Waters v Rerj Pty Ltd

Case [2022] QDC 255

DISTRICT COURT OF QUEENSLAND

CITATION:

Waters v Rerj Pty Ltd & Anor [2022] QDC 255

PARTIES:

CHRISTOPHER ADAM WATERS

(applicant)

v

RERJ PTY LTD

ACN 060 395 726

(first respondent)

and
WORKCOVER QUEENSLAND

(second respondent)

FILE NO:

2404/22

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

18 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

3 & 11 November 2022

JUDGE:

Judge AJ Rafter SC

ORDER:

Application dismissed

CATCHWORDS:

WORKERS’ COMPENSATION – INSURANCE AND LEVIES – LIABILITY OF INSURERS AND STATUTORY AUTHORITIES – OTHER MATTERS – where applicant employed as a truck driver – where deliveries made from employer’s depot in Pottsville – where applicant delivered goods in Queensland and New South Wales – where applicant injured during employment – whether applicant’s employment connected with Queensland for the purpose of s 113 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether applicant “usually works” in New South Wales as well as in Queensland – whether applicant “usually based” in Queensland or New South Wales

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Workers Compensation Act 1987 (NSW)

CASES:

Avon Products Pty Ltd v Falls (2010) 5 ACTLR 34; [2010] ACTCA 21
Covill v WorkCover Queensland [2022] QSC 171
Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186

Ferguson v WorkCover Queensland [2013] QSC 78
COUNSEL:

R D Green for the applicant

No appearance for the first respondent

C S Harding for the second respondent
SOLICITORS:

CMC Lawyers for the applicant

No appearance for the first respondent

Jensen McConaghy for the second respondent

Introduction

  1. The applicant commenced employment as a truck driver with Shackell Transport Pty Ltd (“Shackell Transport”) on 8 April 2019.  The terms of employment are contained in a letter of employment signed by the applicant on 1 May 2019.

  2. The applicant resided at Elanora on the Gold Coast, Queensland.

  3. Shackell Transport’s depot was at 1010 Pottsville Road, Pottsville, New South Wales.

  4. The applicant would drive his own vehicle from Elanora to the depot at Pottsville, a distance of approximately 42 kilometres.  The applicant collected the truck he was to drive and then commenced deliveries in accordance with a schedule sent by the allocators of work at Shackell Transport.  After completing his deliveries, the applicant returned the truck to the depot.

  5. The applicant asserts that on 31 May 2019 he suffered an injury to his neck while he was in the process of collecting a load of steel coils from a warehouse at Larapinta in Queensland.

  6. The applicant was unable to continue his role with Shackell Transport due to ongoing pain and restrictions, and resigned his position on 1 July 2019.

  7. An application for workers’ compensation was lodged with Insurance and Care NSW (“iCare”) which resulted in weekly benefits being paid for about one month.  Subsequently, the applicant received a letter from iCare advising that his claim was declined on the basis that his employment was not connected with New South Wales.

  8. An application for workers’ compensation was lodged with WorkCover Queensland which resulted…

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Details
AGLC
Waters v Rerj Pty Ltd [2022] QDC 255
Case
[2022] QDC 255
Decision Date

CaseChat Overview and Summary

In Waters v Rerj Pty Ltd, the applicant sought a declaration that his employment for the purposes of his application for compensation and any claim for common law damages was connected with the State of Queensland. The applicant, a truck driver for Shackell Transport, alleged that he usually worked in Queensland and that he was entitled to common law damages in Queensland. The employer, Rerj Pty Ltd, denied the applicant's claim, arguing that he was usually based in New South Wales, where he started and finished his workdays at the Pottsville depot.

The legal issues for the court to decide were whether the applicant's employment was connected with Queensland for the purpose of section 113 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), and whether the applicant usually worked in New South Wales as well as in Queensland. The court had to determine where the applicant was "usually based" for the purposes of his employment with Shackell Transport.

