Australia, Sept. 19 -- County Court of Australia issued text of the following judgement on Sept. 16:

1. In August 2015, the defendant, Coles Supermarkets Australia Pty Ltd and the third party, Linfox Australia Pty Ltd, entered into an agreement for Linfox to provide transportation services for deliveries to Coles stores located in Victoria ("Agreement").

2. On 13 December 2018, the plaintiff, Mr Gurpreet Kang, injured his lower back in a fall in the course of his employment as a truck driver with Linfox ("incident"). The incident occurred at the loading dock of Coles' Ocean Grove store.

3. Following his injury, Mr Kang lodged a no-fault benefits claim for worker's compensation with Linfox, and was paid benefits under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("SRC Act").

4. On 21 April 2021, Linfox reached agreement with Mr Kang to finalise his employment, and settle all of his employment entitlements (with the exception of any entitlements under the SRC Act).[1]

5. Mr Kang issued this proceeding against Coles on 29 August 2022, alleging that the incident was caused by the negligence or breach of statutory duty of Coles.

6. On 7 August 2023, Coles issued a third party notice seeking:

(a) an indemnity in respect of any amount which Mr Kang may recover against Coles; or

(b) contribution pursuant to s23B of the Wrongs Act 1958.

7. By Summons filed 10 July 2024, Linfox, seeks the following order:

"The statement of claim of the defendant filed 7 August 2023 be struck out pursuant to rule 23.02, or alternatively, that it be summarily dismissed pursuant to rule 22.24(2) or s29 [sic] of the Civil Procedure Act 2010 (Vic), or the inherent jurisdiction of the Court, on the ground that the claim has no real prospect of success."[2]

8. Linfox relies on the affidavit of Dylan Michael Younane, solicitor for Linfox, sworn 11 July 2024 and its exhibits. At paragraph 7, Mr Younane deposed on instructions that:

"... The plaintiff did not make an election in writing under s 45 of the SRC Act to institute a proceeding against the Third Party for damages for non-economic loss."

9. Coles relies on the affidavits of Nicole Joanne Norris, solicitor for Coles, sworn 6 and 13 August 2024. Ms Norris deposed that Coles is unable to say whether any election has or has not been made under s 45 of the SRC Act.

Disclaimer: Curated by HT Syndication.