Davis v City of Fremantle

[2001] WADC 29

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   DAVIS -v- CITY OF FREMANTLE & ORS [2001] WADC 29

CORAM:   COMMISSIONER REYNOLDS

HEARD:   24 NOVEMBER & 13 DECEMBER 2000

DELIVERED          :   20 FEBRUARY 2001

FILE NO/S:   CIV 3142 of 1998

BETWEEN:   WAYNE ANTHONY DAVIS

Plaintiff

AND

CITY OF FREMANTLE
First Defendant

BARRY HALL & ASSOCIATES PTY LTD
Second Defendant

CAMCO DESIGN PTY LTD
Third Defendant

Catchwords:

Appeal - Summary judgment - Personal and vicarious liability - Whether company is employer - Requirements for a pleading of negligence - Time and address for service of a chamber summons

Legislation:

Interpretation Act 1984

Limitation Act 1935
Workers' Compensation and Rehabilitation Act 1981
Workers' Compensation and Rehabilitation Amendment Act 1999

Supreme Court Rules 1981

Result:

Appeal and applications dismissed

Representation:

Counsel:

Plaintiff:     Mr T N Cullity

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     Mr B W Ashdown

Solicitors:

Plaintiff:     Trewin Norman & Co

First Defendant             :     Freehill Hollingdale & Page

Second Defendant         :     Freehill Hollingdale & Page

Third Defendant           :     Ilbery Barblett

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

Kondis v State Transport Authority (1984) 154 CLR 672

Case(s) also cited:

Bayly v Greenbay Holdings Pty Ltd, unreported; DCt of WA; Library No 4647; 11 October 1995

Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317

Dye v The Griffin Coal Mining Co Pty Ltd, unreported; DCt of WA; Library No 5050; 4 September 1996

Ellement v Brambles Australia Ltd, unreported; DCt of WA; Library No 4692; 13 November 1995

Fertal Holdings Pty Ltd v Kinna (1995) 13 SR (WA) 238

Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994

Morgan v Banning, unreported; FCt SCt of WA; Library No 990199; 21 April 1999

Musgrove v Minister for Transport [2000] WASCA 232

Newcombe v AME Properties Ltd (1995) 14 WAR 259

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Palamara v City of Perth (1996) 16 WAR 235

Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348

Scott v Davis [2000] HCA 52

Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150

Voli v Inglewood Shire Council (1963) 110 CLR 74

COMMISSIONER REYNOLDS: 

Introduction

1. There are two matters before me which can be conveniently dealt with together.  One is an appeal by the second third party/third defendant against the orders of Deputy Registrar Hewitt of this Court made on 13 June 2000 whereby he ordered inter alia that the second third party be joined as the third defendant to this action.  It seeks an order that the orders made by the Deputy Registrar on 13 June 2000 be set aside and in lieu thereof it be ordered inter alia that the plaintiff's chamber summons filed herein on 2 June 2000 seeking orders inter alia that it have leave to join the second third party as the third defendant to this action be dismissed.  It also seeks costs of the appeal and of the plaintiff's application to be taxed on an indemnity basis and paid forthwith.

2. The other matter before me is the third defendant's application by way of chamber summons dated 16 June 2000 seeking summary judgment against the plaintiff or alternatively that the plaintiff's statement of claim against it be struck out in its entirety.

3. The plaintiff opposes the appeal, the application for summary judgment and the application in the alternative that its statement of claim against the third defendant be struck out.

History

1. The plaintiff brought an action against the first defendant by a writ of summons filed on 21 August 1998.  The plaintiff claims against the first defendant damages for personal injury arising in the course of the plaintiff's employment with the first defendant caused by an explosion in the water treatment room at the first defendant's premises commonly known as the Fremantle Leisure Centre ("the Leisure Centre") located at 10 Shuffrey Street, Fremantle.  The plaintiff alleges that on 16 January 1997, in the course of his employment with the first defendant, he was carrying out a daily plant check inside the swimming pool water treatment plant room at the Leisure Centre which involved switching on the gas boiler and then bleeding the air from the filter unit.  As he was bleeding the filters there was an explosion and he was injured ("the accident").

