Parlin Pty Ltd v Choiceone Pty Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PARLIN PTY LTD -v- CHOICEONE PTY LTD [2012] WASCA 19

CORAM:   NEWNES JA

MURPHY JA
MAZZA JA

HEARD:   2 AUGUST 2011

DELIVERED          :   31 JANUARY 2012

FILE NO/S:   CACV 82 of 2010

BETWEEN:   PARLIN PTY LTD

Appellant

AND

CHOICEONE PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :YEATS DCJ

Citation  :BARNS -v- PARLIN PTY LTD & ORS [2010] WADC 92

File No  :CIV 1962 of 2005

Catchwords:

Negligence - Employee of labour hire firm sent to work for client of firm on drilling rig - Employee injured when high pressure hose on rig failed - Client negligent in failing to inspect hose - Labour hire firm negligent in failing to require client to conduct safety inspection of drilling rig before employee started work - Whether client entitled to contribution from labour hire firm to damages payable to employee - Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7 - Trial judge found client not entitled to contribution - Trial judge erred in finding that labour hire firm not culpable for failing to require client to conduct safety inspection - Contribution of 20% ordered

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7

Result:

Appeal allowed
Respondent ordered to make contribution of 20% to damages payable by appellant

Category:    B

Representation:

Counsel:

Appellant:     Mr G R Hancy

Respondent:     Mr M P Bruce

Solicitors:

Appellant:     Jarman McKenna

Respondent:     Bennett & Co

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

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424

Barns v Parlin Pty Ltd [2010] WADC 92

Bourke v Hassett [1998] VSCA 24; [1999] 1 VR 189

Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839

Dib Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210

Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 VR 246

Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6

Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102

Hodge v CSR Ltd [2010] NSWSC 27

House v The King [1936] HCA 40; (1936) 55 CLR 499

James Hardie & Coy Pty Ltd v Roberts [1999] NSWCA 314; (1999) 47 NSWLR 425

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1

Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313

Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Pollard v Baulderstone Hornibrook Engineering Pty Ltd…

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Details
Case
[2012] WASCA 19
Decision Date

CaseChat Overview and Summary

The case of Parlin Pty Ltd v Choiceone Pty Ltd involved a dispute over a contribution claim under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA). The respondent, Choiceone Pty Ltd, a labour hire firm, had sent an employee to work for the appellant, Parlin Pty Ltd, on a drilling rig. The employee was injured when a high-pressure hose on the rig failed. The primary dispute was whether the respondent was liable for a contribution to the damages payable to the injured employee, having been found negligent for not inspecting the hose. Parlin sought a contribution from Choiceone under the Act, but the District Court dismissed the claim. Parlin appealed this decision to the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the trial judge correctly assessed the respondent's liability for contribution under the Act. Specifically, the Court needed to determine whether the respondent was negligent in not requiring the appellant to conduct a safety inspection of the drilling rig before the employee started work. Additionally, the court had to consider whether the respondent was entitled to a contribution from Parlin for the damages and costs paid to the injured employee. The Court of Appeal was also required to assess the appropriate proportion of the contribution and whether it should include the costs incurred by Parlin.

In resolving the appeal, the Court of Appeal found that the trial judge had erred in concluding that the respondent was not liable to contribute. The court held that the respondent was indeed negligent for not ensuring that a safety inspection was conducted on the drilling rig. Consequently, the Court of Appeal held that Parlin was entitled to a contribution from Choiceone, amounting to 20% of the damages paid to the injured employee, less the contribution already paid by the other party, Barrick. The Court determined that the contribution should be 20% of $1,013,498.50 less $190,000, resulting in a contribution of $164,699.70. The Court rejected Parlin's argument that the contribution should also include the costs of $30,000, as the statutory provisions did not support this interpretation.

The final orders of the Court of Appeal mandated that Choiceone Pty Ltd was to contribute 20% of the damages paid by Parlin Pty Ltd to the injured employee, amounting to $164,699.70. This decision clarified the extent of the respondent's liability for contribution and set the parameters for future claims under similar circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 31 January 2012, this court allowed an appeal against a decision of Yeats DCJ in the District Court in which her Honour had dismissed a claim for contribution by the appellant against the respondent: Parlin Pty Ltd v ChoiceOne Pty Ltd [2012] WASCA 19. At the time the reasons of this court were delivered, orders were made allowing the appeal and setting aside her Honour's decision but no orders were made as to the monetary sum to which the appellant was entitled or as to costs, pending submissions from the parties on those matters. Issues have now been raised as to the proper amount of the judgment sum and costs. Before turning to those issues it is appropriate to describe briefly the relevant background. The appeal arose out of an accident on the appellant's drilling rig in which a workman provided by the respondent, a labour hire company, was seriously injured. The workman (Mr Barns) brought an action for damages for negligence against the appellant, the respondent, and the owner of the mine at which the drilling rig was operating (Barrick). The appellant settled the action by the payment to Mr Barns of the sum of $1,013,498.50 by way of damages plus agreed costs of $30,000, a total sum of $1,043,498.50. The appellant then sought contributions from Barrick and the respondent, pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (the Act). Barrick settled the contribution claim by payment to the appellant of the sum of $190,000 (inclusive of the appellant's costs), but the respondent denied that it was liable to contribute. The appellant's contribution claim against the respondent went to trial. Her Honour found that the respondent was not liable to make any contribution. However, in the course of considering the contribution claim, the primary judge made the observation that any contribution by the respondent fell to be calculated as a proportion of the sum of $1,013,498.50 less the $190,000 paid by Barrick, an amount of $823,498.50: Barns v Parlin [2010] WADC 92 [97]. Her Honour noted that the payment by Barrick apparently included an amount towards the appellant's costs but concluded that any such amount could not be determined and the appropriate course was simply to deduct it in full from the amount the appellant had paid to Mr Barns. This court held that the primary judge had erred in concluding that the respondent was not liable to contribute and found that the appellant was entitled to a contribution of 20% to the damages paid by the appellant to the injured workman, less the sum of $190,000 paid by Barrick by way of contribution. The amount of the respondent's contribution was expressed in this court's reasons to be 20% of the sum of $1,013,498.50 less the $190,000 paid by Barrick, an amount of $823,498.50. The contribution was therefore the sum of $164,699.70. The appellant says that the respondent's contribution should extend to the costs of $30,000 which the appellant paid to Mr Barns by way of costs; that is, to the total sum of $1,043,498.50, rather than simply the amount of $1,013,498.50 paid by way of damages. The total amount of the respondent's contribution should therefore be $170,699.70, rather than $164,699.70. In support of that contention, the appellant points out that its pleaded claim was for contribution to 'the damages and costs paid to [Mr Barns]' and at trial counsel for the appellant had expressly put the claim to the primary judge on the basis that it was for contribution to the sum of $1,043,498.50 less the amount paid by Barrick.

Ratio Decidendi

Legal Principle Established

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