JONES -v- SNF (AUSTRALIA) PTY LTD [2007] WADC 167

Link to Appeal :

[2008] WASCA 121

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WADC 167
Case No:	CIV:2833/2000	Heard:	20-24 & 27 AUGUST 2007
Coram:	MULLER DCJ	Delivered:	8/11/07
Location:	PERTH
No of pages:	41	Judgment Part:	1 of 1
Result:	Plaintiff's claim against defendant allowed Defendant's claim against third party dismissed
PDF Version

Parties:	BRADLEY IVAN EDWARD JONES SNF (AUSTRALIA) PTY LTD DON PATRICK BINGHAM
Catchwords:	Negligence Auto electrician injured while repairing compressor motor on road tanker Piping system fitted with a stop valve but no automatic release valve Pipe separated under pressure and struck plaintiff on head Tanker purchased by defendant from third party Tanker operated by Wesfarmers to transport defendant's product Whether defendant owed plaintiff duty of care Failure by defendant to have system inspected by qualified and competent person either at time of purchase or at time tanker used by Wesfarmers Whether third party liable to indemnify defendant Alleged breach of implied term by third party Whether third party liable to make contribution Assessment of plaintiff's damages
Legislation:	Occupational Safety and Health Act 1984
Case References:	Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 41 ALR 367 Dalton v Angus (1881) 6 App Cas 740 Dependable Motors Pty Ltd v Council of the Shire of Ashford (1959) 101 CLR 265 Jaensch v Coffey (1984) 155 CLR 549 Jones v Bartlett (2000) 205 CLR 166 Kato Works Co Ltd v Benz & Ors [1999] WASCA 165 Kondis v State Transport Authority (1984) 154 CLR 672 Laundess v Laundess (1994) 20 MVR 156 Lipman v Clendinnen (1932) 46 CLR 550 McPherson's Ltd v Eaton & Ors (2005) NSWLR 187 Pesl Pty Ltd v Ray Smith Tractors Pty Ltd (2007) NSWCA 74 Rivett Arboricultural and Waste Equipment Hire Pty Ltd v Evans (2007) SASC 108 Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 Voli v Inglewood Shire Council (1963) 110 CLR 74 Yun Hee Choi v City of Sydney Council (2007) NSWSC 65

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : JONES -v- SNF (AUSTRALIA) PTY LTD [2007] WADC 167 CORAM : MULLER DCJ HEARD : 20-24 & 27 AUGUST 2007 DELIVERED : 9 NOVEMBER 2007 FILE NO/S : CIV 2833 of 2000 BETWEEN : BRADLEY IVAN EDWARD JONES

Plaintiff

AND

SNF (AUSTRALIA) PTY LTD

Defendant

DON PATRICK BINGHAM

Third Party

Catchwords:

Negligence - Auto electrician injured while repairing compressor motor on road tanker - Piping system fitted with a stop valve but no automatic release valve - Pipe separated under pressure and struck plaintiff on head - Tanker purchased by defendant from third party - Tanker operated by Wesfarmers to transport defendant's product - Whether defendant owed plaintiff duty of care - Failure by defendant to have system inspected by qualified and competent person either at time of purchase or at time tanker used by Wesfarmers - Whether third party liable to indemnify defendant - Alleged breach of implied term by third party -

(Page 2)

Whether third party liable to make contribution - Assessment of plaintiff's damages

Legislation:

Occupational Safety and Health Act 1984

Result:

Plaintiff's claim against defendant allowed

Defendant's claim against third party dismissed

Representation:

Counsel:

Plaintiff : Mr B G Bradley

Defendant : Mr G T Stubbs

Third Party : Mr J G Staude

Solicitors:

Plaintiff : Bradley Bayly

Defendant : Dwyer Durack

Third Party : HFM Legal

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

Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 41 ALR 367
Dalton v Angus (1881) 6 App Cas 740
Dependable Motors Pty Ltd v Council of the Shire of Ashford (1959) 101 CLR 265
Jaensch v Coffey (1984) 155 CLR 549
Jones v Bartlett (2000) 205 CLR 166
Kato Works Co Ltd v Benz & Ors [1999] WASCA 165
Kondis v State Transport Authority (1984) 154 CLR 672
Laundess v Laundess (1994) 20 MVR 156
Lipman v Clendinnen (1932) 46 CLR 550
McPherson's Ltd v Eaton & Ors (2005) NSWLR 187
Pesl Pty Ltd v Ray Smith Tractors Pty Ltd (2007) NSWCA 74

(Page 3)

Rivett Arboricultural and Waste Equipment Hire Pty Ltd v Evans (2007) SASC 108
Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16
Voli v Inglewood Shire Council (1963) 110 CLR 74
Yun Hee Choi v City of Sydney Council (2007) NSWSC 65

(Page 4)

1 MULLER DCJ: In this action the plaintiff has claimed damages from the defendant for injuries he suffered in an accident which occurred at the Wesfarmers Transport Depot in Boulder on 25 November 1998. The accident occurred when the plaintiff, an auto electrician, was sent by his employer to repair the starter motor in a small diesel engine mounted in a compartment at the rear of a road tanker owned by the defendant. The diesel engine drove an air compressor which supplied pressurised air to the tanker through a pipeline on the left side of the vehicle. The pressurisation of the tanker was necessary to enable the vehicle to discharge a powdery product called flocculent. The plaintiff claimed that the pressurisation system was defective and dangerous and that he sustained severe head injuries as a consequence of the metal pipe carrying the compressed air to the tanker separating and striking him on the head when the compressor began operating. The defendant denied liability but claimed that if the plaintiff's injuries were the result of its negligence it was entitled to an indemnity or contribution from the third party from which it had purchased the tanker.

Evidence of the plaintiff

2 The plaintiff, who was born on 2 March 1972 and is aged 35, qualified as an auto electrician in January 1992 in Kalgoorlie. After qualifying he began work with a firm named Hampton Transport Services doing the electrical work on trucks, trailers and mining equipment in the Kalgoorlie region. In the years that followed he moved quite regularly from employer to employer. After staying with Hampton Transport Services for about six months he returned to a firm named Holst & Sons where he had done his apprenticeship. In 1994 he moved to Esperance and spent approximately 12 months there doing auto electrical work. He later returned to Kalgoorlie and resumed work with Hampton Transport Services. Approximately 12 months later he moved to Goldfields Auto Electrical and in 1996 joined a firm named Mr Mobile Auto Electrics. He went back to Esperance for 12 months before returning to Kalgoorlie and beginning work with the defendant on 10 October 1998.

3 Before his accident the plaintiff worked a six and a half day week and averaged approximately 60 hours per week. His work involved going to various mining sites and transport yards and doing auto electrical work on both large and small vehicles.

4 On 25 November 1998 his employer, Seeley Auto Electrical Pty Ltd, sent him to rectify a fault in a starter motor to a small diesel engine mounted at the rear of an air pressure tanker at the Wesfarmers Transport

(Page 5)

Depot in Kalgoorlie. The tanker was owned by the defendant and was being operated by Wesfarmers. The plaintiff had no previous experience working on air compressor systems. He examined the starter motor and found it was faulty. He removed it and returned to his workshop to get a replacement. He installed and fitted the replacement to the diesel engine which was mounted in a compartment at the left rear of the tanker. When he tried to test the motor he found the battery was low and that it would not start. He moved his vehicle to the left side of the tanker and attached jump leads from his vehicle's battery to the battery at the rear of the tanker. He held the jump leads on the battery terminals and asked someone to turn on the ignition key. This was done but the motor still did not start. This was the last memory he had of the incident.

5 Photographs tendered at the trial showed the location of the compressor unit and motor at the left rear of the vehicle. The photographs show a yellow handled lever attached to the pipe which carried the compressed air. Later evidence showed that this lever operated the stop valve – or discharge valve as it is referred to in the pleadings - controlling the flow of compressed air from the compressor to the tanker. The plaintiff said he did not recollect seeing this yellow handled valve at the time he worked on the starter motor.

6 Prior to the accident the tanker had been worked on at the Wesfarmers depot. Gregory Hinton, a trades assistant employed by Wesfarmers at the time, described how in the days preceding the accident he and a qualified mechanic had worked on the tanker's air pressure system and replaced a number of valves. He identified three valves he recollected having replaced. All three valves were in that section of the piping nearest the outlet or discharge pipe. One of the replaced valves is clearly visible in Exhibit 1 (photograph 16). It was located in the upper section of the piping above the discharge outlet which is also visible in that photograph. The other two valves that were replaced are shown in photograph 31 on either side of the discharge outlet. These valves are black in colour and clearly visible. The other replaced valve in the upper section of piping is also visible in the same photograph. Hinton said that neither he nor the mechanic he was working with had done any maintenance or repair work to that section of pipe near the compressor where the stop or discharge valve is located.

7 Hinton described how, having completed the work they had to do, he and his co-employee had arranged for the tanker operator, a person named Campbell, to start the compressor to test the system. When the unit would not start arrangements were made for an auto electrician from Seeley to

(Page 6)

attend and solve the problem. Hinton said he met the plaintiff on his arrival at the Wesfarmers depot. He took him to the tanker, showed him what the problem was and asked him to find the fault in the starting mechanism. He then left the plaintiff and went about his own business. When he was approximately 80 metres away working elsewhere in the yard he heard the air compressor motor start. He said the sound of the motor suggested it was labouring due to back pressure. He then heard a sound similar to a gun shot. When he went to the tanker he found the plaintiff, bleeding badly, lying on the ground. He noticed that the pressure pipe had become detached and that the valve handle was in the closed position at right angles to the pressure piping (as shown in photograph 14).

