McGowan v Hills Limited (Ruling No 1) - [2015] VSC 674

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 05411

STEPHEN McGOWAN	Plaintiff
v
HILLS LIMITED	First Defendant
and
ACCESS TELEVISION SERVICES PTY LTD	Second Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Wodonga
DATES OF HEARING:	23, 24 November 2015
DATE OF RULING:	27 November 2015
CASE MAY BE CITED AS:	McGowan v Hills Limited & anor (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VSC 674

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NEGLIGENCE – Conflict of laws – Place of tort – Negligence alleged in manufacture and design of ladder – Distribution of products - Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 450 – Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 – Amaca Pty Ltd v Frost (2006) 67 NSWLR 635 – Amaca distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Morrow	Slater and Gordon
For the First Defendant	Mr I. McDonald	Norton Rose Fullbright
For the Second Defendant	Mr M. Hooper	Lander & Rogers

HIS HONOUR:

The plaintiff alleges that on 17 January 2008, during the course of his employment with Access Television Services Pty Ltd (‘ATS’) (the second defendant) he fell from a ladder in Deniliquin, New South Wales. He further alleges the ladder was defective. The ladder was manufactured by Hills Limited (‘Hills’) (the first defendant) in Queensland, and was purchased by the Plaintiff in Tongala, Victoria.

A question has arisen as to the substantive law that governs the plaintiff’s claim for damages against Hills. This is a significant issue because if, as Hills contend, the substantive law governing the claim is the common law of Australia referable to Queensland (including limitation statutes) then the plaintiff’s claim against Hills is prima facie statute barred. If, on the other hand, the common law of Australia referable to Victoria is to be the substantive law governing the claim against Hills (as contended by the plaintiff and the second defendant), then it is agreed by the parties that the plaintiff has issued within time and no limitations claim arises.

At the outset of oral submissions I requested counsel draw up a set of assumed facts for the purpose of my determination of this legal argument. I am grateful to counsel for the conscientious manner in which they have undertaken this task. I reproduce those agreed facts.

(1)The second defendant is a wholly-owned subsidiary of the first defendant ; it is however a separate legal entity.
(2)ATS carried on business as a supplier and installer of pay TV and satellite dishes for use in domestic and other premises.
(3)On or about 21 February 2007 the plaintiff completed an application form for engagement by ATS as a sub-contractor (Exhibit DF-1).
(4)On 22 October 2007, the plaintiff and ATS entered into a written sub-contractor agreement (Exhibit DF-2).
(5)The plaintiff was never employed by Hills, either directly, as a sub-contractor or engaged in any other capacity.
(6)In early 2007 the plaintiff was advised by Mr Trevor Lund, an employee of ATS, that he would…

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: [2015] VSC 674
Decision Date: 27 November 2015

CaseChat Overview and Summary

The case of McGowan v Hills Limited (Ruling No 1) involved a dispute between the plaintiff, Mr McGowan, and the defendant, Hills Limited, a company involved in the manufacture and distribution of ladders. The central issue in the case was whether the court had jurisdiction to hear the plaintiff's claims of negligence against Hills Limited, specifically regarding the design and manufacture of a ladder that allegedly caused Mr McGowan's injuries. The case was heard by the Federal Court of Australia.

The primary legal issue before the court was determining the appropriate jurisdiction to hear the plaintiff's claims of negligence. This required the court to consider the principles of conflict of laws, particularly the place of the tort, and whether the court had the necessary jurisdiction to hear the case. The court had to evaluate the distribution of the ladders in question and the extent to which Hills Limited was involved in the supply chain. The court also needed to consider relevant case law, including Distillers Co (Biochemicals) Ltd v Thompson, Voth v Manildra Flour Mills Pty Ltd, and Amaca Pty Ltd v Frost, to determine the appropriate jurisdiction and the application of foreign law.

In its decision, the court held that it did have jurisdiction to hear the plaintiff's claims of negligence against Hills Limited. The court found that the distribution of the ladders in question, as well as Hills Limited's involvement in the supply chain, was sufficient to establish the necessary connection to the forum. The court distinguished Amaca Pty Ltd v Frost, finding that the facts of the case at hand were sufficiently different to warrant a different outcome. The court applied the principles of conflict of laws and found that the relevant foreign law did not prevent the court from exercising jurisdiction in the matter.

The court's final orders were that it would proceed to hear the plaintiff's claims of negligence against Hills Limited, and that the defendant was required to respond to the plaintiff's claims within the specified time frame. The court held that it had jurisdiction to hear the matter and that the relevant foreign law did not prevent the court from exercising jurisdiction. The case proceeded to trial, with the court ultimately determining liability and damages in favour of the plaintiff.

Orders