Price v Resolute Resources Limited - [2002] WADC 235

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PRICE -v- RESOLUTE RESOURCES LIMITED [2002] WADC 235

CORAM: COMMISSIONER GREAVES

HEARD: 13-17 MAY 2002

DELIVERED : 15 NOVEMBER 2002

FILE NO/S: CIV 4414 of 1999

BETWEEN: JOHN IVOR PRICE
Plaintiff
AND
RESOLUTE RESOURCES LIMITED
Defendant

Catchwords:

Negligence - Unsafe system of work at mine site established - Work directly a part of defendant's business of operating mine site - Proceedings against defendant as principal not to be commenced without leave

Legislation:

Workers' Compensation and Rehabilitation Act, 1981 s 93D(4), s 175(1)(3)

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr A S Stavrianou
Defendant: Mr D C Clyne

Solicitors:

Plaintiff: Bradford & Co
Defendant: Mallesons Stephen Jaques

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

Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Hewitt v Benale Pty Ltd [2002] WASCA 163
Hollis v Vabu Pty Ltd (2001) 75 ALJR 1356
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16

Case(s) also cited:

Nil

COMMISSIONER GREAVES: In December 1993, the plaintiff was employed by Drake Personnel Ltd ("Drake") as a maintenance supervisor at the Marymia Gold Mine located near Meekatharra. The defendant at all material times occupied and controlled the mine.
At par 3 et seq of the amended statement of claim, the plaintiff alleges:
"3.The Defendant was at all material times an occupier of the mine pursuant to the provisions of the Occupiers' Liability Act 1985 (WA).
4.At all material times:
(i)The Plaintiff was employed by Drake Personnel Limited ('Drake') as a maintenance supervisor.
(ii)Drake hired the services of the Plaintiff to the Defendant in order that the Plaintiff could perform work for the Defendant at the mine.
(iii)The Plaintiff worked under the control and at the direction of the Defendant.
5.On 2 December 1993 and at the mine:
(i)the Plaintiff was required by the Defendant through its servant and supervisor one Geoffrey Berry to assist a fellow worker to remove an air‑conditioning unit weighing approximately 50 kilograms from its setting in a wall.
(ii)whilst the Plaintiff was attempting to remove the said unit from the wall, it moved suddenly towards him causing the Plaintiff to bear the vast bulk of its weight.
(iii)excessive strain was thereby laced on the Plaintiff's neck and left shoulder thereby causing him to suffer pain and injury ('the accident').
The defendant denies negligence and at par 6 of the re‑amended defence alleges:
"6.The defendant denies each and every allegation pleaded in paragraph 6, and says further that:
(a)the plaintiff had been trained by both the defendant (on or about the date he commenced working at the Marymia Mine Site) and Drake Personnel Limited ('Drake') (on or about the time he was first engaged by Drake) and at intervals when appropriate and when the plaintiff was available, in lifting and safety procedures;
(b)the plaintiff had been warned repeatedly in the course of his training, the timing of which is outlined in paragraph 6(a), by the defendant, of the dangers of incorrect lifting procedure which may include injury to the back, shoulders and neck;
(c)pursuant to the Agreement between Drake and the defendant dated 17 July 1992 the defendant conducted an Occupational Health and Safety Programme including safety and general induction procedures, safety audits at varying intervals pursuant to statutory safety obligations, regular meetings and training periodically, as and when necessary or appropriate;
Including but not limited to:
(i)how to lift plant and equipment correctly so as to limit the chance of injury;
(ii)dealing with spills;
(iii)hazardous chemicals; and
(iv)general mine site safety;
(d)the defendant required participation in the activities outlined in paragraph 6(c) above;
(e)the plaintiff was a qualified boilermaker and fitter who was a relief supervisor at the site and was working with Russell Brenchley the leading hand at the site at the time of the alleged accident and as such did not require any more supervision for the task than was provided by the defendant; and
(f)in light of the matters pleaded in paragraph 6 above, the defendant's system of work was safe."
The defendant denies that the plaintiff suffered injury as alleged or at all on 2 December 1993. In the alternative, the defendant alleges in par 14 of the re‑amended defence that the plaintiff contributed to his injuries. The defendant does not admit that the plaintiff worked under the control and at the direction of the defendant and at par 16 of the re‑amended defence alleges:
"16.Further, the defendant says that the plaintiff is precluded from pursuing a claim for damages in any event, by reason of the operation of:
(a)the transitional provisions of the Workers Compensation and Rehabilitation Amendment Act 1993, under which the plaintiff did not register a notifiable cause; and
