Category Archives: Work injuries

Allianz Aust v GSF Aust [2005] HCA 26

ON 19 MAY 2005, the High Court of Australia delivered Allianz Aust v GSF Aust [2005] HCA 26; 221 CLR 568; 215 ALR 385; 79 ALJR 1079 (19 May 2005).

The High Court held that a worker who injured his back whilst directed by his employer to use crowbars to unload transport containers from a truck following a mechanical breakdown did not receive an “injury” within the meaning of the Motor Accidents Compensation Act 1999 as the mechanism was not defective. The injury was received through an unsafe system of work rather than the “use or operation of a motor vehicle”.

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Hollis v Vabu Pty Ltd [2001] HCA 44

ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).

http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html

The plaintiff was a pedestrian who was injured on a footpath by a bike courier. The defendant was the courier company who engaged the cy list. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.

The High Court allowed an appeal by the cyclist,  holding that the cyclist was not an independent contractor because:

  • no discretion to accept or reject work.
  • stringent roster system.
  • clear rules on taking annual leave.
  • little or no scope for freelancing.
  • no special skills.
  • cyclists were identified with the company with uniforms and a dress code.
  • pay and conditions were consistent with an employment relationship.
  • no scope for bargaining of rates.
  • the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
  • the exercise of control by the company over the courier’s activities.

The relevant considerations for determining whether or not a person is an independent contractor include:

  • Who owns the business?
  • Who controls the operation/work?
  • Who owns the office space?
  • Who owns the tools?
  • Who does the contractor provide duties to?
  • Does the independent contractor bear a risk of profit or loss?
  • Is there a creation of goodwill?
  • How is the independent contractor paid?

 

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Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336

ON 23 APRIL 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962″

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

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Dust Diseases Tribunal

ON 21 JULY 1989, the NSW Dust Diseases Tribunal (DDT) http://www.dustdiseasestribunal.lawlink.nsw.gov.au/ was established through the enactment of the Dust Diseases Act 1989 http://www.legislation.nsw.gov.au/viewtop/inforce/act+63+1989+FIRST+0+N/.

The DDT is a specialist tribunal with the exclusive jurisdiction to determine damages claims for death or injury arising from dust-exposure related diseases such as asbestosis and mesothelioma. The tribunal’s special purpose is to serve the interests of justice by expediting claims in circumstances where the claimants are in the advanced stages of illness.

The first judge to hear a case in the tribunal was Judge J L O’Meally AM RFD a tribunal Member (1989 to 1995), Senior Member (1995 to 1998) and President (1998 to 2011).

The Tribunal’s current judges are:

  • President Justice R O Blanch AM
  • Judge J P Curtis
  • Judge W P Kearns SC
  • Judge Finnane RFD QC
  • Acting Judge P J Johns

The court is situated at 12th Floor, John Maddison Tower, 88 Goulburn Street, Sydney NSW 2000. For all enquiries call (02) 9377 5440.

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Safety, Rehabilitation and Compensation Act 1988 (Cth)

ON 1 JULY 1998, the substantive provisions of the Commonwealth Safety, Rehabilitation and Compensation Act 1988 commenced. The Act was initially called the Commonwealth Employees’ Rehabilitation and Compensation Act 1988.

http://www.austlii.edu.au/au/legis/cth/consol_act/sraca1988368/

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Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20

ON 13 MAY 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

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Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 (29 May 1985).

http://www.austlii.edu.au/au/cases/cth/HCA/1985/34.html

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre [1958] TASStRp 11; (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

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Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61

ON 16 OCTOBER 1984, the High Court of Australia delivered Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61; (1984) 154 CLR 672 (16 October 1984).

The High Court ruled that a special duty of care by an employer to an employee to provide a safe system of work is non-delegable.

The Victorian State Transit Authority engaged an independent contractor to dismantle a crane in a railway yard. Kondis injured his back when a metal pin fell from the crane. Kondis sued the State Transit Authority. The High Court held that the State Transit Authority, as employer, was liable for the harm caused by the independent contractor because their failure to adopt a safe system of work was a breach of the employer’s non-delegable duty of care.

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Smith v Charles Baker & Sons [1891] UKHL 2

ON 21 JULY 1891, the House of Lords delivered Smith v Charles Baker & Sons [1891] UKHL 2 (21 July 1891).

http://www.bailii.org/uk/cases/UKHL/1891/2.html

The English Court of Appeal had held that a railway worker could not recover damages for his injuries because he had voluntarily assumed the risk (volenti non fit injuria).

On appeal, the House of Lords held that the worker was not barred from recovery by the mere fact that he continued to work with the knowledge of the risk or danger. Whether or not the worker has assented to the risk is a question of fact not law.

The House of Lords reversed the Court of Appeal decision, holding that there was no evidence to find that the worker consented to the particular risk that caused his injuries.

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