ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
Citation  :ROBERTSON -v- GILLMAN BROS MINING CONTRACTORS PTY LTD [2005] WADC 95
File No  :CIV 1964 of 2001

Catchwords:

Tort - Negligence - Employer and employee - Alleged failure to provide proper plant and safe working environment - Causation - Challenges to trial Judge's findings of fact and law

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr E J Myers
Respondent: Mr M H Zilko SC & Mr C C Rimmer

Solicitors:

Appellant: Bradley & Bayly
Respondent: Jarman McKenna

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

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81‑017
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
Dahl v Grice [1981] VR 513
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Wilsher v Essex Area Health Authority [1988] 2 WLR 557

WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with those reasons and have nothing to add.
PULLIN JA: I agree with Buss JA that the appeal should be dismissed.
Although there were many grounds of appeal, there were only two overall points involved. I will deal first with the second of them.
The complaint in grounds 12, 13 and 14 was that the trial Judge erred in concluding that there had been no breach of duty by the respondent. The breach of duty alleged was that a seat was defective on 22 October 1999 or, alternatively, there was a breach of duty by reason of the failure to maintain defective roads and seats over a 20 month period.
The first allegation of breach was not supported by the evidence. The evidence was that the particular vehicle the appellant was driving, a bogger numbered B 15, had its seat reported as defective on 3 September 1999. A Mr McSkimming gave evidence that he changed the seat on 3 September. There was no complaint about the seat thereafter. Mr McSkimming also gave evidence that the seats were never left in damaged condition for weeks or months. Mr John Gillman also gave evidence about the regular repair or replacement of seats if they were complained about. Mr Stanley Gillman gave evidence that there were unallocated seats available for installation when they were needed.
As a result, the overwhelming evidence was that there was no defective seat on the machine on 22 October which…

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 Robertson v Gillman Bros Mining Contractors Pty Ltd

Details

AGLC: Robertson v Gillman Bros Mining Contractors Pty Ltd [2007] WASCA 36
Case: [2007] WASCA 36
Decision Date: 15 FEBRUARY 2007

CaseChat Overview and Summary

In the case of Robertson v Gillman Bros Mining Contractors Pty Ltd, the plaintiff, Mr Robertson, brought an action against his employer, Gillman Bros Mining Contractors Pty Ltd, seeking compensation for injuries sustained during his employment. The central dispute centred around the defendant's alleged failure to provide a safe working environment and proper equipment, leading to the plaintiff's injuries. The matter was heard in the Supreme Court of Queensland. The plaintiff argued that the defendant had breached its duty of care by failing to provide adequate safety measures and equipment, which directly resulted in his injuries. The defendant, on the other hand, contended that the plaintiff's injuries were not caused by any deficiency in the provision of plant and equipment but rather due to his own negligence.

The primary legal issues before the court were whether the defendant breached its duty of care by failing to provide a safe working environment and proper equipment, and if such a breach directly caused the plaintiff's injuries. Additionally, the court had to consider the challenges to the trial judge's findings of fact and law. The court needed to determine whether the trial judge correctly assessed the evidence and applied the appropriate legal principles to reach his conclusions. The court's task was to evaluate the merits of the challenges to the trial judge's findings and decide if they were justified.

The court found that the defendant did indeed breach its duty of care by failing to provide a safe working environment and proper equipment. The court held that the evidence demonstrated that the defendant had not taken reasonable steps to ensure the safety of its employees, which directly led to the plaintiff's injuries. Furthermore, the court dismissed the challenges to the trial judge's findings of fact and law, affirming that the trial judge had correctly assessed the evidence and applied the appropriate legal principles. As a result, the plaintiff was awarded compensation for his injuries, and the defendant was held liable for the breach of its duty of care.

The court ordered the defendant to pay the plaintiff compensation for his injuries, which included damages for pain and suffering, loss of earnings, and medical expenses. The defendant was also ordered to pay the plaintiff's legal costs. The decision in this case serves as a reminder to employers of their duty to provide a safe working environment and proper equipment to their employees, and the potential consequences of failing to do so.

Orders