The court concluded that the applicant was usually based in New South Wales for the purposes of his employment with Shackell Transport. The court held that the applicant's employment was not solely connected with Queensland, as he also worked in New South Wales. The court found that the applicant's usual base was the Pottsville depot in New South Wales, where he started and finished his workdays. The court rejected the applicant's argument that his deliveries in New South Wales were fleeting or ephemeral, noting that he spent significant time working in New South Wales on several occasions. As a result, the applicant was not entitled to common law damages in Queensland, and WorkCover was not obliged to indemnify for any liability arising out of his notice of claim for damages.

The court dismissed the originating application and both counsel indicated that they wished to consider whether costs could be ordered in view of section 318C WCRA, which precludes an order for costs for an interlocutory application unless the court is satisfied that the application is based on unreasonable delay. If necessary, the court will hear the parties on the issue of costs.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

The issue of where a worker is “usually based” requires “… consideration of whether the worker is customarily, commonly or habitually based in that place.”[14] The place where the worker attends to receive instructions or obtain equipment may be highly relevant.[15] On the other hand, the place where the worker starts and finishes each day may not be decisive.[16][14]Ferguson v WorkCover Queensland [2013] QSC 78 at [43].[15]Ferguson v WorkCover Queensland [2013] QSC 78 at [36].[16]Ferguson v WorkCover Queensland [2013] QSC 78 at [40].The facts The applicant relied on his affidavits and he was called for cross-examination.[17][17]The applicant filed two identical affidavits. The first affidavit filed 30 September 2022 referred to, but failed to include exhibits. The second affidavit filed 27 October 2022 contained the exhibits. WorkCover relied on the affidavits of their solicitor and Mark Anthony Cotelli, who was the business development manager at Shackell Transport at the relevant time. Mr Cotelli was called for cross-examination. The essential facts are not really in issue. The applicant moved from Sydney to Elanora on the Gold Coast with his family in September 2018. He had over 30 years experience driving various types of prime movers. Shortly after moving to Queensland, the applicant commenced employment as a truck driver with a company based at Currumbin. This employment involved a great deal of long-distance driving which meant that he was away from his family for several days at a time. The applicant made an enquiry about employment with Shackell Transport and spoke to Mr Cotelli. He was advised that Shackell Transport had interstate and “top end” driving work. The applicant understood “top end” driving work as involving Queensland based work. The applicant was attracted to the position because it enabled him to be home with his family at the end of each workday. The applicant said that he understood his position to be a “top end” driver, making deliveries consisting predominantly of stone slabs in the Brisbane area. The applicant commenced employment on 8 April 2019. His employment was permanent. The position was described as “local truck driver”. The letter of employment stated that the applicant was required to perform his duties at 1010 Pottsville Road, Pottsville, New South Wales, or elsewhere as reasonably directed by the employer.[18][18]Affidavit of Christopher Adam Waters filed 27 October 2022, exhibit “CAW-1”; affidavit of Mark Anthony Cotelli filed by leave 3 November 2022 exhibit “MAC-2”. The applicant reviewed his “Employee Weekly Work Diary” for the period 8 April 2019 to 12 June 2019.[19] Based on the Work Diary and his own recollection, the applicant provided a detailed chronology of his work history.[20] By way of illustration, the applicant said that on Monday 8 April 2019 he collected a semi-trailer from the depot and drove to a destination at Yatala in Queensland where he delivered stone slabs. From there he drove to a second destination at Pinkenba in Queensland where he delivered stone slabs. He then returned to the depot. The applicant said that he worked for 10 hours and travelled 186 kilometres. He estimated that he spent about one hour of the workday in New South Wales and the remaining nine hours in Queensland.[21] Another illustration is that on 10 April 2019 the applicant spent his entire workday in New South Wales delivering sugar to Harwood and Lismore.[22] Another example of a workday is that on 23 April 2019 the applicant collected a semi-trailer from the depot and travelled to a destination in Coopers Plains where he delivered stone slabs. He estimated that he spent about one hour of the workday in New South Wales and the remaining 6.5 hours in Queensland.[23][19]Affidavit of Christopher Adam Waters filed 27 October 2022, exhibit “CAW-2”.[20]Affidavit of Christopher Adam Waters filed 27 October 2022 at paras 31 to 73.[21]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 32.[22]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 34.[23]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 42.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my conclusion, the place where the applicant turned up for work each day at Pottsville was his usual base. That is where he collected the truck he was to drive and where he returned after each workday. Conclusion and orders The applicant sought a declaration that his employment for the purposes of his application for compensation and any claim for common law damages was, in accordance with s 113 WCRA, connected with the State of Queensland. I have concluded that the applicant usually worked in Queensland and in New South Wales. Because no one State was the State where he usually worked in his employment with Shackell Transport, it is necessary to decide where he was usually based. In my conclusion, the applicant was usually based in New South Wales for the purposes of his employment with Shackell Transport. Therefore, the applicant has no entitlement to common law damages in Queensland and WorkCover is not obliged to indemnify for any liability arising out of his notice of claim for damages. Accordingly, the originating application must be dismissed. Both counsel indicated that they wished to consider whether costs could be ordered in view of s 318C WCRA, which precludes an order for costs for an interlocutory application unless the court is satisfied that the application is based on unreasonable delay. If necessary, I will hear the parties on the issue of costs.

