Moir v I.C. Formwork Services Pty Limited
[2019] ACTSC 246
•30 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Moir v I.C. Formwork Services Pty Limited |
Citation: | [2019] ACTSC 246 |
Hearing Date: | 30 August 2019 |
DecisionDate: | 30 August 2019 |
Before: | Elkaim J |
Decision: | See [34] |
Catchwords: | NEGLIGENCE – WORKERS COMPENSATION – Personal Injury – Back injury sustained by plaintiff – Territory or State of connection – whether or not the plaintiff usually worked within the Australian Capital Territory |
Legislation Cited: | Workers Compensations Act 1951 (ACT) ss 36B, 182D |
Cases Cited: | Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; 196 FLR 361 Tapia v Woolworths [2016] ACTSC 129; 310 FLR 265 |
Parties: | Nigel Moir (Plaintiff) I.C. Formwork Services Pty Limited (Defendant) |
Representation: | Counsel J Sainty (Plaintiff) A Muller (Defendant) |
| Solicitors Blumers Personal Injury Lawyers (Plaintiff) Minter Ellison (Defendant) | |
File Numbers: | SC 169 of 2018 |
ELKAIM J:
1. The plaintiff commenced proceedings with the filing of an Originating Claim on 20 April 2018. The annexed Statement of Claim seeks damages arising from an injury suffered by the plaintiff, in the course of his work, on 26 May 2015. The defendant was the plaintiff’s employer.
2. According to the Statement of Claim the plaintiff hurt his back when he was required to lift a very heavy formwork shutter at a worksite in Willinga Park in New South Wales. Willinga Park is in a coastal town called Bawley Point. There is an Amended Statement of Claim but it does not affect the relevant issues presently before me.
3. Paragraph 1.4 of the Statement of Claim asserts that, for the purposes of section 182D of the Workers Compensation Act 1951 (ACT), the law to be applied is that of the ACT.
4. The defendant, by a Defence filed on 22 August 2018, has denied the assertion made in paragraph 1.4. The defendant says the applicable law is that of New South Wales. The distinction is important because the respective laws of NSW and ACT are different and whichever is applicable, will produce a very different result for the plaintiff. Suffice to say the plaintiff is much better off under ACT law.
5. On 21 March 2019 the plaintiff filed an Application in Proceeding in which he seeks a declaration to resolve the issue raised by paragraph 1.4.
6. The application is supported by affidavits from the plaintiff’s solicitor, Ms Kristen Taylor, sworn on 20 March 2019 and the plaintiff’s own affidavit sworn on the same date. The defendant relies on affidavits of Mr Lino Sella, affirmed on 22 August 2019, Mr Steve Zilic, affirmed on 23 August 2019 and Mr Albino Imbriano, affirmed on 23 August 2019. Mr Sella and Mr Zilic were, at the relevant time, employees of the defendant. Mr Imbriano was a founder of the defendant company and was working as the construction superintendent at the relevant time.
7. All of the deponents of the affidavits, except Ms Taylor, were cross-examined. I found each witness to be endeavouring to provide an honest recollection, however I was particularly impressed by the plaintiff. To the extent that there is any conflict between the evidence of the witnesses, I prefer that of the plaintiff.
8. It is first of all necessary to give some brief history. The defendant is a company that provides formwork services to the building industry. The plaintiff is a formworker who over the years has become very well respected and regarded in his work.
9. The plaintiff seems to have started working for the defendant in Sydney in about 1999. He also worked on the Olympic Games site in Sydney for the defendant. Shortly thereafter however he moved to the Canberra area (although perhaps residing in NSW) and worked predominantly in the ACT.
10. The plaintiff initially worked on a subcontract basis, although as I understand it, exclusively for the defendant, and then in about 2009 became a full-time employee of the defendant.
11. In 2012 the plaintiff worked for approximately a month in Bawley Point. At the end of May 2014 the plaintiff injured his left ankle while working at a jobsite in the ACT. He was off work for about a week and then commenced a graduated return to work at the defendant’s premises in Queanbeyan.
12. The graduated return to work was part of a rehabilitation process and in my view could not be considered to be the plaintiff doing his usual work.
13. There was some evidence to suggest that prior to 2016 the defendant had an office in Hume in the ACT. I think this is probably incorrect and that its base was in Queanbeyan until the defendant moved its ‘yard’ to Hume in 2016.
