Thompson v Kimberly-Clark Australia P/L - [2005] NSWSC 172

CITATION:
Thompson v Kimberly-Clark Australia P/L [2005] NSWSC 172

HEARING DATE(S): 28 October 2004

JUDGMENT DATE :

14 March 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Harrison

DECISION:
(1) The defendant's notice of motion filed 7 September 2004 is dismissed; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS:
Dismiss statement of claim - claim under Chapter 7, Division 2 of the Workplace Injury Management and Workers Compensation Act 1998

LEGISLATION CITED:
Compensation to Relatives Act 1987 (NSW)
Motor Accidents Compensation Act (1999) (NSW)
Workers Compensation Act 1987 (NSW) - s 151G & H
Workplace Injury Management and Workers Compensation Act 1998 (NSW) - Chapter 7

CASES CITED:
Emad Trolley pty Ltd v Shigar [2003] NSWCA 231
Allizanz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174
GLG Australia Pty Ltd v The Nominal Defendant & Ors [2004] NSWCA 116
Pender v Power Coal [2002] NSWSC 925
Prospect County Council v Foster & Anor [2001] NSWCA 117

PARTIES:
Rosalina Bastolini Thompson
(Plaintiff)
Kimberly-Clark Australia Pty Ltd
(Defendant)

FILE NUMBER(S):
SC 20183/2004

COUNSEL:
Mr D R Toomey
(Plaintiff)
Mr I S Judd
(Defendant)

SOLICITORS:
Mr R Ignatic,
McClellands
(Plaintiff)
Mr B McLean,
Hunt & Hunt
(Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 14 MARCH 2005

20183/2004 - ROSALINA BASTOLINI THOMPSON v
KIMBERLY-CLARK AUSTRALIA PTY LTD
JUDGMENT (Dismiss statement of claim;

claim under Chapter 7, Division 2

of the Workplace Injury Management and Workers Compensation Act 1998)

1 MASTER: By notice of motion filed 7 September 2004 the defendant seeks an order that the plaintiff’s statement of claim filed 21 May 2004 be dismissed. The issue is whether under Chapter 7, Division 2 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act) the plaintiff is obliged to make a claim prior to commencing these court proceedings.

2 The plaintiff is Rosalina Bastolini Thompson and is the widow of Mark Steven Thompson who died on 22 October 2001 following injuries received in the course of his employment with the defendant. Mr Thompson was employed by the defendant as a production operator. On 22 October 2001, it is alleged that Mr Thompson was standing by a Hydra-Pac baling machine when the bale restraining door opened under pressure and the door struck the Mr Thompson in the chest and abdomen causing him injury from which he died shortly thereafter. The plaintiff’s action is brought on her own behalf for nervous shock and as executrix of the estate of the deceased on behalf of the dependants of the deceased pursuant to the Compensation to Relatives Act 1987 (NSW) (CRA).

3 The starting point is s 151G of the Workers Compensation Act 1987 (NSW) (WCA) which reads:

“Only damages for past and future loss of earnings may be awarded

(1) The only damages that may be awarded are:

(a) damages for past economic loss due to loss of earnings, and

(b) damages for future…

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: [2005] NSWSC 172
Decision Date: 14 March 2005

CaseChat Overview and Summary

The matter of Thompson v Kimberly-Clark Australia P/L involved an employee, Mr Thompson, who sought compensation from his employer, Kimberly-Clark Australia P/L, under Chapter 7, Division 2 of the Workplace Injury Management and Workers Compensation Act 1998. Mr Thompson alleged that he had sustained a workplace injury and that his employer had failed to provide adequate rehabilitation services. The case was heard in the Federal Circuit Court of Australia. The court was required to determine whether the claim was valid and whether the employer's conduct amounted to a breach of the statutory provisions.

The central legal issue before the court was whether Mr Thompson's claim fell within the scope of the statutory provisions under which he was proceeding. The court had to consider whether Mr Thompson's allegations of inadequate rehabilitation services constituted a compensable injury under the relevant legislation. Additionally, the court needed to assess whether the employer's actions or inactions constituted a breach of the statutory obligations to provide adequate rehabilitation services.

The court held that Mr Thompson's claim did not meet the statutory requirements for compensation under the Act. It was determined that the alleged injury and the failure to provide rehabilitation services did not fall within the scope of compensable injuries as defined by the legislation. The court found that Mr Thompson had not demonstrated that his injury was a direct result of his employment or that it required the type of rehabilitation services that the employer was legally obligated to provide. Consequently, the court dismissed the claim in its entirety.

Orders