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  • 09Aug

    Court finds crush injury not arising out of employment

    A woman, who suffered serious injury when her hand came into contact with an operating sugar cane juicing machine at a shop where she worked, and who successfully sued the shop owners at first instance, has had her damages award upheld on appeal, with the Supreme Court of New South Wales Court of Appeal dismissing the shop owners’ appeal and upholding the lower court’s finding that the woman was not acting in the course of her employment at the time of the incident.

    Background

    Ms Vo was employed by Hung Vien Tran as a casual employee at a shop in Cabramatta, called Thu Phung Desserts. Ms Vo had fixed rostered working days on which she worked limited fixed hours as a casual employee.

    At approximately 5 pm on 13 February 2012, Ms Vo attended the shop to purchase a drink and to meet her friend who was working there at the time. Ms Vo was not rostered to work on this day. On arrival, another employee, Ms Hoa, asked Ms Vo if she would help clean the floor and also help with the last stage of cleaning a sugar cane machine. A tiled area of the floor was wet and Ms Vo slipped, coming into contact with the sugar cane juicing machine that was operating. Ms Vo’s left hand was crushed, causing significant injuries.

    Ms Vo was paid workers compensation.

    Initial proceedings

    Ms Vo later commenced proceedings in the Supreme Court of New South Wales against the owners of the shop as occupier of the premises, in negligence and claimed damages. At issue was whether Ms Vo’s injury had arisen out of or was in the course of her employment, and whether her right to commence proceedings for common law damages against the shop owners was restricted by Ch 7, Pt 6 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIMA”).

    The primary judge found that Ms Vo’s status as at the date of the accident was not as an employee, on the basis that she had fixed rostered working days, worked limited fixed hours each day as a casual employee and the shop owners did not ask or direct her to work on the day she was injured. Ms Vo was awarded damages.

    On appeal

    The owners appealed the primary judge’s findings. They argued on appeal that the primary judge erred in finding that Ms Vo’s injury was not suffered in the course of her employment. They also argued that Ms Vo’s injury met the description of a personal injury “arising out of” or “in the course of” her employment which was thus a claim for “work injury damages” as defined, which attracted the provisions of s 315 and 318 of the WIMA.

    The court found that at the time of the accident, Ms Vo was not acting in the course of her employment, and that the requisite causal connection between Ms Vo’s employment and the injury she suffered was not established.

    Accordingly, the court dismissed the owners’ appeal: Tran v Vo (2017) Aust Torts Reports 82-361; [2017] NSWCA 134.

    For more information on the above contact Joe Bonura on 02 4626 5077 or jbonura@marsdens.net.au

    This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au

    The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

Marsdens Offices