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McKrill v Lincoln Constructions (WA) Pty Ltd

McKrill v Lincoln Constructions (WA) Pty Ltd

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Case Copied 11 April 2003 56 min read

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McKRILL -v- LINCOLN CONSTRUCTIONS (WA) PTY LTD & ORS [2003] WADC 84

CORAM: YEATS DCJ

HEARD: 9-13 SEPTEMBER & 19-22 NOVEMBER 2002

DELIVERED : 11 APRIL 2003

FILE NO/S: CIV 3898 of 1997

BETWEEN: MARK GREGORY McKRILL
Plaintiff
AND
LINCOLN CONSTRUCTIONS (WA) PTY LTD
First Defendant
CAROL ANN DI VINCENZO
Second Defendant
PCH HIRE & SALES PTY LTD t/as PERTH CONSTRUCTION HIRE
Third Defendant

Catchwords:

Negligence - Damages - Low back injury - Whether duty of care arises under Occupiers' Liability Act 1985 or the common law - Standard of care - Breach of duty of care - Whether duty of care is non-delegable - Contributory negligence - Whether loss or damage suffered by plaintiff resulted from pre-existing injuries - Economic loss - Future medical treatment - Expert evidence - Total award of damages of $97,076

Legislation:

Occupiers' Liability Act 1985

Result:

Judgment for the plaintiff in the amount of $97,076

Representation:

Counsel:

Plaintiff:     Mr A C Stavrianou
First Defendant              :     No appearance
Second Defendant         :     Ms A M I Schoombee
Third Defendant            :     Mr P V Lansell

Solicitors:

Plaintiff:     Simon Walters
First Defendant              :     No appearance
Second Defendant         :     McAuliffe Williams & Partners
Third Defendant            :     Jackson McDonald

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

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Baker v Shire of Albany (1994) 14 WAR 46
Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204
Cant v Fleay, unreported; FCt SCt of WA; Library No 960381; 18 July 1996
Caparo Industries v Dickman (1990) 2 AC 29
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Commissioner for Railways v Ruprecht (1979) 142 CLR 563
Creed v McGeoch & Son's Ltd [1955] 1 WLR 1005
Donoghue v Stevenson [1932] AC 562
Frost v Warner (2002) 186 ALR 1
Graham Barclay Oysters Pty Ltd v Ryan: Ryan v Great Lakes Council: State of New South Wales v Ryan [2002] HCA 54
Graham v Baker (1961) 106 CLR 340
Haseldine v Daw [1941] 2 KB 343
Jones v Bartlett (2000) 205 CLR 166
Kondis v State Transport Authority (1984) 154 CLR 672
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Amzil (2000) 176 ALR 411
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Prast v Town of Cottesloe (2000) 22 WAR 474
State of New South Wales v Lepore: Samin v State of Queensland [2003] HCA 4
Sullivan v Moody (2001) 75 ALJR 1570
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tame v New South Wales: Annetts v Australian Stations Pty Ltd [2002] HCA 35
Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994
Westralian Caterers Pty Ltd v Eastmet Ltd (1992) 8 WAR 139
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

British Railways Board v Herrington [1972] AC 877
Burnie Port Authority v…

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: [2003] WADC 84
Decision Date: 11 APRIL 2003

CaseChat Overview and Summary

McKrill, a plaintiff, brought a claim against Lincoln Constructions (WA) Pty Ltd, a defendant, seeking damages for a low back injury sustained at the defendant's premises. The case was heard and determined in the District Court of Western Australia. The primary issue before the court was to determine whether a duty of care arose under the Occupiers' Liability Act 1985 or under common law, the standard of care applicable, whether the duty of care was non-delegable, and the extent of contributory negligence. Additionally, the court examined whether the plaintiff's loss or damage resulted from pre-existing injuries, the nature of economic loss, future medical treatment, and the admissibility and weight of expert evidence.

The court carefully considered the evidence and arguments presented by both parties, including the nature of the injuries, the circumstances of their occurrence, and the relevant statutory and common law principles. It was determined that a duty of care did arise under the Occupiers' Liability Act 1985, and the standard of care was that of a reasonable person in the position of the occupier. The court found that the duty of care was not non-delegable, and the plaintiff's contributory negligence was assessed at 20%. The court concluded that the plaintiff's loss or damage did not result from pre-existing injuries and awarded damages for economic loss and future medical treatment. The court relied on expert evidence to assess the extent of the injuries and the associated damages.

Ultimately, the court awarded the plaintiff a total of $97,076 in damages, reflecting the findings on duty of care, standard of care, non-delegable duty, contributory negligence, and the nature of the injuries and loss. This sum represented compensation for the economic loss suffered and the cost of future medical treatment, taking into account the plaintiff's contributory negligence. The court's decision provided clarity on the application of statutory and common law principles in the context of this particular case, offering guidance for similar future claims.

Orders