O'DRISCOLL v J Ray McDermott, SA - [2001] WADC 198

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: O'DRISCOLL -v- J RAY McDERMOTT, SA [2001] WADC 198

CORAM: NISBET DCJ

HEARD: 31 JULY 2001

DELIVERED : 23 AUGUST 2001

FILE NO/S: CIV 4160 of 1998

BETWEEN: PETER O'DRISCOLL
Plaintiff
AND
J RAY McDERMOTT, SA
Defendant

Catchwords:

Private international law - Contract - Tort - Workers' compensation - Assessment of damages - Choice of law rules - Plaintiff in Western Australia - Offered employment by defendant company off-shore - Injured in Indonesian waters - Trial of preliminary issues

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA)

Rules of the Supreme Court of Western Australia

Result:

Issues determined in part only

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Mr A R Beech

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Phillips Fox

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

Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418
Allan J Panozza& Co Pty Ltd v Allied Interstate (Qld) Pty Ltd [1976] 2 NSWLR 192
Bonython v Commonwealth (1950) 81 CLR 486
Breavington v Godleman (1988) 169 CLR 41
Chellaram v Chellaram [1985] Ch 409
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583
John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625
Libyan Arab Foreign Bank v Bankers Trust Co [1989] QB 728
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Nalpantidis v Stark (1995) 65 SASR 454
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Phillips v Eyre (1870) LR6QB 1
Rahim v Crawther (1996) 17 WAR 559
Regie Nationale des Usines Renault SA v Fuzu Zhang (2001) 1 Leg Rep SL 1
Stevens v Head (1993) 176 CLR 433
Wenham v Ella (1972) 127 CLR 454
Zhang v Regie Nationale des Usines Renault SA [2000] NSWCA 188

Case(s) also cited:

Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20
Koop v Bebb (1951) 84 CLR 629
Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418
Gardner v Wallace (1995) 184 CLR 95
Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463
Helmers v Coppins (1961) 106 CLR 156
Starr v Douglas (1994) 35 NSWLR 133
Thompson v Hill; Clarke v Fowler (1995) 38 NSWLR 714
Vita Foods Products Incorporated v Unus Shipping Co Ktd (in Liq) [1939] AC 277

NISBET DCJ: On 21 January 2000 the Principal Registrar of this Court, presiding over a pre‑trial conference between the parties, ordered that the conference be adjourned to a listing conference to be held on 7 March 2000 "for the allocation of a date for the determination of a preliminary issue". The preliminary issue was not defined. Similarly by the time the matter came before a Registrar on 7 March 2000 the preliminary issue had still not been determined…

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: [2001] WADC 198
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Peter O'Driscoll brought an action against J Ray McDermott, SA, seeking damages for injuries sustained during his employment with the defendant. The case involved complex issues of private international law, particularly concerning the choice of law in contract and tort, the assessment of damages, and the applicability of workers' compensation legislation. The court had to determine six preliminary issues, including the proper law of the contract, the choice of law for tort liability, and whether the Workers' Compensation and Rehabilitation Act 1981 applied to the plaintiff's claims. The court found that the contract governing the plaintiff's employment was formed in Singapore, and thus, the law of Singapore applied to the contract's liability and the assessment of damages for any breach. Regarding the plaintiff's tort claims, the court could not determine the applicable law without further evidence addressing the specific duties of care owed by the defendant. The court concluded that the Workers' Compensation and Rehabilitation Act 1981 applied to the plaintiff's tort claim but not to his contract claim, as the former involved a limitation on the remedy, which was procedural, whereas the latter involved substantive rights and obligations.

Orders