The Star Pty Ltd v Mitchison

Case [2017] NSWCA 149

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: The Star Pty Ltd v Mitchison [2017] NSWCA 149
Hearing dates:11 May 2017; final written submissions 30 May 2017
Decision date: 23 June 2017
Before: Beazley P at [1];
McColl JA at [2];
Payne JA at [3]
Decision:

(1) Leave granted to amend the notice of motion filed by the applicant in the District Court on 30 September 2015 in the form contained in the applicant’s notice of motion dated 12 May 2017;
(2) Leave to appeal granted;
(3) Appeal dismissed;
(4) Applicant to pay the respondent’s costs of the appeal as agreed or assessed.

Catchwords: WORKERS COMPENSATION – employer injured when falling down stairs during fire drill at nightclub owned by his employer – whether employee's injury in course of employment – injury occurred during an interval – whether employer induced or encouraged the employee to spend the interval at a particular place or perform a particular activity – whether employee's injury arose out of employment – whether a causal connection established between the injury and the employment
Legislation Cited: Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited (2009) 75 NSWLR 503; [2009] NSWCA 324
Comcare v Adrian John Mather (1995) 56 FCR 456; [1995] FCA 1216
Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21
Kortegast v Williamson [2002] NSWSC 1134
Lawrence v George Matthews (1924) Limited [1929] 1 KB 1
Le Brocq v Workcover Authority of NSW [2008] NSWCA 125
Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324
Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222
Smith v The Australian Woollen Mills Ltd (1933) 50 CLR 504; [1933] HCA 60
Stewart v Metropolitan Water, Sewerage and Drainage Board (1932) 48 CLR 216; [1932] HCA 45
Tran v Vo [2017] NSWCA 134
Category:Principal judgment
Parties: The Star Pty Ltd (Applicant)
Joshua Mitchison (Respondent)
Representation:

Counsel:
N Polin SC (Applicant)
F Austin (Respondent)

  Solicitors:
Moray & Agnew (Applicant)
Gerald Malouf and Partners (Respondent)
File Number(s):2016/278657
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
22 August 2016
Before:
McLoughlin DCJ
File Number(s):
2015/42903

headnote

[This headnote is not to be read as part of the judgment]

The respondent was employed by the applicant as a hotel bellboy. The respondent suffered injuries after work hours when he fell down stairs during a mock fire drill held at the “soft” opening of “Marquee” nightclub. The nightclub was operated, managed and controlled by the applicant.

The purpose of the event was to trial service procedures and allow employees of The Star, such as the…

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AGLC
The Star Pty Ltd v Mitchison [2017] NSWCA 149
Case
[2017] NSWCA 149
Decision Date

CaseChat Overview and Summary

The applicant, The Star Pty Ltd, appealed to the Court of Appeal of New South Wales against a decision of the District Court concerning a workers compensation claim brought by the respondent, Mr Mitchison. Mr Mitchison, an employee of The Star, sustained an injury when he fell down stairs during a fire drill at the nightclub owned by his employer. The central dispute concerned whether Mr Mitchison's injury occurred in the course of his employment and arose out of his employment.

The Court of Appeal was required to determine whether the District Court had erred in finding that Mr Mitchison's injury arose out of and in the course of his employment. Specifically, the court considered whether the injury occurred during an interval in employment, and if so, whether The Star had induced or encouraged Mr Mitchison to spend that interval at a particular place or performing a particular activity. Furthermore, the court examined whether a sufficient causal connection had been established between the injury and Mr Mitchison's employment.

The Court of Appeal ultimately dismissed the appeal. While granting leave to amend the notice of motion and to appeal, the judges found that the District Court's determination that the injury arose out of and in the course of employment was correct. The reasoning likely involved an analysis of the nature of the fire drill as an activity connected to the employment, even if it occurred during an interval, and the employer's role in requiring or facilitating such drills. The court upheld the finding that the injury was causally linked to Mr Mitchison's employment. The applicant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) Leave granted to amend the notice of motion filed by the applicant in the District Court on 30 September 2015 in the form contained in the applicant’s notice of motion dated 12 May 2017;

(2) Leave to appeal granted;

(3) Appeal dismissed;

(4) Applicant to pay the respondent’s costs of the appeal as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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