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Sanders v Multiplex Engineering and Infrastructure Pty Ltd

Sanders v Multiplex Engineering and Infrastructure Pty Ltd

Case [2022] WADC 31 7 April 2022

Contributory Negligence

Jurisdiction

Civil Litigation & Procedure

Tort Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SANDERS -v- MULTIPLEX ENGINEERING & INFRASTRUCTURE PTY LTD [2022] WADC 31
CORAM:   SWEENEY DCJ
HEARD:   12-15 OCTOBER 2020
DELIVERED          :   7 APRIL 2022
FILE NO/S:   CIV 963 of 2019
BETWEEN:   STEVEN KARL SANDERS
Plaintiff
AND
MULTIPLEX ENGINEERING & INFRASTRUCTURE PTY LTD
First Defendant
MULTIPLEX AUSTRALASIA PTY LTD
Second Defendant

Catchwords:

Negligence - Occupiers' liability - Duty of care of principal contractor - Safe system of work

Legislation:

Civil Liability Act 2002 (WA)
Occupational Safety and Health Act 1984 (WA), s 19, s 21, s 21B, s 22, s 23D
Occupiers' Liability Act 1985 (WA), s 5

Result:

Plaintiff's case against both defendants dismissed

Representation:

Counsel:

Plaintiff	:	Mr B G Bradley
First Defendant	:	Mr G P Bourhill SC
Second Defendant	:	Mr G P Bourhill SC

Solicitors:

Plaintiff	:	Bradley Bayly Legal (Perth)
First Defendant	:	Clyde & Co (Perth Office)
Second Defendant	:	Clyde & Co (Perth Office)

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

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998)
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Rep 81-192
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Multiplex Constructions (NSW) Pty Ltd v Lopez [2004] NSWCA 319
Nikolich v Webb [2020] WASCA 169
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Table of Contents

Introduction

The accident

Evidence of Matthew Ryan, steel rigger, formerly of OSE

The key issue: was the plaintiff instructed to remove the purlins?

Evidence of the plaintiff about the content of the conversation

Evidence of Mr Stanbrook and Mr Bracewell denying the conversation

Evidence about other potential witnesses to the alleged conversation

The plaintiff's evidence about what time the conversation occurred

Evidence of Michael Stanbrook, senior site supervisor of the second defendant about the events of that morning

Evidence of John Bracewell, formerly of NeoWest, about the events of that morning

The Incident Notification Form

Other documentary evidence bearing on the alleged conversation

Findings about the alleged instruction to remove the purlins

Second key issue: safe system of work - pleadings and legal principles

Identification of the 'risk of harm'

Foreseeability

The contractual documents

The safe system of work said 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.

Continue reading Sanders v Multiplex Engineering and Infrastructure Pty Ltd

Details

AGLC: Sanders v Multiplex Engineering and Infrastructure Pty Ltd [2022] WADC 31
Case: [2022] WADC 31
Decision Date

CaseChat Overview and Summary

This case involved a claim for damages brought by Mr Sanders, a blocklayer who had suffered a serious injury to his left arm while working on the construction of the Perth Stadium. The injury occurred when he attempted to remove two overhead steel purlins, which obstructed his ability to lay a wall. The plaintiff alleged that he had been instructed to remove the purlins by his supervisor, Mr Bracewell of NeoWest, and a Multiplex supervisor, Mr Stanbrook, and that the defendants had failed to establish a safe system of work to deal with such an issue, resulting in the accident. The defendants denied any such instruction was given and argued that the plaintiff's decision to remove the purlins himself was negligent and caused his own injury. The court found against the plaintiff on the critical issue of whether the alleged instruction was given, based on the credibility of the plaintiff and the denials by Messrs Bracewell and Stanbrook. The court also found that the plaintiff was contributorily negligent in attempting to remove the purlins himself, without seeking assistance from a qualified rigger, and failing to inform his supervisor of the obstruction he had encountered. The plaintiff's claim against both defendants was dismissed.

Orders