GLEESON CJ, GAUDRON, GUMMOW, HAYNE AND CALLINAN JJ
ZDENKO JOSIP SLIVAK & ANOR APPELLANTS
AND
LURGI (AUSTRALIA) PTY LTD & ANOR RESPONDENTS
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 15 February 2001 A18/2000
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of South Australia
Representation:
C J Kourakis QC with A L Tokley for the appellants (instructed by Moran & Partners)
R C White QC with A V Possingham for the first respondent (instructed by Kelly & Co)
No appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Slivak v Lurgi (Australia) Pty Ltd
Workers' Compensation (SA) – Injury – Statutory duty – Workman injured by collapse of structure negligently erected by employer – Structure could not have collapsed if erected according to design – Whether designer in breach of s 24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA) in failing to incorporate in the design elements to remove risks arising from negligent erection of structure.
Words and phrases – "so far as is reasonably practicable".
GLEESON CJ, GUMMOW AND HAYNE JJ. This is an appeal from a decision of the Full Court of the Supreme Court of South Australia (Doyle CJ, Bleby and Martin JJ), dismissing an appeal from a decision of Prior J. At both levels, the first appellant ("Mr Slivak") and second appellant ("Mrs Slivak") were unsuccessful. Mr Slivak pleaded negligence and breach of statutory duty against the respondents in respect of injuries received in an industrial accident in 1993. Mrs Slivak claimed damages under s 33 of the Wrongs Act 1936 (SA) for loss of consortium[1]. If successful, the appellants seek to have the appeal to the Full Court allowed, to have judgment entered for them and to have the matter referred to the trial judge for the assessment of damages.
[1]Section 33 gives to the wife an action for loss of consortium. At common law, the action lay only at the suit of the husband: Wright v Cedzich (1930) 43 CLR 493. The action is independent of any cause of action by the injured spouse against the defendant: Curran v Young (1965) 112 CLR 99.
The facts
On 20 February 1993, Mr Slivak was injured when he fell from a fume extraction system upon the construction of which he was working. The system was designed by the first respondent, Lurgi (Australia) Pty Ltd ("Lurgi"), and was being installed for the Broken Hill Proprietary Company Limited ("BHP"), pursuant to a contract between Lurgi and BHP. Under that contract, Lurgi accepted responsibility for the entire project, including a general responsibility to BHP for the safety of the works and for safe working conditions. It also provided that Lurgi could, with BHP's approval, subcontract any…
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 Slivak v Lurgi (Australia) Pty Ltd
Sign in free to access the full text
Details
AGLC
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6
Case
[2001] HCA 6
Decision Date
CaseChat Overview and Summary
The appeal concerned Mr and Mrs Slivak, who sought damages from Lurgi (Australia) Pty Ltd ("Lurgi") following injuries sustained by Mr Slivak in an industrial accident. Mr Slivak was injured when a fume extraction system he was working on collapsed. The system was designed by Lurgi, and Mr Slivak was employed by Lucon (Australia) Pty Ltd, a subcontractor engaged by Lurgi. Mrs Slivak claimed damages for loss of consortium. The High Court of Australia heard the appeal from the Full Court of the Supreme Court of South Australia, which had dismissed the Slivaks' appeal from the decision of Prior J.
The central legal issue before the High Court was whether Lurgi, as the designer of the fume extraction system, had breached its statutory duty under s 24(2a)(a) of the *Occupational Health, Safety and Welfare Act 1986* (SA). This provision requires a designer to ensure, so far as is reasonably practicable, that a structure is designed in a way that persons are safe from injury and risks to health. The appellants argued that Lurgi's design was defective because it did not incorporate elements to mitigate risks arising from the negligent erection of the structure by the contractor.
The High Court reasoned that the ordinary meaning of s 24(2a)(a) applied to a structure being built in accordance with the design. The court found that the evidence unequivocally demonstrated that the structure would not have collapsed if it had been erected according to Lurgi's design and within the specified tolerances. Therefore, the design itself was not inherently unsafe. The court held that the statutory duty imposed on a designer under s 24(2a)(a) relates to matters within the designer's power to control, such as the intended use and loads of the structure, and the nature of its location, rather than the procedures adopted during construction, which are outside the designer's direct management. The court agreed with the lower courts that Lurgi had not breached its duty under s 24(2a)(a).
