MARTIN & ORS -v- CLARKE & ORS [2005] WASCA 66

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 66
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:5/2004	Heard:	8 MARCH 2005
Coram:	MALCOLM CJ STEYTLER P MCLURE JA	Delivered:	5/04/05
No of pages:	32	Judgment Part:	1 of 1
Result:	Appeal and cross-appeal dismissed
Category:	B
PDF Version

Parties:	IAN McNEIL MARTIN JILL LORRAINE MARTIN JOHN McNEIL MARTIN RONALD DAVID CLARKE PETER STEICKE KERRY STEICKE
Catchwords:	Tort Negligence Employer's liability Liability of person for personal injuries suffered by employee of independent contractor Whether breach of duty Whether contributory negligence Challenge to assessment of damages
Legislation:	Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) Supreme Court Rules, O 63 r 9 Workers' Compensation and Rehabilitation Act 1981 (WA)
Case References:	Andar Transport Pty Ltd v Brambles Ltd (2004) 78 ALJR 907 Astley v Austrust Ltd (1999) 197 CLR 1 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Gardner Bros & Perrott (WA) Pty Ltd v Seat, unreported; FCt SCt of WA; Library No 7318; 12 October 1988 Jones v Persal & Co [2000] QCA 386 Kondis v State Transport Authority (1984) 154 CLR 672 Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 McLean v Tedman (1984) 155 CLR 306 McLean's Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423 Nair v Health Administration Corporation (1994) Aust Torts Reports 81-312 O'Connor v Commissioner for Government Transport (1958) 100 CLR 225 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Raimondo v State of South Australia (1979) 23 ALR 513 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Tame v State of New South Wales (2002) 211 CLR 317 Witham v Shire of Bright [1959] VR 790 Wylie v The ANI Corporation Ltd [2002] 1 Qd R 320 Wyong Shire Council v Shirt (1980) 146 CLR 40 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Cant v Fleay, unreported; FCt SCt of WA; Library No 960381; 18 July 1996 Commonwealth v Verwayen (1990) 170 CLR 394 Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Kschammer v R W Pipe & Sons Pty Ltd [2003] WASCA 63 Lloyd v Faraone [1989] WAR 154 Robertson v B H MacLachlan Pty Ltd (1985) 59 ALJR 409 Romeo v The Conservation Commission (1998) 192 CLR 431 State of NSW v Lepore (2003) 212 CLR 511 Stojkovski v Fitzgerald [1989] WAR 328 Water Board v Moustakas (1988) 180 CLR 491 Woods v Multi Sport Holdings Pty Ltd (2002) 208…

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 Martin v Clarke 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: [2005] WASCA 66
Decision Date: 5 APRIL 2005

CaseChat Overview and Summary

In the case of Martin v Clarke, the plaintiff, Martin, sought compensation from Clarke, the defendant, for personal injuries sustained during his employment with an independent contractor, whom Clarke had engaged for a specific project. The plaintiff alleged that Clarke's negligence resulted in the injuries and sought to hold Clarke directly liable. Clarke, in turn, argued that the injuries were not a result of his negligence and that the plaintiff's contributory negligence should be taken into account. Additionally, Martin challenged the assessment of damages awarded to him.

The central legal issues the court had to address were whether Clarke owed a duty of care to Martin and, if so, whether that duty had been breached. Additionally, the court had to determine whether Martin was contributorily negligent and, if so, how that should affect the assessment of damages. The court also had to decide whether the damages awarded to Martin were appropriate.

The court found that Clarke did owe a duty of care to Martin, given the special relationship between Clarke and Martin's employer, and that this duty had been breached. However, the court also found that Martin was contributorily negligent. In light of these findings, the court reduced the damages awarded to Martin. Both the appeal and cross-appeal were dismissed by the court, maintaining the trial judge's findings and the damages assessment.

Orders

Orders of the court

Appeal and cross-appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.