2. The first defendant, by way of a third party notice issued on 2 November 1998, sought contribution and indemnity from the first third party on the basis that, inter alia, the first third party was negligent in its design of the water treatment room.  On 23 June 1999 the plaintiff obtained leave to amend the writ of summons to join the first third party as second defendant.  The first third party, in its defence to the first defendant's statement of claim filed on 5 October 1999, alleged that the second third party developed, designed and installed the salt water chlorination system in the water treatment room.

3. The first defendant sought and obtained leave to issue third party proceedings against the second third party and issued its third party notice against the second third party on 5 January 2000. By way of its defence to the first defendant's statement of claim against it the second third party pleaded that the first defendant's claim against it is statute barred on the basis that the second third party installed the salt water chlorination unit on or before 16 December 1993; that pursuant to s 38(1)(c) of the Limitation Act 1935 such an action as brought by the first defendant may only be brought or enforced within six years and that the first defendant's third party notice against the second third party was filed after the relevant six year period and on 5 January 2000.

4. On 2 June 2000 the plaintiff made an application by way of chamber summons for leave to amend the writ of summons by joining the second third party as third defendant.  The plaintiff accompanied its application with a minute of re‑amended writ of summons and a minute of re‑amended statement of claim which included pleadings relating to the plaintiff's claim against the second third party and prospective third defendant.  The plaintiff's application to join the second third party as third defendant was served upon the second third party at its business address on 8 June 2000.  Earlier on 18 January 2000 the solicitors for the second third party had filed a memorandum of appearance on behalf of the second third party.  The memorandum of appearance set out the name and address of the second third party's solicitors under the words "Prepared by" but made no express reference to an address for service as required by Form No 6.

5. A copy of the plaintiff's application to join the second third party as third defendant and the accompanying documentation came to the attention of someone in authority of the second third party/third defendant on the afternoon of 13 June 2000.  That person contacted the second third party's/third defendant's solicitors on the morning of 14 June 2000 and was subsequently advised that orders were made on the morning of 13 June 2000 including an order that the second third party be joined as third defendant and that the plaintiff's writ of summons and statement of claim be amended in terms of the minute of re‑amended writ of summons and minute of re‑amended statement of claim filed herein.

The re‑amended statement of claim

1. Paragraphs 3 to 22 inclusive of the re‑amended statement of claim provide inter alia:

   "3.The Plaintiff was at all material times employed by the First Defendant as a duty officer at its premises at the Fremantle Leisure Centre ('the leisure centre') at 10 Shuffrey Street, Fremantle in the State of Western Australia ('the premises').

   4.It was a term of the contract of employment between the Plaintiff and the First Defendant or it was the duty of the First Defendant to take all reasonable precautions for the safety of the Plaintiff while he was engaged in his employment with the First Defendant not to expose the Plaintiff to a risk of damage or injury of which it knew or ought to have known and to provide a safe place of work and a safe and proper system of working.

   5.The Second Defendant is a company duly incorporated in the State of Western Australia.

   6.The Third Defendant is a company duly incorporated in the State of Western Australia.

   7.In or about 1994 the Second Defendant was engaged by the First Defendant to be the project architect for the redevelopment of the leisure centre.

   8.The contract between the First Defendant and the Second Defendant was an oral contract ('the contract').

   9.It was an express term of the contract (or alternatively a term implied into the contract by the common law for reasons of business efficacy, or alternatively implied by statute) inter alia that the Second Defendant would exercise all due reasonable care and skill in performing the contract.

   10.It was an express term of the contract that the Second Defendant would be responsible for the design of the layout of the equipment in the water treatment plant room at the leisure centre including, but not limited to, the location of the salt water chlorination unit and the boiler.

   11.The First Defendant and the Second Defendant developed a concept for the redevelopment of the leisure centre.

   12.A salt-water chlorination system was to be installed at the leisure centre as part of the redevelopment of the leisure centre.

   13.The Second Defendant prepared the specifications for tender for the various stages of the redevelopment of the leisure centre and the Second Defendant recommended successful tenders to the First Defendant.

   14.In accordance with the Second Defendant's recommendation the First Defendant subsequently let the tenders.

   15.The Third Defendant:

   a)successfully tendered for the design, and construction and installation of the salt‑water chlorination system to be installed at the leisure centre; and

   b)entered into an agreement with the First Defendant to design, construct and install the salt‑water chlorination system to be installed at the leisure centre ('the agreement').

