Fennell v Silcar Pty Ltd - [2014] VSC 261

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WARRNAMBOOL

COMMON LAW DIVISION

S CI 2012 06620

KEITH FENNELL	Plaintiff
v
SILCAR PTY LTD	Firstnamed Defendant
and
ALCOA PORTLAND ALUMINIUM PTY LTD	Secondnamed Defendant

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JUDGE:	OSBORN JA
WHERE HELD:	Warrnambool
DATE OF HEARING:	28-30 April, 5-6, 13 May 2014
DATE OF JUDGMENT:	6 June 2014
CASE MAY BE CITED AS:	Fennell v Silcar Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 261

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NEGLIGENCE – Personal injury – First defendant employer – Second defendant retained first defendant as maintenance contractor – Plaintiff’s claim against first and second defendants dismissed by consent – Contribution and indemnity between defendants – Employer’s non-delegable duty of care – Principal’s general duty of care – Employer’s system of work – Principal retaining role in system of work – Wrongs Act 1958 s 23B(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie QC with Mr I Fehring	Stringer Clark
For the Firstnamed Defendant	Mr P Jens with Ms M Lang	Lander & Rogers
For the Secondnamed Defendant	Mr C Blanden QC with Mr G Moloney	Hunt & Hunt

TABLE OF CONTENTS

The proceeding................................................................................................................................... 5

Silcar’s breach of duty....................................................................................................................... 7

Alcoa’s breach of duty....................................................................................................................... 9

Apportionment................................................................................................................................. 20

HIS HONOUR:

Keith Fennell is a 54 year old maintenance fitter formerly employed by the first defendant (‘Silcar’).

On 7 July 2007 he suffered serious injury to his right knee when carrying out maintenance work within a piece of plant known as the ‘Blow Off Brush Station’ (‘the brush station’) at the Portland Aluminium Smelter.

At that time Silcar was retained by the second defendant (‘Alcoa’) to carry out recurrent maintenance works at the smelter and part of those works included inspecting (and if necessary replacing) brushes used to brush ‘bath’ from anodes at one point in the production line.

On the day in question Fennell was assigned to inspect the brushes and make any necessary consequential repairs together with an apprentice named Lipscombe. Fennell had not done the job before. The job was assigned to Fennell by Silcar at a ‘toolbox meeting’ which took place in a ‘smoko’ shed adjacent to the plant at the beginning of the working day. He was given a job pack of documents prepared by Alcoa which described the job to be done, identified hazards associated with it and recorded necessary procedures.

The brush station was contained within a large steel cabinet through which the anodes passed suspended on rods from an overhead line. A conveyer in the base of the cabinet removed waste displaced by the brushes. The general appearance of the station is shown in a photograph tendered in evidence.

[1]

[1]Exhibit 3.

The dimensions of the brush station are shown in an elevation drawing comprised in one of the documents tendered in evidence.

[2]

[2]Exhibit 4.

The Court had the benefit of a view of the brush station from the exterior.

As the photograph and elevation drawing demonstrate the brush station could be entered from two doors on its…

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: [2014] VSC 261
Decision Date: 6 June 2014

CaseChat Overview and Summary

In Fennell v Silcar Pty Ltd, the plaintiff sought damages for injuries sustained while working as a subcontractor for the first defendant, a company engaged in maintenance activities. The second defendant, Silcar, had engaged the first defendant as a maintenance contractor. The plaintiff's claims against both defendants were dismissed by consent, leaving only the issue of contribution and indemnity between the defendants. The court was required to determine whether Silcar had a non-delegable duty of care to the plaintiff and whether it retained a role in the system of work that exposed the plaintiff to risks.

The court examined the statutory framework provided by the Wrongs Act 1958, specifically section 23B(1), which outlines the employer's general duty of care. The court assessed whether Silcar had a non-delegable duty of care, considering its role in retaining control over the system of work. The analysis included whether Silcar's oversight and management responsibilities meant it could not delegate the risk of harm associated with the maintenance activities. The court also looked at whether Silcar's general duty of care extended to the subcontractor, considering the nature of the contractual relationship and the control exerted by Silcar over the work environment.

The court found that Silcar had a non-delegable duty of care to the plaintiff, as it retained significant control over the system of work and the maintenance activities. This control included ensuring the safety of the work environment, which Silcar failed to adequately manage. The court determined that Silcar's general duty of care extended to the subcontractor, as it retained a supervisory role that exposed the plaintiff to risks. Consequently, Silcar was held liable for the contribution and indemnity claim brought by the first defendant. The court's decision recognised the importance of the principal's ongoing responsibility in maintaining a safe working environment, even when employing subcontractors.

The court ordered Silcar to pay the first defendant the amount of any judgment obtained by the plaintiff, along with costs. This ruling emphasised the need for employers to take proactive steps in ensuring safety, regardless of the contractual arrangements with subcontractors.

Orders