Almeida v Universal Dye Works Pty Ltd - [2000] NSWCA 264

Reported Decision: [2001] Aust Tort Reports 81-603
[2000] 103 IR 433

New South Wales

Court of Appeal

CITATION: ALMEIDA v. UNIVERSAL DYE WORKS PTY. LIMITED & ORS [2000] NSWCA 264

FILE NUMBER(S): CA 40723/99

HEARING DATE(S): 19/09/2000

JUDGMENT DATE:
12 December 2000

PARTIES :

Maria Almeida (Appellant)
Universal Dye Works Pty. Limited (First Respondent)
Baleskim Pty. Limited (Second Respondent)
Newtown Dyers & Bleachers Pty. Limited (Third Respondent)

JUDGMENT OF: Priestley JA at 1; Powell JA at 10; Santow AJA at 90

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC3102/98

LOWER COURT
JUDICIAL OFFICER : Patten DCJ

COUNSEL: L. King SC/P.A. Regattieri (Appellant)
G.F. Little (First Respondent)
P.W. Taylor SC (Second Respondent)
S.A. Kerr (Third Respondent)

SOLICITORS: Jones Staff & Co (Appellant)
McCulloch & Buggy (First Respondent)
Abbott Tout (Second Respondent)
Phillips Fox (Third Respondent)

CATCHWORDS: INDUSTRIAL LAW - Industrial safety, health and welfare - Factory legislation - Interpretation - Occupier responsible for safety of - Whether contractor's employee replacing corrugated iron roofing working in factory - If so, whether any, and, if so, which, Respondent was occupier of factory - INDUSTRIAL LAW - Industrial safety, health and welfare - Construction and safety legislation - Interpretation - Whether company which retained contractor to carry out work is "person in charge of the construction work"

LEGISLATION CITED: Construction Safety Regulations 1950 rr. 73,74.
Factories Shops and Industries Act 1902, ss. 4,40(1), (2).
Workers Compensation Act 1987 s.20

DECISION: (By majority) Appeal upheld in part against First Respondent only; otherwise dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40723/99
DC 3102/98

PRIESTLEY JA
POWELL JA
SANTOW AJA

12 December 2000

ALMEIDA v. UNIVERSAL DYE WORKS PTY. LIMITED

JUDGMENT

1    PRIESTLEY JA: All the facts and materials necessary for an understanding of this appeal are set out in the reasons of Powell JA and Santow AJA. In my opinion the appeal should partly succeed, on two separate bases, which if they were both adopted would lead to new trials on different causes of action.
2    The first basis is one with which neither Powell JA nor Santow AJA agrees, so I will simply set out its main steps, without exposition. (It is the argument principally relied on for the appellant (unsuccessful plaintiff below).)
3 One. In my opinion (a) the building on whose roof the deceased was working was a factory within the meaning of that word as defined in s 4 of the Factories Shops and Industries Act 1962, (b) that is sufficient to make the roof of the building a factory or a part of a factory for the purposes of the Act. (Amongst other reasons, s 22 of the Act in its form in 1990 seems to be powerful support for this view.)
4    Two. For the reasons explained by Patten DCJ, I agree with him that the first and second defendants were occupiers of the roof.
5 Three. It was therefore necessary for the trial judge to consider whether…

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: [2000] NSWCA 264
Decision Date: 12 December 2000

CaseChat Overview and Summary

The appeal in *Almeida v Universal Dye Works Pty Ltd* concerned the interpretation of industrial safety legislation, specifically the *Factories, Shops and Industries Act 1962* (NSW). The appellant, Mr Almeida, was an employee of a contractor engaged to replace corrugated iron roofing at premises occupied by the first respondent, Universal Dye Works Pty Ltd. Mr Almeida suffered injuries during the course of this work and sought to establish that Universal Dye Works, as the occupier of the factory, owed him a duty of care under the Act.

The primary legal issues before the court were whether Mr Almeida, as a contractor's employee undertaking roofing work, was considered to be working in the factory for the purposes of the Act, and consequently, whether Universal Dye Works was the "occupier" responsible for his safety. Further, the court considered whether Universal Dye Works, by retaining the contractor, could be deemed the "person in charge of the construction work" under relevant safety provisions.

The majority of the court, comprising Priestley and Powell JJA, found that Universal Dye Works was indeed the occupier of the factory and that the Act imposed a duty of care on them in relation to the work being undertaken. They reasoned that the nature of the work, being integral to the maintenance of the factory premises, brought it within the scope of the Act. Santow AJA, in dissent, held a different view regarding the extent of the occupier's responsibility in this specific context.

Ultimately, the appeal was upheld in part against the first respondent, Universal Dye Works Pty Ltd, with the appeal otherwise being dismissed.

Orders

Orders of the court

(By majority) Appeal upheld in part against First Respondent only; otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ALMEIDA v. UNIVERSAL DYE WORKS PTY. LIMITED & ORS [2000] NSWCA 264
FILE NUMBER(S):	CA 40723/99
HEARING DATE(S):	19/09/2000
JUDGMENT DATE:	12 December 2000
PARTIES :	Maria Almeida (Appellant) Universal Dye Works Pty. Limited (First Respondent) Baleskim Pty. Limited (Second Respondent) Newtown Dyers & Bleachers Pty. Limited (Third Respondent)
JUDGMENT OF:	Priestley JA at 1; Powell JA at 10; Santow AJA at 90

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC3102/98
LOWER COURT JUDICIAL OFFICER :	Patten DCJ

COUNSEL:	L. King SC/P.A. Regattieri (Appellant) G.F. Little (First Respondent) P.W. Taylor SC (Second Respondent) S.A. Kerr (Third Respondent)
SOLICITORS:	Jones Staff & Co (Appellant) McCulloch & Buggy (First Respondent) Abbott Tout (Second Respondent) Phillips Fox (Third Respondent)
CATCHWORDS:	INDUSTRIAL LAW - Industrial safety, health and welfare - Factory legislation - Interpretation - Occupier responsible for safety of - Whether contractor's employee replacing corrugated iron roofing working in factory - If so, whether any, and, if so, which, Respondent was occupier of factory - INDUSTRIAL LAW - Industrial safety, health and welfare - Construction and safety legislation - Interpretation - Whether company which retained contractor to carry out work is "person in charge of the construction work"
LEGISLATION CITED:	Construction Safety Regulations 1950 rr. 73,74. Factories Shops and Industries Act 1902, ss. 4,40(1), (2). Workers Compensation Act 1987 s.20
DECISION:	(By majority) Appeal upheld in part against First Respondent only; otherwise dismissed.