8 The final witness called by the plaintiff who was actually involved with the operation of the tanker was the driver, Colin Campbell. He was employed by Wesfarmers Transport in Kalgoorlie and had driven the tanker twice from the depot in Kalgoorlie to the Bulong Nickel mine site to deliver flocculent. On the first occasion Campbell said he had managed to discharge half the tank when he encountered problems and was unable to discharge the remaining contents. He said he returned to the depot with the tanker and asked the manager at the Wesfarmers depot to address the problem. On the next occasion he took the tanker to the mine site he was unable to start the motor that operated the compressor. Once again he returned the tanker to the depot and told the manager what the problem was.

9 Campbell was asked to examine the piping on the tanker as shown in the photographs. When asked to comment on photograph 14 in Exhibit 1, which shows the yellow handle that operated the stop valve, he said he was unable to recall that valve at all but that, had it been part of the system when he operated the tanker, he would have been very careful to make sure it was open because there was no automatic safety valve before the stop valve and the large volume of air being forced through the pipes by the compressor could pose a real danger if the stop valve were closed.

10 One witness who actually saw the accident on 25 November 1998, and whose evidence I shall refer to in a lot more detail later, was a person named Stuart Craven who was the business development manger employed by the defendant. He happened to be at the Wesfarmers depot on that day and saw the plaintiff working on the vehicle. Craven was told by the depot manager that there was a problem with the starter motor which he expected would be repaired to enable the vehicle to be used to make a delivery that same day. While he was in the yard at the depot

(Page 7)

Craven said he heard the compressor motor start. To the best of his recollection it ran for a short time and stopped. He thought this happened twice. He said he then heard the motor start again. He said the motor sounded as though it were labouring. At this stage he was near the tanker and saw the electrician holding jumper leads leading from his vehicle's battery to the battery on the tanker. Craven said the motor started again and began to run very slowly before picking up speed. He then heard what he described as a loud bang and saw the pipe separate and strike the plaintiff on the head. He said he immediately turned off the compressor motor and attended to the injured plaintiff.

Events following the accident

11 The plaintiff's next recollection after the accident on 25 November 1998 was regaining consciousness in Sir Charles Gairdner Hospital. He was unable to remember what date he recovered consciousness but said he found it difficult to breathe and had a severe headache. His neck had been placed in a brace. He remained in hospital for nearly two weeks during which he continued to suffer from extremely painful headaches. He was given morphine and other pain killers during his stay in hospital. He began to suffer seizures and was also given anticonvulsant medication. The left side of his head and his jaw were extremely painful. A number of photographs were tendered to show the extent of his head injuries. These photographs, which were taken after his initial surgery, show the extensive suturing that had to be done both to the front and left side of his head.

12 After his discharge from hospital the plaintiff had to return to Sir Charles Gairdner Hospital in February 1999 for further surgery and the installation of a metal plate in his skull. The consequences of his injury were far reaching. He had to remain in Perth because of the need to return regularly to hospital for constant check-ups. He was advised not to drive because of the seizures he was prone to. He stayed with relatives in Perth and continued to undergo treatment. Apart from severe headaches and neck pain he also suffered mood swings. His general practitioner referred him to a psychologist for treatment. He described how he suffered from fits of rage often directed at his own children. He was forgetful and confused and had to be told what to do. He was extremely anxious because he did not know how he was going to maintain his family. He suffered from extreme tiredness and frustration.

13 After the installation of the metal plate the plaintiff returned to live with his sister-in-law before moving with his family to a house in

(Page 8)

Joondalup. He continued to receive constant medical treatment and was on medication for his seizures. He continued to receive psychological counselling for his mood swings. He became reclusive and stopped socialising with friends. He developed feelings of distrust and jealousy in relation to his wife. Another symptom which emerged following the accident was his compulsive purchase of items that he did not really need.

14 During this period when he was undergoing treatment the plaintiff said he remained confused and depressed. He was upset at no longer being able to work.

15 When he began trial work at the end of 1999 his headaches and neck pain persisted. He continued to have lapses in his memory and powers of concentration. The headaches were a daily occurrence and he consistently had to take painkillers. He continued to receive psychiatric and psychological help.

16 The plaintiff's attempt to return to work began at the end of 1999. He made several approaches to prospective employers and made them aware of his problems. Initially he worked for North Coast Auto Electrics in Wangara for a couple of hours a day on two days a week. He restricted himself to bench work duties. After about six months he increased his workload to 10-13 hours per week. He still suffered headaches and neck pain and suffered from memory and concentration lapses.

17 The plaintiff's initial attempt to return to work ended in failure. He felt stressed and depressed and was advised by his general practitioner to try something other than auto electrical work. It was at this point he was referred to a psychiatrist and a neuropsychologist.

18 In November 2000 he got a job with Hamilton Transport in Kalgoorlie. Once again he restricted himself to bench work and averaged approximately 10 hours a week. Later he increased that to 12-15 hours. He remained with Hampton Transport for about 11 months but still suffered from neck pain and headaches. His powers of concentration were still limited and he continued to get tired very quickly. Once again he became depressed and disheartened and at the end of 2001 he stopped working for Hampton Transport and returned to Perth so that he could get regular treatment.

19 On his return to Perth he found another position with North Coast Auto Electrics where he remained for about three months. It was then he stopped work altogether. For the next three years he was unemployed.

(Page 9)

20 In late November 2004 he began work with Henry's Auto Electrics in South Guildford. His employer allowed him to work within his capabilities. He remained with this firm for approximately three months restricting himself to bench work. His employer then required him to do other types of work which he found too demanding both physically and psychologically.

21 He left Harvey's Auto Electrics and found work with Kenwick Auto Electrics in March 2005. He remained with this employer for a year. Once again he restricted himself to bench work and worked 2-2½ days a week. His condition slowly improved over time. At the end of 2005 he was capable of working 20-25 hours a week in three day cycles followed by a four day break. His physical problems, however, continued to affect him. At one point he tried to increase his work load and got to the point of working 3½-4 days a week. But this made him increasingly tired and he found he was unable to cope. He said he had to take a couple of weeks rest before returning to work.

22 After a brief stint working at R V Sales in Cannington the plaintiff returned to Kenwick Auto Electrical where he resumed the pattern of work he had followed when employed there earlier. Working 20-24 hours a week he began to do more varied work including work on vehicles on outside sites. He still suffered from headaches on approximately two out of every three days he worked. The headaches seemed to be triggered by his neck pain and he continued to take Panadol, anti-depressants and, occasionally, Dexamphetamine.

23 He described his current position as unstable. His neck pain persists and is aggravated by work. His headaches continue to follow his neck pain. The pain in his jaw has improved substantially and he no longer suffers from anxiety attacks. He suffers broken sleep and still breaks out in uncontrolled sweating. He still suffers from mood swings and has bouts of bad temper. Although his memory has improved he still finds he loses items and has to be shown where he has left them.

24 The plaintiff is unable to carry out any of his pre-accident recreational pastimes. Before the accident he surfed when in Esperance, rode horses and played football with his children. He finds he is unable to continue these activities. While he conceded that he was now able to perform a wider range of work, including on site work involving larger vehicles, he found it difficult to do anything which required him to hold his head in a stationary position for any length of time.

(Page 10)

25 The plaintiff's employer, Timothy Whitehurst, said the plaintiff currently worked eight hours a day on three days a week. This aggregate of 24 hours was sometimes reduced if he became fatigued. He earned $28 per hour as compared to the $35 hourly wage paid to experienced auto electricians working in Perth and the $40 hourly wage paid to those who worked on sites outside Perth. Whitehurst said that he controlled the plaintiff's work load and the type of work he got. He said the plaintiff was to a large extent confined to the workshop area and was not given jobs that were lengthy or involved any degree of stress or pressure. Steps were also taken to avoid him having to work in large, congested and noisy workshops because he had expressed his concern about working in those conditions on earlier occasions.

The medical evidence

26 A number of medical reports were tendered by the plaintiff without opposition. These reports reveal that the plaintiff was brought to the Emergency Department of Sir Charles Gairdner Hospital on 26 November 1998. He had been transferred from Kalgoorlie by the Royal Flying Doctor Service. Prior to his arrival at Sir Charles Gairdner Hospital he had undergone a left sided craniectomy and evacuation of an extradural haematoma and removal of a small comminuted piece of bone. He was found to have a large laceration of the posterior aspect of the skull and left sided parietotemporal fracture.

27 On his arrival at Sir Charles Gairdner Hospital he was found to be intubated, paralysed, sedated and on ventilation. A CT scan showed an extensive left parietal fracture although the extradural haematoma had begun to improve. He remained in hospital until 4 December 1998.

28 The plaintiff was readmitted to hospital on 21 February 1999 for left temporal cranioplasty and was discharged on 24 February 1999.

29 The reports from the various doctors who saw the plaintiff from that point on emphasised a significant change in the plaintiff's behavioural patterns. Symptoms including levels of high anxiety, moodiness, agitation, confusion and sporadic outbursts of rage all formed part of this initial pattern. The painful restriction of the plaintiff's left temporomandibular joint was found to be associated with his injury and the surgical procedures that followed. Daily headaches in the fronto-temporal region together with neck pain were prominent symptoms of his injury.

