Gerald Brennan v Capital Weed Control Pty Ltd

GERALD BRENNAN v CAPITAL WEED CONTROL PTY LTD AND ANOR
 [2013] ACTSC 78 (2 May 2013)

NEGLIGENCE – personal injury – claim against employer – claim by employer against third party for contribution as vicariously liable for negligence of its employee – whether employee of third party owed duty of care to plaintiff – no duty of care established – claim for contribution dismissed

Civil Law (Wrongs) Act 2002 (ACT), s 21 and s 42

No. SC 512 of 2009

Judge:             Master Harper             
Supreme Court of the ACT

Date:               2 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 512 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:  GERALD BRENNAN

Plaintiff         

AND:CAPITAL WEED CONTROL PTY LTD

(ACN 107 759 688)

Defendant

AND:AUSTRALIAN CAPITAL TERRITORY

Third Party

ORDER

Judge:  Master Harper
Date:  2 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. the defendant’s claim for contribution from the third party be dismissed

1. the defendant pay the third party’s costs

1. On the morning of the hearing of this action for damages for personal injury, a settlement was reached between the plaintiff and the defendant, for a figure which the third party accepted as reasonable.  This leaves only the claim for contribution by the defendant against the third party for determination by the Court.

1. The plaintiff was an employee of the defendant.  He was injured on 21 May 2008 when a tree fell on him.  He was a member of a team engaged in weed control along Ginninderra Creek in the Palmerville Heritage Park adjacent to William Slim Drive in Belconnen, between the suburbs of McKellar and Nicholls.  The defendant company was carrying out this work pursuant to a contract with the third party, the Australian Capital Territory, through the Parks, Conservation and Lands division of the then Department of Territory and Municipal Services. 

1. The plaintiff’s claim against the defendant was framed in negligence, the general particulars being failure to provide a safe workplace and failure to provide a safe system of work.

1. The third party claim was also in negligence.  The negligence alleged was that of Ms Jenny Conolly, a pest and weeds officer at that time with the Department.  Ms Conolly was the field supervisor and contract manager for the contract between the defendant and the third party.  The negligence alleged against Ms Conolly was that, following a report by the defendant’s foreman, Mr Graeme Watters, that trees in the area where his crew were to work were leaning over and had apparently been damaged with a tomahawk or something similar, Mr Gregory Harris, a director of the defendant, contacted Ms Conolly and informed her of the report.  She said that she would inspect the area.  Work was suspended pending the inspection.  The allegation was that she attended the site on either the afternoon of 20 May or the morning of 21 May 2008 and inspected the damaged trees.  She then declared the area safe for the work to go on.  At about 8.15 am on…