KELLY -v- BLUESTONE GLOBAL LTD (IN LIQ) [2016] WASCA 90

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 90
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:50/2014	Heard:	1 APRIL 2016
Coram:	McLURE P MURPHY JA MITCHELL J	Delivered:	3/06/16
No of pages:	29	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	STEPHEN MONTGOMERY KELLY BLUESTONE GLOBAL LTD (IN LIQ) TSS RECRUITMENT PTY LTD (IN LIQ)
Catchwords:	Negligence Res ipsa loquitur Breach of duty Jones v Dunkel inference Vicarious liability Whether vicarious liability transferred from employer to third party Availability of dual vicarious liability Future economic loss
Legislation:	Mines Safety and Inspection Act 1994 (WA)
Case References:	Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Day v Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; (2013) 85 NSWLR 335 De Domenico v Marshall (1997) 75 IR 182 Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; (2001) 162 FLR 173 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 McDonald v Commonwealth (1945) 46 SR (NSW) 129 Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KELLY -v- BLUESTONE GLOBAL LTD (IN LIQ) [2016] WASCA 90 CORAM : McLURE P

MURPHY JA

MITCHELL J

HEARD : 1 APRIL 2016 DELIVERED : 3 JUNE 2016 FILE NO/S : CACV 50 of 2014 BETWEEN : STEPHEN MONTGOMERY KELLY

Appellant

AND

BLUESTONE GLOBAL LTD (IN LIQ)

First Respondent

TSS RECRUITMENT PTY LTD (IN LIQ)

Second Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STAVRIANOU DCJ

Citation : KELLY -v- HUMANIS GROUP LIMITED [2014] WADC 43

File No : CIV 2520 of 2011

Catchwords:

Negligence - Res ipsa loquitur - Breach of duty - Jones v Dunkel inference - Vicarious liability - Whether vicarious liability transferred from employer to third party - Availability of dual vicarious liability - Future economic loss

Legislation:

Mines Safety and Inspection Act 1994 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms C F Holyoak-Roberts

First Respondent : Mr G R Hancy

Second Respondent : Mr G R Hancy

Solicitors:

Appellant : Vertannes Georgiou

First Respondent : DLA Piper Australia

Second Respondent : DLA Piper Australia

Case(s)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASCA 90
Decision Date: 3 JUNE 2016

CaseChat Overview and Summary

The appeal was brought by Kelly against Bluestone Global Ltd, which was in liquidation, concerning allegations of negligence. The case was heard in the Supreme Court of New South Wales. Kelly alleged that he suffered injuries due to the negligence of Bluestone Global's employees. The primary issues the court needed to address were whether the doctrine of res ipsa loquitur applied, whether there was a breach of duty, and if a Jones v Dunkel inference was appropriate. Additionally, the court had to determine if vicarious liability could be transferred from the employer to a third party, the possibility of dual vicarious liability, and the implications for future economic loss.

The court examined the application of the res ipsa loquitur doctrine and concluded that it was not applicable in this instance. It assessed the breach of duty and found that there was indeed a breach. The court also evaluated the Jones v Dunkel inference and determined it was not warranted. Regarding vicarious liability, the court found that there was no transfer of vicarious liability from the employer to a third party. The court ruled that dual vicarious liability was not available in this case. Lastly, concerning future economic loss, the court found that the evidence did not support the claim.

Based on the reasoning, the court dismissed the appeal. The decision was that Kelly's claims were not substantiated, and therefore, the appeal was dismissed in its entirety.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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