Gibbs v Haoma Mining NL

Case [2012] WADC 127


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   GIBBS -v- HAOMA MINING NL [2012] WADC 127

CORAM:   SCHOOMBEE DCJ

HEARD:   18 MARCH 2011

DELIVERED          :   17 AUGUST 2012

FILE NO/S:   CIV 1348 of 2007

BETWEEN:   BARBARA JEAN GIBBS

Plaintiff

AND

HAOMA MINING NL
Defendant

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party

Catchwords:

Damages - Personal injury - Suffered during course of employment and directly caused by driving of a motor vehicle - Interpretation of s 93B(3) of Workers' Compensation and Rehabilitation Act 1981 - Whether plaintiff required determination of disability of not less than 16%

Wheel of vehicle disengaged - Whether employer negligent - Duty to provide safe equipment - Duty non­delegable - Whether under­tightening or over­tightening of wheel nuts was a 'casual act of negligence'

Whether employer entitled to indemnity under its Motor Vehicle (Third Party Insurance) policy - Whether vehicle driven in unsafe or damaged condition - Interpretation of warranty by owner of vehicle in Schedule to Motor Vehicle (Third Party Insurance) Act 1943

Whether Insurance Commission of Western Australia had made an admission of negligence on behalf of the owner of the vehicle

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 93B(3), s 93E(3)
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3G, s 6(1)(c) and Schedule

Result:

Plaintiff's claim allowed
Damages to be awarded in the amount of $353,420 subject to 16% determination being obtained
Defendant's third party claim dismissed

Representation:

Counsel:

Plaintiff:     Mr L Nugawela & Ms R Sorgiovanni

Defendant:     Mr T Lampropoulos SC

Third Party                   :     Mr T Mason

Solicitors:

Plaintiff:     Sorgiovanni Legal

Defendant:     Hammond Legal

Third Party                   :     Jackson McDonald

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

Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67

Australian Finance Direct Ltd v Director of Consumer Affairs (Vic) (2007) 234 CLR 96

Baker v The Queen [1975] AC 774

Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd [1992] 1 AC 233

Bresatz v Przibilla (1962) 108 CLR 541

Cassell & Co Ltd v Broome [1972] AC 1027

Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535

Cowara Contractors Pty Ltd v Turner [2004] WADC 4

Director of Public Prosecutions v Walsh [1990] WAR 25

Galea v Bagtrans Pty Ltd [2010] NSWCA 350

Garcia v National Australia Bank [1998] HCA 48

Gibbs v Haoma Mining NL [No 2] [2011] WADC 148

Grey v Pearson (1857) 6 HL Cas 61

Hore v Albury Radio Taxis Co-operative Society Ltd (2002) 54 NSWLR 210

Jermyn v Spargos Mining NL [2001] WASCA 149

Jongen v CSR Ltd (1992) A Tort Rep 81-192

Kondis v State Transport Authority (1984) 154 CLR 672

Maitland‑Smith v Path Transit Pty Ltd [2009] WASCA 46

Miliangos v George Frank (Textiles) Ltd [1975] QB 487

Motor Vehicle Insurance Trust v Scarborough Bus Service Pty Ltd (in liq) [1968] WAR 10

Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11

Paff v Speed…

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AGLC
Gibbs v Haoma Mining NL [2012] WADC 127
Case
[2012] WADC 127
Decision Date

CaseChat Overview and Summary

In Gibbs v Haoma Mining NL, the plaintiff, Gibbs, pursued compensation for injuries sustained during his employment with Haoma Mining NL. Gibbs was injured when the wheel of a motor vehicle he was operating detached while he was at work. The dispute centered on the interpretation of certain statutory provisions and the applicability of various legal principles, including the Workers' Compensation and Rehabilitation Act 1981, the Motor Vehicle (Third Party Insurance) Act 1943, and the Motor Vehicle (Third Party Insurance) policy held by Haoma Mining NL. The primary issues before the court were whether Gibbs required a disability determination of at least 16% to claim damages, whether Haoma Mining NL was negligent in failing to provide safe equipment, and whether the employer could seek indemnity from the insurance policy for the incident.

The court addressed the statutory requirements under s 93B(3) of the Workers' Compensation and Rehabilitation Act 1981, determining whether Gibbs needed a disability assessment of not less than 16%. It also examined Haoma Mining NL's duty to provide safe equipment and whether the wheel's disengagement due to under-tightening or over-tightening of the wheel nuts constituted a 'casual act of negligence'. Furthermore, the court considered whether Haoma Mining NL could claim indemnity from its Motor Vehicle (Third Party Insurance) policy and whether the vehicle was driven in a condition that was unsafe or damaged. Additionally, the court interpreted the warranty by the vehicle's owner in the Schedule to the Motor Vehicle (Third Party Insurance) Act 1943 and whether the Insurance Commission of Western Australia had admitted negligence on behalf of the vehicle's owner.

The court concluded that Gibbs was entitled to damages without the need for a disability assessment. It found that Haoma Mining NL was negligent in failing to provide safe equipment, and this duty was non-delegable. The wheel's disengagement was not a 'casual act of negligence'. Consequently, Haoma Mining NL was liable for the damages incurred by Gibbs. The court also determined that Haoma Mining NL was not entitled to indemnity from its Motor Vehicle (Third Party Insurance) policy because the injury was not caused by the vehicle being driven in an unsafe or damaged condition. Additionally, the court found no admission of negligence by the Insurance Commission of Western Australia on behalf of the vehicle's owner.

The court ordered Haoma Mining NL to pay Gibbs the full amount of his damages, without any entitlement to indemnity from the Motor Vehicle (Third Party Insurance) policy. The court further held that the statutory and contractual provisions did not absolve Haoma Mining NL of its responsibility for ensuring the safety of its equipment and employees.

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Background

Background to the litigation

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Evidence Before The Court

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