   16.It was an express term of the agreement (or alternatively a term implied into the agreement by the common law for reasons of business efficacy or alternatively implied by statute) inter alia that the Third Defendant would exercise all due reasonable care and skill in performing the agreement.

   17.Pursuant to the agreement the Third Defendant did in fact design, construct and install the salt‑water chlorination unit at the leisure centre.

   18.The salt‑water chlorination unit was installed at the leisure centre by the Third Defendant in or about 1994.

   19.On 16 January 1997, in the course of his employment with the First Defendant, the Plaintiff was carrying out a daily plant check inside the swimming pool water treatment plant room at the Leisure Centre which involved switching on the gas boiler and then bleeding the air from the filter unit.  As the Plaintiff was bleeding the filters there was an explosion and the Plaintiff was injured ('the accident').

   20.The accident was caused by the negligence of the First Defendants (sic) or its servants or agents, for whose negligence the First Defendant is vicariously liable.

   PARTICULARS OF THE FIRST DEFENDANT'S NEGLIGENCE

   a)Failing to take any or any adequate precaution for the safety of the Plaintiff while he was working for the First Defendant;

   b)Exposing the Plaintiff to a risk of damage or injury of which it knew or ought to have known;

   c)Failing to provide a safe system of work in that hydrogen gas was in close proximity to the burners on the boiler and there was a risk of explosion;

   d)Failing to ensure that the filter bleeder vents are located outside the building to safely dissipate hydrogen in the filtration system;

   e)Failing to carry out a hazard analysis of the salt water chlorinator/filtration system to ensure the hydrogen gas produced will not cause a dangerous situation;

   f)Failing to properly and adequately train the Plaintiff in how to safely operate the plant.

   21.Further, or in the alternative the accident was caused by the negligence of the Second Defendant or its servants or agents for whose negligence the Second Defendant is vicariously liable.

   ...

   22.Further, or in the alternative the accident was caused by the negligence of the Third Defendant or its servants or agents for whose negligence the Third Defendant is vicariously liable.

   PARTICULARS OF NEGLIGENCE OF THE THIRD DEFENDANT

   The Third Defendant was negligent in that it:

   a)failed to exercise any or any reasonable care in designing the salt‑water chlorination unit in that it failed to ensure that the hydrogen gas which was produced by the salt‑water chlorination unit was vented into a pipe through the roof of the water treatment plant room at the leisure centre when it knew or ought to have known that the salt‑water chlorination unit which produced hydrogen gas was to be located adjacent to a boiler which had a naked flame;

   b)failed to exercise any or any reasonable care when it installed the salt‑water chlorination unit in the water treatment plant room when it knew or ought to have known that the hydrogen gas which was produced by the salt‑water chlorination unit would be released adjacent to the naked flame on the boiler;

   c)failed to take any or any reasonable care to ensure that the naked flame on the boiler did not come into contact with the hydrogen gas which was being released by the salt‑water chlorination unit;

   d)failed to carry out any or any adequate inspection of the water treatment plant room to make it aware of the danger of installing the salt‑water chlorination unit adjacent to the naked flame on the boiler when it knew or ought to have known that the salt‑water chlorination unit produced hydrogen gas which was released in the water treatment plant room;

   e)failed to take any or any adequate precautions (such as to ensure that the hydrogen gas which was produced by the salt‑water chlorination unit was vented into a pipe through the roof of the water treatment plant room) to ensure that the hydrogen gas produced by the salt‑water chlorination unit was not released adjacent to the naked flame on the boiler."

Grounds of appeal

1. The third defendant relies on the following grounds of appeal:

   "1.The learned Deputy Registrar erred in determining the Plaintiff's chamber summons in the absence of the Second Third Party due to the Plaintiff's failure to serve the Plaintiff's chamber summons upon the Second Third Party at the Second Third Party's address for service pursuant to Order 72 of the Rules of the Supreme Court;

   2.The learned Deputy Registrar erred in determining the Plaintiff's chamber summons in the absence of the Second Third Party due to the Plaintiff's failure to serve the Plaintiff's chamber summons upon the Second Third Party 7 days before the return day of the chamber summons in accordance with Order 59 rule 5 of the Rules of the Supreme Court;

   3.The learned Deputy Registrar erred in granting the Plaintiff leave to join the Second Third Party as the Third Defendant to the Plaintiff's action and in granting the Plaintiff leave to amend its writ of summons in that the Plaintiff's cause of action against the Second Third Party is statute barred pursuant to section 38(1)(c) of the Limitation Act 1935."

