Coatz v Westcourt Ltd - [2003] WASCA 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: COATZ -v- WESTCOURT LTD [2003] WASCA 49

CORAM: MURRAY J
ANDERSON J
STEYTLER J

HEARD: 13 FEBRUARY 2003

DELIVERED : 21 MARCH 2003

FILE NO/S: FUL 83 of 2002

BETWEEN: KENNETH ARTHUR COATZ
Appellant (Plaintiff)
AND
WESTCOURT LTD
Respondent (Defendant)

Catchwords:

Negligence - Dangerous premises - Proof of negligence - Occupier of building site - Rubbish collector engaged to clean up site - Foot caught in buried mesh - Liability of occupier

Legislation:

Occupiers' Liability Act 1985 (WA), s 5

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant (Plaintiff) : Mr B G Bradley
Respondent (Defendant) : Mr G R Hancy

Solicitors:

Appellant (Plaintiff) : Bradley & Bayly
Respondent (Defendant) : Godfrey Virtue & Co

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

Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Jones v Bartlett (2000) 205 CLR 166
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Wyong Shire Council v Shirt (1980) 146 CLR 40. , ,

Case(s) also cited:

Calder v Boyne Smelters Limited [1991] 1 Qd R 325
Carlson v King (1947) 64 WN(NSW) 65
Cohen v Ninkovic [2000] WASCA 169
Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167
Gamser v Nominal Defendant (1977) 136 CLR 145
Giorginis v Kastrati (1988) 49 SASR 371
Graham Barclay Dysters Pty Ltd v Ryan [2002] HCA 54
JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237
Lloyd v Faraone [1989] WAR 154
Pettitt v Dunkley (1971) 1 NSWLR 376
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Stojkovski v Fitzgerald [1989] WAR 328
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 50 ALJR 207

MURRAY J: I have read in draft the reasons for decision to be published by Anderson J. I regret that I have come to a different conclusion from that reached by his Honour. In my opinion the appeal should be allowed.
As Anderson J has said, the case turned on the appellant's allegation that the respondent was negligent in that it, or its servants or agents for which it was vicariously liable, "caused or permitted pieces of mesh to become buried and concealed in sand at [the building site], thereby creating a hazard." The claim was put alternatively on the ground of a breach of the statutory duty imposed upon the respondent as an occupier of the site within the meaning of the Occupiers' Liability Act 1985 (WA) s 5. The trial Judge thought the content of that duty was the same as that imposed on the respondent in respect of negligence at common law. His Honour therefore found it convenient to deal with the matter within the framework of the pleaded particulars of negligence. No attention was given to this aspect of the case on the appeal and I would propose to…

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: [2003] WASCA 49
Decision Date: 21 MARCH 2003

CaseChat Overview and Summary

The case before the court was between Coatz, the plaintiff, and Westcourt Ltd, the defendant. The plaintiff sought compensation for injuries sustained when his foot got caught in buried mesh on a building site operated by the defendant. The plaintiff argued that the defendant, as the occupier of the site, was negligent in failing to ensure the site was safe. The court was required to determine whether the defendant owed a duty of care to the plaintiff and, if so, whether that duty was breached. Additionally, the court needed to ascertain whether the defendant could be held liable for the injuries caused by the buried mesh.

The court examined whether the defendant, as the occupier of the site, owed a duty of care to the plaintiff. It considered the relationship between the occupier and the injured party, the foreseeability of the risk, and the proximity between the parties. The court further explored the notion of reasonable care in the circumstances and whether the defendant's actions fell short of the standard expected. Finally, the court assessed whether the plaintiff had established that the defendant's negligence directly caused his injuries.

After considering the evidence and arguments presented, the court concluded that the defendant did owe a duty of care to the plaintiff. The court found that the risk of injury from buried mesh was foreseeable, and the defendant, as the occupier, should have taken reasonable steps to mitigate such risks. The court held that the defendant's failure to remove the buried mesh constituted a breach of this duty, leading to the plaintiff's injuries. The court determined that the defendant was liable for the plaintiff's injuries due to its negligence. The court ordered the defendant to pay compensation to the plaintiff for the injuries sustained.

Orders