JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SMITH -v- BHP BILLITON LTD [2012] WADC 21
CORAM: BIRMINGHAM QC DCJ
HEARD: 24-27 & 30 AUGUST 2010, 11 & 12 JANUARY, 24 JUNE & 12 AUGUST 2011
DELIVERED : 10 FEBRUARY 2012
FILE NO/S: CIV 1872 of 2008
BETWEEN: WAYNE KINGSLEY SMITH
Plaintiff
AND
BHP BILLITON LTD
Defendant
Catchwords:
Negligence - Breach of statutory duty - Duty owed by owner of mine site to employee of contractor - Absence of system or instruction to clean signs - Turns on own facts
Legislation:
Civil Liability Act 2002
Mines Safety and Rehabilitation Act 1994
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr B L Nugawela
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Vertannes Georgiou
Defendant: WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Laing O'Rourke (BMC)Pty Ltd v Kirwin [2011] WASCA 117
Leighton Contractors Pty Ltd v Fox [2009] HCA 35
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
BIRMINGHAM QC DCJ:
Introduction
The defendant is the owner of the Mount Whaleback iron ore mine. The provisions of the Mines Safety and Inspection Act 1994 (the Act) apply to the defendant's Mount Whaleback mine site.
From 2003 to 2007 the defendant engaged MacMahon Contractors Pty Ltd (MacMahon) to carry out the mining activities at the mine site. The terms of their agreement and their respective responsibilities were contained in the contract executed by the parties marked BHP-03-062 (the mine operation contract) and tendered by consent at trial (exhibit E).
At all material times the plaintiff was employed by MacMahon as a truck driver at the Mount Whaleback mine site.
Part of the works required to be performed by MacMahon included the construction and maintenance of the haul roads upon which the trucks were to travel to carry out the mining operations. At the junction of the main haul road and a side road going to a waste dump was the intersection of the known 'W19'. At this point two traffic islands approximately 6 m long, 3 m wide and 1.5 m high were created to form the intersection and separate the vehicles.
The islands were constructed using windrows of waste soil with two Haulpak tyres being positioned, one on top of the other, at the ends of each island. Waste soil was then loaded into the centre of the tyres to secure them in position. A jarrah stake was driven into the soil in each stack of tyres and a 2 inch pipe to which 'Keep Left' signs were secured was placed over the top of the stake and hammered into soil until firmly secured in place. Each stack of tyres at the end of…
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- AGLC
- Smith v BHP Billiton Ltd [2012] WADC 21
- Case
- [2012] WADC 21
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether BHP Billiton Ltd owed a duty of care to Smith, who was an employee of a contractor and not directly employed by the defendant. The court was required to determine if the defendant breached any statutory duty under the relevant occupational health and safety legislation by failing to provide a safe workplace. Additionally, the court needed to assess whether the absence of a system or instruction to clean signs constituted a breach of the defendant's duty of care towards Smith.
The court held that BHP Billiton Ltd did owe a duty of care to Smith. The decision turned on the specific facts of the case, with the court finding that the defendant had control over the site and was responsible for ensuring the safety of all persons on the site, including employees of contractors. The court found that the defendant breached this duty by failing to clean or remove the hazardous signs, which contributed to Smith's injuries. The absence of a system or instruction to clean signs further exacerbated the breach, as it indicated a failure to maintain a safe working environment. Consequently, the court ruled in favour of Smith, holding BHP Billiton Ltd liable for the injuries sustained by the plaintiff.
As a result of the court's decision, BHP Billiton Ltd was ordered to pay damages to Smith for the injuries sustained. The exact amount of damages was to be determined in a subsequent hearing. The court's ruling emphasised the importance of employers taking responsibility for the safety of all individuals on their premises, regardless of their employment status, and underscored the need for employers to implement effective systems to ensure a safe working environment.
Orders
Orders of the court
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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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