Gary Martin v Kevin Teeling [2010] NSWSC 814

Gary Martin v Kevin Teeling [2010] NSWSC 814

It is arguable that the Workers Compensation Act 1987 and related legislation do not expressly or impliedly take away a common law cause of action for nervous shock by a father relating to the death of his son, even if both were employed by the same employer. The relationship giving rise to the claim is familial rather than employment, and these statutory schemes do not abolish or restrict such a claim unless specified. Therefore, the statement of claim is not so obviously untenable as to warrant summary dismissal or striking out.

Jurisdiction
Australia
Judgment Date
27 July 2010
Procedural Posture
Summary Judgment Application / Interlocutory Decision on Notice of Motion for Summary Dismissal or Strike Out
Outcome
Notice of motion for summary dismissal/strike out dismissed.
Legal Topics
['nervous Shock' 'summary Judgment' 'workers Compensation Act 1987 (nsw)' 'law Reform (miscellaneous Provisions) Act 1946 (nsw)']
['tort Law' 'employment Law' 'workers Compensation'] ['nervous Shock' 'summary Judgment' 'workers Compensation Act 1987 (nsw)' 'law Reform (miscellaneous Provisions) Act 1946 (nsw)']

Case Brief

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Procedural Posture

Summary Judgment Application / Interlocutory Decision on Notice of Motion for Summary Dismissal or Strike Out

Legal Issues

  1. 1 ['Whether s 151 of the Workers Compensation Act 1987 precludes a father from bringing a nervous shock claim over the death of his son where both were employed by the same employer' 'Whether the provisions of the Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998 bar a common law nervous shock claim by a related party who is also a worker']

Ratio Decidendi

It is arguable that the Workers Compensation Act 1987 and related legislation do not expressly or impliedly take away a common law cause of action for nervous shock by a father relating to the death of his son, even if both were employed by the same employer. The relationship giving rise to the claim is familial rather than employment, and these statutory schemes do not abolish or restrict such a claim unless specified. Therefore, the statement of claim is not so obviously untenable as to warrant summary dismissal or striking out.

Court Disposition

Notice of motion for summary dismissal/strike out dismissed.

Orders

  • ['The notice of motion filed 19 March 2010 is dismissed.' 'The matter is listed for a status conference on 10 August 2010 at 9.00 am before the Registrar.' "The defendant is to pay the plaintiff's costs as agreed or assessed."]