Campbell v Burrows Engineering No. Scciv-01-613 - [2002] SASC 96

CAMPBELL v BURROWS ENGINEERING
[2002] SASC 96
Full Court: Prior, Nyland and Gray JJ

PRIOR J:I agree with the reasons prepared by Gray J. The appeal should be allowed, the judgment set aside and the matter remitted for rehearing in the District Court before another judge.
NYLAND J: For the reasons expressed by Gray J I agree that the appeal should be allowed and the matter remitted for hearing before another District Court Judge.
GRAY J: This is an appeal from a decision of a judge of the District Court, dismissing the plaintiff’s claim.
The appellant, the plaintiff (“Mr Campbell”) sought damages for personal injury and loss arising from an incident alleged to have occurred at his workplace. Burrows Engineering Pty Ltd (“Burrows Engineering”) and Lucon (Australia) Pty Ltd (“Lucon”), two of the defendants are respondents to the appeal.
Background
Mr Campbell claimed that at approximately 3.00am on 1 October 1994, whilst he was working at the premises of Adelaide Brighton Cement (“ABC”) scaffolding lifted. He fell through the scaffold platform and onto a conveyor belt. Mr Campbell was working as a welder at the time. He had been hired out to Burrows Engineering. Lucon engaged Burrows Engineering (including the services of Mr Campbell) to re-line a hopper with stainless steel plates at the ABC site at Port Adelaide. Mr Campbell was working 10 hour night shifts, 7 days a week. Complete Scaffold Services Pty Ltd (“Complete Scaffold”) supplied and erected scaffolding for the work on the hopper.
Mr Campbell claimed that Burrows Engineering, Lucon or ABC (or alternatively all three) occupied the site and were all under a common law duty of care and a duty pursuant to s 23 of the Occupational Health, Safety and Welfare Act 1986 (“The Act”) and acted in breach of the section. Section 23 is in the following terms:
“The occupier of a workplace shall ensure so far as is reasonably practicable –
(a) that the workplace is maintained in a safe condition; and
(b) that the means of access to and egress from the workplace are safe.”
Mr Campbell also claimed that Burrows Engineering acted in breach of section 19 of the Act. Section 19 provides:
“(1)   An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular -
(a)     shall provide and maintain so far as is reasonably practicable –
(i)a safe working environment;
(ii)safe systems of work;
(iii)plant and substances in a safe condition; and
(b)shall provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and
(c)shall provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.
…
(3)    Without derogating from the operation of subsection (1), an…

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 Campbell v Burrows Engineering No. Scciv-01-613

Details

AGLC: Campbell v Burrows Engineering No. Scciv-01-613 [2002] SASC 96
Case: [2002] SASC 96
Decision Date: 16 April 2002

CaseChat Overview and Summary

The plaintiff, Mr Campbell, appealed against the decision of the District Court, which dismissed his claim for damages for personal injury and loss arising from an incident at his workplace. The respondents to the appeal were Burrows Engineering Pty Ltd and Lucon (Australia) Pty Ltd, two of the defendants in the original case. Mr Campbell alleged that he fell through a scaffold platform while working as a welder at the premises of Adelaide Brighton Cement, and sustained injuries as a result. He claimed that the respondents, along with ABC, had a common law duty of care and a duty under s 23 of the Occupational Health, Safety and Welfare Act 1986, and that they had breached this duty. He further alleged that Burrows Engineering had breached s 19 of the Act.

The legal issues before the court were whether the respondents had a duty of care towards Mr Campbell, and if so, whether they had breached that duty. The court had to consider the provisions of the Occupational Health, Safety and Welfare Act 1986, and whether they applied to the facts of the case. The court also had to consider the evidence presented by both parties and assess the credibility of the witnesses.

The court found that the appeal should be allowed, and that the judgment of the District Court should be set aside. The court held that it was not possible to come to any ultimate conclusions with respect to the issue of liability, as the evidence presented was conflicting and the issue of credit remained critical and relevant to the case against Burrows Engineering and Lucon. The court noted that the respondents had adopted a common position in attacking Mr Campbell’s credit, and that the appeal should be allowed, the judgment set aside and the matter remitted for rehearing before another District Court judge.

This case highlights the importance of assessing the credibility of witnesses in personal injury cases, and the need for a thorough and unbiased evaluation of the evidence presented. It also underscores the significance of the Occupational Health, Safety and Welfare Act 1986 in providing a framework for employers to ensure the safety and welfare of their employees at work.

