Moir v I.C. Formwork Services Pty Limited - [2019] ACTSC 246

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…

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 Moir v I.C. Formwork Services Pty Limited

Details

AGLC: Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246
Case: [2019] ACTSC 246
Decision Date: 30 August 2019

CaseChat Overview and Summary

The case of Moir v I.C. Formwork Services Pty Limited was heard in the Federal Court of Australia. The plaintiff, Moir, sought damages from the defendant, I.C. Formwork Services Pty Limited, for a back injury sustained during employment. The crux of the dispute was whether the plaintiff's injury was covered under the workers' compensation scheme or if the matter should proceed as a common law negligence claim. Specifically, the court needed to determine the territory or state with which the plaintiff's employment had the closest connection, as this would dictate the applicable workers' compensation scheme.

The primary legal issue before the court was whether Moir's employment with I.C. Formwork Services Pty Limited was sufficiently connected to the Australian Capital Territory (ACT) to trigger the application of the ACT's workers' compensation laws. The court had to consider where Moir usually worked and whether that location was within the ACT or another jurisdiction, such as New South Wales. The outcome of this determination would affect the jurisdiction's workers' compensation legislation and whether Moir was entitled to pursue a common law negligence action against his employer.

The court examined the evidence regarding Moir's usual place of work and found that he primarily worked in New South Wales rather than the ACT. Given this finding, the court held that the relevant workers' compensation scheme was that of New South Wales, not the ACT. Consequently, Moir's claim for damages had to be assessed under the New South Wales legislation. The court concluded that since Moir's employment was not closely connected to the ACT, his claim did not fall under the ACT's workers' compensation scheme but was instead subject to the New South Wales scheme.

As a result of the court's determination, Moir's claim was dismissed, and no orders were made in his favour. The court's decision hinged on the geographic connection of Moir's employment, which dictated the applicable workers' compensation legislation and, consequently, the procedural path for his claim.

Orders

Orders of the court

See [34]

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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