft. I agree both with his reasoning and that the appeal must be dismissed. There is little that I would wish to add.

I particularly agree that the legislation does not contemplate that a worker should, or could, have two quite separate “employers” simultaneously in relation to performance of the same work.
It is to be remembered that the evil which was sought to be addressed, when the definition of “contract of service” was introduced with its present sub paragraph (b), was the undesirable stratagem of the entry into “sub contracting” arrangements (particularly within the building industry) with a specific intention of avoiding, inter alia, the creation of any contract of service at all, with its concomitant workers compensation obligations. That was not the instant situation.
Moreover, in the case at bar, there was no relevant direct legal relationship direct as between the appellant and the respondent. The appellant contracted with the respondent’s employer for the supply of labour, for which it paid the employer the requisite fee. The respondent at all times remained in the employ of Extraman Pty Ltd. His labour was simply hired from it in the same manner as an item of plant might have been hired. The fact that he was subject to the direction of an employee of the appellant as to precisely what work was to be done did not alter the nature of the fundamental relationships involved.
It follows that, contrary to the appellant’s submission, the respondent did not ever “work for” it in the relevant statutory sense.

6................ DUGGAN J..... The respondent was injured in a work accident which occurred on 13 January 1995. At the time of the accident he was working on the roof of a building at the Defence, Science and Technology Organisation at Salisbury. While he was removing asbestos sheets from the roof of the building he fell through the roof to the ground and suffered personal injuries.

The respondent commenced an action in the District Court for damages for the injuries which he sustained. The statement of claim alleges that the injuries were caused as a result of the negligence of the appellant, McMahon Services Pty Ltd (McMahon). At the hearing of the action in the District Court a finding of negligence was made against McMahon and judgment was entered for the respondent in the sum of $224,167.30.
It is not in dispute that, at the time of the accident, the respondent was employed by Extraman Pty Ltd (Extraman), an agency which supplied labourers to building construction sites. He was directed to the building site after a request was made by McMahon to Extraman for labourers.
After the accident the respondent received payments by way of compensation under the Workers Rehabilitation and Compensation Act

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 McMahon Services Pty Ltd v Cox

Details

AGLC: McMahon Services Pty Ltd v Cox [2001] SASC 33
Case: [2001] SASC 33
Decision Date: 8 March 2001

CaseChat Overview and Summary

McMahon Services Pty Ltd v Cox is a case in which Cox, who was injured in a work accident while performing tasks at a building site, sought damages from McMahon Services Pty Ltd (McMahon) for negligence. Cox, who was employed by Extraman Pty Ltd, an agency that supplied laborers to building sites, was working on a roof when he fell and sustained injuries. McMahon, which had requested laborers from Extraman, was found negligent by the District Court, which awarded Cox damages. McMahon appealed, arguing that Cox was its employee under the Workers Rehabilitation and Compensation Act 1986 (the Act), and thus, Cox's claim for common law damages was barred by the Act. The appeal focused on whether Cox was an employee of McMahon under the Act, considering the definitions of "employment," "employer," and "contract of service" within the Act.

The Full Court of the Supreme Court of South Australia, comprising Olsson, Duggan, and Williams JJ, dismissed the appeal. The court held that Cox was not an employee of McMahon under the Act because there was no contract, arrangement, or understanding between Cox and McMahon that met the definition of a "contract of service." The relationship between Cox and McMahon was limited to Cox performing tasks directed by McMahon's foreman while remaining an employee of Extraman. The court emphasized that the Act does not contemplate a worker being employed by two employers simultaneously for the same work. The court concluded that Cox was employed by Extraman and hired out to McMahon, retaining his employee status with Extraman. Therefore, Cox was not an employee of McMahon for the purposes of the Act, and McMahon's appeal was dismissed.

Orders