Ian Douglas Cocks v Blacktown City Council and the State of New South Wales [2012] NSWDC 189

District Court New South Wales

Medium Neutral Citation: Ian Douglas Cocks v Blacktown City Council and the State of New South Wales [2012] NSWDC 189 Hearing dates: 30, 31 July 2012; 1, 2 August 2012 Decision date: 27 August 2012 Before: MJ Finnane QC DCJ Decision: See para [68] Catchwords: Civil - personal injuries - foreseeability - negligence - contributory negligence - occupiers' liability - workers compensation

Meaning of "worker" - employment relationship - whether plaintiff "employee" or "independent contractor" - courier - employment contract

Damages - economic loss - vicissitudes Legislation Cited: Civil Liability Act 2002 Workers Compensation Act 1987 Cases Cited: Vabu v Federal Commissioner of Taxation (1996 New South Wales Court of Appeal unreported), 33 ATR 537 Hollis v Vabu (2001) 207 CLR 21 Category: Procedural and other rulings Parties: Ian Douglas Cocks (Plaintiff)

Blacktown City Council (First Defendant)

State of New South Wales (Second Defendant) Representation: Ms E Welsh (Plaintiff)

Mr G Gemmell (First and Second Defendants) Brydens Compensation Lawyers (Plaintiff)

GILD Insurance Litigation P/L (First and Second Defendants) File Number(s): 2010/00363303

Judgment

Introduction 1The Rural Fire Service is a well-known organisation in the State of New South Wales. It is responsible amongst other things for dealing with fires in rural areas. 2The Blacktown City Council owned premises in 2009 at 12 Florence Street Oakhurst and these premises contained a number of large storage sheds as well as an office building at the front of the premises. The Rural Fire Service leased these premises and was at all material times the occupier of the premises. 3On 3 November 2009 the plaintiff, who was the driver of a delivery van, was injured at those premises whilst he was unloading a bundle of star pickets. The plaintiff's claim is that the defendants were the cause of the accident and were liable to him in negligence. 4The plaintiff pleaded his cause of action by claiming that on the day concerned in the course of his work for Allied Express Transport and as a courier he was engaged in delivering certain goods to the premises of the defendants. The defendants did not admit the truth of this claim, although the evidence made it perfectly clear that the plaintiff was at the premises in this role on the day concerned. 5The plaintiff also claimed that there was on the premises a fire hose that had been left lying on the floor of the premises in close proximity to a small hump in the concrete floor and that the presence of the fire hose was obscured by the hump. Both defendants deny these allegations. 6It was further alleged that while the plaintiff was attempting to make the delivery, he tripped over the fire hose and/or hump. Both defendants denied this allegation. In addition, the first defendant denied that it had a duty of care to the plaintiff. Both defendants claimed the benefit of sections 5B, 5D, 5F and 5H of the Civil Liability Act 2002. 7Finally, the defendants allege contributory negligence on the part of the plaintiff. They claim that he is an employee of Allied Express Transport and accordingly section 151Z of the Workers Compensation Act applied so that any award of damages to the plaintiff would be reduced in accordance with that section. 8The plaintiff's claim is that at all material times he was an independent contractor and not an employee. Before turning to the legal tests that govern these matters, it is important that I should determine what happened on the day of the accident and where different versions are given I should determine which version I accept. 9On the day of the accident, the plaintiff was a van driver working for a company known as Allied Couriers. He owned the van and was paid a commission for each item that he delivered. His employer supplied a radio which was installed in the van. 10On the day of the accident he was doing what was called a "run" and had commenced to load the vehicle with goods earlier in the morning with a view to delivering these goods at different destinations. One of the places to which he was to deliver goods was the Rural Fire Service temporary station at 12 Florence Street Oakhurst. His evidence was that when he arrived at these premises, he parked his van near an office building that had a stair to another level. He went up this stair and enquired of somebody inside the office as to where he should go to deliver the goods. A person inside the office directed him to go to a storage shed where the goods would be unloaded. 11According to him, he had made a delivery to these premises on one earlier occasion only and on that occasion the goods had been taken from the back of his van at a place near the entrance to the premises. He claimed that no earlier occasion had he gone to the storage shed to which he was directed on this day. He was contradicted about this in evidence given by two Rural Fire Service officers. For reasons that I will later give, I believe the plaintiff and where he differs in his evidence from the evidence given by the Rural Fire Service officers, I prefer his evidence. In my judgment he is an honest man who gave careful and reliable evidence and is someone whose evidence I accept as being both true and reliable. 12According to the plaintiff, he then went in his vehicle to this storage shed. It was early in the morning, between 7 AM and 8 AM. There was daylight but I accept that to some extent there was shade around the entrance to this shed. It could not be said to be in darkness. 13The shed was a fairly large storage shed with a roller door covering its entrance. When the roller door was pushed upwards entrance could be gained to it. What was unusual was that when the roller door was open, rather than the ground into the shed being exactly level with the ground outside the shed, there was at the entrance a concrete barrier shaped like a speed hump and immediately behind the concrete barrier there was a large fire hose which evidence suggests had sand in it. 14Evidence was given that the concrete and the fire hose were put in position to prevent water coming into the shed if there was heavy rain. This was done before the Rural Fire Service had taken occupation of the premises. It is obvious, in my opinion, that the speed hump and the fire hose together and separately were hazardous to anybody walking into the shed. A photograph taken by the plaintiff some months after the accident shows yellow stripes across the top of the speed hump, but whether these markings were there on the day and whether they were clear to any onlooker is not something about which I am confident. 15The evidence is also clear that nobody working for the Rural Fire Service gave any warning to the plaintiff about the presence of the speed hump or the fire hose.