Pender v Power Coal [2002] NSWSC 925

New South Wales Supreme Court

CITATION : Pender v Power Coal [2002] NSWSC 925 revised - 04/10/2002 FILE NUMBER(S) : SC 20772/01 HEARING DATE(S) : 25-26/9/02 JUDGMENT DATE : 26 September 2002

PARTIES : Ian Leslie Pender Power Coal Pty Limited JUDGMENT OF : Wood CJatCL at 1

COUNSEL : D Nock SC J Gleeson QC SOLICITORS : Barry F. Cosier & Associates Spark Helmore CATCHWORDS : CIVIL LAW - compensation for workplace injury - mining injury - jurisdictional point. LEGISLATION CITED : Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Akhrass v Allianz Australia Insurance & Anor [2002] NSWSC 352 Balfour Beatty Power Constructions (Australia) Pty Ltd v Government Insurance Office of New South Wales NSWCA 18 July 1996 Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 483 CASES CITED : Government Insurance Office of New South Wales v RJ Green and Lloyd Pty Ltd (1966) 114 CLR 437 Mercantile Mutual Insurance Aust Limited v Moulding (1995) 22 MVR 325 NRMA Insurance Ltd v New South Wales Grain Corporation (1995) 22 MVR 317 Prospect County Council v Foster [2001] NSWCA 117 Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261 DECISION : See paras 60 and 61

- 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WOOD CJ at CL

Thursday 26 September 2002

20772/01 – Ian Leslie Pender v Power Coal Pty Limited

JUDGMENT 1 HIS HONOUR: The defendant has filed a notice of motion seeking an order that the proceedings be struck out. The application arises in circumstances where the plaintiff was injured on 15 December 1999 while working in the Angus Place Colliery of the defendant, and in circumstances where he commenced an action in this court on 12 September 2001. 2 By reason of the need to deal with the costs of the proceedings, it is appropriate to note something of its history. Following service of the statement of claim, an appearance was filed on behalf of the defendant on 8 October 2001, on which date the defendant also filed a requisition for a jury. The plaintiff's Differential Case Management document was filed on 11 January 2002, and the defendant's DCM document was filed on 2 August 2002. In the meantime, on various occasions, the matter came before the court following the filing of a defence by the defendant on 15 October 2001. 3 Directions were initially given on 20 February 2002, on which date a final conference was appointed for 1 August 2002. Further directions were made on 1 August 2002, and then on 9 August 2002, during a telephone conference, the matter was fixed as being ready for hearing during the sittings of the Supreme Court at Orange commencing on 23 September 2002. 4 The plaintiff's claim, as appears from the statement of claim and the DCM documents, is one which asserts that he was injured when fellow workers were attempting to unwind a 50-millimetre reinforced water hose, which had been wound around a 750-kilogram metal drum. The co-workers had tried to unwind the hose by pushing the drum. However, because of the incline on which they were working, and the tendency of the hose to follow the drum, they could not manage this task by hand. 5 A decision was made to place a steel pipe through the centre of the drum to act as a spindle or axle, to anchor the free end of the hose to a parked PJB, and then to move the drum away from the PJB by means of a forklift. The drum was secured between the forklift tines by low strength white nylon rope, which was used to tie the ends of the metal pipe to the horns of the forklift lifting frame. 6 Having so secured the drum and having set up what was clearly an improvised system of work, it is alleged that the operator of the forklift reversed the vehicle, pulling the drum along the ground without lifting it free of the ground. His intention was that the drum would then revolve and release the hose, allowing it to roll out. 7 The problem which then emerged was that, by reason of the difference between the diameter of the hose and the drum, the hose came under tension and began to snake causing the plaintiff, who was standing nearby waiting to change a filter cartridge, to fall to the ground. The added tension then caused the drum lashing to break with the consequence that the drum fell off the forklift and rolled on to the plaintiff, causing the injuries in respect of which he now seeks damages. 8 In the expert's report, which was attached to the affidavit filed in support of the notice of motion, the apparent folly of the exercise being undertaken was explained in some detail. That report suggests, additionally, that there were other safe ways of undertaking the exercise using, for example, an Eimco hydraulic reeler which would not have involved the use of a forklift. Other methods were also identified. 9 The forklift in question, it was conceded by the plaintiff, does constitute a motor vehicle at law as does the PJB. Neither was registered, being in use by the defendant's staff within the mine. The insurer of the defendant is not an authorised third party insurer. 10 The application brought by the defendant which, in effect, is to strike out the proceedings for lack of jurisdiction depends upon the interaction of the Workers Compensation Act 1987 and the Motor Accidents Compensation Act 1999 (hereafter referred to as the MAC Act). That Act commenced on 2 October 1999, that is prior to the plaintiff's accident. 11 S 151A of the Workers Compensation Act which applied to claims for damages (such as the present calim) which were commenced prior to 27 November 2001, provided as follows: "(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case): (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation…"