SMITH -v- BHP BILLITON IRON ORE PTY LTD [2013] WASCA 111

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 111
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:16/2012	Heard:	4 APRIL 2013
Coram:	PULLIN JA NEWNES JA MURPHY JA	Delivered:	30/04/13
No of pages:	19	Judgment Part:	1 of 1
Result:	Grounds 1, 3, 5, 6, 7 and 8 dismissed Ground 2 upheld Ground 4 upheld in part Appeal dismissed
Category:	B
PDF Version

Parties:	WAYNE KINGSLEY SMITH BHP BILLITON IRON ORE PTY LTD
Catchwords:	Negligence Personal injuries Accident on mine site Whether respondent knew or ought to have known of the appellant's activity which led to the accident
Legislation:	Civil Liability Act 2002 (WA) Mines Safety and Inspection Act 1994 (WA), s 13, s 15A
Case References:	Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 Leeder v Western Australia [2008] WASCA 192 Smith v BHP Billiton Ltd [2012] WADC 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- BHP BILLITON IRON ORE PTY LTD [2013] WASCA 111 CORAM : PULLIN JA

NEWNES JA

MURPHY JA

HEARD : 4 APRIL 2013 DELIVERED : 30 APRIL 2013 FILE NO/S : CACV 16 of 2012 BETWEEN : WAYNE KINGSLEY SMITH

Appellant

AND

BHP BILLITON IRON ORE PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : BIRMINGHAM QC DCJ

Citation : SMITH -v- BHP BILLITON LTD [2012] WADC 21

File No : CIV 1872 of 2008

(Page 2)

Catchwords:

Negligence - Personal injuries - Accident on mine site - Whether respondent knew or ought to have known of the appellant's activity which led to the accident

Legislation:

Civil Liability Act 2002 (WA)

Mines Safety and Inspection Act 1994 (WA), s 13, s 15A

Result:

Grounds 1, 3, 5, 6, 7 and 8 dismissed

Ground 2 upheld
Ground 4 upheld in part
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms C F Holyoak-Roberts & Mr D L Jones

Respondent : Mr D R Clyne

Solicitors:

Appellant : Vertannes Georgiou

Respondent : WHL Legal Pty Ltd

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

Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1
Leeder v Western Australia [2008] WASCA 192
Smith v BHP Billiton Ltd [2012] WADC 21

(Page 3)

1 PULLIN JA: This is an appeal by the appellant against the judgment of Birmingham DCJ, who dismissed the appellant's claim for damages for personal injuries which he suffered at the Mount Whaleback mine site on 6 December 2005. The mine site was owned by the respondent. The respondent engaged MacMahon Contractors Pty Ltd (MacMahon) to carry out the mining activities at the mine site. The appellant was employed as a truck driver by MacMahon.

2 The appellant's injuries were suffered when, according to his testimony, he fell from a stack of two Haulpak tyres on which he was standing. The stack…

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.

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Details

Case: [2013] WASCA 111
Decision Date: 30 APRIL 2013

CaseChat Overview and Summary

In the case of Smith v BHP Billiton Iron Ore Pty Ltd, the respondent, Smith, sought damages for personal injuries sustained in an accident at the respondent's mine site. Smith alleged that BHP Billiton Iron Ore Pty Ltd was negligent in failing to ensure a safe working environment, specifically by not being aware of his activities that led to the accident. The case was heard in the Supreme Court of Western Australia. The primary issues for the court were whether BHP Billiton Iron Ore Pty Ltd had the requisite knowledge of Smith's actions that caused the accident and whether this knowledge or lack thereof contributed to the breach of their duty of care.

The court considered whether BHP Billiton Iron Ore Pty Ltd should have known about Smith's actions that led to the accident and whether their failure to know amounted to a breach of their duty of care. The court held that while BHP Billiton Iron Ore Pty Ltd did not know of Smith's specific actions, they ought to have known given the nature of the work environment and the risks involved. The court found that the respondent's oversight in monitoring the site contributed to the breach of their duty. Additionally, the court found that the respondent was partially at fault for not taking adequate steps to prevent such accidents.

The appeal was dismissed with the court upholding the lower court's decision in part. The grounds for appeal numbered 1, 3, 5, 6, 7 and 8 were dismissed, while grounds 2 and 4 were upheld in part. The court found that Smith was entitled to compensation for his injuries, but the quantum of damages would be reassessed in light of the findings regarding contributory negligence. The decision underscores the importance of workplace safety and the responsibility of employers to ensure a safe environment, even in the absence of specific knowledge of an employee's actions.

Orders

Orders of the court

Grounds 1, 3, 5, 6, 7 and 8 dismissed

Ground 2 upheld

Ground 4 upheld in part

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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