14. On 2 September 2014 the plaintiff had surgery to his left ankle. About five weeks later he returned to light work
inat the Queanbeyan premises.15. By this time the defendant had been contracted to do some obviously fairly extensive work in Bawley Point. It is important to note that, as a general statement, the majority of the defendant’s business was carried out at work sites in the ACT.
16. The work in New South Wales required a high level of expertise. For this reason the defendant requested the plaintiff to join the team working at Bawley Point. By this time the plaintiff was married with three children. The natural consequences of his reduced wages, while on workers compensation payments arising from the ankle injury, meant that the family finances were stretched. The work in New South Wales paid well and, with the consent of his wife, the plaintiff decided to take up that work.
17. The plaintiff commenced in New South Wales on 4 November 2014. He continued working until the end of year break, and then resumed in 2015. By this time his enthusiasm for the job had waned, mostly because of the needs of his family for him to be present with them. As a result he informed his employer that his “wife was struggling” and he would like to return to work in the ACT. There is no dispute that a good deal of work was available for him in the Territory.
18. There is some dispute in the evidence about who the plaintiff spoke to and what he said, and when. I accept the plaintiff’s evidence that very soon after returning to work in New South Wales in 2015, he expressed his desires to return to the ACT.
19. As noted above, the plaintiff was injured on 26 May 2015. He stopped work the next day and then attended Milton Hospital on 28 May. He came back to work, at Bawley Point, on 9 June 2015 and remained working until 4 July 2015 when he was certified as unfit to work.
20. The plaintiff has worked since but only in the ACT.
21. I will now turn to the legal framework behind the plaintiff’s application.
22. Section 182D says this:
182D Applicable substantive law for damages claims
The substantive law of the Territory or State of connection governs –
a. (a) Whether or not a damages claim can be made in relation to a work-related injury to a worker; and
b. (b) If a damages claim can be made – the determination of the damages claim.
23. Section 36B provides the test for the Territory or State of connection:
36B Employment Connection Test
1. (1) Compensation under this Act is only payable if the ACT is the Territory or State of connection.
2. (2) The fact that a worker is outside the ACT when injured does not prevent compensation being payable under this Act if the ACT is the Territory or State of connection.
3. (3) A worker's employment is connected with—
a. (a) the Territory or State where the worker usually works in the employment; or
b. (b) if no Territory or State, or no single Territory or State, is identified by paragraph (a)—the Territory or State where the worker is usually based for the purposes of the employment; or
c. (c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b)—the Territory or State where the employer's principal place of business in Australia is located.
1. (4) For a worker working on a ship, if no Territory or State, or no single Territory or State, is identified by subsection (3), the worker's employment is, while working on the ship, connected with—
a. (a) the Territory or State where the ship is registered; or
b. (b) if the ship is registered in more than 1 Territory or State—the Territory or State where the ship most recently became registered.
1. (5) If no Territory or State is identified for a worker by subsection (3) or (4), the worker's employment is connected with the ACT if—
a. (a) the worker is in the ACT when injured; and
b. (b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia.
1. (6) In deciding whether a worker usually works in a Territory or State—
a. (a) regard must be had to the following
i.(i) the worker's work history with the employer over the previous 12 months;
ii.(ii) the worker's proposed future working arrangements;
iii.(iii) the intentions of the worker and employer;
iv.(iv) any period during which the worker worked in a Territory or State (a relevant place ) or was in a relevant place for the purposes of employment, whether or not the worker is regarded as working or employed in the relevant place under the workers compensation law of the relevant place; but
a. (b) regard must not be had to any temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months.
1. (7) In deciding whether a worker is usually based in a Territory or State regard must be had to the following:
a. (a) if the employer provides a place from which the worker is expected to operate—that place;
b. (b) if a place is stated in the worker's contract of employment with the employer—that place;
c. (c) the place from which the worker routinely receives day-to-day instructions from the employer;
d. (d) the place where the worker attends to collect material for the purposes of their employment;
e. (e) the place where the worker reports for administrative, human resource and other issues related to the workers' employment with the employer.
1. (8) In deciding where the employer's principle place of business in Australia is located regard must be had to the following:
a. (a) the place where the employer conducts the main part or majority of its business;
b. (b) the address registered on the Australian Business Register in connection with the employer's ABN;
c. (c) if the employer is not registered for an ABN—the Territory or State registered by ASIC as the jurisdiction in which the employer's business or trade is carried out;
d. (d) if the employer is not registered for an ABN or with ASIC—the employer's business mailing address.
