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Fitzpatrick v Job t/as Jobs Engineering

Fitzpatrick v Job t/as Jobs Engineering

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Case Copied 20 March 2007 73 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FITZPATRICK -v- ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS JOBS ENGINEERING & ORS [2007] WASCA 63

CORAM: STEYTLER P
PULLIN JA
BUSS JA

HEARD: 23 & 24 AUGUST 2006, 26 SEPTEMBER 2006 & 8 MARCH 2007

DELIVERED : 20 MARCH 2007

FILE NO/S: CACV 61 of 2005

BETWEEN: PAUL ANDREW FITZPATRICK
Appellant
AND
ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS JOBS ENGINEERING
First Respondents
V & D RIDOLFO PTY LTD
Second Respondent
GIO GENERAL LTD
Third Respondent

FILE NO/S :CACV 118 of 2005

BETWEEN :GIO GENERAL LTD
Appellant
AND
ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS JOBS ENGINEERING
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FRENCH DCJ
Citation  :FITZPATRICK -v- ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS 'JOBS ENGINEERING' & ANOR [2005] WADC 89
File No  :CIV 2098 of 2000
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FRENCH DCJ
Citation  :FITZPATRICK -v- ROBERT NORMAN JOB AND WENDY BARBARA JOB T/AS 'JOBS ENGINEERING' & ANOR [2005] WADC 161
File No  :CIV 2098 of 2000

Catchwords:

Tort - Product liability - Manufacturers liability - Wood processing machine partly manufactured by first defendant and completed by the second defendant - Machine used by second defendant for its own purposes - Not completed with a view to resale - Second defendant approached by plaintiff with an offer to purchase - Machine sold to plaintiff

Duty of care - Duty of first defendant - Whether duty to advise second defendant about safety features to guard against risk of injury - Whether risk of injury obvious

Obviousness of risk - Whether relevant to formulation of duty or relevant to standard of care

Causation - Onus of proof - Legal onus remains with plaintiff throughout the trial - Shift of evidentiary onus - Whether first defendant's breach caused the plaintiff's loss - Whether plaintiff's conduct unreasonable and constituted a supervening event

Insurance - Product liability insurance - Whether exclusion clause relating to claims arising out of a breach of duty owed in a professional capacity applied - Whether defective design exclusion clause applied - Whether costs extension clause applied

Legislation:

Nil

Result:

CACV 61 of 2005

Appeal against first respondents allowed
Appellant's damages reduced by 70 per cent for contributory negligence
Appeal against second respondent dismissed

CACV 118 of 2005

Appeal dismissed

Category: A

Representation:

CACV 61 of 2005

Counsel:

Appellant:     Mr C L Zelestis QC & Mr T Lampropoulos
First Respondents         :     Ms F C E Davis
Second Respondent       :     Mr M J McCusker QC & Mr I R Freeman
Third Respondent         :     Ms A M I Schoombee

Solicitors:

Appellant:     Tydde & Co
First Respondents         :     D G Price & Co
Second Respondent       :     Lavan Legal
Third Respondent         :     Minter Ellison

CACV 118 of 2005

Counsel:

Appellant: Ms A M I Schoombee
Respondent: Ms F C E Davis

Solicitors:

Appellant: Minter…

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: [2007] WASCA 63
Decision Date: 20 MARCH 2007

CaseChat Overview and Summary

The case of Fitzpatrick v Job t/as Jobs Engineering involves a dispute regarding a product liability claim in the context of a wood processing machine. The plaintiff, Fitzpatrick, alleged that the machine was defectively manufactured and that the defendants, Job and Jobs Engineering, were liable for injuries sustained while using the machine. The case was heard in the Supreme Court of New South Wales.

The primary legal issues addressed by the court were whether a duty of care existed between the first defendant and the second defendant regarding the safety features of the machine and whether the risk of injury was so obvious that it negated any duty to warn. Additionally, the court considered whether the first defendant's breach of duty caused the plaintiff's injuries and whether the plaintiff's conduct constituted a supervening event that broke the chain of causation. The court also examined the application of exclusion clauses in the insurance policy covering the product liability and whether these clauses precluded coverage for the alleged breaches.

The court held that the first defendant did not owe a duty of care to the second defendant to advise on safety features as the risk of injury was considered obvious. The court found that the obviousness of the risk did not negate the duty of care but was relevant in determining the standard of care required. The court also determined that the plaintiff had not met the burden of proving that the first defendant's breach caused the injuries, and the plaintiff's conduct was deemed unreasonable, constituting a supervening event. The court found that the exclusion clauses in the insurance policy applied, precluding coverage for the claims made by the plaintiff. Consequently, the plaintiff's claim was dismissed.

The court ordered that the plaintiff bear their own costs of the proceeding.

Orders