Griffin v VWA - [2016] VSC 101

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST

S CI 2014 05515

DENIS PETER GRIFFIN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY & ORS	Defendants

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2015
DATE OF JUDGMENT:	23 March 2016
CASE MAY BE CITED AS:	Griffin v VWA & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 101

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NEGLIGENCE – Contribution between defendants – employee on building site – contribution between employer, head contractor and subcontractors – scope of duty owed by head contractor and subcontractors – contract between defendants – breach of statutory duty – apportionment between defendants – contribution from other tortfeasors – Wrongs Act 1985 (Vic) Part IV.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr M.J. Walsh with
Ms K.S. Gladman

Barbante & Associates Lawyers

For the First Defendant

For the Second Defendant

For the Third Defendant

For the Fourth Defendant

Mr P.B. Jens QC with
Mr D. McWilliams

Mr J.C. Simpson

Ms M. Tsikaris

Mr J.P. Brett QC with
Mr T.R. Messer

Hall & Wilcox

Meridian Lawyers

Norton Rose Fulbright

HWL Ebsworth Lawyers

HER HONOUR:

Prior to the commencement of the trial, the plaintiff, Mr Denis Griffin, in proceeding S CI 2014 05515, settled his claim against the defendants, being his employer, Aluline (Australia) Pty Ltd (‘Aluline’), the head contractor, Probuild Constructions (Australia) Pty Ltd (‘Probuild’), the scaffolding contractor, Tubeway Scaffolding Pty Ltd (‘Tubeway’) and the painting contractor, Higgins Coating Pty Ltd (‘Higgins’). The defendants however could not settle their contribution dispute, which is now resolved by this judgment.

An allied claim by the Victorian WorkCover Authority (‘VWA’) under s 138 of the Accident Compensation Act 1985 (Vic) (‘ACA’) is considered in a separate judgment (‘the recovery proceeding’).[1]
[1]VWA v Probuild & Ors [2016] VSC 102.

The first defendant in the present proceeding, Aluline, was deregistered on 11 September 2014. By consent, an Order was made on 10 November 2015 giving Aluline leave to substitute the VWA as the first defendant to take effect from the commencement of the proceeding. However, to avoid the confusion that may arise given the fact the VWA appears in a separate capacity in the recovery proceeding, for the purposes of this judgment I will refer to the first defendant as Aluline.

While the Writ was amended to reflect that the VWA replaced Aluline as the first defendant, the two parties were separately represented in the contribution and recovery proceedings. The VWA in effect adopted the role of the plaintiff for the purpose of both proceedings. However submissions dealing with contribution were made by Aluline’s representatives in the contribution proceeding.

Section 23B(1) of the Wrongs Act 1958 (Vic) (‘Wrongs Act’) permits a tortfeasor liable in respect of any damage suffered by another person to recover contribution from any other person liable in respect of the same damage. It matters not, whether the liability flows from the same event, or whether an award of damages against the respective…

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.

Continue reading Griffin v VWA

Details

AGLC: Griffin v VWA [2016] VSC 101
Case: [2016] VSC 101
Decision Date: 23 March 2016

CaseChat Overview and Summary

Griffin commenced proceedings against VWA, a civil construction company, alleging that he was injured when a steel beam fell from a height while he was working on a building site. The defendants, including the employer, head contractor, and subcontractors, were all involved in the construction project. The legal issues revolved around the scope of the duty owed by the head contractor and subcontractors, as well as the apportionment of liability and contribution from other tortfeasors under the Wrongs Act 1985 (Vic) Part IV. The court had to determine whether the defendants breached their statutory duties, and if so, how liability should be apportioned among them.

The court found that the head contractor and subcontractors owed a duty of care to the plaintiff, which included ensuring the safety of the worksite and the workers. The court held that the defendants breached their statutory duties by failing to provide a safe work environment, which directly contributed to the plaintiff's injuries. The court then examined the contract between the defendants and considered whether it affected the scope of their duties. The court concluded that the contract did not absolve the defendants of their primary duty of care, and therefore, they were all liable for the plaintiff's injuries. Regarding contribution, the court found that the defendants were jointly and severally liable for the damages, and they could seek contribution from each other under the Wrongs Act 1985 (Vic) Part IV.

The court ordered that the defendants were liable for the plaintiff's damages, and they could seek contribution from each other in accordance with the provisions of the Wrongs Act 1985 (Vic) Part IV. The court emphasised that the defendants' contractual obligations did not relieve them of their primary duty of care, and they were all responsible for ensuring a safe work environment. The court also noted that the apportionment of liability would depend on the extent of each defendant's breach and their contribution to the plaintiff's injuries.

Orders