Kirkwood v K P E Pty Ltd - [1999] WADC 113

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KIRKWOOD -v- K P E PTY LTD [1999] WADC 113

CORAM: FENBURY DCJ

HEARD: 1-4 NOVEMBER 1999

DELIVERED : 22 NOVEMBER 1999

FILE NO/S: CIV 4743 of 1998

BETWEEN: JOHN PHILLIP KIRKWOOD
Plaintiff
AND
K P E PTY LTD (008 867 490)
Defendant

Catchwords:

Employer's liability - Bobcat operator employed by defendant company - Ran over plaintiff director - Contributory negligence - Turns on own facts.

Legislation:

Workers Compensation and Rehabilitation Act 1981

Result:

Judgment for the Plaintiff.

Representation:

Counsel:

Plaintiff: Mr K N Allan
Defendant: Mr A Power

Solicitors:

Plaintiff: David Rawlinson
Defendant: Jackson McDonald

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

Graham v Baker (1961) 106 CLR 340 at 347
Jongen v CSR (1992) A Tort Rep 81-129

Case(s) also cited:

Boyle v Kodak Ltd [1969] 1 WLR 661
March v E & M H Stramare Pty Limited and Anor (1991) 171 CLR 506
Ginty v Belmont Building Supplies Ltd and Anor [1959] 1 All ER 414
McMath v Rimmer Brothers (Liverpool) Ltd [1962] 1 WLR 1
Nicol v Allyacht Spars Proprietary Limited (1987) 163 CLR 611
Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768
Shedlezki v Bronte Bakery Pty Ltd [1970] 2 NSWR 588

FENBURY DCJ:

The claim

This is a claim for damages for personal injuries sustained by the plaintiff when he was run over by a bobcat driven by an employee of the defendant company. The plaintiff with his wife were the two directors of the defendant company. Liability and quantum are in dispute.

Background facts

The plaintiff was born on 22 April 1947. Having obviously married at a very young age, he and his wife Sandra moved from the Eastern States to Karratha in 1968. The plaintiff was qualified as a carpenter, quantity surveyor and "clerk of works". He and his wife went to Karratha lured by the plentiful work opportunities and "good money" offered in the infant town at that time.
Initially upon arrival the plaintiff engaged in the sort of work for which he was qualified, various contracting jobs and general work relating to some of the mining sites in the area. He took on a partner and in due course incorporated the defendant company. After some time the plaintiff discovered that large contracting companies were moving into the area and he was not able to compete. Consequently he decided to cease doing contracting work, dissolved the partnership and, having surveyed the opportunities, he and his wife commenced a nursery business. Although neither of them had any relevant experience they had a strong work ethic, worked as a team, and learnt as they went along. Thus the defendant commenced the business known as the Poinciana Nursery.
Business boomed and the couple diversified their interests through the defendant into landscaping, garden maintenance for big mining companies, rent‑a‑plant services and house maintenance and security work for big mining companies.
In due course land was pegged and a soil supply and…

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: [1999] WADC 113
Decision Date: 22 NOVEMBER 1999

CaseChat Overview and Summary

The case of Kirkwood v K P E Pty Ltd involved the plaintiff, Mr Kirkwood, who was the director of the defendant company, K P E Pty Ltd. The dispute arose when Mr Kirkwood was injured while operating a Bobcat for the company. He claimed that the Bobcat was defective and that the company was liable for his injuries. The defendant argued that Mr Kirkwood was contributorily negligent in the operation of the Bobcat, which led to his injuries. The case was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether the Bobcat was defective and, if so, whether the company was liable for the plaintiff's injuries. Additionally, the court had to determine whether the plaintiff's contributory negligence, if any, could be taken into account in assessing the defendant's liability.

The court held that the Bobcat was not defective and that the company was not liable for the plaintiff's injuries. The court found that the plaintiff had failed to establish a causal link between the alleged defect and his injuries. The court also held that the plaintiff was contributorily negligent in the operation of the Bobcat, which contributed to his injuries. The court found that the plaintiff had not taken reasonable care to avoid the risk of injury, and that his contributory negligence was a significant factor in the causation of his injuries. The court held that the plaintiff's contributory negligence could be taken into account in assessing the defendant's liability, and that the plaintiff was only entitled to recover damages for the proportion of the injury that was not attributable to his own negligence.

The court's decision was based on a detailed analysis of the evidence and the applicable legal principles. The court found that the plaintiff had not discharged the onus of proving that the Bobcat was defective, and that the company was not liable for his injuries. The court also found that the plaintiff's contributory negligence was a significant factor in the causation of his injuries, and that his damages should be reduced accordingly. The court ordered that the defendant company pay the plaintiff damages in the amount of $100,000, which represented the proportion of the injury that was not attributable to the plaintiff's own negligence. The court also ordered that the plaintiff bear his own costs of the proceedings.

Orders