| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JONES -v- SNF (AUSTRALIA) PTY LTD & ANOR [2004] WADC 169 CORAM : ACTING PRINCIPAL REGISTRAR KINGSLEY HEARD : 19 AUGUST 2004 DELIVERED : 3 SEPTEMBER 2004 FILE NO/S : CIV 2833 of 2000 BETWEEN : BRADLEY IVAN EDWARD JONES Plaintiff
AND
SNF (AUSTRALIA) PTY LTD
First Defendant
WESFARMERS LIMITED
Second Defendant
SEELEY AUTO ELECTRICAL PTY LTD
First Third Party
DON PATRICK BINGHAM t/as DP BINGHAM & ASSOCIATES
Second Third Party
Catchwords: Practice - Application to join defendants - Turns on own facts
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Legislation:
Workers' Compensation and Rehabilitation Act 1981
Result: Application dismissed Representation:
Counsel:
Plaintiff : Mr T N Cullity
First Defendant : Mr G T Stubbs
Second Defendant : No appearance
First Third Party : No appearance
Second Third Party : Mr M T S Rennie
Solicitors:
Plaintiff : Trewin Norman & Co
First Defendant : Dwyer Durack
Second Defendant : McAuliffe Williams & Partners
First Third Party : Michael Paterson & Associates
Second Third Party : Mr Michael Rennie
Case(s) referred to in judgment(s):
Donoghue v Stevenson [1932] AC 562
Kato Works Co Limited v Benz [1999] WASCA 165
Case(s) also cited:
Nil
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1 ACTING PRINCIPAL REGISTRAR KINGSLEY: This is the plaintiff's application pursuant to O 5 r 8 Rules of the Supreme Court that the present second third party be joined as a second defendant and that Terrace Guardians Limited, Ultrasound Australia Pty Ltd and O'Connor 2001 Pty Ltd be joined as defendants. In support the plaintiff has filed an affidavit of Adam Anthony Nolan sworn 9 July 2004 together with a minute of proposed substituted statement of claim dated 8 July 2004.
2 This action has a long history. The plaintiff was severely injured in November 1998. The plaintiff was engaged to replace a starter motor on a tanker. On completion of the task, the plaintiff started the starter motor. Upon doing so a pipe within the air supply pipeline separated from a rubber coupling and struck the plaintiff on the head. The plaintiff commenced the action against the first defendant (SNF) and Wesfarmers Limited on the basis that the SNF was the owner of the tanker and Wesfarmers Limited was the operator of the tanker. In July 2002 Wesfarmers applied to this Court to have the plaintiff's claim against it struck out on the basis it was a deemed employer by virtue of s 175 of the Workers' Compensation and Rehabilitation Act 1981. His Honour Judge Martino determined the application in Wesfarmers favour. This decision was appealed to the Full Court of the Supreme Court of Western Australia and ultimately the appeal was dismissed. 3 The tanker was acquired by Terrace Guardians Limited, the proposed third defendant, in July 1988. Terrace Guardians Limited commenced a business known as Temple Freights WA and sold this business in June 1993 to Ultrasound Australia Pty Ltd, the proposed fourth defendant. That sale included transfer of ownership of the tanker. Ultrasound Australia Pty Ltd operated and maintained the tanker until mid 1997 when the tanker was sold to D P Bingham & Associates, the proposed second defendant. The evidence suggests that the tanker was immediately on sold from D P Bingham & Associates to SNF. 4 Both Bingham and SNF oppose the application. SNF opposes the application on the basis that the proposed substituted statement of claim is embarrassing in various respects. Bingham opposes the application on the basis that it is an abuse of process, the statement of claim does not disclose a cause of action against Bingham nor does it contain sufficient particularity for Bingham to appreciate the case he has to meet. 5 Donald Patrick Walmsley Bingham swore an affidavit dated 17 August 2004 wherein he states that in par 7 of the plaintiff's minute the plaintiff pleads that Bingham and his servants or agents were experienced
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in the operation, repair and maintenance of bulk tankers. Bingham deposes that he has never been experienced in either the operation, repair or maintenance of tankers. Bingham then exhibits a series of 20 colour photographs and suggests the photographs depict the tanker, the subject of these proceedings. 6 In my opinion the statement by Bingham that he has never been experienced in the operation, repair or maintenance of bulk tankers goes to evidence only and is not in itself sufficient to suggest the statement of claim does not disclose a cause of action or will prejudice or embarrass the Bingham. Further, I attach no weight to the photographs exhibited to Bingham's affidavit. The photographs are of a bulk tanker which has a Temple's logo and of a tanker with a SNF logo. The photographs were obviously taken at two different times, and there was no indication that the tanker with the Temple's badging in any way relates to the tanker with the SNF badging. 7 The plea against Bingham is that Bingham supplied the tanker to SNF in the knowledge and with the intention that the tanker would be used and worked by SNF in the form in which it was supplied without any intermediate or previous examination by SNF. There was a plead that Bingham were at all material times experienced in the operation, repair and maintenance of bulk tankers. By reason of these matters Bingham therefore owed a duty to exercise reasonable care to ensure the tanker was well maintained, in good repair and free of defects. To that point I am of the opinion that the plea against Bingham is proper and does not cause any embarrassment to Bingham. 8 Bingham submits through counsel that the duty of care pleaded in par 3 is a classic Donoghue v Stevenson [1932] AC 562type plea against a manufacturer. Bingham's counsel cites Kato Works Co Limited v Benz [1999] WASCA 165. A national distributor of Kato Cranes Australia, the crane having been manufactured by a Japanese company, was held not to be responsible for design defects in a crane which led to a crane operator being seriously injured. Bingham's counsel submits that if a national distributor of plant or machinery is not liable for defects, then a second-hand dealer selling a second-hand tanker in a one off transaction would owe no duty of care to someone like the plaintiff. 9 In my opinion the Kato Works Co Ltd v Benz case does not assist Bingham. Judge Healy, the trial judge concluded that no liability attached to the distributor as the risk of an uncontrolled extension of a telescopic boom of the crane was such an obvious one that the distributor could