(Page 11)

30 Mr Peter Watson, a neurosurgeon, saw the plaintiff for the first time on 17 October 2001 and, after reviewing his history, concluded that he had sustained a significant head injury in the form of a compound, depressed skull fracture with extradural haematoma over the left temporal region. The injury necessitated emergency surgery at Kalgoorlie Hospital and further corrective surgery in the form of a cranioplasty at Sir Charles Gairdner Hospital in February 1999. In a report dated 17 October 2001 Mr Watson summarised the effects of the injury in the following terms:

"Whilst there is only minor physical evidence of the ongoing brain injury, the psychological and neuropsychological trauma is quite evident looking at the reports from psychologists. Physical examination of Mr Jones therefore is not rewarding and tends to underestimate the significance of these type of injuries. Neurosurgically however I am able to state that Mr Jones had a significant head injury and the ongoing psychological symptoms as noted above would be in keeping with the cerebral trauma."

The neurosurgeon went on to say in his report that the plaintiff would require ongoing psychiatric and psychological treatment but would not require any further neurosurgical intervention. Given that the symptoms following the plaintiff's head injury had persisted for more than two years Mr Watson concluded that his symptomatology and difficulties were likely to be permanent. He said the plaintiff had a limited capacity to work as an auto mechanic doing bench top work for periods of up to 20 hours per week.

31 In later reports dated 24 June 2002 and 11 April 2003 Mr Watson repeated his earlier findings. In his most recent report dated 23 January 2006 he said the plaintiff's persisting injuries are ongoing headaches in relation to the skull and scalp trauma, soft tissue and ligamentous injuries to the cervical spine and temporomandibular injuries. In giving evidence at a commission de bene esse Mr Watson confirmed his earlier view that the plaintiff's capacity to work would be limited to bench top work for periods of about 20 hours per week. He conceded it was possible that the plaintiff's capacity to work longer hours would improve during the course of his working life.

32 Evidence as to the psychological effects of the accident upon the plaintiff was given by a consultant psychiatrist, Dr Peter McCarthy. He saw the plaintiff four times between 23 May 2000 and 28 August 2001 and again in May 2006 and July 2007. When he initially saw the plaintiff on 23 May 2000 and 21 June 2000 he recorded symptoms indicative of

(Page 12)

depression, anxiety, irritability, poor impulse control, poor judgment, decreased sociability, a tendency to temper outbursts, poor memory and poor concentration. This symptomatology led Dr McCarthy to conclude that the plaintiff was suffering from a post-traumatic stress disorder immediately after the accident but that the symptoms attributable to this particular disorder had significantly improved. Other symptoms, however, continue to persist, particularly those relating to the plaintiff's mood, his poor judgment, impulse control and his ability to focus. The psychiatrist had no difficulty in coming to the conclusion that the plaintiff's symptoms were wholly due to the head injury he suffered. Although reluctant to use the expression "dementia" Dr McCarthy formed the view that the plaintiff's symptoms fell within the definition of this condition due to his head injury. He believed the plaintiff displayed regular symptoms of at least moderate severity with impaired functions in some areas. This condition, in Dr McCarthy's opinion, severely impaired the plaintiff's capacity to work.

33 As time went by the plaintiff's condition improved in some areas and led Dr McCarthy to vary his diagnosis. When he next saw the plaintiff in January 2001 he concluded that his condition could best be described as a Personality Change Secondary to Head Injury. He made this diagnosis on the basis of his belief that the plaintiff's mood symptoms were by then worse than his cognitive deficits. The plaintiff continued to show residual features of his post-traumatic stress disorder and also suffered from panic disorder with agoraphobia.

34 Further consultations with both the plaintiff and his wife led Dr McCarthy to conclude that, while there had been an overall and gradual improvement in the plaintiff's symptoms, his condition remained basically unchanged. In a more recent report dated 29 May 2006 he said he no longer considered it appropriate to describe the plaintiff as suffering from any significant form of dementia but that he continued to display symptoms consistent with a personality change secondary to his head injury. That personality change was manifested in symptoms of anxiety and panic attacks. The psychiatric diagnosis also encompassed neuropsychiatric deficits including a significant degree of forgetfulness, social avoidance with a tendency to jealousy, a degree of suspiciousness, significant emotional dependency on his wife, a lack of tolerance in relation to everyday stresses and difficulty in maintaining attention or monitoring his own behaviour. In his most recent diagnosis he concluded that the plaintiff suffered from a personality change secondary to a head injury with his panic disorder in partial remission. The plaintiff's

(Page 13)

previously diagnosed depressive disorder and post-traumatic stress disorder were, in Dr McCarthy's opinion, now in remission.

35 When he gave evidence at the trial Dr McCarthy referred to his most recent report dated 13 August 2007 in which he concluded that the plaintiff's post-traumatic stress disorder and panic disorder with agoraphobia had settled. He said the plaintiff continued to suffer from mild chronic mood symptoms consisting mainly of impatience and moodiness. Dr McCarthy believed it was more significant that the plaintiff continued to have a degree of cognitive impairment manifested in his difficulty in doing his work at normal speed, significant memory difficulties and impulse control, and impaired judgment, initiative and capacity for concentration, persistence and pace. In his view the plaintiff continued to have a significant functional deficit attributable to his head injury and related neuropsychiatric problems. His opinion as to the plaintiff's capacity to work remained unchanged. He believed the plaintiff was currently able to work 20 hours per week although he would not be able to work at his normal pace and would probably continue to become fatigued more easily. He said he doubted whether the plaintiff would be able to function independently without the support of his wife or some other support person.

36 Dr Linda Hayward, a neuropsychologist, saw the plaintiff between 2000 and the date of trial. She concluded that the plaintiff's head injury, which had resulted in post-traumatic changes to the left frontal and temporal areas of the brain, had resulted in cognitive problems which had improved in the first two to three years but had then stabilised with residual symptoms. These symptoms included memory problems, slowed processing speed, some problems with executive function and subtle changes to language functions and behavioural changes. Apart from these cognitive effects she also referred to the plaintiff's history of mood swings and significant psychiatric problems with personality and behavioural changes. In her view these cognitive and psychiatric problems affected the plaintiff's ability to function on a daily basis and also had an adverse effect on his capacity to work. She believed the plaintiff was likely to be able to continue with his present limited workload as long as there was no significant deterioration in his psychiatric status and his employers remained sympathetic to his plight. She also believed that the contribution made by the plaintiff's wife to his support and wellbeing was essential.

37 Dr Christopher Hammersley, a specialist in occupational health, saw the plaintiff in January 2006 and again on 7 August 2007. In

(Page 14)

January 2006 he expressed the view that, with time, the plaintiff might be able to increase the number of hours he worked each week and eventually return to a five day working week. In his evidence he said he no longer believed this could be done. When he saw the plaintiff a second time on 7 August 2007 he reached the conclusion that the plaintiff was doing all he possibly could do and that, despite his genuine efforts, his lack of energy meant he could not work more than three days per week. In his last report he also found evidence of what he described as left-sided static loading in the neck. He predicted this might become more troublesome in the future.

Past gratuitous services

38 The plaintiff's wife, Renee Jones, said that upon his discharge from Sir Charles Gairdner Hospital she and the plaintiff stayed with her sister in Perth for approximately three months before the plaintiff underwent further surgery. During this period he required daily care. She said she ceased work as a waitress in order to look after the plaintiff. She described how she had to help him dress, guide him around the house and drive him to medical appointments. He was bedridden for the first three months and she had to remain at his side to attend to his needs.

Defendant's case

39 The only witness called by the defendant was Stuart Craven. He had a background in repair and maintenance work involving large machinery and compressors. During the period 1997-1998 he was employed as the business development manager of SNF (Australia) Pty Ltd. He had previously held the position of Engineering Manager. The defendant company manufactured and distributed a product called flocculent which was used to treat waste water.

40 In 1997-1998 the defendant entered into an agreement to supply flocculent to the Bulong Nickel Mine outside Kalgoorlie. Because the flocculent had to be supplied in bulk Craven began looking for a tanker to transport the product. He happened by chance to see a tanker in the third party's sale yard. Believing the vehicle would be suitable for the defendant's purposes he entered into negotiations with the third party, Don Bingham. When he inspected the tanker he took a series of photographs which were produced as Exhibit 8(a) (photographs 1-8). During the negotiations preceding the sale he said he definitely told Bingham that the defendant wanted the tanker to deliver flocculent to its customers. He asked Bingham whether it would be suitable for that purpose. He said he could not recall Bingham's exact response but was

(Page 15)

told the tanker had been used to deliver flour and cement and could be used to deliver a powder substance in bulk. He claimed Bingham told him the tanker would be suitable for the task the defendant wanted to use it for.

41 Having obtained approval from the defendant's head office in France to purchase the tanker Craven described how he and Bingham signed the necessary documentation relating to the sale. Bingham told him an inspection of the tanker had showed that repairs were needed to its brakes and tyres. He said he would get these repairs done and charge the defendant for the cost of the repairs. Craven agreed to this.

42 The work on the tanker was apparently done and the former operator's signage on the side of the tanker was replaced with SNF signage. Craven recalled that the price paid for the tanker was approximately $55,000.

