D'Arcy v Caltex Australia Petroleum Pty Ltd

Case [2019] ACTCA 27


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

D’Arcy v Caltex Australia Petroleum Pty Ltd

Citation:

[2019] ACTCA 27

Hearing Date:

15 August 2019

DecisionDate:

23 October 2019

Before:

Murrell CJ, Mossop and Charlesworth JJ

Decision:

Appeal dismissed with costs

Catchwords:

APPEAL – NEGLIGENCE – Duty of care – workplace accident fibreglassing an underground petroleum storage tank – appellant severely burnt – claim against occupier of premises which had lease from Crown lessee – appellant an employee of a contractor engaged by Crown lessee – scope of duty of care – whether obligations under Work Health and Safety Regulation 2011 (ACT) affect content of duty of care – whether occupier obliged to take steps to check capacity of contractor of Crown lessee to comply with proposed method of work – whether primary judge erred in finding that occupier of premises did not breach duty of care – he did not

APPEAL – STATUTORY DUTY – Duties on persons in control  of non-registrable premises under Dangerous Substances (General) Regulation 2004 (ACT) – whether primary judge erred in finding that statutory duties arising under regulations were not breached – he did not

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44, 168

Dangerous Substances Act 2004 (ACT), ss 10, 16, 17, 21, 31
Dangerous Substances (General) Regulation 2004 (ACT), ss 6, 280, 281, 285, 286, 292, 293
Occupational Health and Safety Regulation 2001 (NSW)
Work Health and Safety Act 2011 (ACT), ss 19, 267
Work Health and Safety Regulation 2011 (ACT), ss 9, 34, 35, 36, 37, 38, 44, 51, 52, 62, 66, 73

Workers Compensation Act 1951 (ACT), s 182D

Cases Cited:

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
D’Arcy v Caltex Australia Ltd [2018] ACTSC 206
D’Arcy v Caltex Australia Ltd (No 2) [2018] ACTSC 306
D’Arcy v Caltex Australia Ltd (No 3) [2018] ACTSC 307
D’Arcy v Caltex Australia Petroleum Pty Ltd [2016] ACTSC 270
Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36
Downs v Williams (1971) 126 CLR 61
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
McDonald v Girkaid Pty Ltd [2004] NSWCA 297
Meyers v Commissioner for Social Housing [2019] ACTCA 19
O’Connor v SP Bray Ltd (1937) 56 CLR 464
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Waugh v Kippen (1986) 160 CLR 156

Parties:

Phillip D’Arcy (Appellant)

Caltex Australia Petroleum Pty Ltd (Respondent)

Representation:

Counsel

P Webb QC and L Grey (Appellant)

R Cavanagh SC and J Gracie (Respondent)

Solicitors

Sneddon Hall & Gallop (Appellant)

Colin Biggers & Paisley (Respondent)

File Number:

AC 71 of 2018

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:…

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Details
AGLC
D'Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27
Case
[2019] ACTCA 27
Decision Date

CaseChat Overview and Summary

The appeal concerned a workplace accident where the appellant, an employee of a contractor engaged by a Crown lessee, suffered severe burns while fibreglassing an underground petroleum storage tank. The appellant brought a claim in negligence against the occupier of the premises, who held a lease from the Crown lessee.

The central legal issues before the Court of Appeal were whether the occupier owed a duty of care to the appellant, the scope of that duty, and whether the occupier had breached that duty. Specifically, the court considered whether the obligations imposed by the *Work Health and Safety Regulation 2011* (ACT) affected the content of the occupier's duty of care, and whether the occupier was obliged to verify the contractor's capacity to comply with the proposed method of work. The court also had to determine if the primary judge had erred in finding that the occupier had not breached its duty of care.

The Court of Appeal affirmed the primary judge's finding that the occupier did not breach its duty of care. The court reasoned that the occupier's duty of care did not extend to supervising the detailed work practices of the contractor engaged by the Crown lessee, nor was it required to investigate the contractor's capacity to perform the work safely. The court held that the occupier was entitled to rely on the contractor to implement safe work practices, particularly given the existence of specific regulatory obligations under the *Work Health and Safety Regulation 2011* (ACT) which placed the primary responsibility for safety on the contractor and the Crown lessee. The appeal was dismissed.

Orders

Orders of the court

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

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Ratio Decidendi

Legal Principle Established

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