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
[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
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.