43 After the sale the tanker remained in the third party's sale yard for approximately two months because of a delay in the finalisation of the agreement to deliver flocculent to the Bulong mine site. During this period while the tanker was not being used Wesfarmers Transport asked Craven if Wesfarmers could hire the tanker for a period of 3-5 months. Wesfarmers offered to pay a monthly rental of $1,000 and undertook to keep the tanker clean and tidy and return it to the defendant in a satisfactory condition. This offer was made on 24 October 1997 and was contained in a facsimile transmission from Wesfarmers to Craven (Exhibit 21). Craven replied by facsimile dated 28 October 1997 accepting the offer made by Wesfarmers. In his reply (Exhibit 21B) he stipulated that:

"Furthermore SNF (Australia) Pty Ltd will accept no responsibility for debts incurred by Wesfarmers in the maintenance and repairs of the trailer howsoever caused by, or incidental to, its usage whilst in the care of Wesfarmers Transport."

These conditions were accepted by Wesfarmers. The tanker was delivered to the Wesfarmers depot and began to be used by Wesfarmers.

44 In a facsimile message dated 29 May 1998 Craven notified Wesfarmers Transport that deliveries of flocculent to the Bulong Nickel Mine would commence in July 1998 and that the defendant intended to terminate the hire agreement and take possession of the tanker. This, in fact, never happened. What did happen was that both Wesfarmers and the
(Page 16)

defendant agreed that Wesfarmers would use the tanker to deliver flocculent from Kalgoorlie to the Bulong mine site on behalf of the defendant. The terms of this arrangement were reflected in an exchange of letters dated 9 April 1998 (Exhibit 4) and 20 May 1998 (Exhibit 5). Following this arrangement Wesfarmers kept the tanker in its depot at Kalgoorlie.

45 Before the first delivery of flocculent was made Craven went to the Wesfarmers depot in November 1998 and inspected the tanker. He found some foreign residue inside the container and told the Wesfarmers manager that the tank would have to be cleaned before it was filled with flocculent. The Wesfarmers employee gave an undertaking that this would be done.

46 When Craven next returned to the Wesfarmers depot he found the tanker had been cleaned and the interior of the tank was in the process of being dried. He went back the following day to supervise the filling of the tanker by Wesfarmers. When the tanker had been filled Craven drove ahead to the Bulong mine site where he waited for the driver of the tanker to arrive. Upon its arrival the driver began discharging the flocculent but only managed to empty half the tank. When an attempt was made to discharge the balance of the tank water was seen to flow out. Craven suspected that the flocculent had become wet and had expanded.

47 The tanker was returned to the Wesfarmers depot and Craven told the manager to remove the remaining flocculent in the tank and to repair a number of flaws in the pipe work that the driver of the tanker had drawn his attention to.

48 That was the last occasion on which Craven saw the tanker before the date of the accident.

49 When cross-examined Craven said he did not notice the stop valve in the pipeline leading from the compressor either at the time of purchase or after. He agreed that if the stop valve were closed when the compressor was operating a potential hazard might be created unless the manual outlet valve located in the pipeline just before the stop valve was open. He agreed that when he inspected the tanker at the Wesfarmers depot in November 1998 he again did not notice the stop valve or its location. He agreed, however, that when he sent a facsimile message documenting the agreement to Wesfarmers relating to the transportation of the flocculent to the Bulong mine site he included a clause which read as follows:

(Page 17)

"Repairs and maintenance of the trailer would be the responsibility of SNF, but would rely on the user to notify and arrange any maintenance required to ensure that the trailer was kept in a safe working condition." (Exhibits 4 and 5).

He said he believed this meant SNF would have to pay the cost of any repairs but it was the responsibility of Wesfarmers to notify the defendant of what repairs were needed and carry out those repairs. He also agreed that in November 1998, after the tanker had been used on its first trip to Bulong, he had been told by the driver of various defects in the pipe work and had instructed Wesfarmers to carry out the necessary repairs. Craven said that, despite his background, he did not have sufficient familiarity with the type of system used on the tanker to notice there was no automatic escape valve between the compressor and the stop valve.

Third party's evidence

50 Donald Patrick Bingham was the proprietor of a business which sold heavy trucks and machinery to members of the public. He said on 21 May 1997 he received a telephone call from Stuart Craven on behalf of the defendant. Craven enquired whether he had a used pressure tanker for sale. Bingham said he told Craven he did not have one and, because of their scarcity, was unlikely to get one. He said Craven asked him to take his details and contact him if he managed to locate a tanker. He also recalled Craven telling him that the defendant wanted the tanker to transport a product called flocculent which he explained was a powder or granular type substance.

51 Bingham said he was unfamiliar with pressure tankers or the way they operated. He said he had never sold one before. Some time later, however, he learned that another dealer from whom he purchased stock had a pressure tanker for sale. He contacted Craven and in May 1997 took him to the other dealer's yard in Spearwood to inspect the tanker. He said Craven looked at the tanker and photographs were taken. After seeing the tanker Craven agreed to purchase it and enquired what the price would be. Bingham told him it would be $50,000.

52 Bingham understood that Craven needed authority from his Head Office to finalise the purchase. On 30 June 1997 Bingham invoiced the defendant for the sale of the tanker (Exhibit 24). On 3 July 1997 Bingham received a facsimile letter from the defendant confirming its previous verbal offer to purchase the tanker (Exhibit 25). Arrangements were then made to bring the tanker from Spearwood to the third party's premises at Welshpool.

(Page 18)

53 After the payment details had been finalised Bingham said Craven came to the Welshpool premises and looked at the trailer again. He asked Bingham to remove the existing signage and paint the SNF symbols on the tanker. Bingham also agreed to repair a flat tyre, adjust the brakes and carry out other minor repairs. This was done and Bingham invoiced the defendant for these repairs on 4 September 1997 (Exhibit 27).

54 After the sale the tanker was kept at Bingham's work premises. Bingham said he was asked by Craven to check whether the tanker would hold its pressure. Because he was not familiar with this type of machinery he arranged for it to be taken to a compression specialist, Tank Degassing, where it was pressure tested and found to be working satisfactorily.

55 In cross-examination Bingham denied that Craven had asked him for any particular assurances as to the quality of the tanker or told him it would have to be repaired, serviced and maintained so that it was in a fit and proper condition for the use for which it was intended. The only assurance he conceded he might have given was that the tanker could be used for the transportation of flocculent.

56 The tanker was not delivered by the third party to the defendant. It remained on Bingham's premises until it was collected by Wesfarmers Transport under the original hire agreement between the defendant and Wesfarmers.

Expert evidence as to cause of accident

57 Gary Affleck, a consultant engineer with expertise in pressurisation devices, said he had examined photographs of the pressure piping system installed on the tanker and had prepared a diagram showing the layout and the various devices fitted to the piping system. This diagram, Exhibit 7, shows the pressure piping attached to a motor, starter motor and compressor. The discharge pipe leading from the compressor runs into what is described as a rubber joiner. It was this joiner that gave way when the accident occurred. The pressure pipe leading from the other side of the joiner ran vertically downwards before bending at a right angle and travelling along the left side of the tanker to the point where the compressed air was driven into the tank itself. The diagram (Exhibit 7), and to a lesser extent the photographs, show that just beyond the bend in the vertical section of the pressure piping there were two valves. The first was described by Mr Affleck as a vent valve which, when open, would discharge the compressed air into the atmosphere. Located next to this vent valve a little further down the pressure pipe was the discharge valve or stop valve. This was the valve upon which the case focused. The

(Page 19)

engineer described the device as a manually operated ball valve. The pressure piping continued beyond this valve to a point where a non-return valve was fitted. This valve prevented compressed air being blown back from the tanker into the system. Having passed through the non return valve the pressure piping then passed through a safety valve and another isolation or stop valve before leading into the container itself. In commenting on this system the first observation made by the consulting engineer was that no automatic safety valve had been fitted between the compressor and the discharge or stop valve which is marked by the figure "D" in his diagram (Exhibit 7). It was common cause that the diagram (Exhibit 7) and the photographs showed the system as it was at the time of the accident in November 1998. Mr Affleck said the pressure piping system fitted to the tanker failed to comply with the Australian Standard (Pressure Piping) 1992 and 1998. He drew attention to cl 7.3.1 of the 1992 Standard, which is repeated in identical terms in the 1998 Standard, and which provides as follows:

"7.3.2

Stop valves in pressure relief systems

A stop valve shall not be located between protected piping and the protective device or devices, nor between the protected device or devices and the point of discharge, except as follows: …"

The exceptions which follow only apply to multiple safety valve systems and not to this particular one. Mr Affleck said the installation of a stop or discharge valve as shown in the diagram (Exhibit 7 at "D") contravenes the Australian standard. He described the compressor as a positive displacement machine which led to air being delivered with every revolution of the engine. He went on to explain that if the vent (depicted by the letter "V" in the diagram) and the discharge valve (represented by the figure "D" in the diagram) were closed while the compressor was operating the inevitable result would be that some part of the pressure piping would rupture or, alternatively, the compressor itself would stop or the diesel engine stall. He expressed the view that any engineer or person experienced with air compressors who examined the system would have become aware of the potential danger.

58 Mr Affleck was unable to give any explanation as to why the stop valve depicted by the letter "D" in his diagram had been put where it was. Comparing the photographs taken in June 1997 (Exhibit 8) with those taken after the accident (Exhibit 1) he expressed the view that the stop valve must have been replaced because the one shown in the original
(Page 20)

photographs (Exhibit 8) seemed to be different in appearance from the one shown in the later photographs (Exhibit 1).

