Sparks v Van Den Ham

Case [2003] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   SPARKS -v- VAN DEN HAM & ANOR [2003] WASCA 143

CORAM:   WALLWORK J

MURRAY J
PARKER J

HEARD:   21 OCTOBER 2002

DELIVERED          :   27 JUNE 2003

FILE NO/S:   FUL 31 of 2002

BETWEEN:   RODNEY JOHN SPARKS

Appellant

AND

ALEX VAN DEN HAM
First Respondent

VANCOR ENTERPRISES PTY LTD
Second Respondent

FILE NO/S              :FUL 32 of 2002

BETWEEN             :ALEX VAN DEN HAM

First Appellant

VANCOR ENTERPRISES PTY LTD
Second Appellant

AND

RODNEY JAMES SPARKS
First Respondent

QUALITY BAKERS AUSTRALIA LTD
Second Respondent

Catchwords:

Tort - Joint tortfeasors - Contribution between defendants - Joint trial of action and cross claims for contribution - Judgment entered after trial discussing plaintiffs' action against D3 and claims for contribution by D1 and D2 - Whether appeal by D1 and D2 against dismissal of action against D3 competent - Whether judgment for plaintiff satisfied by D1 and D2 - Whether satisfaction of judgment precludes judgment also being entered against D3 on appeal

Tort - Occupier's liability - Personal injury to contractor - Immediate cause was negligence of another contractor who removed safety tag and operated machine - Whether safety tag system discharged occupier's duty of care - Keylock safety system installed after accident

Tort - Personal injuries - Assessment of damages - Turns on own facts

Legislation:

Nil

Result:

Appeal FUL 31 of 2002 allowed
Award of damages increased to sum of $600,727
Appeal FUL 32 of 2002 allowed
Judgment entered for first respondent against second respondent
The second respondent do contribute 25 per cent in satisfaction of the judgment for the first respondent

Category:    A

Representation:

FUL 31 of 2002

Counsel:

Appellant:     Mr R G Walton

First Respondent           :     Mr P P McCann & Mr S M Denman

Second Respondent      :     Mr P P McCann & Mr S M Denman

Solicitors:

Appellant:     Friedman Lurie Singh

First Respondent           :     Pynt McKay

Second Respondent      :     Pynt McKay

FUL 32 of 2002

Counsel:

First Appellant               :     Mr P P McCann & Mr S M Denman

Second Appellant          :     Mr P P McCann & Mr S M Denman

First Respondent           :     Mr R G Walton

Second Respondent      :     Mr D R Clyne

Solicitors:

First Appellant               :     Pynt McKay

Second Appellant          :     Pynt McKay

First Respondent           :     Friedman Lurie Singh

Second Respondent      :     Cocks Macnish

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

Asphalt and Public Works Ltd v Indemnity Guarantee Trust Ltd [1969] 1 QB 465

Baxter v Obacelo Pty Ltd (2001) 184 ALR 616

Black v Motor Vehicle Insurance Trust (1986) WAR 32

Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR(NSW) 159

George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169

Hadley v Hazian Pty Ltd, unreported; FCt SCt of WA; Library No 950334; 13 July 1995

Hamilton v NuRoof (WA) Pty Ltd (1956) 96 CLR 18

Hanson v Wearmouth Cole Co Ltd & Sunderland Gas Co [1939] 3 All ER 47

Helicopter Sales (Australia) Pty Ltd…

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Sparks v Van Den Ham [2003] WASCA 143
Case
[2003] WASCA 143
Decision Date

CaseChat Overview and Summary

In the case of Sparks v Van Den Ham, the respondents sought to appeal against the dismissal of their claim for contribution from the third defendant, Quality. The respondents argued that they were directly interested in the outcome of the plaintiff's action against Quality, and therefore had standing to appeal. Quality contended that the respondents could not appeal against the dismissal of the plaintiff's action against it, as they were not parties to that action. The respondents also argued that the satisfaction of the judgment by Quality and Van Den Ham precluded the entry of judgment against Quality on appeal. Additionally, the respondents contended that the trial judge erred in finding that the safety tag system discharged the occupier's duty of care, and that the installation of a keylock safety system after the accident did not affect the occupier's liability. Finally, the respondents argued that the assessment of damages was an issue that turned on its own facts.

The court considered the issue of the respondents' standing to appeal, and found that they did not have direct interest in the outcome of the plaintiff's action against Quality. The court relied on previous decisions such as George Wimpey & Co Ltd v British Overseas Airways Corporation, Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd, and James Hardie & Co Pty Ltd v Seltsam Pty Ltd, which established that a party cannot appeal against the dismissal of a claim in which they are not directly interested. The court found that the respondents' claim for contribution from Quality was dependent on the outcome of the plaintiff's action against Quality, and that the dismissal of that action precluded the respondents' claim for contribution. The court also considered the issue of the occupier's liability, and found that the safety tag system was sufficient to discharge the occupier's duty of care. The court rejected the respondents' argument that the installation of a keylock safety system after the accident affected the occupier's liability.

