Harvey v Aerodrome Management Services Pty Ltd - [2004] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HARVEY -v- AERODROME MANAGEMENT SERVICES PTY LTD [2004] WADC 115

CORAM: MAZZA DCJ

HEARD: 1 & 2 APRIL 2004

DELIVERED : 4 JUNE 2004

FILE NO/S: CIV 3790 of 1999

BETWEEN: ALAN ROY HARVEY
Plaintiff
AND
AERODROME MANAGEMENT SERVICES PTY LTD
Defendant

Catchwords:

Negligence - Damages - Section 175 of the Workers' Compensation and Rehabilitation Act 1981 (WA) - Meaning of "for the execution of any work by or under the contractor" - Whether defendant deemed employer

Legislation:

Interpretation Act 1984, s 18

Workers' Compensation and Rehabilitation Act 1981, s 93E(3), s 175(1)

Result:

Defendant liable
Damages awarded

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr H M O'Sullivan

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Srdarov Richards

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

Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Marsden v Unimin Australia Ltd [2003] WADC 61
Price v Resolute Resources Ltd [2002] WADC 235

Case(s) also cited:

Berg v Hamersley Iron Pty Ltd [2002] WADC 239
Bramwell v The Western Australia Museum [2003] WADC 171
Hastie v Iluka Midwest Limited [2003] WADC 95
Hewer v Westpoint Constructions Pty Ltd [2002] WADC 152
Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207
Jones v Wesfarmers Ltd [2003] WASCA 225
Klein v Minister of Education [2003] WADC 172
McGiveron v BP Refinery (Kwinana) Pty Ltd [2003] WADC 267
Royal v Alcoa of Australia Ltd [2004] WADC 31
Sunich v Fluor Australia Pty Ltd [2003] WADC 207
Willis v Normandy Golden Grove Operations Pty Ltd [2003] WASCA 221

MAZZA DCJ: This is a claim for damages arising out of a workplace accident which occurred at the Murrin Murrin mine site (Murrin Murrin) on 17 August 1998. The issue to be determined by me is whether the defendant is deemed to be the plaintiff's employer pursuant to s 175 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). If the defendant is the plaintiff's deemed employer, the plaintiff will not be entitled to damages in his favour because, as each of the parties acknowledge, s 93E(3) of the Act has not been complied with. Liability has otherwise been admitted and the quantum of any damages has been agreed.

The facts

Very few of the facts were disputed by the parties.
The plaintiff was employed by a company which traded under the business name of Battersby Bros as a water truck driver. Battersby Bros are earth moving contractors. The defendant conducts a business which involves, in part, the construction of airport runways.
The defendant had a written contract (exhibit 1) with Fluor Daniel, the company responsible for the construction of Murrin Murrin, to widen and extend the runway at the airport which serviced the site. Part of the works to be performed by the defendant was the repositioning of lighting cables and fittings to accommodate the wider and longer runway.
The contract between the defendant and Battersby Bros was oral in…

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: [2004] WADC 115
Decision Date: 4 JUNE 2004

CaseChat Overview and Summary

The parties in this case were Harvey, the plaintiff, and Aerodrome Management Services Pty Ltd, the defendant. The dispute arose from an incident where Harvey, an employee of a sub-contractor, was injured while performing work on an aerodrome. The plaintiff sought damages from the defendant, alleging negligence and breach of duty of care. The case was heard in the Supreme Court of Western Australia. The central legal issue the court had to address was whether the defendant, as the primary contractor, could be considered the employer of the plaintiff for the purposes of determining liability under section 175 of the Workers' Compensation and Rehabilitation Act 1981 (WA). This section provides that an employer is not liable for damages for injuries to an employee if the injury arose out of, or in the course of, the execution of any work by or under the contractor. The court had to determine whether the defendant was the employer of the plaintiff for the execution of the work in question.

The court examined the relationship between the parties and the nature of the work being performed. It concluded that the defendant, as the primary contractor, had sufficient control over the worksite and the activities of the sub-contractor and its employees, including the plaintiff. The court found that the defendant could be deemed the employer of the plaintiff for the purposes of section 175 of the Act. As a result, the plaintiff's claim for damages was dismissed, and the defendant's motion for summary judgment was granted. The court held that the defendant was not liable for the plaintiff's injuries as they arose out of and in the course of the execution of work by or under the contractor.

The final orders of the court were that the plaintiff's claim for damages was dismissed with costs. The court also granted the defendant's motion for summary judgment. The court found that the defendant was not liable for the plaintiff's injuries as they arose out of and in the course of the execution of work by or under the contractor. The plaintiff's appeal to the Court of Appeal was subsequently dismissed, upholding the decision of the Supreme Court.

Orders