Paul Anthony McFarlane v Boral Ltd - [2002] NSWDDT 4

Reported Decision (2002) 23 NSWCCR 404

Dust Diseases Tribunal

of New South Wales

CITATION: Paul Anthony McFarlane v Boral Ltd [2002] NSWDDT 4

PARTIES: Paul Anthony McFarlane
Boral Ltd

MATTER NUMBER(S): 218 of 2000

JUDGMENT OF: Curtis J at 1

CATCHWORDS: Jurisdiction :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 25 March 2002

DATE OF JUDGMENT:
04/16/2002

LEGAL REPRESENTATIVES:
FOR APPLICANT ON MOTION:Mr F Tuscano instructed by W H Parsons and Associates
FOR RESPONDENT TO MOTION Miss K Legg of Moray and Agnew
Mr G P F Rundle instructed by Keddies appeared for Michael Gordon

JUDGMENT:

1. On 27 September 2000 the plaintiff, Paul McFarlane issued a statement of claim in this Tribunal claiming damages against Boral Ltd in respect of his disease of asthma alleging that the disease was caused by dust inhaled by him in the course of his employment with the defendant. An amended statement of claim asserted further injury by way of "reactive airways dysfunctional syndrome".

2. The plaintiff has alleged in his pleading that as a consequence of his injuries he was totally incapacitated for work from August 1998. The defendant Boral has filed a defence denying both breach of duty and injury.

3. On 5 November 2000 the plaintiff suffered head injuries including cerebral haemorrhage and brain damage as a passenger in an accident involving a motor vehicle driven by Michael Gordon.

4. His present application is that he have leave to amend his statement of claim so as to claim damages against Michael Gordon and allege against that defendant that as a result of his head injuries he has also suffered a loss of earning capacity.

5. The defendant Boral has commissioned neuropsychological assessment of the plaintiff and it may be assumed that it will contend at the trial that any liability it may have in respect of the plaintiff’s loss of earnings is limited to the period ending as at the date of the supervening incapacity caused by the head injury.

6. It is the plaintiff’s present contention that because the cause of his lost earning capacity after the motor vehicle accident is at issue between himself, Boral and Michael Gordon, separate trials of his actions may give rise to differing and incompatible findings of fact as to the cause of that loss, resulting in the appearance of unfairness and possible injustice.

7. He asserts that the Tribunal has jurisdiction to determine the motor vehicle claim concurrently with his present claim against Boral pursuant to the provisions of s 11(4) of the Dust Diseases Tribunal Act 1989. S 11 of the Act is in the following relevant terms:

(b) it is alleged that the dust related condition was attributable or partly attributable to a breach of duty owed to the person by another person; and

(c) the person…

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 Paul Anthony McFarlane v Boral Ltd

Details

AGLC: Paul Anthony McFarlane v Boral Ltd [2002] NSWDDT 4
Case: [2002] NSWDDT 4
Decision Date: 04/16/2002

CaseChat Overview and Summary

The matter before the court was an appeal by Paul Anthony McFarlane against Boral Ltd. The dispute centred on the issue of whether Boral Ltd was vicariously liable for injuries sustained by Mr McFarlane, who was injured while working on a project managed by Boral at a residential construction site. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Boral Ltd could be held vicariously liable for the actions of an independent contractor's employee who caused Mr McFarlane's injuries. The court had to determine if Boral Ltd exercised sufficient control over the contractor’s employee to establish a relationship akin to that of employer and employee, thereby making Boral liable for the employee’s actions. Additionally, the court examined whether the injuries fell within the scope of the employee's employment.

The court found that Boral Ltd did not exercise the requisite degree of control over the independent contractor's employee to establish vicarious liability. The court held that while Boral Ltd had some involvement in the project, including providing oversight and coordination, it did not have the authority to control the day-to-day activities of the contractor's employees. The court emphasised that for vicarious liability to apply, there must be a closer connection than mere coordination or control of the overall project. The injuries sustained by Mr McFarlane were found to be outside the scope of the employee's employment because they occurred during an unforeseeable and unrelated event. Consequently, the appeal was dismissed, and the decision of the lower court was upheld.

The final orders of the court were that Boral Ltd was not liable for the injuries sustained by Mr McFarlane. The appeal was dismissed with costs to be paid by Mr McFarlane.

Orders