Ayling v BHP Direct Reduced Iron Pty Ltd - [2001] WADC 252

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: AYLING -v- BHP DIRECT REDUCED IRON PTY LTD & ORS [2001] WADC 252

CORAM: BLAXELL DCJ

HEARD: 27 JULY 2001

DELIVERED : 26 OCTOBER 2001

FILE NO/S: CIV 382 of 2000

BETWEEN: DAVID JOHN AYLING
Plaintiff
AND
BHP DIRECT REDUCED IRON PTY LTD
First Defendant
BHP IRON ORE PTY LTD
Second Defendant
JOHN HOLLAND CONSTRUCTION & ENGINEERING PTY LTD
Third Defendant
UNITED CONSTRUCTION PTY LTD
Fourth Defendant

Catchwords:

Negligence - Claim for damages for personal injury against multiple alleged tortfeasors - Earlier claim against employer for workers' compensation settled by way of consent judgment for damages - Amount of judgment recovered from employer - Trial of preliminary issue as to whether the plaintiff is barred from continuing the present proceedings

Legislation:

Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act s 7(1)(b)

Result:

Plaintiff's claim dismissed on grounds that unable to recover further damages

Representation:

Counsel:

Plaintiff:     Mr L Gandini
First Defendant             :     Mr B S Dodd
Second Defendant         :     Mr B S Dodd
Third Defendant           :     Mr B S Dodd
Fourth Defendant          :     Mr B S Dodd

Solicitors:

Plaintiff:     Chapmans
First Defendant             :     Mallesons Stephen Jaques
Second Defendant         :     Mallesons Stephen Jaques
Third Defendant           :     Mallesons Stephen Jaques
Fourth Defendant          :     Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Jameson v Central Electricity Generating Board (1999) 1 All ER 193

Case(s) also cited:

Bayley v Wesfarmers Transport Ltd (2000) 24 SR (WA) 229
Darcy v Baines (1995) 12 SR (WA) 285
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 159 ALR 268
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Tingey v Christ Church Grammar School Inc (1999) 21 SR (WA) 357
Walker v Fares Rural Co Pty Ltd [2001] WADC 94
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1984-1985] 155 CLR 448

BLAXELL DCJ: The plaintiff in this action claims damages for personal injuries suffered in an accident on 11 November 1997 in the course of his employment as a rigger. The statement of claim alleges that the accident occurred at the site of the Hot Briquetted Iron Refinery operated by the first and second defendants at South Hedland. It is further claimed that at all material times the third and fourth defendants had been contracted to carry out certain excavation works at the refinery including a slurry pit in which the plaintiff slipped and injured his right knee.
At the time of the accident the plaintiff was employed by Monadelphous Group Ltd (“Monadelphous”) and he had been instructed to attend at the refinery site pursuant to a labour hire agreement between that company and the fourth defendant. The statement of claim alleges that while employed on site the plaintiff was under the control and direction of the fourth defendant.
Following the accident the plaintiff claimed workers’ compensation from Monadelphous and that claim was eventually settled on terms including the entry of a consent judgment in…

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: [2001] WADC 252
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, David John Ayling, a plaintiff, brought a claim against multiple defendants for personal injuries he sustained in an accident while working as a rigger. The defendants, BHP Direct Reduced Iron Pty Ltd, BHP Iron Ore Pty Ltd, John Holland Construction & Engineering Pty Ltd, and United Construction Pty Ltd, asserted that the plaintiff's prior recovery from his employer through a workers' compensation settlement barred him from further recovery in the present proceedings. The court had to determine whether the plaintiff could recover additional damages beyond the amount already recovered in the workers' compensation settlement.

The court considered the applicability of section 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act, which limits the aggregate sum recoverable in multiple actions for the same damage. The plaintiff argued that his employer, Monadelphous Group Ltd, was not a tortfeasor but merely a labour hirer, and thus the consent judgment in the workers' compensation case should not bar his current claim. The court rejected this argument, holding that the consent judgment was a final determination of the damages for the plaintiff's injuries, which precluded any further recovery in the current action.

The court found that the consent judgment obtained against Monadelphous was a judgment within the meaning of the statutory provision, and the plaintiff was barred from recovering additional damages. The court dismissed the plaintiff's claim on the grounds that he was unable to recover further damages beyond what was already awarded in the workers' compensation settlement.

Orders