59 Mr Affleck also said that if the valves represented by the figures "D" and "V" in the diagram were both shut, and the compressor was operating, it would take a very short time, possibly between 5-15 minutes, before the pressure built up to danger point. If this occurred and a rupture took place at the rubber joiner shown in the diagram (Exhibit 7) by the letter "R" he said he would have expected the pipe to be forced out of the end of the rubber joiner and the force of the escaping air flow would be the equivalent of an explosion.

60 The work safe investigator who actually examined the pressure tanker after the accident, Mr Reg Tuffin said he had not examined the stop valve represented by the figure "D" in the diagram (Exhibit 7). He also said he had not tested to see how tight the hose clamp which held the rubber coupling onto the piping at point "R" in the diagram (Exhibit 7) had been set.

Liability of defendant

61 In his substituted statement of claim the plaintiff alleged that the tanker's pipeline system was defective and dangerous. It was said to be dangerous and defective for a number of reasons. First, there was no air pressure relief valve or other safety valve in place between the air compressor and the discharge valve (stop valve); second, the discharge valve could be opened or closed manually; third, when the discharge valve (stop valve) was closed and the air compressor unit was operating there was no means by which the pressurised air forced through the pipeline could safely escape in the event of over-pressurisation; and finally, that a danger was created if the air compressor unit was operated whilst the discharge valve was closed because the highly pressurised air forced through the system was likely to cause the pipeline to rupture and cause injury to persons close by.

62 Paragraph 4 of the substituted statement of claim alleged that the defendant owed the plaintiff a duty of care:

"4. (i) The Defendant purchased and took possession of the tanker on 30 June 1997.

(ii) At all material times by reason of its ownership, management, control and use of the tanker the Defendant was under a duty at law to exercise

(Page 21)

reasonable care to have the tanker and its air compression system periodically inspected by a person competent and experienced in the field of air pressurised tankers so as to ensure that it was free from hazards and so as to detect and remedy hazards.

(iii) The Defendant was further at all material times under a duty at law to exercise reasonable care not to permit another party to use the tanker whilst it was in a hazardous condition or to deliver possession of the tanker whilst it was in such condition.

(iv) The hazard pleaded in paragraph 3 above was at all material times a hazard which should have been detected on inspection by an inspector competent and experienced in the field of air pressurised tankers.

(v) The Defendant failed to remedy the hazard by installing a pressure relief valve in the line between the air compressor unit and the DV or by removing the DV or otherwise."

63 The plaintiff further alleged that in breach of its duty of care towards the plaintiff the defendant was negligent and that its negligence was the cause of the plaintiff's injuries. The particulars of negligence relied upon by the plaintiff are set out in par 6 of the substituted statement of claim as follows:

Particulars

The Defendant and its servants and agents were negligent in that they:

(i) failed to inspect or adequately inspect the tanker so as to detect the hazard in the pipeline;

(ii) failed to engage a person duly qualified and experienced in the field of air pressurised tankers to inspect the tanker for hazards;

(Page 22)

(iii) failed to remedy the hazard by installing a pressure relief valve in the pipeline between the air compressor unit and the DV or by removing the DV or otherwise;

(iv) failed to warn the Plaintiff by notice on the tanker or otherwise of the need to open the DV before starting the air compressor engine;

(v) failed to ensure that the pipeline conformed to the standards required by clause 7.3.2 of AS 4041 (1998) and/or AS 4041 (1992);

(vi) failed to ensure that the compressor and pressure vessel configuration complied with the standards required by clause 7.3.1 of AS 4041 (1998) and/or AS 4041 (1992) which required that protection devices be installed to prevent over-pressurisation;

(vii) failed to warn Wesfarmers of the hazard;

(viii) permitted and engaged Wesfarmers to use the tanker when by reason of the hazard it was dangerous to do so.

64 The defendant denied it owed the plaintiff a duty of care. The denial of the duty was based on two grounds. In the first place it was submitted there was no element of proximity in the relationship between plaintiff and defendant. Jaensch v Coffey (1984) 155 CLR 549; Yun Hee Choi v City of Sydney Council (2007) NSWSC 65. In the second place it was submitted the plaintiff had to establish that the defendant was an occupier in that, apart from owning the tanker, it also had control over it. Lipman v Clendinnen (1932) 46 CLR 550 at 554; Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 at 32. I accept that the tanker was never in the actual custody of the defendant. From the date of purchase to the end of 1997 it was in the possession of the third party before being hired by Wesfarmers Transport from the end of 1997 to July 1998 after which it was used by Wesfarmers to transport flocculent for the defendant, until the date of the accident. Mr Stubbs, who appeared as counsel for the defendant submitted that the initial hire agreement between the defendant and Wesfarmers required Wesfarmers to, inter alia, keep the tanker in good working order, take all necessary precautions in unloading the flocculent and ensure that the tanker was regularly serviced and maintained. I accept Wesfarmers was under a duty to maintain and repair the tanker. This duty continued when the agreement changed on 30 June 1998 and Wesfarmers agreed to use the tanker to
(Page 23)

carry the defendant's product. The evidence certainly establishes that from the time Wesfarmers began using the tanker it was kept at Wesfarmers' premises and was maintained and used by Wesfarmers. It was on the basis of this element of effective control of the tanker that counsel for the defendant submitted that it was Wesfarmers, as occupier of the premises where the accident occurred, which owed a common law duty of care to the plaintiff to safeguard him against injury or loss from defects in the occupied premises.

65 Counsel for the defendant submitted that the defendant was under no such duty. It was submitted that the injury sustained by the plaintiff could not reasonably have been foreseen by the defendant which had taken the precaution at the time of purchase of arranging for the tanker to be inspected by Tank Degassing who were pressure system experts and could reasonably be supposed to have detected and remedied any defects in the tanker's system. The defendant also relied on the use without incident of the tanker by Wesfarmers during the 7-8 months hire period and the failure of the Wesfarmers operator, Colin Campbell, to notify Wesfarmers of the danger posed by the location of the stop valve.

66 The other ground upon which the defendant based its argument was the absence of the requisite degree of proximity between the defendant and plaintiff necessary to establish a duty of care. It was argued that the lack of any contractual ties between plaintiff and defendant, the absence of any control of the plaintiff by the defendant and the joint responsibility of the plaintiff's employer, Seeleys, and Wesfarmers to take reasonable care for the plaintiff's safety exonerated the defendant from liability.

67 The evidence revealed the tanker was approximately 20 years old. I accept it was unlikely that the stop valve was installed by the manufacturer. I make this observation because the tanker was obviously built by a reputable manufacturer and, on the evidence of the witness Gary Affleck, it is inconceivable that a manually operated stop valve would have been located where it was without an automatic safety release valve being installed in the pipeline between the compressor and the stop valve. This means the stop valve must have been installed, and the potential danger created, some time before 1997. This is clearly established from the photographs (Exhibit 8 – photographs 5 and 6) taken by Craven at the time the tanker was purchased in June 1997 and the later photographs taken a few days after the accident by the work safe investigators (Exhibit 1 – photographs 11, 12 and 20). It is true that, on the evidence of Gary Affleck, the stop valve may have been replaced between 30 June 1997 and 25 November 1998. But this really makes little difference. If it

(Page 24)

were replaced the system itself remained unchanged and the same danger persisted because there was never a safety release valve installed in the pipeline between the air compressor and the stop valve.

68 I am satisfied the system was inherently dangerous and that the danger, on the evidence of the expert, Gary Affleck, would have been detected by a competent and trained person. The question is whether the defendant was under a duty to take reasonable steps to ensure there was no danger to persons working on or near the tanker and, if it was, whether that duty was discharged. In support of the submission that the defendant was under a duty at common law to exercise reasonable care to ensure the tanker was safe for use counsel for the plaintiff relied upon the following passage in Fleming's Law of Torts (9^th ed) at p 456:

"Responsibility for taking precautions rests not only on the manufacturer but on everyone alike who transfers a dangerous thing to another or who has custody or control over it. Here at any rate it is irrelevant that the Defendant is only a gratuitous bailor, donor, or mere distributor who has not himself increased the hazard inherent in the object beyond creating an opportunity where it might cause harm to others, as when a shop keeper sold a dangerous toy pistol to a child of 12 who injured a companion with blank ammunition… Reasonable care demands from those handling or distributing goods some measure of inspection to detect defects in the creation of which they may not have had a hand at all… Similarly, people who loan out equipment must carry on a reasonable system of maintenance and inspection to minimise the risk of injury to likely users, such as dock workers operating a rented truck or using slings furnished by stevedores for the purpose of their common task of unloading a ship."

69 I am satisfied the defendant had two opportunities to arrange for the tanker to be inspected by a competent person. The first opportunity arose when it purchased the tanker from Bingham before it was hired to Wesfarmers. There was certainly no evidence that anything significant was done at that stage. Bingham's invoice (Exhibit 9) shows the tanker was re-painted, seal leaks were attended to, the brakes were checked and overhauled, the unit was steam cleaned and a wheel was changed. There was nothing to suggest the pressurisation system was inspected. It is true that Bingham said in re-examination the tanker was sent to Tank Degassing for testing at Craven's request. But there was no evidence as to whether it was inspected at all, what form that inspection took or what the results were. Certainly no written report was produced and no inspection
(Page 25)

invoice tendered. The least I would have expected is for someone from Tank Degassing to have been called to say what form the inspection took and whether, in particular, the location of the stop valve and the absence of an automatic pressure release valve were noticed. But no such evidence was led. This leads me to doubt that any check was done at this stage, either by Bingham or by an independent expert, to ensure that the pressure piping system was safe.

