NSW Supreme Court rejects employer's summary dismissal amid workplace injury

Court reminds employers that 'employment status' needs to be put to trial

NSW Supreme Court rejects employer's summary dismissal amid workplace injury

The Supreme Court of New South Wales recently dealt with a case involving a worker who sustained a lower back injury while working. She commenced proceedings against the employer, alleging that her injuries were caused by the employer's negligence and breach of duty as the occupier of the premises.

The employer sought summary dismissal of the proceedings or, alternatively, a separate determination of the worker's employment status.

The case raised complex issues regarding the worker's employment status, the applicable legal framework for assessing damages, and the procedural requirements for commencing court proceedings.

Workplace accident

The worker sustained an injury to her lower back on March 30, 2015, while working in a cool room at a grocery store in Cobar, NSW.

She alleged that the injury occurred when her back struck a sharp metal bar that formed part of the higher metal shelving while she was retrieving a bag of potatoes.

The worker commenced proceedings in the District Court on March 29, 2018, claiming that her injuries were caused by the employer's negligence and breach of duty as the occupier of the premises.

She argued that the employer owed and breached a duty of care to provide reasonably safe premises, as demonstrated by the presence of the sharp metal bar that created a risk of harm.

Employer seeks summary dismissal

Initially, the employer denied that the worker was its employee, suggesting that she was employed by another entity, Khan's Supermarket (Cobar) Pty Ltd.

However, in an amended defence filed on May 30, 2023, the employer admitted that it was both the occupier of the premises and the worker's employer.

The employer argued that, as a consequence of alleging that the worker was its employee, her claim for damages would be governed by the Workers Compensation Act 1987 (NSW) rather than the Civil Liability Act 2002 (NSW).

Furthermore, the employer contended that the worker was required to comply with certain "pre-filing requirements" under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) before commencing proceedings.

The employer sought summary dismissal of the proceedings, arguing that the worker's failure to comply with the "pre-filing requirements" meant that the proceedings disclosed no reasonable cause of action.

Alternatively, the employer sought a separate determination of the question of whether the worker was employed by the employer within the meaning of the relevant legislation.

Should the claim be dismissed?

In its decision, the court refused the employer's application for summary dismissal, finding that there was a real question to be determined regarding the worker's employment status.

The court emphasized that summary dismissal of a claim is only appropriate in the clearest of cases and that the power should be exercised “sparingly and with restraint.”

The court reviewed the evidence presented by both parties and concluded that there was a triable issue as to whether the worker was employed by the employer or by Khan's Supermarket (Cobar) Pty Ltd.

The court noted that the worker had presented evidence suggesting that Khan's was her employer, including wage and superannuation records, workers' compensation insurance details, and a register of injuries.

“In connection with the resolution of this issue on the present application, the following matters should be noted. First, this is not a case where it is suggested that the plaintiff was in a relationship of principal and independent contractor to the defendant or other party; rather, the case is only concerned with whether the plaintiff was a worker or employee of the defendant or Khan’s,” the court said.

“Secondly, and following on from the first matter, it is accepted that there was no written contract of employment in place. Thirdly, the parties approached the matter on the footing that, in order to resolve the question of employment raised, the Court would consider the ‘totality of the relationship’ between the parties,” it added.

The court stated that the legal consequences of non-compliance would depend on the proper construction of the relevant legislation, which had not been fully argued before the court. Thus, the court dismissed the employer’s application for summary dismissal.

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