Legal Research
Cases
Kschammer v R W Piper & Sons Pty Ltd

Kschammer v R W Piper & Sons Pty Ltd

Link copied

Case Copied 3 December 2003 79 min read

Contents

On this page

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: KSCHAMMER -v- R W PIPER & SONS PTY LTD & ORS [2003] WASCA 298

CORAM: MALCOLM CJ
MURRAY J
PARKER J

HEARD: 19 & 23 SEPTEMBER 2003

DELIVERED : 3 DECEMBER 2003

FILE NO/S: FUL 121 of 2002

BETWEEN: DENNIS KSCHAMMER
Appellant (Plaintiff)
AND
R W PIPER & SONS PTY LTD
First Respondent (First Defendant)
ROBERT LINDSAY PIPER
Second Respondent (Second Defendant)
THE ANI CORPORATION LTD t/as STEELMARK SANDOVERS EAGLE AND GLOBE
Third Respondent (Third Defendant)

Catchwords:

Torts - Negligence - Damages - Special damages - Accident occurred at third respondent's warehouse - Caused by appellant coming into contact with live busbars running parallel to a travel beam - Duty of care owed to independent contractor - Appellant found not to be contributorily negligent - Appeal allowed and damages award varied

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7

Occupational Health, Safety and Welfare Act 1984

Occupiers Liability Act 1985 (WA)

Result:

Appeal allowed
Award of damages increased

Category: A

Representation:

Counsel:

Appellant (Plaintiff) : Mr B L Nugawela &
Mr N P Lindsay

First Respondent (First Defendant)         :        Mr I T Blatchford
Second Respondent (Second Defendant) :        Mr I T Blatchford
Third Respondent (Third Defendant)       :        Ms B A Mangan

Solicitors:

Appellant (Plaintiff)  :        Marks & Sands
First Respondent (First Defendant)         :        Greenland Brooksby
Second Respondent (Second Defendant) :        Greenland Brooksby
Third Respondent (Third Defendant)       :        Phillips Fox

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

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
ASCIC v Westel Co‑Op Ltd (1992) Aust Torts Rep 81 – 159
Astley v Austrust Ltd (1999) 197 CLR 1
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Rep 81 – 043
Boyd v Fremantle Steel Fabrication Co (WA) Pty Ltd, unreported; DCt of WA; 20 September 1996 (Library No 5082)
Boyd v Fremantle Steel Fabrication Co (WA) Pty Ltd, unreported; SCt of WA (Full Court); Library No 970272; 3 June 1997
Boyes v Collins [2000] WASCA 344
Bresatz v Przibilla (1962) 108 CLR 541
Bus v Sydney City Council (1989) 167 CLR 78
Butcher v Cutts Transport Pty Ltd, unreported; DCt of WA; 4 September 1997 (Lib No 970266)
Colonial Mutual Life Assurance Society Limited v Producers & Citizens Co‑operative Co of Australia Limited (1931) 46 CLR 41
De Sales v Ingrilli (2002) 193 ALR 130
De Sales v Ingrilli [2000] WASCA 374
Dykstra v Head (1989) Aust Torts Rep 80 – 280
Elia v O'Byrne (1990) Aust Torts Reports 81 – 050
Engel v Salyn [1993] 1 SCR 306
Foyster v Goynich [1984] WAR 80
Gardner Bros & Perrott (WA) Pty Ltd v Seat, unreported; SCt of WA (Full Court); 13 October 1988
Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617
Government Insurance Office (NSW) v Lazar, unreported; SCt of NSW (Court of Appeal); 18 June 1991
Graham v Baker (1961)…

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.

Keep reading for free

Create a free CaseChat account to read Kschammer v R W Piper & Sons Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] WASCA 298
Decision Date: 3 DECEMBER 2003

CaseChat Overview and Summary

In the case, Kschammer sued R W Piper & Sons Pty Ltd for damages following an accident at the respondent's warehouse. The appellant, an independent contractor, was injured when he came into contact with live busbars running parallel to a travel beam. The case was heard in the Supreme Court of South Australia. The primary legal issue was whether the respondent owed a duty of care to the appellant and, if so, whether the appellant was contributorily negligent. The court was also required to determine the appropriate amount of damages to be awarded.

The court found that the respondent did owe a duty of care to the appellant. It was held that the respondent should have reasonably foreseen the risk of injury to the appellant and taken reasonable steps to prevent such injury. The court rejected the respondent's argument that the appellant was contributorily negligent, finding that the appellant had taken all reasonable precautions to avoid injury. The court also found that the respondent's negligence was the sole cause of the accident. The court subsequently varied the damages award, reducing the amount of special damages awarded to the appellant.

The Supreme Court of South Australia held that the respondent was liable for the appellant's injuries and varied the damages award. The court found that the respondent had breached its duty of care owed to the appellant by failing to take reasonable steps to prevent the appellant's injury. The appeal was allowed, and the damages award was varied to reflect the court's findings. The final orders of the court included a reduction in the amount of special damages awarded to the appellant, as well as an increase in the amount of general damages. The respondent was ordered to pay the appellant the revised amount of damages.

Orders