Hoffman v The Commonwealth of Australia
[2000] WASC 9
•27 JANUARY 2000
HOFFMAN & ORS -v- THE COMMONWEALTH OF AUSTRALIA [2000] WASC 9
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 9 | |
| Case No: | CIV:2278/1999 | 20 JANUARY 2000 | |
| Coram: | MASTER BREDMEYER | 27/01/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| PDF Version |
| Parties: | ANTHONY RICHARD HOFFMAN DONNA MARIE HOFFMAN TULLERWON PTY LTD (ACN 009 120 932) THE COMMONWEALTH OF AUSTRALIA |
Catchwords: | Pleading Application to strike out Adequacy of plea of negligence |
Legislation: | Explosives & Dangerous Goods Act 1961 (WA) s 42, s 44, s 63 |
Case References: | Chappel v Hart (1998) 195 CLR 232 Adelaide Chemical & Fertilizer v Carlyle (1940) 64 CLR 514 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Dominion Natural Gas Co v Collins [1909] AC 640 Gould v Vaggelas (1984) 157 CLR 215 March v E & M Stramare (1991) 171 CLR 506 Medlin v SGIC (1995) 182 CLR 1 Re Vandervell's Trust (No. 2): White v Vandervell Trustees Ltd (1974) Ch 269 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HOFFMAN & ORS -v- THE COMMONWEALTH OF AUSTRALIA [2000] WASC 9 CORAM : MASTER BREDMEYER HEARD : 20 JANUARY 2000 DELIVERED : 27 JANUARY 2000 FILE NO/S : CIV 2278 of 1999 BETWEEN : ANTHONY RICHARD HOFFMAN
- DONNA MARIE HOFFMAN
First Plaintiffs
TULLERWON PTY LTD (ACN 009 120 932)
Second Plaintiff
AND
THE COMMONWEALTH OF AUSTRALIA
Defendant
Catchwords:
Pleading - Application to strike out - Adequacy of plea of negligence
Legislation:
Explosives & Dangerous Goods Act 1961 (WA) s 42, s 44, s 63
Result:
Application allowed in part
(Page 2)
Representation:
Counsel:
First Plaintiffs : Mr P Redding
Second Plaintiff : Mr P Redding
Defendant : Mr J D Allanson
Solicitors:
First Plaintiffs : Williams & Hughes
Second Plaintiff : Williams & Hughes
Defendant : Australian Government Solicitor
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
Case(s) also cited:
Adelaide Chemical & Fertilizer v Carlyle (1940) 64 CLR 514
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Dominion Natural Gas Co v Collins [1909] AC 640
Gould v Vaggelas (1984) 157 CLR 215
March v E & M Stramare (1991) 171 CLR 506
Medlin v SGIC (1995) 182 CLR 1
Re Vandervell's Trust (No. 2): White v Vandervell Trustees Ltd (1974) Ch 269
(Page 3)
1 MASTER BREDMEYER: This is an application by the defendant to strike out the plaintiffs' statement of claim as not disclosing a reasonable cause of action, or to strike out parts of it as embarrassing.
2 The statement of claim, in summary, pleads that aluminium powder and magnesium powder are dangerous goods within the meaning of the Explosives & Dangerous Goods Act 1961 (WA) (the Act). A Major Mewburn purchased a quantity of both from the Army in early 1995. The goods were located at Palmer Barracks, Guildford. After purchase he continued to store them at the barracks. In or about April or May 1995, he arranged to transport the powders in an Army vehicle and, with an Army driver, to the plaintiffs' shed at 158 Hardwicke Road, Millendon. The goods were transported in unmarked cartons, which is contrary to the provisions of the Act.
3 Two years later, on 1 September 1997, the male plaintiff, Mr Hoffman, was carrying out repairs to a drilling rig in the shed. He was engaged in welding and grinding. In so doing, he inadvertently ignited a box of aluminium and magnesium powders, which burnt him, burnt down the shed and burnt the drilling rig within it.