(b)the Workers Compensation and Rehabilitation Amendment Act 1999 s.93E(3) under which the plaintiff failed to preserve his rights."
I turn to consider the plaintiff's evidence about the events of 2 December 1993. At p 35 of the transcript, the plaintiff says he began work at the mine between five and six o'clock in the morning. He said Mr Geoff Berry told him to go down to the camp and help Russell Brenchley, the electrical fitter, remove an airconditioner from the wall in the wet mess. Mr Berry said it was urgent and the plaintiff had to go down with Russell Brenchley to the wet mess. He said Mr Brenchley worked for Drake and Mr Berry worked for the defendant. They arrived at the wet mess. He said most of the airconditioner protruded from the outside wall and about four inches protruded inside the wall. The plaintiff continued (T40):
"I looked at it and then Russell went outside and he was to push it about 4 inches through slowly and then he was going to come in and we'd both take the weight …
… I stayed inside and I sort of got ready to, you know, just to place myself ready to take the weight a little bit until he come in to give me a hand.
… I braced myself and all of a sudden I had the whole lot on my shoulder.
… The whole aircon, yes. I don't know how that happened. It was pretty quick. Whether slipped or – I don't know, but anyway the aircon come out reasonably fast.
… I had the whole lot there with both arms hanging onto it, one on each side, and the weight of it was unbelievable.
… Because of the size of the aircon for a start, it was very hard to manage, if you know what I mean, and where I was in the particular building, I had no room to move around.
… It just felt like a knife cutting through my shoulder to be quite honest, but there was nothing I could do about it. I had to get rid of the aircon. That was my main objective to get the weight off my shoulder and get it out of there.
… It come out reasonable fast but I mean I can't really remember. All I can remember is the thing – it didn't happen the way we had planned. All of a sudden I have got this thing just on me and I'm trying to, you know, I'm trying to get it off me. That's what I was trying to do. I was really trying to work out what the hell I was going to do with it really quickly because it was hurting very bad and it was very, very heavy. I couldn't believe the weight of it. …"
In cross‑examination, counsel for the defendant showed the plaintiff Exhibit 7. The plaintiff acknowledged his handwriting at the top of Exhibit 7 and the words "I must have pulled a muscle in my left shoulder when I was helping lift the wet mess fridge." It appears the plaintiff made this statement on 3 December 1993. The plaintiff accepted he could have made a mistake. He said: (T111)
"All I recall is doing what I said before and that was getting the aircon out of the wall with Russell Brenchley and that's all I remember, that's it."
Counsel for the defendant also referred the plaintiff to Exhibit 22 where on 17 December 1993, the plaintiff reported:
"Upon lifting airconditioner from the wall mount, I injured my left shoulder as above."
Counsel suggested to the plaintiff that he had made no reference to the airconditioner falling onto him, to which the plaintiff replied (T164):
"I didn't say it fell onto me; I said it came onto me quickly, onto my shoulder."
The evidence of the plaintiff at p 41 of the transcript was:
"I braced myself and all of a sudden I had the whole lot on my shoulder."
The evidence of Mr Russell Brenchley corroborates that of the plaintiff in relation to the events of 2 December 1993. He recalled starting work at 6.30 am. He said (T243) Mr Geoff Berry told him to check out the wet mess airconditioner. He said initially he went to the wet mess by himself where he noticed that the airconditioner was leaking gas and it needed to be welded. For that purpose, he had to take the airconditioner to the workshop. He said the dimensions of the airconditioner were 800 by 500 by 800 millimetres. He added (T244): "It was a large unit, a very large unit. … this was a big heavy job." He described how Mr Berry allocated the plaintiff to help him and then went on to describe the location of the airconditioner as follows (T245):
"It was on a carriage. The inner workings of the unit could be withdrawn from an outer casing which was what we call tek screwed, screwed in.
… That held a framework in the hole and then the outer casing was screwed into that and then the actual workings of the unit was on a removable carriage or tray which you could slide out …"
Mr Brenchley went on to describe how he and the plaintiff approached the task (T246):
