Porter v Bonojero Pty Ltd - [2000] VSC 265

SUPREME COURT OF VICTORIA

COMMON LAW JURISDICTION

No. 1326 of 1997

TREVOR CLARENCE PORTER	Plaintiff
v
BONOJERO PTY LTD	Defendant

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JUDGE:	Eames J
WHERE HELD:	Warrnambool
DATES OF HEARING:	17-19, 22-26, 29-31 May, 7 June 2000
DATE OF JUDGMENT:	27 June 2000
CASE MAY BE CITED AS:	Porter v Bonojero Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 265

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Tort - negligence – master and servant – defective truck seat causing aggravation to back injury –- worker also injured by falling from truck cabin when alighting - top step missing – whether plaintiff entitled to bring common law proceedings against employer - whether either injury a transport accident and subject to Transport Accident Act 1986 – plaintiff paid compensation pursuant to South Australian legislation – whether receipt of compensation makes Accident Compensation Act 1985 inapplicable - Choice of law - whether torts arose in Victoria or South Australia – whether s.54(1) and s. 99(3) of Workers Rehabilitation and Compensation Act 1986 would preclude damages claim in South Australia – damages – contributory negligence – John Pfeiffer Pty Limited v Rogerson [2000] HCA 36.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Meldrum QC with Mr T. Tobin		Stringer Clark
For the Defendant	Mr D. Curtain QC with Mr R. Smith		Tress Cocks and Maddox

HIS HONOUR:

The plaintiff, Trevor Clarence Porter, brings a claim for damages for personal injuries suffered in two separate events in 1993 whilst employed by the defendant, Bonojero Pty Ltd (hereafter referred to as “Bonojero”), as a truck driver. The defendant is a company incorporated pursuant to the laws of the State of South Australia and traded as Mt Gambier Tyre and Brake Centre, which operated from Mt Gambier in South Australia.

The plaintiff was first employed by the defendant, on 7 April 1993 after approaching one of the managers of the defendant at its premises at Mt Gambier. The plaintiff was, and remained throughout his employment, a resident of Heywood, a small town in the Western District of Victoria, about 70 kilometres from Mt Gambier. The defendant was employed to transport wood chips to the wharf at Portland. He was to collect the wood chips from various forest locations in Victoria where a mobile chipper would be operating.

The vehicle supplied to the plaintiff was an “International” prime mover, a 1979 “S line” model which was owned by the defendant as one of a small fleet of trucks. When he commenced employment with the defendant he collected the truck from the defendant’s yard at Mt. Gambier. The truck was old and, I find, in a poor state of repair. It was the oldest truck in the fleet and was constantly requiring work, both by the plaintiff and by the mechanics in Mt Gambier. During his employment with the defendant - which lasted some four months - the truck was given defect notices on a number of occasions by relevant authorities, necessitating repair work to be done before it was deemed roadworthy.

Attached…

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: [2000] VSC 265
Decision Date: 27 June 2000

CaseChat Overview and Summary

Porter, a South Australian resident, brought a claim against Bonojero, an interstate company, for injuries sustained in two separate incidents. The first incident involved a defective truck seat that aggravated a pre-existing back injury, and the second occurred when Porter fell from the truck cabin due to a missing top step. Porter sought to bring common law proceedings against Bonojero despite having already received compensation under South Australian legislation. The court needed to determine whether Porter was entitled to bring such proceedings, if either injury constituted a transport accident under the Transport Accident Act 1986, whether the receipt of compensation precluded the application of the Accident Compensation Act 1985, and which jurisdiction's laws applied.

The court considered whether the injuries qualified as transport accidents and if the receipt of compensation barred a common law claim. It assessed the applicability of the Accident Compensation Act 1985 in light of Porter's compensation from South Australia. The court also had to decide the jurisdiction for the claim, considering both South Australian and Victorian laws. The court found that neither incident constituted a transport accident. While Porter had received compensation, this did not bar a common law claim for additional damages. The court applied South Australian law to the claim, considering the implications of sections 54(1) and 99(3) of the Workers Rehabilitation and Compensation Act 1986. It ruled that Porter could pursue a common law claim for damages despite having received statutory compensation.

The court held that Porter could pursue common law damages against Bonojero, as neither injury constituted a transport accident. The receipt of compensation under South Australian legislation did not preclude a common law claim for additional damages. The court applied South Australian law, acknowledging the limitations set by sections 54(1) and 99(3) of the Workers Rehabilitation and Compensation Act 1986. The decision affirmed Porter's right to seek further damages and addressed the choice of law issue.

Orders