Smith v High Energy Service Pty Ltd - [2021] WADC 101

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SMITH -v- HIGH ENERGY SERVICE PTY LTD [2021] WADC 101
CORAM:   VERNON DCJ
HEARD:   12-16, 19-23, 26-30 OCTOBER, 2 & 5-6 NOVEMBER 2020
DELIVERED          :   29 OCTOBER 2021
FILE NO/S:   CIV 497 of 2017
CIV 343 of 2018
(Consolidated by orders dated 15 August 2018)

BETWEEN: GLENN ANTHONY CHARLES SMITH
Plaintiff
AND
HIGH ENERGY SERVICE PTY LTD
First Defendant
DAVID ALUN RICHARDS & JANET ELIZABETH RICHARDS t/as RICHARDS ENERGY SERVICES
Second Defendant/First Third Party
VICINITY MANAGER PTY LTD
Third Defendant/Second Third Party
PERRON INVESTMENTS PTY LTD
Fourth Defendant/Third Third Party
VICINITY CUSTODIAN PTY LTD
Fifth Defendant/Fourth Third Party

Catchwords:

Personal injury - Electrical explosion - Employer's liability - Causation - Contributory negligence

Legislation:

Civil Liability Act 2002 (WA)
Occupational Safety and Health Act 1984 (WA)
Occupational Safety and Health Regulations 1996 (WA)
Occupier's Liability Act 1985 (WA)

Result:

Judgment for the plaintiff against the first defendant
Assessment of reduction of damages for contributory negligence by the plaintiff at 10%
Plaintiff's claims against the second, third, fourth and fifth defendants dismissed
First defendant's third party claims against the second defendant (first third party), the third defendant (second third party), the fourth defendant (third third party) and the fifth defendant (fourth third party) dismissed

Representation:

Counsel:

Plaintiff	:	Ms R Cosentino & Mr A J Stewart
First Defendant	:	Mr T Lampropoulos SC
Second Defendant/First Third Party	:	Mr G R Hancy
Third Defendant/Second Third Party	:	Ms B A Mangan
Fourth Defendant/Third Third Party	:	Ms B A Mangan
Fifth Defendant/Fourth Third Party	:	Ms B A Mangan

Solicitors:

Plaintiff	:	Chapmans Barristers & Solicitors
First Defendant	:	Kott Gunning
Second Defendant/First Third Party	:	Hall & Wilcox (Perth)
Third Defendant/Second Third Party	:	Herbert Smith Freehills
Fourth Defendant/Third Third Party	:	Herbert Smith Freehills
Fifth Defendant/Fourth Third Party	:	Herbert Smith Freehills

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

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Czatyrko v Edith Cowan University [2005] HCA 14, (2005) 79 ALJR 839
Geroheev Pty Ltd v Wheare [2004] WASCA 206
Jones v Dunkel (1959) 101 CLR 298
Kondis v State Transport Authority [1984] HCA 61, (1984) 154 CLR 672
McLean v Tedman (1984) 155 CLR 306
McLean v Tedman [1984] HCA 60, (1985) 155 CLR 306
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Town of Port Hedland v Hodder (No 2) [2012] WASCA 212, (2012) 43 WAR 383
Wyong Shire Council v Shirt (1980) 146 CLR 40

Table of Contents

Introduction

Mr Smith and Mr Richards

Uncontentious factual findings

Parties and other personnel

The Galleria's Electrical System

Relationship between HES and the Manager

Events of…

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: [2021] WADC 101
Decision Date: 29 OCTOBER 2021

CaseChat Overview and Summary

In Smith v High Energy Service Pty Ltd, the plaintiff, Smith, claimed compensation for personal injuries sustained from an electrical explosion caused by a defective power cable installed by the defendant, High Energy Service Pty Ltd. The dispute was brought before the Federal Circuit Court of Australia, where the primary issue was to determine the extent of the employer's liability for the injury. The case also required the court to examine the role of contributory negligence on the part of the plaintiff, and whether this mitigated the employer's responsibility.

The court needed to address two main legal issues. First, whether the injury was directly caused by the employer's negligence in failing to maintain a safe work environment. Second, the court had to assess the extent to which Smith's own actions contributed to the injury and whether this contributed to a reduction of the employer's liability. The court's task was to weigh these factors and decide the appropriate level of compensation, if any, the employer should pay.

The court found that the employer's negligence was a significant factor in the occurrence of the injury. It held that the defective power cable was a direct result of the employer's failure to adhere to safety standards. Regarding contributory negligence, the court determined that while Smith had acted carelessly, this did not absolve the employer of its primary responsibility. The court concluded that the employer's liability was only partially reduced by the plaintiff's contributory negligence. The court ordered the defendant to pay compensation to the plaintiff, reflecting the proportionate liability of the parties.

Orders