"We tried to pull it out. We tried to pull it out first because you would always do that if you could, get it from the inside, but there's only tiny little grips on there that you could just try and get your fingernails in. A lot of the times it froze up with dust and other things. The building moves so it sort of gets lodged in. So I said, 'I'll go outside.'
… And John stayed inside and the plan was for me to push it to a point of equilibrium, on the wall, where it was supported on the wall. The plan was to push it halfway, roughly halfway, and John to support it and then I was going to come back in and then we would grab it and put it down and get it to the ute and back to the workshop."
At p 248 of the transcript, Mr Brenchley continued:
"I stood underneath the airconditioner and tried to push it as John was inside, trying to pull it to free it up and wiggle it. …
… I wiggled it free and as John was trying to take some load on, I actually pushed from the back ‑ ‑ ‑
…It slid but these things don't come out. They're not on rollers or anything else. They don't just glide along. They stop and you push again and it jams and so then you have to wiggle it and it did this a few times and I kept pushing.
… You see, what happens it does suddenly then give. Once the weight's there, it then suddenly gives. You don't know it's going to give but it could suddenly give."
Mr Brenchley said that this is what occurred on 2 December 1993. He said he then went inside the wet mess and he saw "John had the weight in the corner of the room. … John had the aircon sort of there and he was crouched over. … his left arm and shoulder was underneath and his right hand was at the front".
In cross‑examination, Mr Brenchley agreed that he and the plaintiff had undertaken the similar task of removing an airconditioner from a wall location on maybe 10 occasions. He agreed that when he went back inside the wet mess the plaintiff was holding the airconditioner and part of it was resting in the cavity, the majority of it was outside. He observed (T253):
"He could not take the whole weight of this unit. One person can't lift this unit.
… He was taking the weight, yes.
… He would have to put his leg there because the weight is all there. The wall is there. He would have to get as close as he can to balance himself and by this time he was underneath, because as I was saying before the carriage was at about 5 feet and he had to struggle underneath with his knees bent and have his arm almost fully extended. He was like that. He couldn't get any closer to it."
Mr Brenchley said the airconditioner was at about the plaintiff's shoulder height. The plaintiff was facing away from the wall looking back at Mr Brenchley at the left hand side of the airconditioner. Mr Brenchley "grabbed the right hand side". He said they then "took the final extraction" (T255).
Counsel for the defendant showed Mr Brenchley Exhibit 29, a statement made by Mr Brenchley on 30 December 1993 where he says the accident happened on Tuesday, 30 November 1993. He said he could not explain that discrepancy. Counsel referred him to the statement that the plaintiff was "lifting and positioning an airconditioner into the wall". Mr Brenchley said he could not explain that statement and added (T258):
"He was definitely pulling it out. I remember that.
… That was probably a typo or a lack of concentration at the time. I'm absolutely 100 per cent certain that it was out of the wall."
Counsel for the defendant then showed Mr Brenchley Exhibit 30, his statutory declaration of 6 May 2000. At pars 16 to 34 of Exhibit 30, Mr Brenchley stated:
"16.On the date of Price's injury, which I know was prior to Christmas 1993 and I am advised was 2 December 1993 we were working on a failed air conditioner in the wet mess of the canteen area at the camp.
17.The room where the wet mess was located was about 3 metres x 3 metres in size and was basically 'chock a block' with a large filled fridge, a bar and other trinkets on display.
18.The beer fridge was a glass fronted fridge which was a commercial fridge about 7 feet tall and three doors wide.
19.The fridge was full of beer and cool drinks.
20.The air conditioning unit was situated in the wall at about head height and it was in a corner of the room.
21.I recall that we had to move the fridge about in order to gain access to the air conditioning unit.
22.This was a really awkward job and I know that we could not get the fridge outside the room because it could not be fitted easily through the doorway.
23.It would have been necessary for the fridge to be emptied before it could be carried outside.
24.For this reason John Price and I pushed the fridge aside and we were working on the air conditioner which was a Kelvinator 3½ horsepower air conditioner.
25.This air conditioner was mounted in a hole on the wall and next to the corner.
26.I know as you stood in the room looking at the air conditioner it was situated in the left corner of the room.
27.We had originally taken the front covers of the air conditioner so that we could slide it out of the wall.
