Waratah Engineering Pty Ltd v Baggs

Case [2013] NSWCA 427


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427
Hearing dates:12 August 2013
Decision date: 11 December 2013
Before: Basten JA at [1];
Meagher JA at [10];
Sackville AJA at [42]
Decision:

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) Set aside the order made by Marks ADCJ on 2 November 2012.

(4) Order that the question whether the respondent was at the time of his accident on 12 July 2010 a "coal miner" for the purpose of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 be answered in the negative.

(5) Order that the respondent pay the applicant/appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: WORKERS COMPENSATION - coal miners - interpretation of Workers Compensation Act 1987, Sch 6 Pt 18 Cl 3(4) - respondent, who was employed by a supplier of mining equipment, injured in motor vehicle accident while travelling to coal mine to instruct miners in use of equipment - whether, at time of injury, respondent a worker employed "in or about a mine"
Legislation Cited: Coal Mine Health and Safety Act 2002
Coal Mines Regulation Act 1982, s 5
Evidence Act 1995, s 144
Mining Act 1898 (Qld), s 218
Workers Compensation Act 1897 (UK), ss 1, 5
Workers Compensation Act 1926, ss 11, 15
Workers Compensation Act 1987, Sch 6 Pt 18 Cl 3, ss 3, 10, 11, 35, 150A, 151E-151IA, 151U, 282
Workers Compensation Amendment Act 2001 (No 61)
Workers Compensation Legislation Further Amendment Act 2001 (No 94)
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Atkinson v Lumb [1903] 1 KB 861
Back v Dick Kerr & Co Ltd [1906] AC 325
Chambers v Whitehaven Harbour Commissioners [1899] 2 QB 132
Comcare v PVYW [2013] HCA 41; 303 ALR 1
Ellavale Engineering Pty Ltd v Pilgrim [2005] NSWCA 272; 2 DDCR 744
Griffin v The Houlder Line, Ltd [1904] 1 KB 510
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473
Owens v Campbell [1904] 2 KB 60
Powell v Brown [1899] 1 QB 157
R v Neil; Ex parte Cinema International Corporation Pty Ltd [1976] HCA 11; 134 CLR 27
Taylor v The Cecil Syndicate, Ltd [1906] St R Qd 324
Category:Principal judgment
Parties: Waratah Engineering Pty Ltd (Applicant)
Mark Wayne Baggs (Respondent)
Representation: Counsel:
I Roberts SC, S Lowe (Applicant)
J Sexton SC (Respondent)
Solicitors:
Moray & Agnew (Applicant)
Lee Sames Egan (Respondent)
File Number(s):2012/371734
 Decision under appeal 
Jurisdiction:
9101
Date of Decision:
2012-11-02 00:00:00

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Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427
Case
[2013] NSWCA 427
Decision Date

CaseChat Overview and Summary

In *Waratah Engineering Pty Ltd v Baggs*, the New South Wales Court of Appeal considered an appeal concerning the interpretation of the *Workers Compensation Act 1987* (NSW). The respondent, Mr. Baggs, was employed by a supplier of mining equipment and sustained injuries in a motor vehicle accident while travelling to a coal mine to provide instruction on the use of that equipment. The central dispute revolved around whether Mr. Baggs was, at the time of his injury, a "worker employed in or about a mine" for the purposes of the Act.

The legal issue before the Court of Appeal was whether the respondent's employment activities at the time of the accident brought him within the scope of the definition of a coal miner as contemplated by Schedule 6, Part 18, Clause 3(4) of the *Workers Compensation Act 1987*. This clause specifically addresses the application of certain provisions to coal miners. The court was required to determine if Mr. Baggs' role as an equipment instructor, travelling to a mine site, qualified him as a worker employed "in or about a mine" for the purposes of the relevant workers compensation legislation.

The Court of Appeal allowed the appeal, setting aside the previous order. Their Honours reasoned that the respondent's employment was with a supplier of mining equipment, not directly with the mine operator. Furthermore, his presence at the mine was for the specific purpose of providing instruction on equipment, rather than engaging in the core activities of coal mining itself. The court concluded that, at the time of the accident, the respondent was not a "coal miner" for the purposes of the *Workers Compensation Act 1987* and the *Workplace Injury Management and Workers Compensation Act 1998*. Consequently, the court ordered that the question be answered in the negative and that the respondent pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) Set aside the order made by Marks ADCJ on 2 November 2012.

(4) Order that the question whether the respondent was at the time of his accident on 12 July 2010 a "coal miner" for the purpose of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 be answered in the negative.

(5) Order that the respondent pay the applicant/appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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