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Fraser v Burswood Resort (Management) Ltd

Fraser v Burswood Resort (Management) Ltd

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Case Copied 15 July 2014 83 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FRASER -v- BURSWOOD RESORT (MANAGEMENT) LTD [2014] WASCA 130

CORAM: MARTIN CJ
McLURE P
NEWNES JA

HEARD: 16 DECEMBER 2013

DELIVERED : 15 JULY 2014

FILE NO/S: CACV 9 of 2013

BETWEEN: TRACEY KATHLEEN FRASER
Appellant
AND
BURSWOOD RESORT (MANAGEMENT) LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
Citation  :FRASER (nee BUTCHER) -v- BURSWOOD RESORT (MANAGEMENT) LTD [2012] WADC 175
File No  :CIV 2590 of 2007

Catchwords:

Tort - Negligence - Employer duty of care - Scope of duty to night-shift workers - Duty to warn against risks of driving after night-shift - Duty to alter shift times

Causation - Onus of proof - Legal onus remains with plaintiff throughout the trial - Shift of evidentiary onus - Whether defendant's breach caused the plaintiff's injury

Appeals - Error of fact - Whether trial judge failed to draw inferences that should have been drawn from the facts - Whether conclusions of trial judge ought be reversed

Legislation:

Civil Liability Act 2002 (WA), s 5C
Civil Liability Amendment Act 2003 (WA)

Result:

Appeal dismissed
Notice of contention dismissed
Cross-appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G Droppert
Respondent: Ms B A Mangan

Solicitors:

Appellant: CLP Legal Pty Ltd
Respondent: Jarman McKenna

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

Adler v Australian Securities and Investments Commission [2003] NSWCA 131
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Betts v Whitingslowe [1945] HCA 31; (1945) 71 CLR 637
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Commissioner of Main Roads v Jones [2005] HCA 27
Czatyrko v Edith Cowan University [2005] HCA 14
Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
Fitzpatrick v Job trading as Jobs Engineering [2007] WASCA 63
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Fraser v Burswood Resort (Management) Ltd [2012] WADC 175
Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2006] QCA 335
Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470
Jones v Bradley [2003] NSWCA 81
Kuhl v Zürich Financial Services Australia [2011] HCA 11; (2011) 243 CLR 361
McGhee v National Coal Board [1972] 1 WLR 1
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Richard Evans & Co Ltd v Astley [1911] AC 674
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales [2000] NSWCA 255
MARTIN CJ:

Summary

At 4.00 am on 10 December 2001,…

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] WASCA 130
Decision Date: 15 JULY 2014

CaseChat Overview and Summary

In the case of Fraser v Burswood Resort (Management) Ltd, the plaintiff, Fraser, sought damages for injuries sustained in a motor vehicle accident following a night shift at the Burswood Resort. Fraser alleged that the defendant, Burswood Resort (Management) Ltd, was negligent in its duty of care towards its night-shift workers, specifically in failing to warn against the risks of driving after a night shift and in not altering the shift times to mitigate such risks. The case was heard in the Supreme Court of Western Australia, with the appeal subsequently heard by the Court of Appeal.

The primary legal issues the court needed to address were the scope of the employer's duty of care towards night-shift workers, the onus of proof in negligence cases, and the specific causation of the plaintiff's injuries. The court had to determine whether the employer breached its duty by not warning employees of the risks associated with driving post-shift and whether such breach led to the plaintiff's injuries. Additionally, the court considered whether the trial judge correctly applied the onus of proof throughout the trial and whether there was an error in the trial judge's conclusions.

The court held that the employer did have a duty of care to warn night-shift workers about the dangers of driving immediately after their shift. However, the court found that the employer had not breached this duty, as there was no evidence suggesting that the employer was aware of the specific risks involved or that such warnings would have prevented the accident. Regarding the onus of proof, the court confirmed that the legal onus remains with the plaintiff throughout the trial. The court rejected the argument that the evidentiary onus shifted to the defendant, emphasising that the plaintiff must prove causation on the balance of probabilities. Ultimately, the court determined that the employer's alleged breach did not cause the plaintiff's injuries. The appeal was dismissed, with the Court of Appeal affirming the trial judge's findings and ruling in favour of the defendant.

In conclusion, the court upheld the decision of the trial judge and dismissed the plaintiff's claim. The court found that the employer did not breach its duty of care and that the plaintiff failed to prove that such breach caused the injuries. The court further confirmed that the onus of proof in negligence cases remains with the plaintiff and that the trial judge correctly applied this principle. No orders were made in favour of the plaintiff.

Orders