Ratio Decidendi

Legal Principle Established

Mr Harding submitted that the applicant worked in New South Wales and Queensland. If that was accepted, it was submitted that the applicant’s usual base was at the depot at Pottsville, which is where he turned up for work each morning, picked up his truck, and returned to at the end of each workday.[34][34]Outline of submissions for WorkCover at para 25.Consideration The applicant was required by the contract of employment to perform his duties at Pottsville, New South Wales, or elsewhere as reasonably directed by Shackell Transport. The determination of where a worker usually works is not ascertained by a mathematical calculation of where the worker spent most of their time.[35][35]Ferguson v WorkCover Queensland [2013] QSC 78 at [32], [34]. I do not accept that the applicant’s deliveries in New South Wales were “fleeting or ephemeral”.[36] Apart from the fact that the applicant started and finished each working day at the Pottsville depot, the occasions when he spent the entire day in New South Wales involved travelling significant distances.[36]Outline of submissions for the applicant at para 11. On 9 April 2019 the applicant collected a tanker from the depot at Pottsville and drove to a destination at Harwood where he delivered sugar. He then drove to Lismore where he also delivered sugar and then drove back to the depot at Pottsville. The applicant worked for six hours and travelled 240 kilometres in total. The entire six-hour period was spent working in New South Wales.[37][37]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 33. On 10 April 2019 the applicant made similar deliveries of sugar to Harwood and Lismore. On this occasion he completed the trip twice; working for 12.5 hours and travelling 460 kilometres in total. The entire working day was spent in New South Wales.[38][38]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 34. On 12 April 2019 the applicant again travelled to Harwood and Lismore in New South Wales, completing the trip twice. He worked for 12 hours and travelled 460 kilometres. Once again, the entire working day was spent in New South Wales.[39][39]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 37. The applicant’s affidavit contains what is clearly a typographical error stating that he travelled 4602 kilometres. On 16 April 2019 the applicant collected a tanker from the depot at Pottsville and travelled to Harwood delivering sugar and then to Lismore where he also delivered sugar. That trip was completed twice. The applicant worked for 12 hours travelling 460 kilometres in total. The entire working day was spent in New South Wales.[40][40]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 39. On 24 April 2019 the applicant made similar trips to Harwood and Lismore, completing the trips twice. He worked for 13 hours and travelled 460 kilometres in total.[41] On 30 April 2019 the applicant made similar trips; working for a total period of 12.5 hours and travelling 460 kilometres.[42] On 30 April 2019 the applicant made similar trips to Harwood and Lismore completing the trips twice and travelling 460 kilometres in total. He worked for 12.5 hours, and the entire working day was spent in New South Wales.[43][41]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 43.[42]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 43.[43]Affidavit of Christopher Adam Waters filed 27 October 2022 at para 46.