Damages - Safe system of work - Liability of contractor for employee of subcontractor - Negligence - Work accident on mine site - Boilermaker/welder - Shoulder injury - Rotator cuff tendon tear

Legislation:

Occupiers' Liability Act 1985

Workers' Compensation and Rehabilitation Act 1981

Result:

Judgment for the plaintiff - second plaintiff entitled to indemnity
Damages assessed in the sum of $154,838 excluding workers' compensation

Representation:

Counsel:

First Plaintiff                :     Mr T H Offer
Second Plaintiff            :     Mr D R Clyne & Mr G T Smith
Defendant:     Mr D M Bruns & Mr J M Willers

Solicitors:

First Plaintiff                :     Trewin Norman & Co
Second Plaintiff            :     Crisp Citivella Smith
Defendant:     Willers & Co

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

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Climaze Holdings Pty Ltd v Dyson & Anor (1995) 13 WAR 487
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Fennell v Supervision and Engineering Services Holdings Ltd and Santos Ltd (1988) 47 SASR 6
Forsayth Mining Services Pty Ltd v Jack & Anor, unreported; FCt SCt of WA; Library No 950300; 10 May 1995
Kondis v State Transport Authority (1984) 154 CLR 672
McLean v Tedman & Anor (1984) 155 CLR 306
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Case(s) also cited:

James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Jones v Dunkel (1959) 101 CLR 298
Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1946] 2 All ER 345
Oceanic Crest Shipping Co v Pilbara Harbour Services (1986) 160 CLR 626
Thomas v O'Shea (1989) A Tort Rep 80-251

COMMISSIONER REYNOLDS:

Introduction

The first plaintiff ("the plaintiff") was born on 15 May 1942 and is 60 years of age. At all material times he was a boilermaker/welder. He alleges that on 14 August 1994 he suffered an injury to his right shoulder when he was attempting to weld a piece of steel plate to the interior of a chute during the refurbishment of a mining plant ("the accident").
At the time of the accident the plaintiff was employed by the second plaintiff as a boilermaker/welder. The defendant was engaged by Gold Mines of Australia Limited ("GMA") to supervise the refurbishment of the mining plant ("the refurbishment") at its Youanmi Minesite ("the site") in Western Australia. Before the accident the second plaintiff agreed to hire the plaintiff to the defendant which acted as agent for GMA. It is alleged that it was a term of the agreement between the second plaintiff and the defendant that the…

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.

Continue reading Melvan v Signet ENGINEEERING Pty Ltd

Details

AGLC: Melvan v Signet ENGINEEERING Pty Ltd [2002] WADC 205
Case: [2002] WADC 205
Decision Date: 27 SEPTEMBER 2002

CaseChat Overview and Summary

The parties involved in this case were Melvan, the plaintiff, and Signet Engineering Pty Ltd, the defendant. Melvan brought an action against Signet Engineering for damages resulting from a work-related injury sustained on a mine site. The plaintiff claimed that the defendant, as the principal contractor, was negligent in not ensuring a safe system of work. The case was heard in the Federal Circuit Court of Australia. The primary dispute centred on whether Signet Engineering, as the principal contractor, had a duty to ensure the safety of Melvan, an employee of a subcontractor, and whether this duty was breached, leading to Melvan's shoulder injury and subsequent rotator cuff tendon tear.

The legal issues the court was required to decide included whether Signet Engineering owed a duty of care to Melvan, the extent of that duty, and whether this duty was breached. The court also needed to determine if the injury occurred as a result of that breach and, if so, the appropriate measure of damages. The central issue was the extent of the responsibility of the principal contractor for the safety of employees of subcontractors on a mine site.

The court held that Signet Engineering did owe a duty of care to Melvan and that this duty was breached. The court found that the duty extended to ensuring a safe system of work, which included the implementation of proper safety protocols and the supervision of the site. The breach of this duty was directly linked to the accident that caused Melvan's injury. The court emphasised that the principal contractor has a significant responsibility for the safety of all workers on the site, including those employed by subcontractors. As a result of the breach, Melvan was awarded damages for his injury and the court outlined the specific amount of compensation to be paid by Signet Engineering.

Orders