Determination of the grounds of appeal

1. The outcome of the appeal is not dependent upon whether or not the third defendant succeeds on one or both of grounds 1 and 2 of its appeal.  Neither of these grounds goes to the substance of the appeal.  Further, the hearing of the appeal is a hearing de novo and counsel for the third defendant has now had the opportunity of fully presenting the substantive points on why the third defendant says it should not have been joined as the third defendant.

2. Neither ground 1 nor ground 2 has been made out.  In relation to ground 1 the second third party's memorandum of appearance did not state an address for service and so strictly speaking service on the second third party at its business address was good service.  I do not know whether or not the solicitor handling the matter for the plaintiff overlooked the fact that solicitors had filed an appearance for the second third party in the third party proceedings.  If he or she did then some contact with the second third party's solicitors to clarify the position on service and at least providing them with a copy of the application to join the second third party as the defendant and the accompanying minutes would have been courteous and perhaps useful.

3. In relation to ground 2 it should be noted that the requirement in O 59 r 5 of the Supreme Court Rules ("the Rules") to serve a summons seven days before the return day of the summons is not inflexible. The rule provides that the court may allow a shorter period of time for service. In this case the relevant time period from the date of service to the return day is five days. See s 61 of the Interpretation Act 1984.  The copy documents were served on Thursday, 8 June 2000 and the return day was Tuesday, 13 June 2000 and so the period of five days included at least two full standard working days.

4. The Deputy Registrar was no doubt aware that the party sought to be joined as the third defendant was already an interested party in the proceedings.  He was also no doubt aware of the history of the proceedings as a whole and the various issues raised in all of the pleadings already filed including the first defendant's statement of claim against the second third party.  He no doubt considered all of this together with the contents of the plaintiff's minute of the amended writ of summons and minute of re‑amended statement of claim.

5. Although the Deputy Registrar made no formal order abridging time for service I consider it reasonable in the circumstances to conclude that he formed the view that he should proceed and deal with the application expeditiously and within the seven day time period provided in O 59 r 5 of the Rules. In this instance I think that he was right to do so.

6. In my opinion there is no merit in ground 3 of the appeal. Section 38(1)(c) of the Limitation Act 1935 provides a limitation period of six years for causes of action based on contract.  Counsel for the third defendant has pointed to evidence filed on behalf of the third defendant that the salt water chlorination system was installed prior to 16 December 1993 and has submitted that the plaintiff's cause of action based on contract is statute barred because the order made by the Deputy Registrar on 16 June 2000 joining the second third party as the third defendant was made more than six years after 16 December 1993.

7. The plaintiff's cause of action against the third defendant is not based on contract.  The contract referred to in pars 15 and 16 of the re‑amended statement of claim is a contract between the first defendant and the third defendant.  The plaintiff is not a party to that contract.  On my reading of the re‑amended statement of claim the reference to the contract in pars 15 and 16 insofar as the plaintiff's claim against the third party is concerned is no more than narrative.  The plaintiff's claim against the third party is based on negligence as pleaded in par 22 of the re‑amended statement of claim.

The third defendant's application for summary judgment

1. Counsel for the third defendant has submitted that the plaintiff's re‑amended statement of claim discloses no reasonable cause of action as between the plaintiff and the third defendant.  I have already dealt with the third defendant's submission on contract.  The submissions by counsel for the third defendant on negligence can be summarised as follows.

1. Pursuant to s 93B(4) of the Workers' Compensation and Rehabilitation Act 1981 (as amended) ("the Act") a reference to the worker's employer includes a reference to a person for whose acts the employer is vicariously liable.  It is submitted that therefore the third defendant is deemed to be the or an employer of the plaintiff for the purposes of the Act.

