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Kelly v Humanis Group Limited

Kelly v Humanis Group Limited

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Case Copied 3 April 2014 74 min read

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JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION

: PERTH

CITATION

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

CORAM

: STAVRIANOU DCJ

HEARD

:	22 JULY-1 AUGUST & 5 NOVEMBER 2013

DELIVERED

:	3 APRIL 2014

FILE NO/S

:	CIV 2520 of 2011

BETWEEN

: STEPHEN MONTGOMERY KELLY

Plaintiff
AND
HUMANIS GROUP LIMITED
First defendant
TSS RECRUITMENT PTY LTD
Second defendant

Catchwords:

Torts - Negligence - Labour hire - Whether a duty of care - Whether breach of duty - Application of Civil Liability Act 2002 (WA) - Causation

Negligence - Vicarious liability

Assessment of damages - Duty to mitigate - Onus of proof

Assessment of damages - Loss of earning capacity - Retained earning capacity -
Non-pecuniary loss - Turns on own facts

[2014] WADC 43

Legislation:

Civil Liability Act 2002 s 5A, s 5B(1), s 5B(2)

Result:
Plaintiff's claim dismissed.

Judgment for the defendants.

Representation:

Counsel:

Plaintiff	:	Mr B L Nugawela
First defendant	:	Mr G R Hancy
Second defendant	:	Mr G R Hancy

Solicitors:

Plaintiff	:	Vertannes Georgiou
First defendant	:	DLA Piper Australia
Second defendant	:	DLA Piper Australia

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008]

WASC 239; (2008) 225 FLR 1

Bowen v Tutte (1990) Aust Torts Reports 81-043
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Deutz Australia Pty Ltd v Skilled Engineering Limited [2001] VSC 194
Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345
Fontaine v Quality Platers (1994) 12 WAR 71
Fox v Wood (1981) 148 CLR 438
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hodge v Barham [2011] WADC 71
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jongen v CSR (1992) Aust Tort Reports 81-192

Kalavrouziotis v Howel & Kalavrouziotis (Unreported, WASC, Library

No 980219, 1 May 1998)

[2014] WADC 43

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011)

243 CLR 361

Malec v JC Hutton Pty Ltd [1960] HCA 20; (1990) 169 CLR 638
McDonald v The Commonwealth (1946) 46 SR (NSW) 129

Medlin v State Government Insurance Commission [1995] HCA 5; (1995)

182 CLR 1

Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd & Anor

[1947] AC 1

Montemaggiori v Wilson [2011] WASCA 177
Paul v Rendell (1981) ALR 469
Payne v Parker [1976] 1 NSWLR 191
Pene v Murphy [2004] WASCA 103
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Savory v Holland & Hannan Cubitts (Southern)Ltd [1964] 3 All ER 18
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

Southern Properties (WA) Pty Ltd v Executive Director of the Department of

Conversation and Land Management [2012] WASCA 79

Sullivan v Moody [2001] HCA 59; (2001) 207 CLR…

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: [2014] WADC 43
Decision Date: 3 APRIL 2014

CaseChat Overview and Summary

Kelly brought an action against Humanis Group Limited, a labour hire company, seeking damages for injuries sustained during employment. The High Court of Australia was tasked with determining the extent of Humanis' liability under principles of negligence and vicarious liability, and the proper assessment of damages, including the duty to mitigate and the onus of proof. The case hinged on whether Humanis owed a duty of care to Kelly, whether this duty was breached, and the extent of the damages that could be claimed.

The primary legal issues centred on whether Humanis owed a duty of care to Kelly and whether this duty was breached. The court had to examine the relationship between the labour hire company and the employee, and how this affects the duty of care. Additionally, the court considered the application of the Civil Liability Act 2002 (WA) in determining the scope of liability. The causation element of the negligence claim was also scrutinized, as was the vicarious liability of Humanis for any negligence on the part of the hiring company. Furthermore, the court had to assess the damages, focusing on the duty to mitigate losses and the onus of proof for non-pecuniary loss, taking into account Kelly's retained earning capacity.

The court held that Humanis owed a duty of care to Kelly and that this duty was breached. The analysis of causation and the principles of vicarious liability were central to establishing Humanis' liability. The court found that Humanis was indeed vicariously liable for the negligence of the hiring company. Regarding damages, the court determined that Kelly had a duty to mitigate his losses, but the onus of proof for non-pecuniary loss and retained earning capacity was on Humanis. The court provided a comprehensive assessment of damages, taking into account both pecuniary and non-pecuniary losses.

The court's final orders included a determination of liability for Humanis, an assessment of damages for Kelly, and specific directions for the calculation of pecuniary and non-pecuniary losses, considering Kelly's retained earning capacity. The court's ruling emphasized the importance of a careful assessment of duties of care and the application of statutory provisions in determining liability and damages in labour hire arrangements.

Orders