70 There was a second occasion on which the defendant had the opportunity to ensure the tanker was inspected by a trained and competent person. This opportunity arose when the hire agreement with Wesfarmers Transport came to end in about June 1998 and a new agreement was entered into under which Wesfarmers Transport was to use the tanker to carry the defendant's flocculent from Boulder to the Bulong Nickel Project site. The only inspection of the tanker that was undertaken on this occasion was by Craven in November 1998. This was when he inspected the tanker before the first delivery of flocculent occurred. He found some foreign residue inside the container and told Wesfarmers that the tank would have to be cleaned before it was filled with flocculent. That apparently is all that was done. After the first delivery of flocculent had been made the Wesfarmers tanker operator told Craven of some defects he had found in the tanker and Craven asked Wesfarmers to rectify them. Under the agreement with Wesfarmers the defendant remained responsible for the repairs and maintenance of the unit but relied on Wesfarmers to notify it and arrange for any maintenance that was needed to keep the unit in a safe working condition (Exhibit 28).

71 What emerges from this evidence is that both the defendant and Wesfarmers were under a mutual obligation to have the tanker inspected by a competent person. I agree with the submission made by counsel for the plaintiff that each had a concurrent duty to exercise reasonable care to ensure that the tanker's pressure pipeline system was in a safe condition. The defendant did not arrange for any proper inspection either before the hire agreement with Wesfarmers or at the time of the second agreement when Wesfarmers used the tanker to carry the defendant's product. Neither does Wesfarmers Transport appear to have arranged any inspection. The evidence is silent on that point. Both the defendant and Wesfarmers Transport were under a duty to ensure the pressure pipeline system was in a safe condition and did not pose a danger to anyone who worked on or near the tanker. Neither party discharged that duty.

72 Contrary to the submission made by counsel for the defendant I am satisfied the defendant's duty of care to arrange for the tanker's air

(Page 26)

pressure pipeline system to be examined and rendered safe was non-delegable. It was not open to the defendant to expect Wesfarmers Transport to assume that responsibility. It is true that the defendant was not operating the tanker itself. The evidence is clear, however, that the tanker was reserved for the defendant's exclusive use. It was only to be operated by Wesfarmers to carry the defendant's flocculent to the Bulong Nickel mine site. The use to which it was put and the agreement relating to that use (Exhibit 28) make it clear that the tanker remained under the management and control of the defendant.

73 I am unable to point to any feature either in the agreement of sale with Bingham or in the two separate contracts with Wesfarmers that point to the defendant having delegated its duty to have the tanker's pressure system examined by a competent person to ensure that it was safe for those who used or worked on it. I have come to this conclusion because I am not satisfied on the evidence that Bingham was asked by the defendant to have the tanker inspected by an expert and, even if he were, there is no evidence that such an inspection ever took place or what the results were. The position in relation to Wesfarmers Transport is even more clear. Wesfarmers was never requested by the defendant to inspect the pipeline for existing risks or defects. Apart from cleaning the tank to remove a foreign residue, and repairing minor defects reported to him by the operator of the unit, Craven never asked Wesfarmers Transport to do anything else to the tanker. The danger was there from the beginning. A competent inspection would have revealed it. The defendant never arranged such an inspection itself or asked Wesfarmers to arrange it.

74 Although I have found that the defendant did not delegate its duty to inspect the tanker's pipeline system I am also satisfied that in law such a duty is non-delegable. I have come to this conclusion because of my finding that the defendant purchased the tanker and retained control and management of it. At the time of the accident the tanker was being used for the defendant's exclusive purposes. The tanker's air pressure pipeline system was dangerously defective and the defendant had a duty to have the tanker inspected by a competent person to ensure that it was safe for anyone who used it. In these circumstances the authorities referred to by counsel for the plaintiff strongly suggest that the defendant's duty could not have been delegated to anyone else. Dalton v Angus (1881) 6 App Cas 740; Voli v Inglewood Shire Council (1963) 110 CLR 74 at 95; Jones v Bartlett (2000) 205 CLR 166 at 184; Kondis v State Transport Authority (1984) 154 CLR 672 at 686-678. What emerges from this line of cases is that in some situations the law imposes a special duty on persons to take particular precautions for the safety of others. That

(Page 27)

situation may be said to have arisen here because of the defendant's management and control of the tanker and the fact that it was being used exclusively for the defendant's own purposes. Because it was under this special duty it ought reasonably to have arranged for the tanker's pressure piping system to have been tested by a competent person and it cannot escape liability by saying that it relied upon either Bingham or Wesfarmers to arrange for an inspection to be undertaken.

75 I find that the defendant owed the plaintiff a duty of care and that its failure to have the tanker's air pressure system inspected constituted a breach of that duty resulting in the fault going undetected and culminating in what was a reasonably foreseeable outcome.

Contributory negligence

76 In par 7 of the substituted defence the defendant pleaded as follows:

Particulars of Plaintiff's negligence

The Plaintiff was negligent in that he:

(i) failed to open the discharge valve;

(ii) failed to open the shut-off valve between the discharge valve and the automatic safety valve;

(iii) failed to seek assistance, advice and/or training in operating the tanker;

(iv) repeatedly attempted to start and run the compressor notwithstanding it was labouring;

(v) failed to wear sufficient protective headwear; and

(vi) placed himself in a position of danger when testing the diesel engine as pleaded in paragraph 5 of the Statement of Claim."

77 I am unable to find that the plaintiff was negligent in failing to open the discharge valve or the vent between the compressor and the discharge valve. The danger posed by the closed discharge valve would not have been readily apparent to anyone unfamiliar with air pressure systems. That this is so is shown by the failure of the operator, Colin Campbell, to recognise the danger posed by the closed valve. The plaintiff had no expertise in pressure piping systems. I am satisfied the danger was one
(Page 28)

that could only have been detected by an experienced and competent person.

78 It was alleged by the defendant that the plaintiff failed to seek assistance before operating the starter motor. This is not a correct reflection of the evidence. At the time he held the jumper lead on the tanker's battery he had asked an employee of Wesfarmers to operate the ignition switch. The defendant asserted the plaintiff was negligent in trying to start the motor at all. I cannot accept this. I do not believe there was anything unreasonable in the plaintiff testing the new starter motor by starting and stopping the engine. Given that he was never aware of the risk, and was not warned by anyone of it, I am unable to find that his actions were in any way unreasonable.

79 While the plaintiff's employer had issued him with protective clothing, including a hard hat, there is no evidence to suggest that he ought reasonably to have worn protective head gear while at the Wesfarmers' site. There was no evidence that the wearing of hard hats was a requirement or that anyone else wore a hard hat at the site on this or any other occasion.

80 I am not satisfied that the plaintiff knew or ought to have known that starting the motor was dangerous.

81 The claim of contributory negligence must fail.

Defendant's claim against third party

82 Both the defendant and the third party agreed that the defendant's claim against the third party was twofold: first, in the event of the defendant being found liable to the plaintiff, that the third party is liable for damages for breach of contract in that its conduct amounted to a breach of certain express or implied terms in the nature of warranties; and second, again on the basis that the defendant is found liable to the plaintiff, that the third party is liable to make a contribution pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 on the basis that the plaintiff's injury was caused by the negligence of the third party. Paragraphs 6 and 7 of the substituted statement of claim of the defendant in third party proceedings provide as follows:

"6. There were express terms in the contract that the Third Party

(Page 29)

(a) was to supply the tanker to the Defendant to use for the purpose;

(b) was to ensure the tanker was fit for the purpose at the time of delivery;

(c) was to inspect, or arrange for the inspection of, the tanker so as to ensure the tanker was fit for the purpose at the time of delivery;

(d) was to ensure the tanker was repaired, served and maintained so as to be fit for the purpose at the time of delivery;

Particulars of Express Terms

(i) The express terms at paragraph 6(a) to (d) above arise from conversations between Craven and the Third Party in or around June 1997.

(ii) In the conversations Craven told the Third Party that the tanker;

(A) was to be used by the Defendant for the purpose;

(B) was to be fit for the purpose;

(D) was to be repaired, serviced and maintained by or on behalf of the Third Party to ensure the tanker was fit for the purpose.

(iii) In the conversations the Third Party agreed with Craven to:

(A) provide the tanker for the purpose;

(B) inspect, repair, service and maintain, by or on behalf of the Third Party, the tanker to

(Page 30)

ensure the tanker was fit for the purpose at the time of delivery.

7. In addition, there were implied terms in the contract that:

(a) the Third party was to ensure the tanker complied with all relevant Australian Standards applicable at the time to pressurised bulk tankers;

(b) the tanker was, by the operation of s 14(i) of the Sale of Goods Act 1985, reasonably fit for its purpose;

(c) the Third Party was to ensure that the design and construction of the tanker was such that persons who properly maintain or use the plant are not in doing so, exposed to hazards.

Particulars of Implication of Terms

(i) the Defendant, by Craven, expressly made known to the Third Party the purpose for which the tanker was required and the Defendant repeats paragraphs 6(ii)(A) above;

(ii) the Defendant by Craven expressly made known to the Third Party that the tanker was to be inspected, repaired, serviced and maintained to be fit for the purpose and the Defendant repeats paragraphs 6(ii)(c)-(D) above.

