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
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…
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- Case
- [2021] WADC 101
- Decision Date
CaseChat Overview and Summary
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
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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