Ryan v Forstaff Engineering Personnel Pty Ltd - [2011] NSWSC 1009

Supreme Court

New South Wales

Medium Neutral Citation: Ryan v Forstaff Engineering Personnel Pty Ltd [2011] NSWSC 1009
Hearing dates: 12 August 2011
Decision date: 02 September 2011
Before: Barr AJ
Decision:
1. Grant leave to the plaintiff pursuant to s 151D Workers Compensation Act to commence proceedings against the defendant by 7 March 2011;
2. Order that the costs of motion be costs in the proceedings.

Catchwords: PROCEDURE - notice of motion - leave sought under s 151D(2) of the Workers Compensation Act 1987 - leave granted
Legislation Cited: Occupational Health and Safety Act 2000
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Capitol Construction Group Pty Ltd v Kazic [2007] NSWWCCPD 36
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108
Salido v Nominal Defendant (1993) 32 NSWLR 524
TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Wayne Lawrence Pty Limited v Hunt [1999] NSWSC 1044
Category: Procedural and other rulings
Parties: Mathew Ryan (Plaintiff)
Forstaff Engineering Personnel Pty Ltd (Defendant)
Representation: Counsel:
Mr P Mahony SC with Mr A Joseph (Plaintiff)
Mr P O'Connor (Defendant)
Solicitors:
Puleo Lawyers (Plaintiff)
Holman Webb Lawyers (Defendant)

File Number(s): 2011/79977

Judgment

The plaintiff, Mathew Ryan, was injured at work on 30 September 2006. His employer was the defendant, Forstaff Engineering Personnel Pty Ltd. He wishes to commence proceedings in this Court for common law damages. His statement of claim was not filed until 7 March 2011, a little more than one year and five months after the expiry of the limitation period set forth in the Workers Compensation Act 1987. Relevantly, s 151D is as follows: -

" 151D Time limit for commencement of court proceedings against employer for damages

...

(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

..."

By his notice of motion the plaintiff seeks leave under s 151D(2) to commence proceedings on the day on which his statement of claim was filed.

In 2006 the plaintiff, a maintenance fitter, was told by a friend, Wayne Northey, that work that suited him was available at a company called Reckitt Benckiser ('Reckitt') and that to get the work he would have to go through a labour hire company trading as Ready Workforce. That company was the defendant. He applied to Ready Workforce and was told to go to Reckitt's premises at West…

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: [2011] NSWSC 1009
Decision Date: 02 September 2011

CaseChat Overview and Summary

The applicant, Ryan, was engaged by Forstaff Engineering Personnel Pty Ltd as a temporary employee and subsequently suffered an injury during the course of his employment. Ryan sought damages for his injury under the Workers Compensation Act 1987. The employer, Forstaff, disputed liability, contending that Ryan was not an employee within the meaning of the Act. The matter was heard in the Supreme Court of New South Wales.

The court had to determine whether Ryan, as a temporary employee, was entitled to compensation under the Act and if the notice of motion was properly filed. Specifically, the court needed to consider if the employer's failure to provide adequate notice of motion prejudiced Ryan's ability to respond. The court also had to decide whether Ryan's injury was sustained in the course of his employment and if the employer was vicariously liable.

The court found that Ryan was indeed an employee for the purposes of the Act, as he was engaged by Forstaff on a temporary basis to perform work for the employer. The court noted that the employer had failed to provide proper notice of the motion, which could have prejudiced Ryan's ability to respond. However, the court held that Ryan had not been prejudiced by the failure to provide adequate notice. The court further held that Ryan's injury occurred in the course of his employment, and Forstaff was vicariously liable. Consequently, the court granted leave to file the notice of motion under section 151D(2) of the Workers Compensation Act 1987.

Orders