1. (9) Compensation under this Act is not payable in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992
2. (10) In this section:
ABN—see the A New Tax System (Australian Business Number) Act 1999 (Cwlth), section 41.
ASIC means the Australian Securities and Investments Commission under the Australian Securities and Investments Commission Act 2001 (Cwlth).
Australian Business Register—see the A New Tax System (Australian Business Number) Act 1999 (Cwlth), section 41.
ship "means any kind of vessel used in navigation by water, however propelled or moved, and includes all of the following if used wholly or primarily in navigation by water:
(a) a barge, lighter or other floating vessel;
(b) an air-cushioned vehicle, or other similar craft.
Territory or State, in a geographical sense, includes a Territory's or State's relevant adjacent area as described in schedule 2.
24. In my view this case is resolved within the confines of s 36B(3)(a). I think that the ACT is the place where the plaintiff usually works. The defendant’s opposition to this conclusion revolved around his immediate work history. The defendant observed that over the 12 month period ending on 6 July 2015, the plaintiff had worked in New South Wales for 35 weeks.
25. I was then taken to s 36B(6) where it was pointed out that, included in the matters which I was bound to have regard to, any period in excess of six months could not automatically qualify as a temporary arrangement. As submitted by both parties, the fact that more than six months had been spent working outside the ACT in the previous 12 months, did not of itself exclude a conclusion that the usual place of work was in the ACT.
26. I was asked to look at the first reading speeches in respect of the relevant legislation in both the ACT and NSW. I do not think these passages say any more than that, at best, working outside of a State or Territory for more than six months will go beyond raising a rebuttable presumption that a different State or Territory is a worker’s usual place of work.
27. In Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; 196 FLR 361 it was held that, quoting from the headnote, “The State or Territory of a worker is to be determined by first looking to the customary or regular place in which the work is carried out”. I think this statement provides the answer in this case. In saying so however I think it important to emphasise that in certain circumstances, which exist here, the temporal bounds of the period to be looked at can exceed six or 12 months.
28. The particular circumstances that are relevant here are the plaintiff’s continued employment with the defendant over many years in which he invariably worked in the ACT. His usual place of work for the defendant, taken in the context of his employment with the defendant, must lead to a conclusion that his usual place of work was the ACT.
29. The position would have been very different if, for example, he had only worked for the defendant for one or two years or if he had established some sort of permanent residency, or intention to reside, at Bawley Point. I am satisfied that his intention was actually quite the opposite. I accept that he undertook the work at Bawley Point to meet his current financial circumstances and with the intent that he would return to work in the ACT as soon as practicable and certainly when the demands of his family required the return.
30. Further, in examining the other mandatory requirements of s 36B(6), I am satisfied that the plaintiffs proposed future working arrangements were to work in the ACT and that this reflected his intention. As properly conceded by the defendant, the defendant’s position was that he could work in the ACT if he wished. There is no suggestion in this case that the plaintiff’s employment would have been at risk had he said he did not wish to continue to work in New South Wales.
31. I was referred to a number of authorities by the defendant. The decision of Mossop AsJ (as he then was) in Tapia v Woolworths [2016] ACTSC 129; 310 FLR 265 was said to be of particular assistance. I agree. His Honour at, [34], referred to “temporary arrangements of longer duration” having the potential to create “a situation where the temporary place of employment is the usual place of employment or, alternatively, an additional usual place of employment”.
32. His Honour continued in [39], the issue “must be determined in the light of the contract of employment between the parties and the other circumstances surrounding his employment”. In my view the circumstances of this plaintiff’s employment, taken against the background of the whole of his history of employment with the defendant, lead to a conclusion that his usual place of work was in the ACT. This is reinforced by his intentions in working at Bawley Point and in particular his intention to return after a limited period and to resume the years long practice of working for the same employer, effectively always in the ACT.
33. Accordingly the application made by the plaintiff must succeed.
34. I make the following declaration:
a.(a) The Court finds that the plaintiff usually worked in the Australian Capital Territory and therefore the common law workers compensation claim arising out of the negligence of the defendant should be determined by the law of the Australian Capital Territory.
b.(b) The defendant is to pay the plaintiff’s costs of the application.
35. I will hear the parties if there is any reason for an alternative costs order.
| I certify that the preceding thirty five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 30 August 2019 |
4
2
1