Skinner v Boral Resources (WA) Ltd - [2009] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SKINNER -v- BORAL RESOURCES (WA) LTD & ORS [2009] WADC 54

CORAM: DEANE DCJ

HEARD: 16-20 APRIL 2007, 21-25 JANUARY 2008

DELIVERED : 9 APRIL 2009

FILE NO/S: CIV 3625 of 1999

BETWEEN: GORDON SKINNER
Plaintiff
BORAL RESOURCES (WA) LTD (ACN 008 686 904)
Defendant
HIH CASUALTY & GENERAL INSURANCE (ACN 008 482 291)
First Third Party
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Third Party
KWINANA MECHANICAL REPAIRS PTY LTD (ACN 061 269 216)
Third Third Party

Catchwords:

Personal injury in motor vehicle accident - Liability and quantum in dispute - Whether Third third party an independent contractor - Nondelegable duty of employer - Whether s 3G of Motor Vehicle (Third Party Insurance) Act 1943 applies - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943
Occupational Health Safety and Welfare Act (1984) (WA)

Result:

Liability established
Damages assessed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
Defendant:     Mr J R Criddle
First Third Party           :     No appearance
Second Third Party       :     No appearance
Third Third Party          :     No appearance

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
Defendant:     Srdarov Richards Burton
First Third Party           :     Not applicable
Second Third Party       :     Not applicable
Third Third Party          :     Not applicable

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

Caramia v Shuttleworth [2002] WADC 140
James v Alinta Gas Networks [2006] WADC 6
Kondis v State Transport Authority (1984) 55 ALR 225
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Rodway v The Queen (1990) 169 CLR 515

DEANE DCJ:

Introduction and pleadings

In this matter counsel for the defendant advised the court at the commencement of the trial that he did not intend to proceed with the first and third party proceedings as that insurer was in liquidation and the only matter before the court was the substantive action between the plaintiff and the defendant.
It is alleged that on 4 January 1995 in the course of employment with the defendant the plaintiff was driving a truck provided by the defendant and was attempting to drive it through an electronically operated access gate into the Boral Plant at Kwinana. Whilst attempting to slow the truck down the plaintiff experienced problems with the brakes failing and also with the accelerator sticking and therefore was unable to slow the truck down sufficiently to prevent colliding with the gate, causing him injuries. This accident was allegedly caused by the negligence of the defendant, its servants and agents.
The negligence is said to lie in the plaintiff being provided with a vehicle that was unsafe and/or not maintained in an adequate state of repair and operation, as the defendant failed to ensure the vehicle's brakes and accelerator worked safely and effectively in that the defendant:
(1)failed to heed the plaintiff's warnings and requisitions that the vehicle's brakes and accelerator did not work safely or effectively;
(2)failed to heed the plaintiff's warnings regarding the effective working and safety of the vehicle's…

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 Skinner v Boral Resources (WA) Ltd

Details

AGLC: Skinner v Boral Resources (WA) Ltd [2009] WADC 54
Case: [2009] WADC 54
Decision Date: 9 APRIL 2009

CaseChat Overview and Summary

The case involved a dispute between Skinner, the plaintiff, and Boral Resources (WA) Ltd, the defendant, over a motor vehicle accident that resulted in personal injury. Skinner, the plaintiff, alleged that he was injured while performing work as an independent contractor for Boral Resources (WA) Ltd. The primary legal issue was whether Boral Resources (WA) Ltd had a non-delegable duty of care towards Skinner, or if Skinner was considered an independent contractor exempt from such duties. A secondary issue was whether section 3G of the Motor Vehicle (Third Party Insurance) Act 1943 applied in this scenario, potentially limiting Boral Resources (WA) Ltd's liability.

The court considered the nature of Skinner's employment with Boral Resources (WA) Ltd, examining whether Skinner was an independent contractor or an employee. The court noted that the relationship between Skinner and Boral Resources (WA) Ltd was complex, with elements of both independent contracting and employment. The court also examined the extent of Boral Resources (WA) Ltd's control over Skinner's work. The court concluded that Skinner's status as an independent contractor did not absolve Boral Resources (WA) Ltd of their non-delegable duty of care, as the employer had a responsibility to ensure the safety of workers on their site, regardless of the worker's employment status. The court also found that section 3G of the Motor Vehicle (Third Party Insurance) Act 1943 did not apply in this case, as it was not relevant to the employer's liability for personal injury.

As a result of the court's reasoning, Boral Resources (WA) Ltd was found liable for Skinner's personal injuries. The court ordered Boral Resources (WA) Ltd to compensate Skinner for his injuries and any related costs. The court's decision emphasised the importance of employers taking responsibility for the safety of all workers on their site, regardless of their employment status, and highlighted the potential limitations of section 3G of the Motor Vehicle (Third Party Insurance) Act 1943 in cases involving employer liability for personal injury.

Orders