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
GLEESON This is an appeal from a decision of the Full Court of the Supreme Court of South Australia (Doyle CJ, Bleby and Martin JJ), dismissing an appeal from a decision of Prior J. At both levels, the first appellant ("Mr Slivak") and second appellant ("Mrs Slivak") were unsuccessful. Mr Slivak pleaded negligence and breach of statutory duty against the respondents in respect of injuries received in an industrial accident in 1993. Mrs Slivak claimed damages under s 33 of the Wrongs Act 1936 (SA) for loss of consortium[1]. If successful, the appellants seek to have the appeal to the Full Court allowed, to have judgment entered for them and to have the matter referred to the trial judge for the assessment of damages.[1]Section 33 gives to the wife an action for loss of consortium. At common law, the action lay only at the suit of the husband: Wright v Cedzich (1930) 43 CLR 493. The action is independent of any cause of action by the injured spouse against the defendant: Curran v Young (1965) 112 CLR 99.The facts On 20 February 1993, Mr Slivak was injured when he fell from a fume extraction system upon the construction of which he was working. The system was designed by the first respondent, Lurgi (Australia) Pty Ltd ("Lurgi"), and was being installed for the Broken Hill Proprietary Company Limited ("BHP"), pursuant to a contract between Lurgi and BHP. Under that contract, Lurgi accepted responsibility for the entire project, including a general responsibility to BHP for the safety of the works and for safe working conditions. It also provided that Lurgi could, with BHP's approval, subcontract any part of the contract works. The contract works involved the construction of a fume extraction and dust disposal facility and the relevant part was the design and erection of a substantial tower through which air would be drawn and, in the process, filtered. At the time of the accident, Mr Slivak was employed by Lucon (Australia) Pty Ltd ("Lucon"). There was no evidence given at trial as to the exact relationship between Lucon and Lurgi, and the case was fought at trial on the footing that Lurgi had entered into a contract with Lucon for the performance by Lucon of part of the contract work. Nor does there appear to have been evidence led as to the scope or terms of the contract between Lurgi and Lucon. Doyle CJ commented that he was under the firm impression that "the trial proceeded on the basis that Lucon was a specialist subcontractor in respect of this work, and that it accepted responsibility for it as between Lucon and Lurgi"[2]. It is accepted that no action could have been maintained by the Slivaks against Lucon and that this was by reason of the provisions of s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA). Section 54 provides that no liability attaches to an employer in respect of a compensable disability arising from employment unless there apply certain conditions which are not satisfied here. The employer has made worker's compensation payments to Mr Slivak. The litigation has been fought upon another issue, whether Mr Slivak's injuries were caused by defective design by Lurgi of the fume extraction system.[2](1999) 203 LSJS 318 at 320.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GUMMOW AND HAYNE JJ
GAUDRON J
CALLINAN J
The ordinary and natural meaning of the terms in par (a) of s 24(2a) is that they apply to a structure being built in accordance with the design. Thus, if, as designed, parts of a structure are incapable of bearing weight that the structure is intended to bear, or if, as designed, it is possible for parts of the structure to fall or break, or if the design is incapable of being built safely having regard to features of the location in which it is being built, then the design will be inadequate and the designer will have breached s 24(2a). The appellants stressed the presence of the term "must ensure". However, the requirement is one of ensuring safety "so far as is reasonably practicable". The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction.Conclusions This case then resolves to a determination of whether Lurgi's design was one such that those persons who were required to erect it in accordance with the design were safe from injury and risks to health. The evidence unquestionably shows that it was. Concurrent findings of fact establish that the cell plate would not have fallen if the structure had been constructed according to design and within tolerances; the cell plate could not have become unsupported on two adjacent edges. Mr Fowlie accepted this in cross-examination and nothing in the record disturbs this conclusion. Save for breaches in departing from the design, for which different parties were answerable under s 24(2a)(b), (c) or (d), the structure was safe and the accident would not have occurred. Such a conclusion makes it unnecessary to consider the appellants' submissions as to onus of proof. We would, however, express our agreement with Callinan J's analysis of the authorities relied upon by the appellants and with his Honour's reasons for concluding that clear words would be needed to shift a burden of proof from a plaintiff to a defendant and that the words in s 24(2a)(a) would not be sufficient to do so. We would dismiss this appeal with costs. The appellants, Mr and Mrs Slivak, are husband and wife. Mr Slivak was seriously injured whilst working on the construction of an air filtration tower designed by the first respondent, Lurgi (Australia) Pty Ltd ("Lurgi"). He claims that he is entitled to damages against Lurgi by reason of its breach of the duty imposed on it by s 24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA) ("the Act"). Mrs Slivak claims that she is entitled to damages for loss of consortium[17].[17]See s 33(1) of the Wrongs Act 1936 (SA).
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW AND HAYNE JJ,
GAUDRON J,
CALLINAN J