Gibbs v Haoma Mining Nl [No 2] - [2011] WADC 148

GIBBS -v- HAOMA MINING NL [No 2] [2011] WADC 148

Last Update: 26/09/2011

GIBBS -v- HAOMA MINING NL [No 2] [2011] WADC 148
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 148
Case No:	CIV:1348/2007	Heard:	31 AUGUST 2011
Coram:	SCHOOMBEE DCJ	Delivered:	20/09/2011
Location:	PERTH	Supplementary Decision:
No of Pages:	17	Judgment Part:	1 of 1
Result:	Application allowed in part
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	BARBARA JEAN GIBBS HAOMA MINING NL INSURANCE COMMISSION OF WESTERN AUSTRALIA
Catchwords:	Practice and procedure Application to amend statement of claim and to reopen case to call witness Application made after judgment reserved Whether evidence to support amendment Whether prejudice to opposing party Factors relevant to court's discretion Employer's nondelegable duty of care to provide safe equipment and maintain equipment Whether negligence by independent contractor in maintaining equipment is casual negligence for which employer not liable
Legislation:	Nil
Case References:	Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 Birch v Walker Australia Pty Ltd [2006] SAWCT 63 Commissioner of Taxation v Macquarie Health Corp Ltd (1999) 41 ATR 500 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Galea v Bagtrans Pty Ltd [2010] NSWCA 350 Kondis v State Transport Authority (1984) 154 CLR 672 Kuhl v Zurich Financial Services Australia Ltd (2011) 276 ALR 375 Lepore v State of New South Wales (2001) 52 NSWLR 420 McLean v Tedman (1984) 155 CLR 306 O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 Wilsons & Clyde Coal Co Ltd v English 1936 SC 883

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : GIBBS -v- HAOMA MINING NL [No 2] [2011] WADC 148 CORAM : SCHOOMBEE DCJ HEARD : 31 AUGUST 2011 DELIVERED : 20 SEPTEMBER 2011 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:

Practice and procedure - Application to amend statement of claim and to reopen case to call witness - Application made after judgment reserved - Whether evidence to support amendment - Whether prejudice to opposing party - Factors relevant to court's discretion

Employer's nondelegable duty of care to provide safe equipment and maintain equipment - Whether negligence by independent contractor in maintaining equipment is casual negligence for which employer not liable

(Page 2)

Legislation:

Nil

Result:

Application allowed in part

Representation:

Counsel:

Plaintiff : Ms R L Sorgiovanni

Defendant : Mr T Lampropoulos SC

Third Party : Mr T Mason

Solicitors:

Plaintiff : Sorgiovanni Legal

Defendant : Hammond…

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: [2011] WADC 148
Decision Date: 20 SEPTEMBER 2011

CaseChat Overview and Summary

The case Gibbs v Haoma Mining Nl [No 2] involved an application by the plaintiff to amend the statement of claim and to reopen the case to call a witness, made after the judgment had been reserved. The plaintiff, Mr Gibbs, sought to call a new witness to testify about the maintenance of equipment by the defendant, Haoma Mining Nl, and to amend the statement of claim to include a new cause of action based on this evidence. The nature of the dispute was centered around the employer's non-delegable duty of care to provide safe equipment and maintain such equipment, and whether negligence by an independent contractor in maintaining equipment constituted casual negligence for which the employer was not liable.

The legal issues before the court included whether there was sufficient evidence to support the amendment to the statement of claim and whether allowing the amendment would prejudice the defendant. Additionally, the court had to consider the factors relevant to its discretion in allowing an application to amend a pleading after judgment had been reserved. The court also had to determine the scope of the employer's non-delegable duty of care, specifically whether negligence by an independent contractor in maintaining equipment constituted casual negligence for which the employer was not liable.

The court found that while the evidence presented by the plaintiff could potentially support an amendment to the statement of claim, it was not satisfied that the application was made in good faith. The court held that the application was an attempt to introduce new evidence at the last moment, which could prejudice the defendant. However, the court was satisfied that the evidence was relevant to the existing causes of action and did not constitute a new cause of action. The court allowed the application to amend the statement of claim to include the new evidence but denied the application to call the new witness. The court held that the employer's non-delegable duty of care included a duty to ensure that equipment was safe and properly maintained, and that this duty extended to the actions of independent contractors who were engaged to maintain the equipment. However, the court held that if the negligence of the independent contractor was casual, the employer would not be liable for that negligence.

Orders

Orders of the court

Application allowed in part

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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