2. It is further submitted that if the provisions of the Act as they were before 5  October 1999 when the Workers' Compensation and Rehabilitation Amendment Act 1999 came into force apply on the basis that the plaintiff issued his writ on 21 August 1998 and the joinder operates from then, then pursuant to s 93D the plaintiff was required to obtain leave from the District Court before the third defendant could be a defendant in the proceedings.  The plaintiff was granted leave pursuant to the provisions of the Act as they were prior to 5 October 1999 to commence common law proceedings for damages against the first defendant.  The plaintiff did not seek and has not been granted such leave to commence common law proceedings for damages against the third defendant.  It is submitted that therefore the plaintiff's action against the third defendant is a nullity.

3. It is also submitted that if the relevant date to determine whether the old or new provisions of the Act apply is 16 June 2000 when the Deputy Registrar ordered that the second third party be joined as the third defendant rather than 21 August 1998 when the writ was issued then the new provisions of the Act as from 5 October 1999 would apply.  It is submitted that if this is the case then the new provisions of s 93D to s 93F apply so that damages can only be awarded if:

   (a)It is agreed or determined that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations (s 93E(3)(a)).

   (b)It is agreed or determined that the degree of disability is not less than 16 per cent and the plaintiff elects, in the prescribed manner, to retain the right to seek damages (s 93E(3)(b) and s 93E(4)).

4. It is submitted that the provisions of s 93E(3) of the Act operate as pre‑conditions to the awarding of damages once the action has been commenced by writ.  It is further submitted that because the plaintiff has failed to make the necessary election pursuant to s 94E(3)(b) he cannot be awarded damages under the Act.  It is therefore submitted that the plaintiff's claim against the third defendant should be struck out as an abuse of process.

5. I am inclined to the view that if the first defendant is liable for any negligence by the third defendant then it is liable personally and not on a vicarious basis.

6. The first defendant had a special duty to provide a safe system of work, safe premises and safe equipment thereon which was non‑delegable and that the first defendant is liable for any negligence on the part of its independent contractor ie, the third defendant, in failing to design and/or install safe equipment.  The first defendant is liable for any failure by the third defendant to design and/or install safe equipment not on a vicarious basis but because the third defendant's failure to do so is a breach of the first defendant's duty.  See Kondis v State Transport Authority (1984) 154 CLR 672 per Mason J as he then was.

7. It follows from what I have just set out that I am also inclined to the view that s 93B(4) does not apply in this particular case and so the third defendant cannot be regarded as the plaintiff's employer. Therefore the provisions of the Act both before 5 October 1999 and also on and after 5 October 1999 do not apply as between the plaintiff and the third defendant. Further therefore if the joinder operates from 21 August 1998 then no leave was required pursuant to s 93D and if the joinder operates from 13 June 2000 which I think would be the correct approach then the provisions of the Act as from 5 October 1999 do not apply.

8. I note that par 20 of the re‑amended statement of claim provides that the accident was caused by the negligence of the first defendant or its servants or agents, for whose negligence the first defendant is vicariously liable.  At the hearing of the appeal and the application for summary judgment counsel for the plaintiff argued that the first defendant is personally liable and not vicariously liable for the negligence of the third defendant.  That being the case and given that I am inclined to that view I think that par 20 should be amended to read as follows:

   "The accident was caused by the negligence of the first defendant or its servants or agents, for whose negligence the first defendant is personally or vicariously liable."

9. I grant leave to the plaintiff to amend par 20 of its re‑amended statement of claim so that it reads as set out above.

10. Counsel for the third defendant has also submitted that the plaintiff's re‑amended statement of claim discloses no reasonable cause of action against the third defendant because there is no plea that the third defendant owed a duty of care to the plaintiff with particulars thereof and that there is no plea that the third defendant breached such duty of care with particulars thereof.

11. The tort of negligence consists of three elements which can readily be separated, namely, a duty of care, a breach of that duty, and damage resulting to the plaintiff from that breach (which is not too remote in law).

12. In my opinion the plaintiff's allegation of negligence against the third defendant in par 22 of the re‑amended statement of claim is sufficient to give rise to a cause of action, namely, the tort of negligence. If the third defendant wishes to seek particulars on matters pleaded in the re‑amended statement of claim then it can do so subject to the Rules.

Conclusion

1. For all these reasons I find that the third defendant's appeal and application for summary judgment should be dismissed.  I also grant leave to the plaintiff to amend par 20 of his re‑amended statement of claim as set out herein.  I will hear the parties on the question of costs on the third defendant's appeal and application for summary judgment.