Harvey v Aerodrome Management Services Pty Ltd

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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

  1. 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

  1. Very few of the facts were disputed by the parties.

  2. 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.

  3. 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.

  4. The contract between the defendant and Battersby Bros was oral in…

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Details
Case
[2004] WADC 115
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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