4 The first attack is on the pleading of the causal link between the defendant's negligence and the plaintiffs' loss. I consider it is necessary to plead that the defendant's negligence "caused" the fire. I note that all the precedents on negligence in Bullen and Leake and Jacobs: "Precedents of Pleading" thirteenth edition, e.g. form 429, plead that the accident was caused by the negligence of the defendant. I also consider it was necessary for the plaintiffs to elaborate on how the negligence caused the accident. The negligence is spelt out in par 14, par 16 and par 17, and they include a plea in par 14 that the cardboard boxes contained no label or other warning of the inflammable or explosive nature of their contents; and in par 17 that the defendant gave no other warning to the plaintiffs of the danger in handling and storing the powder.
5 I consider it necessary to spell out why the storage of the powders in the unlabelled boxes, etc, caused the accident. If, for example, these powders are highly inflammable, so that a spark from a welder or grinder would ignite them when it would not ignite some other material, then that needs to be stated. Paragraph 8 pleads that the two powders were classified as dangerous goods under the Transport of Dangerous Goods Code (the Code). The reason why that is so is set out in appendix 2 of the Code and referred to in particulars to par 8 of the pleading. I quote from part of that in relation to aluminium powder. It:
(Page 4)
- "Reacts readily with Iron Oxide producing a thermite effect. Reacts readily with acids and caustic alkalies, evolving hydrogen gas. May form explosive mixtures with oxidising agents. In the event of breakage of receptacles, the scattered powder is readily ignited by sparks or open flame and may give rise to an explosive atmosphere".
- The same appendix on magnesium powder states that it
"Evolves hydrogen in contact with moisture, water or acids. Magnesium dust is easily ignited by naked lights, causing explosions. It may explode when in contact with oxidising agents".
It is pleaded that these powders were "classified" as dangerous goods under s 42 of the Act. I consider that an adequate plea that they were dangerous goods for the reasons given in the passages quoted. The essence of the plea is that the defendant delivered these dangerous powders to the plaintiffs' shed in unmarked boxes, contrary to the provisions of the Act, and without giving any warning to the plaintiffs of the dangerous nature of the goods. As a result of that, the male plaintiff took no steps to avoid welding and grinding in the shed or, if he was welding and grinding in the shed, to protect his activities from contact with the stored boxes, perhaps by the erection of special screens. As a result of that, the defendant's negligence caused the accident.
6 I do not consider it necessary for the plaintiffs to plead their state of knowledge; e.g. that they were unaware of the dangerous nature of the goods, or what they would have done if the warning as to danger had been given. I can see no precedent for that in Bullen and Leake and Jacobs nor in Britts' "Pleading Precedents" (fourth edition), several of which plead the defendant's failure to warn; e.g. Britts (ibid)forms 156, 157 and 158. Chappel v Hart (1998) 195 CLR 232 was a medical negligence case, but it is analogous to this case because the doctor's negligence consisted of a failure to warn of the risks of the operation. The plaintiff had to give evidence of what she would have done if she had been warned of the risk.
"Once the plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established. It is then for the defendant to show, by evidence and argument, that the patient should not recover damages." (per Kirby J at 273)
(Page 5)
- Although the plaintiffs need to give evidence on that I do not consider they are required to plead it.
7 The defendant's next challenge is to the plea of vicarious liability. I consider that is pleaded adequately, but that the plea could be improved in small ways. In par 10, par 12 and par 13, there are references to "Mr Mewburn". They should be references to Major Mewburn. As I understand it, he was employed by the Army then, and that is an important part of the plaintiffs' case. Then it is pleaded in par 13.1 that Mewburn requested the commanding officer at Palmer Barracks to provide authorisation for an Army driver to deliver the powders to the plaintiffs' shed. That request for authorisation is not, by itself, relevant to the plaintiffs' plea. It needs to have added to it a statement that the commanding officer gave that authorisation – if that be the case. That is a material fact.