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reasonably expect the manufacturer to have provided for such an eventuality. Chief Justice Malcolm agreed with that conclusion. That issue goes to the question of foreseeability and not to the question of duty. I refer to par 56 where Justice White considers that the distributor was not relevantly negligent because there is nothing in the manual which should have alerted the distributor to the existence of a defect in the crane, namely the boom was capable of uncontrolled extension. That goes to the issue of foreseeability and not the question of duty. 10 SNF submits that there was no cause of action against it because, whilst the plaintiff pleads SNF was the owner of the tanker at all material times, ownership is not necessarily equivalent to possession. Thus SNF submits that the factual elements essential to the existence of duty of care are not pleaded. The plea is that SNF was at all material times the owner of the tanker. In my opinion regardless whether SNF was in possession of the tanker at the time of the accident, there was a duty of care owed by SNF to ensure the tanker was well maintained, in good repair and free of defects, and this plea is sufficient to raise a reasonable cause against SNF. 11 Both SNF and Bingham submit that the pleading embarrasses them. SNF submits that par 2 of the proposed minute does not disclose what period of ownership is material to the plaintiff's case. In the context of this pleading it is clear that the allegation against SNF was that at the time of the accident it was the owner of the tanker. 12 SNF submits that par 7 of the Minute because it is not clear whether the plaintiff alleges the experience of SNF and its servants or agents were material to the plaintiff's case or whether he alleges that the experience of the first, second, third and fourth defendants are material to the case. In my opinion SNF cannot be embarrassed by this plea. The allegation in par 7 is that at all material times each of the first, second, third and fourth defendants were experienced in the operation, repair and maintenance of bulk tankers such as the tanker in question. 13 Paragraph 10 pleads that SNF owed a duty to exercise reasonable care to ensure the tanker was well maintained, in good repair and free of defects. It's not clear from the earlier paragraphs that SNF owed a duty of care to the plaintiff. There is no allegation that the matters pleaded in pars 3, 4 and 5 of the minute are material to the allegation that SNF owed the plaintiff a duty of care. Accordingly, I am of the opinion that par 10 is embarrassing to SNF.
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14 Both SNF and Bingham submit that par 13 of the minute is embarrassing because it is not clear whether or not the plaintiff alleges the accident occurred as a result of the discharge valve being closed or non-operational. That submission has merit and I am of the opinion that par 13 is embarrassing to SNF and Bingham.
15 Bingham further goes on to submit that the valve which the plaintiff alleges was the cause of the accident was installed by Wesfarmers Limited. Bingham seeks to persuade me by reference to a preliminary issue heard before his Honour Judge Martino and the statement of agreed facts for the purposes of the preliminary issues. In my opinion the statement of agreed facts are for the purposes of the preliminary issue only, and bear no relationship to this pleading. SNF submits that par 14 of the minute is ambiguous and therefore embarrassing in that it is not clear whether or not the plaintiff alleges the second, third, fourth and fifth defendants are agents of the first defendant, for whom the first defendant is vicariously liable. That submission has merit and I find par 14 to be embarrassing. 16 Both SNF and Bingham submit that the particulars of negligence alleged against them in par 15 are embarrassing. SNF submits that the plaintiff must plead at particular (9) what failure was it on the part of SNF to properly maintain the tanker, and what repairs and or maintenance SNF should have ensured were completed in proper workmanlike manner. Both SNF and Bingham submit that the plaintiff should specify which provision of standard AS4041 the plaintiff alleges failure to conform or comply with. 17 In my opinion those submissions have merit. The particular of the plea against SNF is the failure to ensure the tanker was properly maintained and in my opinion there should be greater detail what maintenance was required of SNF. Further, it is appropriate that the particular standard be specified so that all parties know exactly which part of that standard they must answer. 18 Bingham submits that particular (e) of the particulars of negligence against Bingham is inconsistent with the plea in par 13. In particular (e) refers to a failure to ensure that the compressor and pressure vessel configuration complied with the relevant standards. Paragraph 13 pleads that the piping system was fitted with a discharge valve which, if closed, might have resulted in the piping system not being protected by the safety valve of the tanker. In my opinion there is no inconsistency between the pleading in par 13 and particular (e). Particular (f) seeks to particularise
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the failure to ensure the tanker was properly serviced and maintained at the time of sale. Consistent with particular (a) of the particulars of SNF's negligence, I'm of the opinion that some greater detail is required under this heading. 19 SNF goes on to submit that par 20 to par 24 of the minute failed to particularise various costs. As some of those costs are ongoing I am of the opinion that it is appropriate to particularise those ongoing costs at or near the time for a pre-trial conference. At that point the ongoing cost can be crystallized in a meaningful amount for the defendants to consider. However, in relation to past costs as they are presently fixed, I am of the opinion that they should be particularised in the minute. 20 For these reasons I am of the opinion that whilst the minutes discloses a cause of action against Bingham and SNF, the pleading is embarrassing in the manner described above. I would hear counsel in relation to the terms of orders and costs.
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