The Facts

Delivery driver works on both sides of NSW-Queensland border

The employee was a delivery driver working from his employer's warehouse in Tweed Heads, located just inside the NSW border. Organisationally, the Tweed Heads branch formed part of the employer's Queensland operations, with the warehouse manager reporting to the employer's state manager in Queensland.

The worker made deliveries north of the border in Queensland, extending to Beenleigh in the north and Jimboomba, Beaudesert and Springfield Lakes in the west, as well as south of the border in NSW, to Casino and Lismore. Around 70% to 80% of the deliveries were made in Queensland.

Employee suffers significant personal injury at work

In May 2010, the worker was required to deliver a hot water system to a building site at Goonellabah, near Lismore in northern NSW. He was unable to obtain assistance at the site. In attempting to deliver the hot water system, he suffered a significant personal injury.

The delivery driver sued his employer for damages. When negligence was alleged against the employer, the question which arose was whether the claim for damages would be governed by Queensland law or NSW law.

Which state's law should apply, Queensland or NSW?

The worker submitted that Queensland law applied in determining liability, damages and the quantification of those damages.

If the worker could make a common law claim in Queensland, he would avoid the 15% threshold which exists under NSW law. Additionally, he could make a claim for multiple heads of damages, rather than merely past and future wage loss and past and future superannuation loss, which are the only damages payable under the NSW work injury damages scheme.

The insurer, WorkCover Queensland, argued that it was a NSW case, based on the "state of connection" of the employee and that accordingly, it had no liability to cover his claim for damages.

It was up to the Supreme Court of Queensland to determine whether WorkCover Queensland was obliged to pay the man's claim.

case a - The case for the worker

case b - The case for WorkCover Queensland
  • Queensland was the state in which I usually worked, as I made the overwhelming majority of my deliveries in Queensland.
  • Although the Tweed Heads office is just inside the border of NSW, administratively it is part of my employer's Queensland operation. My boss reported to the Queensland state manager, who approved my appointment, and my wages were costed to the Queensland branch of the business.
  • My primary connection to Queensland is demonstrated by the fact that I worked to Queensland time, rather than Australian Eastern Daylight Saving time, adhered to in NSW.
  • I took all Queensland public holidays and was not given NSW public holidays.
  • The court should find that my employment was connected with Queensland and that WorkCover Queensland is obliged to pay my claim for damages.
  • The truck which the employee drove was based in Tweed Heads, in NSW.
  • He attended the Tweed Heads office each day. He planned his deliveries from there, returned there to collect products, received directions about the work he was to undertake there and returned there at the end of each day.
  • As well as performing his daily duties at the warehouse in Tweed Heads, the worker commonly made deliveries to destinations in NSW.
  • The worker worked full-time in the warehouse in Tweed Heads during an earlier period of employment.
  • The court should find that even though the driver made deliveries in Queensland, he usually worked and was based in NSW. We should be found to be not liable for his claim for damages.

So, which case won?

Cast your judgment below to find out

Chris Clarke

Workers compensation

Stacks Law Firm

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