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Moore v Tatura Milk Industries

Moore v Tatura Milk Industries

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Case Copied 26 April 2019 48 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2018 00470

PHILIP MOORE	Plaintiff
v
TATURA MILK INDUSTRIES LIMITED (ABN 66 006 603 970)	Defendant
VICTORIAN WORKCOVER AUTHORITY	Third Party

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2019
DATE OF JUDGMENT:	26 April 2019
CASE MAY BE CITED AS:	Moore v Tatura Milk Industries & Anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 259

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CONTRACT – Whether insurer liable to indemnify in respect of injuries sustained by independent contractor – Whether insurer estopped from denying liability to indemnify – Whether insurer elected to indemnify – Accident Compensation Act 1985 (Vic) ss 5, 12, 82(6), 82(8), 84, 86, 93CD(1), 93CD(3), 93D(1), 99, 123, 129A, 111(1)(b), 134AA, 134AB, 139AA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No Appearance
For the Defendant	Mr J Ruskin QC and Mr M J Hooper	HWL Ebsworth
For the Third Party	Mr P H Solomon QC and Mr S E Gladman	Hall & Wilcox Lawyers

HIS HONOUR:

The primary issue in the current proceeding is whether the Victorian Workcover Authority (‘VWA’) is liable to indemnify Tatura Milk Industries Ltd (‘Tatura’) in respect of Tatura’s liability to the plaintiff at common law and for breach of statutory duty. Tatura’s liability arose in respect of injuries sustained by the plaintiff, who was working as an independent contractor when he was injured. VWA refused to indemnify Tatura. It contended that it had no obligation to indemnify in respect of liability at common law and for breach of statutory duty in circumstances where the injuries were sustained by a worker who was not an employee.

VWA advanced the same submission in the present proceeding. I reject this submission. The fact that the plaintiff was an independent contractor at the time he sustained the injuries which gave rise to Tatura’s liability at common law and for breach of statutory duty does not relieve VWA of liability to indemnify.

Background

Tatura is a manufacturer of dairy products and infant formula. In July 2008, the plaintiff was working pursuant to a contract between Philip Moore Pty Ltd and Tatura for the performance of maintenance works at Tatura’s factory located at 238 Hogan Street, Tatura. The plaintiff was the sole director, shareholder and employee of Philip Moore Pty Ltd. On 11 July 2008, the plaintiff was removing a pressure hose in a roof cavity when a nearby valve exploded, scalding him with hot steam.

On 20 July 2015, the plaintiff filed a writ and statement of claim in the County Court, naming Tatura as defendant. The statement of claim did not allege that the plaintiff was an employee of Tatura. The statement of claim alleged negligence on the part of Tatura as the occupier of the premises at 238 Hogan Street, Tatura. It also pleaded breach of statutory duty based on Tatura’s failure to comply with regulations prescribed by the Occupational Health and Safety Regulations 2007 (‘Occupational Health and Safety Regulations’).

On…

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.

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Details

Case: [2019] VSC 259
Decision Date: 26 April 2019

CaseChat Overview and Summary

The case of Moore v Tatura Milk Industries involved an independent contractor, Mr. Moore, who sustained injuries during the course of his employment with Tatura Milk Industries. Mr. Moore sought to hold the company's insurer, the respondent, liable for his injuries under the Accident Compensation Act 1985 (Vic). The central dispute was whether the insurer was obliged to indemnify Mr. Moore and if the insurer could be estopped from denying such liability. The case was heard in the Supreme Court of Victoria.

The court was required to determine whether the insurer was liable to indemnify Mr. Moore for his injuries under the provisions of the Accident Compensation Act 1985 (Vic). The primary legal issues included whether the insurer could be held liable for the injuries sustained by an independent contractor and whether the insurer was estopped from denying such liability. Additionally, the court examined whether the insurer had elected to indemnify Mr. Moore.

The court held that the insurer was liable to indemnify Mr. Moore for his injuries. The court reasoned that under sections 82(6) and 82(8) of the Accident Compensation Act 1985 (Vic), the insurer was required to indemnify the injured party. The court further found that the insurer was estopped from denying liability as they had previously acknowledged Mr. Moore's entitlement to compensation. The court concluded that the insurer had elected to indemnify Mr. Moore, thereby solidifying their obligation to provide compensation. The court's decision was grounded in the statutory provisions and the insurer's conduct.

The final orders of the court mandated that the insurer indemnify Mr. Moore for his injuries sustained during the course of his employment with Tatura Milk Industries. The court's ruling ensured that Mr. Moore received the compensation to which he was entitled under the Accident Compensation Act 1985 (Vic).

Orders