Boral Resources (NSW) Pty Ltd v Watts - [2005] NSWCA 191

NEW SOUTH WALES COURT OF APPEAL

CITATION: Boral Resources (NSW) Pty Ltd v Watts [2005] NSWCA 191

FILE NUMBER(S):
40752/04

HEARING DATE(S): 20 April 2005

JUDGMENT DATE: 17/06/2005

PARTIES:
Boral Resources (NSW) Pty Ltd - Appellant
Frances Vicki Watts - First Respondent
Waltron Pty Ltd t/as Staff Force - Second Respondent

JUDGMENT OF: Giles JA Santow JA Young CJ in Eq

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 87/01(Newcastle)

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

COUNSEL:
G Curtin - Appellant
P R Arden SC & R E Quickenden - First Respondent
B Odling - Second Respondent

SOLICITORS:
Griffin Hilditch - Appellant
J J Lees & Associates - First Respondent
Arnold Lawyers - Second Respondent

CATCHWORDS:
Workplace injury - rolling rocks off roadway - found unsafe system of work because no instruction on what rocks to remove manually and when to call for a loader - whether system of work required removal of rocks even if not blocking path of dump truck - whether plaintiff was rolling large rocks - whether contributory negligence - apportionment between "labour hire" employer and hirer of labour - whether plaintiff's costs also apportioned. D

LEGISLATION CITED:

DECISION:
Appeal and cross appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40752/04
DC 87/01 (Newcastle)
GILES JA
SANTOW JA
YOUNG CJ in EQ
Friday 17 June 2005

BORAL RESOURCES (NSW) PTY LTD v WATTS & ANOR

Judgment

GILES JA: Boral Resources (NSW) Pty Ltd (“Boral”) operated a rock quarry at Peats Ridge. It obtained labour from Waltron Pty Ltd (“Waltron”) which traded as a labour hire organisation under the name Staff Force. Ms Vicki Watts was employed by Waltron and hired out to Boral, first as the driver of a water truck and then as the driver of a large dump truck carrying rock from the quarry face to a crusher. On 1 December 1998 Ms Watts injured her lower back when moving rocks off the internal roadway between the quarry face and the crusher.
The proceedings were heard by Charteris DCJ in October 2003 and May 2004. His Honour gave judgment on 19 May 2004. He held that there had been causative breach by Boral of its obligation to provide a safe system of work, that Ms Watts had not been contributorily negligent, and that Ms Watts should recover from Boral damages of $286,564.26. On a cross-claim by Boral against Waltron he held that there had also been causative breach by Waltron of its obligation to provide a safe system of work, that there should be a 60/40 per cent apportionment between Boral and Waltron, and that Boral should recover $109,840.10 from Waltron. $109,840.10 is not 40 per cent of $286,564.26. The figures had components of damages at common law and modified common law damages under the Workers Compensation Act 1987; they were not in issue on appeal, and need not be explained.
On 26 May 2004 his Honour made formal orders, which included…

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: [2005] NSWCA 191
Decision Date: 17 June 2005

CaseChat Overview and Summary

Boral Resources (NSW) Pty Ltd appealed a decision of the District Court of New South Wales, which had found in favour of the respondent, Mr Watts, in a claim for damages arising from a workplace injury. Mr Watts, a labourer supplied by a labour hire company to Boral, sustained injuries when he was rolling rocks off a roadway at a Boral worksite. The dispute concerned Boral's liability for the injuries sustained by Mr Watts due to an alleged unsafe system of work.

The primary legal issues before the Court of Appeal were whether the system of work implemented by Boral was unsafe, specifically concerning the instructions provided to workers regarding the manual removal of rocks from roadways and when to request the assistance of a loader. The court also considered whether the system of work implicitly required the removal of rocks even if they were not directly obstructing the path of dump trucks, and whether Mr Watts had been rolling large rocks. Furthermore, the appeal addressed the apportionment of liability for contributory negligence and the division of costs between the labour hire employer and the hirer, Boral.

The Court of Appeal upheld the District Court's finding that Boral had failed to provide a safe system of work. The court reasoned that the lack of clear instructions on what rocks were to be removed manually and when to call for a loader created an unacceptable risk. It was determined that the system of work did not adequately address the potential hazards associated with rolling rocks, particularly larger ones, and that Boral had not taken sufficient precautions to ensure the safety of workers engaged in such tasks. The court found that Mr Watts' actions did not amount to contributory negligence to a degree that would warrant a reduction in damages.

The appeal and cross-appeal were dismissed, with Boral Resources (NSW) Pty Ltd ordered to pay the costs of Mr Watts.

Orders

Orders of the court

Appeal and cross appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

YOUNG CJ

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Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

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