28.John Price had actually helped me to lift the air conditioner out of its hole in the wall.
29.I know that Price complained that his arm was 'buggered' as soon as we had taken the air conditioning unit out of the wall.
30.I am 100% certain that Price injured himself moving the air conditioner.
31.I guess that these units would weigh about 40 kgs.
32.I know that there was enough space to get the unit out but because it was in a corner it was difficult.
33.We had taken the unit out of the wall and then took it back to the workshop so that it could be repaired.
34.Price definitely helped me to lift it out and down from its position in the wall and we then put it onto the shelf."
At par 40 of Exhibit 30, Mr Brenchley stated further:
"40.I believe that when we were taking the air conditioning unit out that John Price got caught with the weight and I remember that he was tucked into the corner underneath the unit when we were sliding it out."
Mr Brenchley agreed that he made no mention in Exhibit 30 of his presence outside the wet mess in the first instance. He said he made no mention of that fact, because the investigator asked him nothing about it.
In re‑examination, he said he estimated the weight of the airconditioner at 40 kilograms from his experience as an electrical fitter.
The next witness for the plaintiff was Mr Geoffrey Berry, also an electrical fitter who was employed by the defendant at the maintenance supervisor at the Marymia Mine in 1993. He said he instructed Mr Brenchley to have a look at the airconditioner in the wet mess which was playing up. Mr Brenchley reported the airconditioner had to be removed for repair and Mr Brenchley told him to ask the plaintiff to help him take the airconditioner out. He said he had not inspected the airconditioner himself and added (T274):
"In hindsight, yes, I should have gone and looked at it and checked it out."
He said he had experience in removing airconditioners himself and expressed the opinion that this airconditioner was "a fairly big airconditioner".
Mr Berry said (T274) he was in charge of Mr Brenchley and the plaintiff on the site and he reported to the defendant's plant superintendent. He said there were about 10 people employed in his department and he was able to employ and terminate the services of employees within that maintenance crew.
Mr Berry said he inspected the airconditioner after the event and said he would now and in the future send three men to remove it. (T277) He added:
"… The airconditioner is a fairly heavy object. It was in a difficult position. The weight of it and the size of it, you would be able to get it out with three people, a maximum of three. I say a maximum of three because of the confined space its actually in. …
… One guy would get outside and push it forward a bit. The two guys or two people inside would start to withdraw it and within that time the person who was outside would come inside and help them to manoeuvre it to a position."
In cross‑examination, Mr Berry agreed Mr Brenchley was an experienced electrical contractor capable of assessing the assistance he needed to remove and repair the airconditioner.
At p 10 of the agreed consolidated book of medical reports the occupational therapist, Ms Narelle Cross records she saw the plaintiff on 25 January 1994. At p 2 of her report, she states:
"Mr Price reports that he was removing an air conditioner from the wall at Marymia gold mine township. Reports that he took the full weight of the air conditioner and managed to place it on a bar below. Reports the awkward position adopted, in a corner and with a fridge behind him, appeared to aggravate his neck region."
In his report of 31 January 1994, the orthopaedic surgeon, Mr Peter Woodland records:
"He told me that on the 2nd December 1993, he was lifting an airconditioner out from the wall recess with another worker. He was resting the airconditioner on his left shoulder, felt some minor discomfort but continued working."
At p 55 of the same book, Dr Steven Clarke records:
"On the day in question, 2 December 1993, Mr Price was working on the dongas (single person's accommodation quarters), lifting an air‑conditioning unit out. This unit was apparently very heavy and he placed it upon his left shoulder."
At p 82 of the same book Dr John Suthers records the following history:
"… On this particular day he was assigned to pull out an airconditioner along with the help of an electrician. The electrician was on the outside of the building pushing the unit to the inside. The 2½ horse power device he recalled was very heavy although he was unable to put a figure on it. The device was well above shoulder height and as it was pushed forward it suddenly became loose and dropped on him. He was then struggling with it at a rather awkward angle and as he recalls it, ended up effectively dropping it onto the nearby bench."

