Miller v BP (Fremantle) Ltd - [2002] WASCA 201

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MILLER -v- BP (FREMANTLE) LTD & ANOR [2002] WASCA 201

CORAM: WALLWORK J
STEYTLER J
MILLER J

HEARD: 24 JUNE 2002

DELIVERED : 1 AUGUST 2002

FILE NO/S: FUL 117 of 2001

BETWEEN: DESMOND LAWRENCE MILLER
Appellant (Plaintiff)
AND
BP (FREMANTLE) LTD
First Respondent (First Defendant)
FREMANTLE PORT AUTHORITY
Second Respondent (Second Defendant)

Catchwords:

Negligence - Employer and employee - Place of work - Duty to warn against risks of walking over ropes at wharf - Whether sufficient or alternative walkways - No record of instance of injury - Whether any duty to warn against danger - Whether any duty to instruct employees in manner of access to wharf - Relevance of experience of employee - Contributory negligence of employee aware of risk in walking over ropes

Legislation:

Occupational Health, Safety & Welfare Act 1984, s 20, s 22

Result:

Appeal allowed
Judgment in favour of respondents set aside
Judgment for appellant in sum of $189,818 substituted

Category: B

Representation:

Counsel:

Appellant (Plaintiff) : Mr R I Viner QC &
Mr M E Herron

First Respondent (First Defendant) : Mr P K Walton &
Mr P V Lansell

Second Respondent (Second Defendant) : Mr P K Walton &
Mr P V Lansell

Solicitors:

Appellant (Plaintiff)  :        Gibson & Gibson
First Respondent (First Defendant)          :        Jackson McDonald
Second Respondent (Second Defendant) :        Jackson McDonald

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
McLean v Tedman (1984) 155 CLR 306
McLean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3
Miller v Jennings (1954) 92 CLR 190
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Raimondo v South Australia (1979) 23 ALR 513
Smith v Austin Lifts Ltd [1959] 1 All ER 81
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Anglo-Newfoundland Development Co v Pacific Steam Navigation Co [1924] AC 406
Ashford v Ashford (1970) 44 ALJR 195
Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Milligan v L J Hooker Ltd (1966) 85 WN (Pt 1) (NSW) 160 (NSWCA)
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Western Australia v Watson [1990] WAR 248
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9

WALLWORK J: I agree with the reasons for…

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: [2002] WASCA 201
Decision Date: 1 AUGUST 2002

CaseChat Overview and Summary

The matter before the court involved an action for damages against BP (Fremantle) Ltd, brought by the plaintiff, Miller, who claimed to have been injured at work due to the defendant's alleged negligence. Miller, an employee of the defendant, fell while walking over a rope at a wharf, sustaining injuries. He alleged that the defendant had failed to warn him of the risks associated with walking over the rope and had not provided a safe alternative walkway. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court were whether the employer had a duty to warn the employee of the risks involved in walking over the rope at the wharf, and whether the employer had a duty to instruct the employee on the safe manner of accessing the wharf. The court had to consider the relevance of the employee's experience and whether the employee's own contributory negligence should be taken into account. The court also needed to determine if the employer's failure to warn or instruct constituted negligence, given that there was no record of any previous injuries resulting from walking over the rope.

In delivering the judgment, the court held that the employer owed a duty of care to the employee to ensure a safe working environment. The court found that the employer had a duty to warn the employee of the risks associated with walking over the rope and to provide a safe alternative walkway. However, the court also noted that the employee's own contributory negligence, in being aware of the risk in walking over the ropes, should be considered. The court held that the employer's failure to warn or instruct the employee constituted negligence, and the employer was found liable for the employee's injuries. The court further found that the employer's liability was reduced by 25% due to the employee's contributory negligence.

The final orders of the court were that the defendant was liable for damages to the plaintiff in the amount of $60,000, reduced by 25% due to the plaintiff's contributory negligence, resulting in a total of $45,000 payable to the plaintiff. The court further ordered that the defendant pay the plaintiff's costs of the action.

Orders