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…

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.

Continue reading Price v Resolute Resources Limited

Details

AGLC: Price v Resolute Resources Limited [2002] WADC 235
Case: [2002] WADC 235
Decision Date: 15 NOVEMBER 2002

CaseChat Overview and Summary

In Price v Resolute Resources Limited, the plaintiff sought compensation for injuries sustained while working at a mine site operated by the defendant. The plaintiff alleged that the defendant was negligent in establishing and maintaining an unsafe system of work at the mine, which directly contributed to the plaintiff's injuries. The court was tasked with determining whether the plaintiff could proceed with the action against the defendant, given that the defendant was not the direct employer but rather the principal of the company that employed the plaintiff.

The primary legal issue before the court was whether the plaintiff could commence proceedings against the defendant without obtaining leave from the court, as required by section 25 of the Wrongs Act 1958 (Vic). The court had to consider whether the work in question was directly a part of the defendant's business of operating the mine site. Additionally, the court examined whether the plaintiff's injuries were caused by the defendant's failure to ensure a safe working environment, thereby establishing a duty of care owed by the defendant to the plaintiff.

The court found that the work in question was directly a part of the defendant's business, as the defendant had the overarching responsibility for the safety of the mine site. The court determined that the defendant, as the principal, owed a duty of care to the plaintiff, and the plaintiff could establish a direct relationship with the defendant for the purposes of the action. Consequently, the court held that the plaintiff could proceed with the action against the defendant without obtaining leave, as the defendant's responsibility for the safety of the mine site and the plaintiff's injuries met the criteria set out in the Wrongs Act 1958 (Vic). The court found in favour of the plaintiff and allowed the proceedings to continue against the defendant.

Orders