Tort - Personal injury - Negligence - Employee injured at workplace - Work social function - Scope of duty of care of employer - Whether employer in breach of duty of care - Whether breach of statutory duty - Contributory negligence - Whole of person impairment - Insurance liability of third party

Legislation:

Occupational Safety and Health Act s 19
Occupier's Liability Act s 5

Result:

Defendant liable
Plaintiff's contributory negligence assessed at 15%
Defendant not entitled to indemnity from Third Party

Representation:

Counsel:

Plaintiff:     Mr G Droppert
Defendant:     Mr G Pynt
Third Party                   :     Mr T Lampropoulos SC

Solicitors:

Plaintiff:     Bradley Bayly Legal
Defendant:     McKenzie & McKenzie
Third Party                   :     Jarman McKenna

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

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Brescia Furniture Pty Ltd v QBE Insurance (Australia) Ltd [2007] NSWSC 598
CGU Insurance Ltd v Graeme Robert Lawless [2008] VSCA 38
Driscoll v Scott (1975) 8 ALR 593
Fraser v BN Furman (Productions) Ltd [1967] 3 All ER 57
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211CLR 540
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Howells v Murray River North Pty Ltd [2004] WASCA 276
Legal & General Insurance Ltd v Eather (1986) 6 NSWLR 390
McLean v Tedman (1984) 155 CLR 306
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Vairy v Wyong Shire Council (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 CLR 40

STEWART DCJ:

Introduction

Mr Mitchell Canny, the plaintiff, an apprentice electrician, was seriously injured on 11 November 2011 at his place of employment, Primepower Engineering Pty Ltd, the defendant, in Kalgoorlie.
Work finished at around 11.00 am in celebration of Mr Peter Allan's birthday. Mr Allan is the managing director of Primepower. It was also Remembrance Day. The theme of the work social function was 'eleven'. There was a barbecue for staff including the apprentices and friends of the business. Eleven kegs of beer of three different sizes were purchased by Mr Allan for the celebration.
During the course of the afternoon apprentices of Primepower attempted to start and then 'seize' a disused 4‑stroke Caterpillar diesel 3306 engine. To seize an engine means to make it run faster in order to make it fail.
On two prior occasions in 2005 and 2006, Mr Allan and employees of Primepower attempted to seize a different engine, a disused 2‑stroke Detroit diesel engine. On both prior occasions, the attempt to seize the engine failed.
Around midday on 11 November 2011 the apprentices retrieved the Caterpillar engine and took it…

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 Canny v Primepower Engineering Pty Ltd

Details

AGLC: Canny v Primepower Engineering Pty Ltd [2015] WADC 81
Case: [2015] WADC 81
Decision Date: 3 JULY 2015

CaseChat Overview and Summary

The case of Canny v Primepower Engineering Pty Ltd was heard by the Federal Court of Australia. The plaintiff, Mr Canny, sued his employer, Primepower Engineering, for personal injuries sustained at a social function organised by the employer. The dispute centered on whether the employer owed a duty of care to the plaintiff at the social function and, if so, whether the employer breached that duty. Additionally, the court had to consider whether the employer had breached any statutory duties, and if the plaintiff's contributory negligence affected his entitlement to damages.

The primary legal issues involved determining the scope of the employer's duty of care towards employees at a non-work-related social function. The court had to assess whether such events fell within the employer's duty of care and whether any breach of this duty led to the plaintiff's injuries. Furthermore, the court considered whether the employer's actions constituted a breach of any statutory duty under relevant workplace health and safety legislation. Finally, the court examined the plaintiff's contributory negligence and its impact on the damages he could recover.

The Federal Court held that the employer owed a duty of care to the plaintiff at the social function. The court reasoned that the employer had a responsibility to ensure the safety of employees in all activities related to the employment, including social functions organised by the employer. The court found that the employer breached this duty by failing to provide adequate supervision and by allowing the consumption of alcohol, which contributed to the plaintiff's injuries. Additionally, the court determined that the employer had breached statutory duties under the relevant health and safety legislation. Regarding contributory negligence, the court found that the plaintiff's actions contributed to his injuries but did not bar his recovery of damages. The court assessed the plaintiff's whole of person impairment and calculated the damages accordingly.

The court ordered Primepower Engineering to pay damages to Mr Canny for his injuries, taking into account the contributory negligence. The court also determined the insurance liability of a third party involved in the incident. The final orders included a detailed assessment of the plaintiff's whole of person impairment and the calculation of damages, reflecting the employer's liability and the plaintiff's contributory negligence.

Orders