Holden v MacMahon Contractors Pty Ltd - [2013] WADC 202

HOLDEN -v- MACMAHON CONTRACTORS PTY LTD [2013] WADC 202

Last Update: 09/01/2014

HOLDEN -v- MACMAHON CONTRACTORS PTY LTD [2013] WADC 202
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 202
Case No:	CIV:1032/2011	Heard:	14, 15, 17 & 28 OCTOBER 2013
Coram:	MCCANN DCJ	Delivered:	20/12/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	32	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff against first defendant for damages in the sum of $800,000 Plaintiff's claim against second defendant dismissed First defendant's cross claim against second defendant dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MICHAEL HOLDEN MACMAHON CONTRACTORS PTY LTD ENVIROCOAT (WA) PTY LTD
Catchwords:	Torts Negligence Unsafe workplace Liability of workplace principal Liability of equipment manufacturer Turns on own facts Contract Liability of equipment hirer Turns on own facts
Legislation:	Civil Liability Act 2002 s 5B, s 5C Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 s 7(1)(c)
Case References:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Beer v Duracraft Pty Ltd [2004] WASCA 192 Black Pool Rock Co Pty Ltd & Blue Waters Pty Ltd t/as O'Connor Pattern Makers v By Design Group Pty Ltd t/as BDG Machine Tools [2006] WADC 138 Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Courtney v Medtel Pty Ltd [2003] FCA 36 Department of Housing and Works v Smith [No 2] [2010] WASCA 25 Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63; Aust Torts Reports 81-891 Jones v Dunkel (1959) 101 CLR 298 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 Pollock v Wellington (1996) 15 WAR 1 at 3 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Wyong Shire Council v Shirt (1980) 146 CLR 41

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : HOLDEN -v- MACMAHON CONTRACTORS PTY LTD [2013] WADC 202 CORAM : MCCANN DCJ HEARD : 14, 15, 17 & 28 OCTOBER 2013 DELIVERED : 20 DECEMBER 2013 FILE NO/S : CIV 1032 of 2011 BETWEEN : MICHAEL HOLDEN

Plaintiff

AND

MACMAHON CONTRACTORS PTY LTD

First Defendant

ENVIROCOAT (WA) PTY LTD

Second Defendant

Catchwords:

Torts - Negligence - Unsafe workplace - Liability of workplace principal - Liability of equipment manufacturer - Turns on own facts

Contract - Liability of equipment hirer - Turns on own facts

Legislation:

Civil Liability Act 2002 s 5B, s 5C
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act1947 s 7(1)(c)

Result:

Judgment for the plaintiff against first defendant for damages in the sum of $800,000
Plaintiff's claim against second defendant dismissed
First defendant's cross claim against second defendant dismissed

Representation:

Counsel:

Plaintiff : Mr A A Nolan (14 October)

First Defendant…

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: [2013] WADC 202
Decision Date

CaseChat Overview and Summary

In this matter, the plaintiff, Michael Holden, claims damages from the defendants (MacMahon and Envirocoat) for personal injuries sustained in the course of his employment at the Sinclair mine near Leonora on 9 April 2008. MacMahon admitted liability to the plaintiff. The parties have agreed that the plaintiff's damages amount to $800,000 inclusive of workers' compensation and interest. MacMahon also commenced proceedings against Envirocoat claiming contribution pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, an indemnity pursuant to a contract between them, and damages for breach of warranty. The plaintiff seeks judgment against Envirocoat for the agreed damages in the event that MacMahon succeeds in tort against Envirocoat.

The court had to determine the causes of the service bay door drooping before the accident and the ultimate collapse of the door. The determination of these issues was dependent on an inferential (circumstantial) process reliant on expert evidence. The court found that the cause of the first failure phase was the collapse of the already-damaged right strut whilst Mr Price was in the process of opening the door. It was not possible to make a finding as to how the strut was damaged in the first place.

In terms of liability, the court found that fault for the first failure phase lies with one or more previous operators of the service truck for whom MacMahon is vicariously liable. The court also found that MacMahon was directly negligent for failing to properly train and accredit Mr Price on the use of the service truck and for failing to supervise him and the other culpable employee(s). On the relevant shift, Mr Price had no knowledge of how to operate the equipment in the service module, resulting in the plaintiff being unnecessarily placed at risk. The court found that MacMahon is not entitled to an indemnity from Envirocoat and that Envirocoat is not liable to the plaintiff.

In conclusion, the court determined that the plaintiff is entitled to judgment against MacMahon for damages in the sum of $800,000. The plaintiff's claim against Envirocoat is dismissed, and MacMahon's claim against Envirocoat is also dismissed.

Orders