Burns v BOC Gases Australia Ltd - [2001] WADC 113

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BURNS -v- BOC GASES AUSTRALIA LTD [2001] WADC 113

CORAM: WISBEY DCJ

HEARD: 26, 27 FEBRUARY 2001

DELIVERED : 17 MAY 2001

FILE NO/S: CIV 874 of 1999

BETWEEN: JOHN MATTHEW BURNS
Plaintiff
AND
BOC GASES AUSTRALIA LTD (ACN 000 029 729)
Defendant

Catchwords:

Negligence - Negligent advice - Plaintiff given inadequate advice concerning evacuation of liquid propane gas from cylinder - Contributory negligence of plaintiff in evacuating gas in enclosed area and close to naked flame

Personal injuries - General damages for facial and limb burns

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $23,246.40 after reduction of 50 per cent for contributory negligence

Representation:

Counsel:

Plaintiff: Mr D M Bruns
Defendant: Mr P D C Robinson

Solicitors:

Plaintiff: Separovic & Associates
Defendant: Williams & Hughes

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

Anns v Merton LBC (1978) AC 728
Donoghue v Stevenson (1932) AC 562
March v E & M H Stramare Pty Limited (1991) 171 CLR 506
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
Wynbergen v Hoyts Corpn Pty Ltd (1998) 72 ALJR 65

Case(s) also cited:

Nil

WISBEY DCJ: The plaintiff, a flight attendant born 4 September 1967, was at 26 June 1997 residing with his partner, Simone Halvorson, at Unit 4, 61 Collins Street, Scarborough. His mother who lived in Victoria was seriously ill, and he had made arrangements to return to Melbourne to be with her. A removalist had been engaged to shift his furniture and personal effects on 27 June 1997. The removalist had advised the plaintiff that it would not transport the 9kg LP gas cylinder while it contained gas, and consequently it was necessary for the plaintiff to evacuate the gas from the cylinder. He was in the process of so doing on the night of 26 June 1997 when there was an explosion and he received severe burns.
The plaintiff's case is that on the afternoon of 26 June 1997 he went to the defendant's Subiaco premises to have it empty the cylinder, and was advised by one of the defendant's employees that he could do it himself by opening the cylinder valve and letting the gas escape, and that if he desired to empty the cylinder quickly, it should be inverted. Acting on that advice the plaintiff took the cylinder back to his unit where he placed it on the courtyard lawn and opened the valve. Several hours later, noting that the cylinder had not emptied, he inverted it, and there was an immediate explosion. It is the plaintiff's case that the advice given to him by the defendant was negligent because the emptying of a gas cylinder should be undertaken by an expert; and/or that the defendant failed to advise him as to the appropriate safety precautions he should take if undertaking the task himself. It is alleged that when advising the plaintiff that he could evacuate the cylinder,…

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.

Continue reading Burns v BOC Gases Australia Ltd

Details

AGLC: Burns v BOC Gases Australia Ltd [2001] WADC 113
Case: [2001] WADC 113
Decision Date

CaseChat Overview and Summary

The plaintiff, John Matthew Burns, brought an action against BOC Gases Australia Ltd for damages resulting from severe burns he sustained when a liquid propane gas cylinder exploded while he was evacuating the gas from it. The plaintiff claimed that the defendant was negligent in advising him to evacuate the gas himself, without providing adequate safety instructions. The defendant denied the allegations and argued that the plaintiff was also negligent in evacuating the gas in an enclosed area and in close proximity to a potential ignition source. The court was required to determine whether the defendant owed a duty of care to the plaintiff, whether that duty was breached, and if so, whether the breach caused the plaintiff's injuries. The court found that the defendant was indeed negligent in advising the plaintiff to evacuate the gas himself without providing adequate safety instructions. However, the plaintiff was also found to be contributory negligent for evacuating the gas in an enclosed area and near a potential ignition source. The court held that both parties contributed equally to the accident and apportioned the damages accordingly. The plaintiff was awarded $23,246.40 in damages, reduced by 50% for his contributory negligence.

Orders