Peel v DINNERDALE Pty Ltd - [2009] WASCA 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PEEL -v- DINNERDALE PTY LTD [2009] WASCA 194

CORAM: OWEN JA
PULLIN JA
NEWNES JA

HEARD: 1 OCTOBER 2009

DELIVERED : 4 NOVEMBER 2009

FILE NO/S: CACV 32 of 2009

BETWEEN: STEPHEN GEOFFREY PEEL
Appellant
AND
DINNERDALE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'SULLIVAN DCJ
Citation  :PEEL -v- GLOBAL (WA) PTY LTD & ANOR [2009] WADC 27
File No  :CIV 1205 of 2003

Catchwords:

Tort - Whether respondent negligently assembled chair which collapsed causing injury to the appellant - Whether trial judge's reasons omitted a reference to important evidence - Whether there was an error of law

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D M Bruns
Respondent: Mr J R Brooksby

Solicitors:

Appellant: Separovic & Associates
Respondent: WHL Legal Pty Ltd

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

Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
Leeder v The State of Western Australia [2008] WASCA 192
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244

REASONS OF THE COURT: This is an appeal by the appellant against the judgment of O'Sullivan DCJ by which the appellant's claim for damages for personal injury was dismissed.
The appellant suffered his injury when the back of a chair upon which he was sitting collapsed. He brought his action against the manufacturer of the chair and against the respondent. The appellant alleged that the respondent, which traded as Derby Retravision, negligently assembled and supplied the chair. The claim against the manufacturer was discontinued. His Honour was required only to determine the liability of the respondent. Quantum had been agreed.
The appellant was at the time of the accident a 43 year old who on 4 June 2000 was working for the Australasian Correctional Management Pty Ltd (ACM) at the Curtin Immigration Detention Centre near Derby. ACM had a contract with the Department of Immigration to run the detention centre. The chair upon which the appellant was sitting was a secretarial or typist's kind of chair. The trial judge concluded that the appellant's claim failed because it was not proved that the respondent supplied the chair.

The evidence and the identification of the issue decided by the trial judge

The following account of the evidence and the identification of the issue to be determined is taken from the trial judge's reasons with some minor supplementation from the transcript.
On the day in question, the appellant was sharing an office with a Mr Paul Reeves. He had just returned to the centre after some months and a desk and chair had been provided for his use. He was seated at the desk preparing a management plan for a detainee. Mr Reeves was sitting behind him and the appellant swung round to speak to…

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: [2009] WASCA 194
Decision Date: 4 NOVEMBER 2009

CaseChat Overview and Summary

The case of Peel v DINNERDALE Pty Ltd was heard in the court where the appellant, Peel, brought an action against the respondent, DINNERDALE Pty Ltd, claiming damages for injuries sustained when a chair provided by the respondent collapsed. The appellant argued that the respondent was negligent in assembling the chair, which led to its collapse and Peel's injuries. The trial judge, however, dismissed the claim, concluding that it had not been proven that the respondent supplied the chair in question.

The central legal issue in this case was whether the trial judge erred in his assessment of the evidence and reasoning in concluding that the chair had not been supplied by the respondent. The appellant's argument focused on the trial judge's failure to sufficiently address certain pieces of evidence, which, according to the appellant, pointed towards the respondent being the supplier of the chair. Specifically, the appellant argued that the trial judge did not adequately consider the evidence of Lingard, who testified that only the respondent supplied office chairs at the appellant's workplace, and the acknowledgment by Wallis, an employee of the respondent, that he had advised others that the respondent had supplied the chair in question.

The court addressed the appellant's argument and determined that the trial judge had not erred in his reasoning. The court found that the trial judge's consideration of the evidence was sufficient and that he had appropriately weighed the credibility and relevance of the evidence presented. The court concluded that there was no error in the trial judge's finding that it had not been established on the balance of probabilities that the respondent supplied the chair, and thus dismissed the appeal.

In light of the above, the court upheld the trial judge's decision and dismissed the appeal. The court found no error in the trial judge's assessment of the evidence and his conclusion that the claim should be dismissed.

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

His Honour concluded in [45] that it had not been established on the balance of probabilities that the chair upon which the appellant was sitting when he was injured had been supplied by the respondent. His Honour's reasons for that conclusion were expressed in the following terms:It is true that at the time of the accident, and perhaps for some time before, the Department of Immigration had a 'buy local' policy and that Derby Retravision had been a significant beneficiary of it. That is not to say, however, that it must have supplied the chair. It is also true that Mr Wallis gave the plaintiff the note (Exhibit 17) upon which he had written the name 'Access Office Industries' and that he said that he 'imagined' that he got that name from Derby Retravision, saying that that was 'the only place I could have got that information'. However, he also said that he had 'no idea where the chair came from'. Mr Wallis did, of course, tell Mr Pace that the chair had been supplied by Derby Retravision but what grounds he had for saying that are not known and there is nothing to suggest that he had first hand knowledge that that was the case. I have already noted that when asked about the circumstances in which he came to write the note which is Exhibit 17, Mr Wallis said: 'I can only assume that he (the plaintiff) or somebody else asked me for the details of the office chairs that we'd recently purchased and I would have found that information out for that person…'In these circumstances, it may well be significant that Mr Wallis did not write down any details of the defendant but only noted the name of the supplier in Perth, Access Office Industries. It is true that Mr Pace did contact Mr Hardy after speaking with Mr Wallis but curiously, he was not asked about any conversation which he might have had with Mr Hardy. It is true also that Mr Hardy may not have told Mr Pace or Ms House, the plaintiff's solicitor, that he did not supply the chair upon which the plaintiff was injured but I can find no basis for concluding that his conduct in that regard amounts to an admission that the defendant did supply it. ConclusionI have already noted that the chair upon which the plaintiff was injured was clearly of the spring-backed kind. In the light of the conclusion that the evidence does not establish that the defendant supplied a spring-backed chair, the claim fails [46] ‑ [51]. The appellant's sole ground of appeal alleges that the trial judge erred in law because he failed to give 'sufficient' reasons for the conclusion set out above. The ground reads:Given:(a)the evidence of Lingard that he knew of no‑one, other than the respondent (second defendant), who supplied office chairs at the appellant's workplace;(b)the acknowledgement of Wallis that he had, after contacting the respondent (second defendant), advised persons that the respondent (second defendant) had supplied the relevant chair;(c)the evidence of Hardy (on behalf of the respondent) that it was possible that he had acknowledged, following the accident, that the chair was an Access Office Industries' chair supplied by the respondent;(d)the learned trial judge did not proceed to make any findings on the credibility of those witnesses;the learned trial judge erred in law in failing to give sufficient reasons for his finding at [45] that, 'it has not been established on a balance of probabilities that the chair … had been supplied by the second defendant'.

Ratio Decidendi

Legal Principle Established

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