McKrill v Lincoln Constructions (WA) Pty Ltd

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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…

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Details
Case
[2003] WADC 84
Decision Date

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.

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Background to the litigation

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Evidence Before The Court

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Legal Principle Established

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