Husson v Keppel Prince Engineering Pty Ltd - [2006] VSC 412

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1366 of 2005

HUSSON	Plaintiff
V
KEPPEL PRINCE ENGINEERING PTY LTD	First Defendant
&
ALCOA PORTLAND ALUMINIUM PTY LTD	Second Defendant

---

JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 – 22, 26 – 29 September 2006
DATE OF JUDGMENT:	3 November 2006
CASE MAY BE CITED AS:	Husson v Keppel Prince Engineering Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2006] VSC 412

---

Negligence – plaintiff employee of subcontractor – injured to back resulting from work place hazard – pre-existing asymptomatic spinal condition - rejection of plaintiff’s evidence as to a belief as to origin of the hazard did not lead to reject the fact of the hazard - whether occupier breached duty of care – contribution between defendants – damages for pain and suffering – damages for economic loss

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin SC with Mr. J. Carmody	Stringer Clark
For the First Defendant	Mr D. Curtain QC with Mr. R. Middleton	Lander & Rogers
For the Second Defendant	Mr. P. Rose SC with Mr. G. Moloney	Hunt & Hunt

HIS HONOUR:

The plaintiff is a 46 year old rigger who alleges he was injured on 26 April 2001 at the Portland Aluminium Smelter operated by the second defendant ("PA").

On that day the plaintiff was employed by the first defendant, Keppel Prince Engineering Pty Ltd ("KP") as part of a team carrying out maintenance upon the No. 2 caster within the ingot mill building at the smelter. The plaintiff's principal duties involved working with cranes and forklifts for the purpose of general maintenance, including using chain blocks and removing and installing items of machinery.

On this occasion as part of a series of works required to be done during a 12 hour shutdown, the plaintiff was required to participate in the removal of a hydraulic ram forming part of a centering device.

In the course of the ordinary operation of the mill, ingots were conveyed following casting, to a cooling cabinet within which they travelled up an ascending conveyer deluged with water. The cooling cabinet comprised a series of three attached enclosed sections increasing in height to accommodate the conveyer as it rose.

The ingots then moved from the cooling conveyer onto a layer conveyer which transferred them to a grab machine by which they were either stacked in bundles or rejected.

The centering device was located at the point where the ingots came out of the cooling cabinet and moved from the cooling conveyer on to the layer conveyer.

The purpose of the device was to realign ingots as necessary as they moved from the cooling conveyer to the layer conveyer.

In order to move the hydraulic ram which powered the centering device, the practice adopted by KP employees was to employ a team consisting of one or two workers above the conveyer (usually fitters) and one below.

The plaintiff was commonly asked to…

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.

Keep reading for free

Create a free CaseChat account to read Husson v Keppel Prince Engineering Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] VSC 412
Decision Date: 3 November 2006

CaseChat Overview and Summary

The case of Husson v Keppel Prince Engineering Pty Ltd involved a claim for damages against an employer for injuries sustained by the plaintiff, an employee of a subcontractor, at a workplace. The plaintiff suffered back injuries due to a workplace hazard, which exacerbated an existing asymptomatic spinal condition. The plaintiff sought compensation for pain and suffering, as well as economic losses. The primary legal issue before the court was whether the employer, Keppel Prince Engineering Pty Ltd, had breached its duty of care by failing to ensure the workplace was safe, and if so, whether the plaintiff's injuries were a result of the employer's negligence. Another issue was the contribution between defendants and the assessment of damages for pain and suffering and economic loss.

The court considered whether the rejection of the plaintiff's evidence about the origin of the hazard meant that the fact of the hazard itself should also be disregarded. It was determined that the rejection of the plaintiff's belief as to the origin of the hazard did not necessarily negate the existence of the hazard. The court emphasised that the presence of the hazard and its potential to cause harm was a separate matter from the plaintiff's opinion on its origin. The court further examined the employer's duty of care, concluding that there was a breach by failing to address the known hazard. Additionally, the court assessed the contribution between the defendants and the appropriate compensation for the plaintiff's pain and suffering and economic loss.

The court found that the employer was liable for the injuries sustained by the plaintiff due to the breach of duty of care. The court also ruled on the contribution between the defendants, stating that the employer would be responsible for the full amount of damages. The court awarded the plaintiff compensation for pain and suffering, taking into account the pre-existing spinal condition, and for economic loss, considering the impact on the plaintiff's ability to work. The final orders included compensation for the plaintiff, with the employer being liable for the entire amount of damages.

Orders