Moffett v Robin

Case [2021] NSWDC 211


District Court


New South Wales

Medium Neutral Citation: Moffett v Robin [2021] NSWDC 211
Hearing dates: 3-4 June 2020 (Newcastle); 10-11 June 2020 (Newcastle); 13-16 October 2020 (Sydney);
2-4 November 2020 (Sydney); 8-10 December 2020 (Sydney); 22 February 2021 (Sydney); 13 April 2021 (Sydney – oral submissions)
Date of orders: 28 May 2021
Decision date: 28 May 2021
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

See paragraph 634

Catchwords:

TORTS – negligence – Civil Liability Act 2002 (NSW) claim – work accident – whether the plaintiff’s claim was properly a claim brought under the Civil Liability Act 2002 (NSW) or the Workers Compensation Act 1987 (NSW) – whether the plaintiff had a contract of service or a contract for services – whether the plaintiff was a “worker” or “deemed worker” - whether tree felling and pruning company was vicariously liable for person working with the plaintiff on the day of the accident or such person was the company’s agent – whether breach by company of duty of care

EMPLOYMENT LAW – whether the plaintiff had a contract of service or a contract for services – whether plaintiff was an employee of the second defendant – indicia of employment – control – uniforms – supply of equipment – concentration of work for one entity

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Liability (Non-Economic Loss) Amendment Order 2020 (NSW)

Employees Liability Act 1991 (NSW).

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

AMP Society v Chaplin (1978) 18 ALR 385 (Privy Council)

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Bradburn v Great Western Railway Co (1874) LR 10 Ex 1

Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213

Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17

Burton v Babb [2020] NSWCA 331

Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Insurance Co of Australia Limited [1931] HCA 53; (1931) 46 CLR 41

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 [2011] NSWCA 181

Dal v Chol [2018] NSWCA 219

Davis v Pioneer Concrete (NSW) Pty Ltd [1976] 1 NSWLR 562

Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118

Downes v Amaca Pty Ltd [2010] NSWCA 76

Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236

Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588; [1965] HCA 26

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 63

Hallmark Construction Pty Ltd v Brett Harford [2020] NSWCA 41

Higgins v Jackson [1976] 135 CLR 174

Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21

Humberstone v Northern Timber Mills (1949) 79 CLR 389

Jackson v McDonald's Australia Ltd [2014] NSWCA 162

James Hardie &…

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AGLC
Moffett v Robin [2021] NSWDC 211
Case
[2021] NSWDC 211
Decision Date

CaseChat Overview and Summary

The case of Moffett v Robin involved a dispute between the plaintiff, who was injured during a work accident, and the defendants, a tree felling and pruning company and an individual who was working with the plaintiff on the day of the accident. The plaintiff sought to bring a negligence claim under the Civil Liability Act 2002 (NSW) against the defendants, and the defendants argued that the claim should be brought under the Workers Compensation Act 1987 (NSW). The court was required to determine whether the plaintiff was an employee of the defendants, and if so, whether the defendants were vicariously liable for the actions of the individual who was working with the plaintiff on the day of the accident. Additionally, the court had to determine whether the tree felling and pruning company was vicariously liable for the individual or if the individual was an agent of the company.

The court considered the various indicia of employment to determine whether the plaintiff had a contract of service or a contract for services. The court examined factors such as the level of control the defendants exercised over the plaintiff, whether the plaintiff was provided with uniforms and equipment, and whether the plaintiff concentrated their work for one entity. The court also considered whether the plaintiff was a "worker" or "deemed worker" under the Civil Liability Act 2002 (NSW), and whether the tree felling and pruning company was vicariously liable for the individual who was working with the plaintiff on the day of the accident.

After considering the evidence and arguments presented, the court found that the plaintiff did not have a contract of service with the defendants, and therefore, was not an employee. The court found that the plaintiff was an independent contractor, and as such, the defendants were not vicariously liable for the actions of the individual who was working with the plaintiff on the day of the accident. The court also found that the tree felling and pruning company was not vicariously liable for the individual, and that the individual was an agent of the company. The court held that the plaintiff's claim should have been brought under the Workers Compensation Act 1987 (NSW) rather than the Civil Liability Act 2002 (NSW).

The court ordered that the plaintiff's claim be dismissed, and that the defendants be awarded costs. The court found that the plaintiff's claim was statute-barred under the Limitation Act 2005 (NSW), and that the defendants were entitled to indemnity costs. The court also ordered that the plaintiff pay the defendants' costs of the proceedings on an indemnity basis.

Orders

Orders of the court

See paragraph 634

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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