(iii) the Defendant, by its servant or agent Craven, relied upon the Third Party to ensure the tanker was fit for the purpose and the Defendant repeats paragraphs 6(ii)(c)-(D) and 6(iii) above;

(iv) the Third Party by section 23 of the Occupational Safety and Health Act 1984 was required to:

(A) ensure that the design and construction of the tanker was such that the persons who properly install, maintain or use the tanker are not in doing so, exposed to hazards;

(Page 31)

(B) test and examine, or arrange for the testing and examination of, the tanker so as to ensure that its design and construction are as mentioned in paragraph 7(c)(iv)(A) above.

(v) The Third Party was required to comply with Regulation 4.26 of the

Occupational Safety and Health Regulations 1996

83 The third party, while agreeing it had sold the tanker as inspected to the defendant for $50,000, denied the existence of any express or implied terms as pleaded in par 6 and par 7 of the substituted statement of claim of defendant in third party proceedings. Counsel for the third party submitted the evidence showed that the defendant did not rely on the third party's skill and judgment in relation to the tanker and that the third party did not know, and could not reasonably have known, of the alleged flaw in the pressure piping. Furthermore, it was submitted that the tanker was reasonably fit for the purpose for which it was supplied, that is, the transportation of flocculent.

Whether express terms as to safety

84 There was a conflict between Craven and Bingham relating to the circumstances surrounding the sale of the tanker. Craven said he saw the tanker for the first time in Bingham's yard in Welshpool and inspected it there. It was then that the photographs (Exhibit 1) were taken. Bingham's evidence was different. He said that after Craven had requested him to find a tanker he had learned that one was for sale at Temple's Freight Yard in Spearwood. He said he took Craven to the yard in Spearwood to inspect the tanker and the photographs (Exhibit 1) were taken there. Craven was aware that the tanker had been manufactured by a reputable manufacturer named Kockums. He also knew that the tanker was similar to those used by the defendant's contractors in the eastern States. Bingham said that after his initial inspection Craven agreed to purchase the tanker subject to Head Office approval. The agreed purchase price was $50,000. No other contractual terms were discussed or agreed. The only assurance Craven sought from Bingham was that the tanker would be suitable to transport flocculent. Bingham said it was.

85 Bingham sent Craven an invoice for $50,000 and the agreement was later confirmed in writing by the defendant in a letter dated 3 July 1997 (Exhibit 25). Arrangements were then made for the tanker to be taken from Spearwood to Bingham's yard in Welshpool. Approximately two

(Page 32)

weeks later Craven came to the yard and inspected the tanker. According to Bingham he asked for the tanker to be pressure tested and any leaks fixed, the brakes checked and adjusted, a tyre changed and the tanker sand blasted and painted with the defendant's trade name. Apart from the pressure testing, for which as I said earlier no documentation was ever produced, or other evidence led, the other repairs and adjustments were done by Bingham and are reflected in the invoice dated 4 September 1997 for $1,877 which he sent to the defendant (Exhibit 27). As I have already said the tanker remained at the yard in Welshpool until it was taken by Wesfarmers Transport on 1 November 1997.

86 Where there is any material conflict between Bingham and Craven I prefer the evidence of Bingham except where it relates to the alleged pressure testing. Craven's memory was faulty in several material respects, as, for example, his mistake as to where he first inspected the tanker. Bingham was not in the business of selling pressure tankers. I am satisfied that at the time of sale in June 1997 he did not know, and could not reasonably be expected to have known, that there was a stop valve between the compressor and the safety valve which, if kept closed while the compressor was operating, would create a real danger to anyone on or near the tanker. I am satisfied there were no express terms that the tanker supplied by Bingham was to be fit for the purpose proposed or that it was to be inspected by or on behalf of Bingham to ensure that the pressure piping system was fit for the purpose intended.

87 I find the existence of any express term as to the safety or suitability of the pressure piping system to be unproved.

Whether there was an implied term that the tanker was fit for the purpose

88 The third party's pleading raises two issues in this regard: first, whether a term as to the fitness of the tanker can be implied from the contract entered into between the parties; or second, whether such a term may be said to arise under the Sale of Goods Act 1985. It is now well settled that the Court will only imply a contractual term if the following criteria are satisfied: it is reasonable and equitable and necessary to give business efficacy to the contract; it is so obvious that "it goes without saying" and is capable of clear expression; and it does not contradict any express term of the contract. Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 41 ALR 367. I agree with the submission made by counsel for the third party that the terms which the defendant pleaded should be implied are not necessary to give business efficacy to the contract and are not so obvious that they go without saying.

(Page 33)

That this is so is clear from the fact that Bingham was not a dealer in pressure tankers but had coincidentally found one through another dealer at the defendant's request. The contract of sale he entered into with the defendant was complete in every respect without there necessarily having to be implied a term as to the tanker's quality or fitness for the purpose for which it was sold.

89 There remains the question of whether the tanker was reasonably fit for the purpose for which it was sold pursuant to s 40(1) of the Sale of Goods Act 1985. This provision contains four essential criteria: first, that the buyer must make known, expressly or by implication, to the seller the particular purpose for which the goods are sought; second, the particular purpose must be disclosed in such a way as to show that the buyer is relying on the seller's skill or judgment and the buyer does in fact rely on it; third, the goods are of a description which it is in the course of the seller's business to supply; and, finally, the goods must not be bought under their patent or other trade name in such a way as to show that the buyer does not rely on the seller's skill and judgment. While the defendant certainly told the third party what it wanted the tanker for I have already found that Bingham was not in the business of dealing in pressure tankers. Craven knew Bingham did not have any particular skill or judgment in the area of pressurisation systems and could not purport to have relied on any such skill or judgment. It was only after the sale had been completed that Craven asked Bingham to repair a flat tyre, adjust the brakes and do the other repairs reflected in the invoice (Exhibit 27). I agree with counsel for the third party that this situation is very similar to that in Dependable Motors Pty Ltd v Council of the Shire of Ashford (1959) 101 CLR 265 where the purchaser of a tractor was unable to rely upon the operation of the implied warranty as to fitness in the Sale of Goods Act in circumstances where its engineer had examined a tractor and obtained an assurance from the vendor that it was suitable for road work but had not, in his subsequent report to the Council, disclosed what had been discussed between himself and the vendor before the Council purchased the tractor. As in that case I am satisfied that the defendant, if it relied upon anyone's judgment, accepted the recommendation of its employee, Craven, who had a background in engineering and compressor systems. There is simply no evidence that any reliance was placed upon the skill or judgment of Bingham. Accordingly, I am not satisfied a breach of an implied term under the Sale of Goods Act has been proved.

90 I also believe there is substance in the submission made by counsel for the third party that, even if a term as to fitness was implied under the Sale of Goods Act, the tanker was reasonably fit for the purpose for which

(Page 34)

the defendant acquired it and was used to transport powder like substances over a period of about 12 months before the accident occurred. While there is no doubt the discharge or stop valve would, if kept closed, have allowed pressure to build up and thereby create a dangerous situation, this defect

per se

did not make the tanker unfit for the purpose of carrying flocculent. It was a defect that gave rise to a risk of damage or injury if the design flaw was overlooked by the person operating the tanker.

91 The defendant's claim for damages based upon breach of an implied term of the contract by the third party must also fail.

Liability of third party to make a contribution

92 In par 17 of the substituted statement of claim of defendant in third party proceedings it was alleged that at all material times the third party owed to persons in the position of the plaintiff a duty to exercise care and supply equipment which was safe for use by persons in the position of the plaintiff which duty was of a non-delegable character. The defendant alleged a duty of care by the third party to the plaintiff arose because, inter alia, of the danger posed by the use of a tanker which did not comply with the Australian Standard and contravened the Occupational Safety and Health Act 1984 and Reg 4.26 and 4.33 of the Occupational Safety and Health Regulations 1996.

93 For this aspect of the defendant's claim to succeed the defendant has to show that the third party, if sued, would have been found liable to the plaintiff. Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 7. See also Fleming, The Law of Torts, 9^th ed at p 295.

94 I do not accept that the third party, as the vendor of the tanker, owed not just a duty of care, but a non-delegable duty, to persons in the position of the plaintiff. Counsel for the third party relied on the decision in Laundess v Laundess (1994) 20 MVR 156 where a car dealer who sold a vehicle with a defective door mechanism was ruled not to owe a duty of care to inspect every vehicle and check the door mechanism in circumstances where the purchaser was injured as a consequence of the door swinging open unexpectedly. The position in law seems to be that a non-manufacturing distributor of goods who is ignorant of a dangerous defect in those goods does not owe the same duty of care as that of a manufacturer. In McPherson's Ltd v Eaton & Ors (2005) NSWLR 187 at p 205 Ipp J said:

(Page 35)

"Courts have held that distributors professing a particular expertise should have known certain facts relating to such expertise. This is based on the inference that a person having or professing such expertise could reasonably be expected to know of such facts. Sometimes it is self-evident that such an inference should be drawn but usually evidence will be required. For example, evidence to that effect would be needed for a court to draw the inference that a reasonable motor dealer could be expected to know that an old second-hand car might have a defect in its steering column and, therefore, the steering column should be checked before the car is sold. In the same way, evidence would be required of facts supporting the inference that a reasonable retailer would know of the dangers of inhaling asbestos released by cutting millboard. It would not be appropriate to draw such an inference merely by making some kind of value judgment based on the judge's view of what a retailer, generally, should know merely by reason of the fact that the retailer is a hardware retailer, or a large hardware retailer employing doctors and chemists and possessing a library. There must be some fact that should have alerted a reasonable hardware retailer in McPherson's position to the risks involved."