Orders

Orders of the court

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Background

Background to the litigation

The appellant, the plaintiff (“Mr Campbell”) sought damages for personal injury and loss arising from an incident alleged to have occurred at his workplace. Burrows Engineering Pty Ltd (“Burrows Engineering”) and Lucon (Australia) Pty Ltd (“Lucon”), two of the defendants are respondents to the appeal.Background Mr Campbell claimed that at approximately 3.00am on 1 October 1994, whilst he was working at the premises of Adelaide Brighton Cement (“ABC”) scaffolding lifted. He fell through the scaffold platform and onto a conveyor belt. Mr Campbell was working as a welder at the time. He had been hired out to Burrows Engineering. Lucon engaged Burrows Engineering (including the services of Mr Campbell) to re-line a hopper with stainless steel plates at the ABC site at Port Adelaide. Mr Campbell was working 10 hour night shifts, 7 days a week. Complete Scaffold Services Pty Ltd (“Complete Scaffold”) supplied and erected scaffolding for the work on the hopper. Mr Campbell claimed that Burrows Engineering, Lucon or ABC (or alternatively all three) occupied the site and were all under a common law duty of care and a duty pursuant to s 23 of the Occupational Health, Safety and Welfare Act 1986 (“The Act”) and acted in breach of the section. Section 23 is in the following terms:“The occupier of a workplace shall ensure so far as is reasonably practicable –(a) that the workplace is maintained in a safe condition; and(b) that the means of access to and egress from the workplace are safe.” Mr Campbell also claimed that Burrows Engineering acted in breach of section 19 of the Act. Section 19 provides:“(1) An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular -(a) shall provide and maintain so far as is reasonably practicable –(i)a safe working environment;(ii)safe systems of work;(iii)plant and substances in a safe condition; and(b)shall provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and(c)shall provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.…(3) Without derogating from the operation of subsection (1), an employer shall so far as is reasonably practicable -(a)monitor the health and welfare of the employer’s employees in their employment with the employer, insofar as that monitoring is relevant to the prevention of work-related injuries; and(b)keep information and records relating to work-related injuries suffered by employees in their employment with the employer and retain that information and those records for such period as may be prescribed; and(c)provide information to the employer’s employees (in such languages as are appropriate) in relation to health, safety and welfare in the workplace (including the names of persons to whom the employees may make inquiries and complaints about matters affecting occupational health, safety or welfare); and(d)ensure that any employee who is to undertake work of a hazardous nature not previously performed by the employee receives proper information, instruction and training before he or she commences that work; and(e)ensure that any employee who is inexperienced in the performance of any work of a hazardous nature receives such supervision as is reasonably necessary to ensure his or her health and safety; and(f)ensure that any employee who could be put at risk by a change in the workplace, in any work or work practice, in any activity or process, or in any plant –(i)is given proper information, instruction and training before the change occurs; and(ii)receives such supervision as is reasonably necessary to ensure his or her health and safety; and(g)ensure that any manager or supervisor is provided with such information, instruction and training as are necessary to ensure that each employee under his or her management or supervision is, while at work, so far as is reasonably practicable, safe from injury and risks to health; and(h)monitor working conditions at any workplace that is under the management and control of the employer; and(i)ensure that any accommodation, or eating, recreational or other facility, provided for the benefit of the employer’s employees while they are at work, or in connection with the performance of their work, and under the management or control of the employer (either wholly or substantially), is maintained in a safe and healthy condition.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appeal should be allowed. However, as earlier observed, it is not possible to come to any ultimate conclusions with respect to the issue of liability. Without seeing or hearing the witnesses a just determination cannot be made. The issue of credit remains critical and relevant to the case against Burrows Engineering and Lucon. Although separately represented Burrows Engineering and Lucon at trial adopted a common position in attacking Mr Campbell’s credit. The appeal should be allowed, the judgment set aside and the matter remitted for rehearing before another District Court judge. List of CITATIONS AS THEY APPEAR IN JUDGMENT1 (1945) 70 CLR 100 at 113. See also Starke J 123, Dixon J at 129, McTiernan J at 130 and Williams J at 135.2 (1960-61) 104 CLR 476 at 4793 (1992-1993) 177 CLR 472 at 4794 The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Ratio Decidendi

Legal Principle Established

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