Action Engineering Pty Ltd v Press - [2006] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ACTION ENGINEERING PTY LTD v PRESS & ANOR
[2006] SASC 207
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
27 July 2006
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - GENERALLY
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
Appellant appeals to the Supreme Court against a finding after a trial in the District Court that there was no contributory negligence on the part of the first respondent in respect of a workplace accident - appellant appeals to the Supreme Court against the interpretation by the District Court of certain indemnification clauses in a contract between the appellant and the second respondent Broken Hill Proprietary Company Limited (BHP) - respondent worker injured while performing maintenance on coking ovens on premises owned by BHP - respondent employed by Rexco Proprietary Limited which company had hired his services to Action Engineering Proprietary Limited which had contracted for maintenance work with BHP - consideration of the principles of contributory negligence in relation to the circumstances of the case - respondent's conduct can be characterised only as 'mere inadvertence' or 'inattention' - no error made out in respect of the finding of no contributory negligence - consideration of certain indemnification clauses in a contract between the appellant (Action Engineering Proprietary Limited) and (BHP) - no error made out in the interpretation of indemnification clauses - appeal dismissed.
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, applied.

ACTION ENGINEERING PTY LTD v PRESS & ANOR
[2006] SASC 207
Full Court: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: After a trial in the District Court, Mr Press was awarded damages for injuries he suffered in an accident at his workplace.
The damages were awarded against Action Engineering Pty Ltd (“Action”) and against Broken Hill Proprietary Company Limited (“BHP”). Mr Press was working for Action when he suffered the injuries. Mr Press was employed by Rexco Pty Ltd (“Rexco”), a labour hire company. Rexco had hired Mr Press’s services to Action. Action had contracted to carry out maintenance work for BHP at BHP’s premises. Mr Press was engaged in that maintenance work when he was injured.
The Judge awarded damages on the basis that Action and BHP owed a duty of care to Mr Press, similar to that owed by an employer to an employee. The Judge found that each of them was in breach of that duty. There is now no challenge to that finding, nor to the award of damages.
The Judge found that there was no contributory negligence on the part of Mr Press. Action challenges that finding.
The Judge held that having regard to the terms of the contract between BHP and Action, Action was liable to indemnify BHP in respect of BHP’s liability to Mr Press. Action challenges that conclusion of law.
I consider that the appeal fails on both grounds. I agree generally with the reasons given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 207
Decision Date: 27 July 2006

CaseChat Overview and Summary

Action Engineering Pty Ltd appealed to the Supreme Court against findings made by the District Court in relation to a workplace accident. The appellant sought to appeal against the findings that the first respondent had not been contributorily negligent in respect of the accident, and that certain indemnification clauses in a contract between the appellant and Broken Hill Proprietary Company Limited (BHP) had been correctly interpreted by the District Court. The respondent had been injured while performing maintenance work on coking ovens on premises owned by BHP. The Supreme Court considered the principles of contributory negligence in relation to the circumstances of the case, and found that the respondent’s conduct could only be characterised as ‘mere inadvertence’ or ‘inattention’. The Supreme Court also considered the interpretation of certain indemnification clauses in a contract between the appellant and BHP, and found that the District Court had not erred in its interpretation of those clauses. The appeal was dismissed.

The legal issues that the Supreme Court was required to decide were whether the District Court had erred in finding that there was no contributory negligence on the part of the first respondent, and whether the District Court had erred in its interpretation of certain indemnification clauses in a contract between the appellant and BHP. The Supreme Court considered the principles of contributory negligence in relation to the circumstances of the case, and found that the District Court had not erred in its finding of no contributory negligence. The Supreme Court also considered the interpretation of certain indemnification clauses in a contract between the appellant and BHP, and found that the District Court had not erred in its interpretation of those clauses.

The Supreme Court found that the District Court had not erred in its finding of no contributory negligence on the part of the first respondent. The Supreme Court considered the principles of contributory negligence in relation to the circumstances of the case, and found that the respondent’s conduct could only be characterised as ‘mere inadvertence’ or ‘inattention’. The Supreme Court also found that the District Court had not erred in its interpretation of certain indemnification clauses in a contract between the appellant and BHP. The Supreme Court found that BHP was entitled to be indemnified by Action, and that the District Court had not erred in its interpretation of those clauses. The appeal was dismissed.

The Supreme Court dismissed the appeal for the reasons given by the Chief Justice. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

I consider that the appeal fails on both grounds. I agree generally with the reasons given by the trial Judge. That being so, I will express my conclusions relatively briefly.The facts Mr Press was carrying out maintenance work on a series of coke ovens that form a long rectangular structure rising about 15 metres above ground level. Mr Press was familiar with the ovens. He had worked on them over a period of about 12 months. On the occasion in question, part of a fume extraction system was being checked in the course of a maintenance program. The system was one whereby fumes were extracted from the coke ovens into a large fixed duct which was adjacent to the top of the ovens. This was done when the ovens were being charged with coal. Put very simply, there was a door in the adjacent fixed duct that was opened mechanically, and when it was open a telescopic duct would extend from the charger across to the duct, making a seal at the door opening. As coal was discharged from the charger into the top of the oven, fumes would be extracted from the oven through the charger, through the telescopic duct and into the large fixed duct. For the purposes of this operation the charger moved on a railway track across the top of the ovens, pausing above each oven to charge it with coal and to extract fumes. For the first time the checking of the seal between the telescopic duct and the doorway in the fixed duct was being checked by having a maintenance fitter stand on top of the battery charger, to observe the tightness of the seal. Standing in this position enabled the fitter to get a better view of the seal, compared with the previous method under which, I gather, the fitters would adjust the door from a platform, then move away while the battery charger was moved into place and the telescopic duct extended to the fixed duct. There was an element of “hit and miss” to that process, because the fitters were not in a position to observe the tightness of the seal from reasonably close up. The new method involved the fitter standing on the charger alongside the telescopic duct, in the retracted position. The fitter would watch the telescopic duct extend across the space to the fixed duct. During the course of this operation a rod attached to the telescopic duct would push the door open, allowing the end of the telescopic duct to move towards and make contact with the opening behind the door. For this purpose the fitter would be standing on a platform on the charger. The platform had a guardrail, but there was a gap in the guardrail through which the telescopic duct moved. At the side of the telescopic duct, at about hip height of a person standing adjacent to the telescopic duct, was a fairly small projecting plate, which was part of a switch mechanism that would indicate to the operator of the telescopic duct that it was fully extended or fully retracted as the case may be. The control room in which the operator was, was so positioned that the operator could not see the telescopic duct.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I agree with the Judge’s conclusion on this aspect of the matter. BHP was entitled to be indemnified by Action.Conclusion For those reasons I would dismiss the appeal. DUGGAN J: I would dismiss the appeal for the reasons given by the Chief Justice. GRAY J: I would dismiss this appeal. I have nothing to add to the reasons of Doyle CJ.

Ratio Decidendi

Legal Principle Established

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