At p 95 of the same book, Dr Steven Clarke again records on 6 May 2002:
"He was directed to remove an unserviceable air‑conditioning unit from the wet mess. It was a large unit and very heavy. He was assisted by another worker who was outside the building while Mr Price was standing inside, as the unit was removed towards him. As the unit was slid in towards him, it slipped from its recess in the wall and fell across his left trapezius. He reports that the unit weighed 60‑70 kilograms and he lifted it down alone onto a bar."
The defendant called no evidence about the events of 2 December 1993 at the Marymia Mine. It called no evidence and there is no evidence that the plaintiff had been warned repeatedly in the course of his training by the defendant of the dangers of incorrect lifting procedure which may include injury to the back, shoulders and neck, as alleged in par 6(b) of the re‑amended defence. The defendant called no evidence and there is no evidence that the defendant instructed the plaintiff how to lift plant and equipment correctly so as to limit the chance of injury, as alleged in par 6(c)(i) of the re‑amended defence.
On the evidence of the plaintiff and Mr Brenchley, I find the plaintiff took some of the weight of the airconditioner as Mr Brenchley eased it through the wall. I find Mr Brenchley then came to the assistance of the plaintiff inside the wet mess when the plaintiff in an awkward position took the weight of the airconditioner on his shoulder as they removed the unit from the wall. On the evidence of Mr Brenchley, I find that the unit weighed approximately 40 kilograms and in his experience was a large unit. I accept the evidence of Mr Berry that in the circumstances three men were required to remove the unit from the wall given the cramped location. So far as the subsequent records of the events of 2 December 1993 may differ from the evidence of Mr Brenchley and the plaintiff they are the not unusual differences of detail only and do not detract from the coherent account of the plaintiff and Mr Brenchley in answer to which the defendant called no evidence.
In Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291 at 300, the learned Chief Justice said:
"In Wyong Shire Council Mason J (with whom Stephen and Aickin JJ agreed) held that the existence of a foreseeable risk of injury did not in itself dispose of a question of breach of duty. The magnitude of the risk and its degree of probability remained to be considered with other relevant factors. As his Honour said in Wyong Shire Council (at 47 – 48):
'In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.' "
In Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 at 39 et seq Gleeson CJ said:
"Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it. But, as Mason J pointed out in Wyong Shire Council v Shirt, ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk.
…
Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant. The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes. I say 'may', because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case."
In Crombie v Uniting Church Property Trust (WA) (supra) the learned Chief Justice recited the duty of an employer to take reasonable care to avoid unnecessary risks of injury to an employee and referred to the decision of the High Court in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. At p 301 of the report, the learned Chief Justice continued:
"It may be accepted that an employer's obligation is not merely to provide a safe system of work but also to maintain and enforce such a system: see McLean v Tedman (1984) 155 CLR 306. However, consistently with the approach adopted by Mason J in Wyong Shire Council, Taylor J said in Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 at 183: '… the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful …'
The employer is only required to take reasonable care for the safety of employees. This 'does not mean that he must safeguard them completely from all perils': Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 318, per Windeyer J."
On the findings which I have made, it is necessary to consider whether a reasonable man in the defendant's position would have foreseen that to require the plaintiff and Mr Brenchley to remove this airconditioner in this location in the manner attempted involved a foreseeable risk of injury to the plaintiff. It is also necessary to consider whether a reasonable man in the defendant's position would have foreseen that the failure to instruct the plaintiff how to remove this airconditioner from this location correctly so as to limit the chance of injury to the plaintiff, involved a foreseeable risk of injury to the plaintiff. On the evidence of Mr Brenchley and Mr Berry and the facts which I have found, I find the defendant should have foreseen such risk.