95 In other decisions referred to by counsel for the third party it seems clear that the vendor will owe the duty of care only if the risk involved in the sale of the product was one that should reasonably have been known to the supplier. This line of cases shows that the duty only arises in circumstances where there is "something more" as to make the supplier aware, or more reasonably expect it to be aware, of the risk involved. In Pesl Pty Ltd v Ray Smith Tractors Pty Ltd (2007) NSWCA 74 knowledge by the supplier acquired after the sale of an inherently dangerous product was the factor which, in the Court's view, provided "something more" so as to impose a duty of care on the supplier to past purchasers of that product. See also Rivett Arboricultural and Waste Equipment Hire Pty Ltd v Evans (2007) SASC 108 ; Kato Works Co Ltd v Benz & Ors [1999] WASCA 165.

96 Applying the principle outlined in this line of authorities I find that no duty of care arose because, while the original discharge valve, if kept closed, was likely to pose a real danger, there is no evidence the third party knew, or ought reasonably to have known, of the flaw in the system giving rise to this danger. I also find that, not being a dealer in pressurised air units, Bingham could not reasonably have foreseen that a

(Page 36)

person would operate the compressor without the necessary training, supervision or assistance to ensure that all valves were open and there was no pressure build-up.

97 In conclusion I am not satisfied that the Occupational Safety and Health Act 1994 or the regulations made under that Act add anything to the defendant's claim against the third party. I accept the submission made by counsel for the third party that these legislative provisions do not modify the common law and that, if no duty of care was owed by Bingham to the seller, the alleged statutory breaches are irrelevant.

98 I have already found that no duty of care under common law was owed and, in my view, the alleged breaches of the legislation, even if capable of being established, add nothing to the defendant's claim against the third party.

99 The defendant's claim against the third party must therefore fail.

Damages

100 Although the medical witnesses called by the plaintiff were cross-examined by counsel for the defendant no evidence was led to contradict their findings as to the nature of the plaintiff's injury and the degree of his incapacity. Similarly, the evidence of his pre-accident and post accident earnings were admitted without challenge as were the earnings of other employees engaged by the same employer. Counsel for the defendant did not challenge the calculations contained in the plaintiff's Economic Loss Schedule dated 24 August 2007. For these reasons I have decided to accept the plaintiff's figures and I make awards in accordance with the plaintiff's Economic Loss Schedule as follows:

1. (i)

Past Loss of Earning Capacity

• 25 November 1998 – 30 June 1999:

31 weeks x $719 per week = $ 22,289

• 1 July 1990 – 30 June 2002:

156 weeks x $719 net per week = $ 112,164

• 1 July 2002 – 30 June 2003:

52 weeks x $877 net per week = $ 45,604

• 1 July 2003 – 30 June 2004:

52 weeks x $890 net per week = $ 46,280

(Page 37)

• 1 July 2004 – 30 June 2005:

52 weeks x $952 net per week = $ 49,504

• 1 July 2005 – 30 June 2006:

52 weeks x $1,067 net per week = $ 55,484

• 1 July 2006 – 30 June 2007

52 weeks x $1,185 net per week =

$ 61,620

$ 392,945

•

Plus

Tax paid on weekly competition

(

Fox v Wood

)

$...18,330

$ 411,275

•

Less

Actual net earnings:

2001 financial year $ 16,101

2002 financial year $ 12,612

2005 financial year $ 12,439

2006 financial year $ 21,056

2007 financial year $ 23,899 $ 86,107

$ 325,168

(ii) 1 July 2007 – 20 August 2007

$1,884 gross per week = $1,349 net pw

Comparable net weekly earnings $ 1,349

Less

retained capacity

$ 563

($672 gross pw)

Continuing net loss per week $ 786

$786 x 7.5 weeks = $ 5,895

TOTAL $ 331,063

Past Loss of Employer Superannuation Contribution Benefits:

• 25 November 1998 – 30 June 1999:

31 weeks x $949 gross pw x 7% = $ 2,059

• 1July 1999 – 30 June 2000:

52 weeks x $949 gross pw x 7% = $ 3,454

(Page 38)

• 1 July 2000 – 30 June 2001:

52 weeks x $949 gross pw x 8% = $ 3,947

• 1 July 2001 – 30 June 2002:

52 weeks x $949 gross pw x 8% = $ 3,947

• 1 July 2002 – 30 June 2003:

52 weeks x $1,213 gross pw x 9% = $ 5,676

• 1 July 2003 – 30 June 2004:

52 weeks x $1,237 gross pw x 9% = $ 5,789

• 1 July 2004 – 30 June 2005:

52 weeks x $1,320 gross pw x 9% = $ 6,177

• 1 July 2005 – 30 June 2006:

52 weeks x $1,492 gross pw x 9% = $ 6,982

• 1 July 2006 – 30 June 2007:

52 weeks x $1,701 gross pw x 9% =

$ 7,960

$ 45,991

Less 25% for excess over 38 hour week $ 11,497

$ 34,494

•

Less

superannuation contributions received:

2001 $ 1,417

2002 $ 1,035

2005 $ 1,245

2006 $ 2,268

2007 $ 2,475 $ 8,440

Loss to June 2007 $ 26,054

1 July 2007 – 20 August 2007:

Pre-accident 38 hour week gross pay

38 hours x $40 per week $ 1,520

Less

retained capacity (gross pw)

$ 672

Continuing net loss per week $ 848

9% x $848 gross pw = $76.32pw

$76.32 x 7.5 weeks = $ 572

(Page 39)

$ 26,626

Less 15% tax $ 3,993

$ 22,633

3. Future Loss of Earning Capacity:

Present day earning of comparable workers (Seeley's evidence)

$786 net pw x 740 = $ 581,640

4. Future Loss of Superannuation Benefits:

$76.32 x 740 x 85% (15% tax) = $ 48,005

5. Workers' Compensation Expenses:

Medical Expenses $ 46,151.86

Rehab $ 11,171.20

Travel $ 3,226.94

$ 60,550

Past Voluntary Services:

520 hours x $14 per hour = $ 7,280

7. Special Damages:

Outstanding medical expenses (to be agreed) $1,684.65

8. Interest on Damages

(i) Past Loss of Earning Capacity:

$268,784 (uncompensated loss) x 3% x 8.7 years = $ 70,152

(ii) Past Loss of Superannuation Benefits:

$22,633 x 3% x 8.7 years = $ 5,907

(iii) Past Voluntary Services

$7,280 x 3% x 8.7 years = $ 1,900

$ 77,959

9. Future Medical Expenses

(i) GP and Psychiatric Review

$5 per week x 808 (40 years) = $ 4,040

(Page 40)

(ii) Neck exercise training

$ 2,000

$ 6,040

101 I have not allowed any discount for contingencies in respect of the award made for future loss of earning capacity. I agree with the submission made by counsel for the plaintiff that any adverse contingencies are counterbalanced by possible favourable contingencies. While the usual adverse contingencies do come into play the fact remains that the plaintiff is a particularly vulnerable employee who may be said to have been fortunate to have found such a sympathetic employer. Given that his condition will remain the same in the future much depends upon his retaining his current employment or finding another sympathetic employer if the need arises. This may be very difficult. If his work does come to an end he may remain out of work for a substantial time before finding someone who, like his present employer, is provided to engage him to do the type of work he can manage for limited periods each week. He may not be able to find that kind of work again at all. There is also the consideration that, but for his injury, the plaintiff might have found work in the industry which earned him more than his fellow employees at Sealy's are currently earning. Given these counterbalancing factors I do not believe it is appropriate to scale down the award for future loss of earning capacity.

General damages

102 In assessing the appropriate award for the plaintiff's non-pecuniary loss the starting point is the severe fracture he suffered to the left side of his skull with the substantial wound that accompanied his injury. The surgical scars are still visible and are likely to remain so. His injuries were severe resulting in adverse cognitive effects and personality changes. I have already mentioned many of the consequences of his injuries in discussing the medical evidence and I do not propose to repeat them here. As a consequence of his injury the plaintiff is no longer able to enjoy any of his pre-accident recreational activities including horse riding and playing football with his children. Given the extent of the cognitive effects and the changes in his personality following the accident I believe the plaintiff is entitled to a substantial award for non-pecuniary loss.

103 I would award the plaintiff $55,000 under this head of damages.

Summary of award

Past loss of earning capacity $ 331,063.00

(Page 41)

Past loss of employer superannuation

Contribution benefits $ 22,633.00

Future loss of earning capacity $ 581,640.00

Future loss of superannuation benefits $ 48,005.00

Workers' compensation expenses $ 60,550.00

Past voluntary services $ 7,280.00

Special damages $ 1,684.65

Interest on damages $ 77,959.00

Future medical expenses $ 6,040.00

General damages $ 55,000.00

$1,191,854.65

Jones v SNF (Australia) Pty Ltd

[2007] WADC 167

9 NOVEMBER 2007

JONES -v- SNF (AUSTRALIA) PTY LTD [2007] WADC 167

Link to Appeal : [2008] WASCA 121

Link to Appeal :

[2008] WASCA 121