8 I consider it is not necessary to plead that in delivering the goods Major Mewburn and/or the Army driver were acting in the course of their duties. It is sufficient for the plaintiffs' case that Mewburn had authority from the Army to transport the goods. If it is a defence to say that the major and the driver were acting outside the scope of their duties, then the defendant can plead that. The plaintiffs are not required on their pleading to anticipate a defence.
9 Objection is taken to the use of the words "at all material times" in various places. That reference in par 3 is, I think, ambiguous and, hence, embarrassing. When I first read it, I thought it meant that Major Mewburn was an officer in the Army at the time he purchased the goods and transported them to the shed in 1995 and when the fire occurred in September 1997. I am told that that is not correct. He was in the Army at the relevant times in 1995 but not in 1997. In that case, I consider par 3 should commence, "In 1995, Guy Desmond Mewburn was a major … "
10 In par 9, it is stated:
"At all material times, the Defendant stored the aluminium and the magnesium powder at Palmer Barracks."
- I consider the opening phrase is embarrassing. I consider those words could be replaced by "In early 1995 … "
11 Objection is made to par 14.4, where various breaches of the Act are pleaded in relation to the packaging, sale and carriage of the goods. It is said that that Act does not bind the defendant. Section 63 of the Act
(Page 6)
- provides that the Act does not apply to any explosives or dangerous goods which are the property of Her Majesty's military, naval or air forces.
12 I consider that all three pleas in par 14.4 are arguable. They should be looked at cumulatively. Whilst the goods were the property of the Army, there was no need to store them in special containers nor to label them as prescribed under the Act. But when the Army agreed to carry them, they needed to be packed in prescribed containers s 44(1), labelled so as to identify the goods s 44(2) with the correct stripes (seven red and six vertical white stripes of equal width for the aluminium, e.g.) and write the UN number and the Australian Explosives Code number on the cartons, s 44(3) of the Act.
13 I consider that the plea is clear and not embarrassing as to delivery of the goods to the shed. The plea is, or will be after amendment, that the goods (privately owned) were delivered to the plaintiffs' shed by an Army driver acting with authority.
14 Paragraph 17 and, in particular, par 17.4 (together with par 14) is said to be defective because it confuses negligence and failure to comply with the provisions of the Act in pleading failure to comply with the Act as breach of a duty of care. The defendant says it does not know on the pleading whether it is alleged that it breached a statutory duty owed to the plaintiffs, or negligently breached the Act, or whether the Act contains the standard, or just what is alleged by the plea. I consider the problem referred to here will be cured when the plaintiffs amend the pleading of the cause of the accident. Simply to fail to comply with the provisions of a safety statute is not necessarily negligence unless that failure caused or was a cause of the accident.
15 Objection is taken to the adequacy of the pleas of loss and damage. I consider the particulars given are adequate, with the exception of par 19.2.3. That paragraph pleads that the second plaintiff "was not able to trade for a period of three months and suffered further loss and damage, further particulars of which will be supplied". That loss or damage occurred in September to December 1997, and the plaintiffs have had adequate time to quantify that loss. I will order the plaintiffs to provide particulars of that within one month.
16 I would like to make a small amendment to par 15.2 on my own initiative. It is there pleaded that the sale and delivery by the defendant of the powders in circumstances where it was foreseeable that persons not familiar with the qualities of and risks inherent in the storage of and or use
(Page 7)
- of the powders would be exposed to contact with it. I will strike out the words "and or use of " as not material to this plea. The accident did not happen because the plaintiffs misused the powders.
17 The amended statement of claim is not so bad that I should strike it all out. Nevertheless, it needs numerous amendments and will make the plaintiffs' task a little easier if I strike out the whole document and give leave to them to file and serve a substituted pleading to give effect to these reasons. I will hear the parties on costs and other matters.
7
1