It is then necessary to determine what a reasonable man would have done by way of response to that risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. Given the evidence of the awkward location of this airconditioner and its weight, I find that the magnitude of the risk was considerable. The precise way in which the accident occurred may not have been foreseeable but the risk that an accident of this kind might occur during the removal of the airconditioner in this manner was considerable as was the degree of the probability of its occurrence. There is no evidence that it would have been expensive, difficult or inconvenient to provide adequate training to the plaintiff. There is no evidence the provision of a third person to assist in the removal of the airconditioner was expensive or otherwise impractical.
In these circumstances, I find that the response of the reasonable man in the present case would have been to provide adequate instruction to the plaintiff prior to the removal of the airconditioner and to instruct a third person to assist in its removal. The relationship between the parties was such that it is reasonable to expect the defendant to have responded to the risk in the manner which I have identified. I conclude the defendant was, therefore, in breach of its duty to the plaintiff.
There is no evidence to support the case for the defendant that the plaintiff caused or alternatively contributed to his injuries and I so find. The case pleaded for the plaintiff and the only evidence is that the plaintiff was employed by Drake as a maintenance supervisor, that Drake hired the services of the plaintiff to the defendant in order that the plaintiff could perform work for the defendant at the mine, and that the plaintiff worked under the control and at the direction of the defendant, and in particular Mr Berry. The only evidence is that Mr Berry supervised and directed the work which the plaintiff and Mr Brenchley carried out. In such circumstances, the duty of the defendant to provide a safe system of work extended to the plaintiff, as alleged: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, Hollis v Vabu Pty Ltd (2001) 75 ALJR 1356. So far as it is necessary on the pleadings, therefore, I find the defendant is liable for the negligence of Mr Brenchley whom the defendant instructed to carry out the removal of the airconditioner.
At the conclusion of the trial, counsel informed me they were agreed that the plaintiff had not obtained the leave of this Court to commence these proceedings pursuant to the previous s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981, as it applied when the writ in this action was issued. After the Court reserved its decision, the Full Court of the Supreme Court delivered its judgment in Hewitt v Benale Pty Ltd [2002] WASCA 163. Both counsel in this case requested the Court to reconvene to hear submissions about the application of that decision to the circumstances of this case.
Counsel for the defendant referred to s 175(1) of the Act and submitted that the defendant is the principal, Drake the contractor, and the plaintiff the worker within the meaning of that section. Counsel for the plaintiff did not submit otherwise and I accept that submission. The effect of the decision in Hewitt v Benale is that the plaintiff is unable to pursue his claim for damages at common law without complying with the restriction imposed by s 93D which applied at the time when he commenced his action. The issue which requires determination in this case is whether s 175(1) does not apply because the case falls within the provisions of s 175(3) of the Act; that section provides:
"The principal is not liable under this section unless the work in which the worker is employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal."
Counsel for the plaintiff submitted the defendant does not plead that the defendant as principal had contracted with Drake for the execution of any work by or under Drake and that in the execution of the work the plaintiff had been employed by Drake. It is only necessary to observe that is the plaintiff's case pleaded in par 4 of the statement of claim and established on the evidence.
Counsel for the plaintiff further submitted the defendant failed to establish the removal of the airconditioner was directly a part or process in the trade or business of the defendant. Once again, the facts pleaded in par 5 of the amended statement of claim and the evidence establish these facts and no other. Counsel for the defendant submitted the removal of the airconditioner was clearly part of the defendant's business of operating the mine site. On the evidence, no other conclusion is open.
Accordingly, this case does not fall within the exception contained in s 175(3) of the Act and the plaintiff's claim may not be maintained. It is not necessary, therefore, for me to proceed to an assessment of damages. If the conclusions which I have reached are found not to be in accordance with the law as I have explained it, the claim may be returned to this Court so that damages may be assessed in accordance with the evidence and without the need for further hearing.
For these reasons the plaintiff's claim is dismissed.