Plexvon Pty Ltd (In liq) v Brophy - [2006] NSWCA 304

New South Wales

Court of Appeal

CITATION: Plexvon Pty Ltd (In liq) v Brophy [2006] NSWCA 304

HEARING DATE(S): 23 October 2006

JUDGMENT DATE:
23 October 2006

JUDGMENT OF: Handley JA at 1, 29; Beazley JA at 27; Bryson JA at 28

DECISION: (1) Appeal dismissed with costs.; (2) The appellant is to pay the respondent’s costs on an indemnity basis from 7 July 2006 the date of the offer of compromise, and his costs on the ordinary basis prior to that date.

CATCHWORDS: DAMAGES – economic loss – total incapacity – work related expenses saved – onus of proof - MASTER & SERVANT – whether contractor company or individual – Court acts on real arrangement - D

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: Husher v Husher (1999) 197 CLR 138
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Reg v Foster Ex parte Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138

PARTIES: Plexvon Pty Ltd (In liq) (Appellant)
John William Brophy (Respondent)

FILE NUMBER(S): CA 40097 of 2006

COUNSEL: P Greenwood SC/J Dodd (Appellant)
H Kelly SC/T McKenzie (Respondent)

SOLICITORS: Dibbs Abbott Stillman (Appellant)
Graham Jones (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9132 of 2000

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

LOWER COURT DATE OF DECISION: 3 February 2006

CA 40097 of 2006
DC 9132 of 2000

HANDLEY JA
BEAZLEY JA
BRYSON JA
23 OCTOBER 2006

PLEXVON PTY LTD (In liq) v JOHN WILLIAM BROPHY

CATCHWORDS

DAMAGES – economic loss – total incapacity – work related expenses saved – onus of proof

MASTER & SERVANT – whether contractor company or individual – Court acts on real arrangement

FACTS

The respondent was injured while working on a building site. The trial Judge found that, at the time of the incident, the respondent was a common law employee of the appellant and assessed damages in accordance with Pt 5 of the Workers Compensation Act. On appeal the appellant contended that the true contractual relationship was between the appellant and a company controlled by the respondent. In that event the damages would have been substantially reduced. HELD: (1) Courts must act on the realities of the relationship rather than an arrangement that is ignored in practice: Reg v Foster Ex parte Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138; (2) The real relationship was that of employee and employer and damages were correctly assessed under Pt 5 of the Workers Compensation Act; (3) The plaintiff was entitled to damages for the loss of his earning capacity to the extent to which the loss of capacity has been or will be productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; (4) The defendant had the evidentiary onus of showing that the prima facie measure for total incapacity should be reduced because work related expenses were no longer incurred; (5) The evidentiary onus had not been discharged; (6) The appeal should be dismissed.

ORDERS

(1)…

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: [2006] NSWCA 304
Decision Date: 23 October 2006

CaseChat Overview and Summary

The appeal concerned a claim for damages for economic loss arising from total incapacity. The parties were Plexvon Pty Ltd (in liquidation) as the appellant and Mr. Brophy as the respondent. The dispute centred on whether Mr. Brophy was an employee or an independent contractor of Plexvon, and consequently, the extent of economic loss he suffered due to his incapacity. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were: (1) whether the relationship between Mr. Brophy and Plexvon was one of employment or independent contracting; and (2) if Mr. Brophy was found to be an employee, how the economic loss should be calculated, specifically in relation to work-related expenses that were saved due to his incapacity. The court also considered the onus of proof regarding these saved expenses.

The court affirmed the primary judge's finding that Mr. Brophy was an employee, not an independent contractor, based on the "real arrangement" between the parties, which indicated a contract of service rather than a contract for services. In determining damages, the court applied the principle that the onus was on the defendant (Plexvon) to prove that the plaintiff (Mr. Brophy) had saved work-related expenses as a result of his incapacity. The court found that Plexvon had failed to discharge this onus in relation to certain expenses, and therefore, these savings were not to be deducted from the damages awarded for economic loss.

The appeal was dismissed with costs. The appellant was ordered to pay the respondent's costs on an indemnity basis from 7 July 2006, the date of an offer of compromise, and on an ordinary basis for costs incurred prior to that date.

Orders

Orders of the court

(1) Appeal dismissed with costs.; (2) The appellant is to pay the respondent's costs on an indemnity basis from 7 July 2006 the date of the offer of compromise, and his costs on the ordinary basis prior to that date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Plexvon Pty Ltd (In liq) v Brophy [2006] NSWCA 304
HEARING DATE(S):	23 October 2006
JUDGMENT DATE:	23 October 2006
JUDGMENT OF:	Handley JA at 1, 29; Beazley JA at 27; Bryson JA at 28
DECISION:	(1) Appeal dismissed with costs.; (2) The appellant is to pay the respondent’s costs on an indemnity basis from 7 July 2006 the date of the offer of compromise, and his costs on the ordinary basis prior to that date.
CATCHWORDS:	DAMAGES – economic loss – total incapacity – work related expenses saved – onus of proof - MASTER & SERVANT – whether contractor company or individual – Court acts on real arrangement - D
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Husher v Husher (1999) 197 CLR 138 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Reg v Foster Ex parte Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138
PARTIES:	Plexvon Pty Ltd (In liq) (Appellant) John William Brophy (Respondent)
FILE NUMBER(S):	CA 40097 of 2006
COUNSEL:	P Greenwood SC/J Dodd (Appellant) H Kelly SC/T McKenzie (Respondent)
SOLICITORS:	Dibbs Abbott Stillman (Appellant) Graham Jones (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 9132 of 2000
LOWER COURT JUDICIAL OFFICER:	Shadbolt DCJ
LOWER COURT DATE OF DECISION:	3 February 2006