The court further found that the satisfaction of the judgment by Quality and Van Den Ham precluded the entry of judgment against Quality on appeal. The court noted that the respondents had not appealed against the dismissal of the plaintiff's action against Quality, and that the satisfaction of the judgment by Quality and Van Den Ham was final. The court also considered the issue of the assessment of damages, and found that it was an issue that turned on its own facts. The court rejected the respondents' argument that the trial judge had erred in assessing the damages.

The appeal by the respondents was dismissed with costs.

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

MURRAY J

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Ratio Decidendi

Legal Principle Established

Established by: MURRAY J

In FUL 32 of 2002 Mr Van Den Ham and Vancor seek to agitate not only issues affecting Mr Sparks but also to have set aside the decision and orders of the trial Judge whereby Mr Sparks' action against Quality was dismissed and the claim of Mr Van Den Ham and Vancor for a contribution from Quality was dismissed. Quality contends that Mr Van Den Ham and Vancor cannot appeal against the dismissal of the claim of Mr Sparks against Quality, as that is not a claim in which they have a direct interest. That being so, it is Quality's submission that the dismissal of Mr Sparks' claim against Quality is fatal to any claim that Mr Van Den Ham and Vancor might seek to pursue for a contribution from Quality, as it has been finally determined, by the order dismissing Mr Sparks' action against Quality, that Quality was not liable in negligence or otherwise for Mr Sparks' injuries. In support of this Quality relies on decisions such as George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169, Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 and, in particular, James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53. It is further submitted that this Court should not order a retrial of the issue of Quality's liability to Mr Sparks when Mr Sparks has not appealed against the dismissal of his action against Quality and does not seek a retrial. In this respect, reliance is placed on views expressed by Asprey JA in Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR(NSW) 159 at 178. The relevant effect of the decisions in George Wimpey & Co Ltd and Oceanic Crest Shipping Co were considered by the High Court in James Hardie & Co Pty Ltd v Seltsam Pty Ltd so that it is convenient to turn to that decision. This turned on s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). It is not submitted that there is any material distinction between that provision and s7 of the Law Reform (Contributory Negligence and Tort Feasors' Contribution) Act 1947 (WA). The effect of the decision of the majority, Gaudron, Gummow and Callinan JJ, McHugh and Kirby JJ dissenting, is that the third defendant in those proceedings was not a joint tort feasor who was liable with the first defendant in respect of the damage suffered by the plaintiff because there had been an entry of judgment by consent in favour of the third defendant in the trial court. That judgment established that the third defendant was not liable to the plaintiff. The third defendant was therefore absolved from liability. In that case, the entry of judgment in the trial court in favour of the third defendant had been by consent and occurred with the knowledge of the first defendant who had claimed a contribution from the third defendant. While counsel for the defendant claiming the contribution was present in Court no objection was taken to the entry of judgment by consent dismissing the claim against the third defendant. In the joint judgment of Gaudron and Gummow JJ, at 62, their Honours noted:"The judgment of the Court of Appeal was delivered by Mason P. The reasoning which led the President to hold that the cross-claim by the appellant (D1) for contribution by the respondent (D3) had properly been struck out appears in the following passage:'The plaintiff and the respondent were the parties to the judgment which, albeit by consent, determined conclusively as between those parties that the respondent was not liable. This event alone put an end to the appellant's right of contribution simply because it had the effect of taking the respondent out of the class of persons against whom an order for contribution under the statute could be made.'His Honour added:'Unless and until the appellant can show that the respondent should have been found liable to the plaintiff then a vital step in its claim for contribution is missing. Since no attempt was made either below or here to challenge the judgment in the plaintiff's favour against the respondent, whether by appeal or otherwise, the fact that that judgment stands precludes the right of contribution.'In Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd, Brennan J said with reference to the facts of that case:'… So long as the judgment holding Pilbara not liable stands on the record, the shipping company is unable to assert that Pilbara is a tort feasor who 'is or would if sued have been liable' to Hamersley'.The outcome supported by the Court of Appeal in the present litigation had not been inevitable. Not all steps open to the appellant to protect and advance its position had been taken. The appellant had been 'directly interested in the question whether [the respondent was] a tort feasor who [was] liable to the plaintiff' upon the claim in respect of which judgment by consent was entered in favour of the respondent on 9 November 1995."Their Honours went on to outline steps which might have been taken by the appellant (first defendant) to protect and advance its position, none of which were in fact taken. Their Honours then continued at 63:"Against any decision by the Tribunal to enter consent judgment as sought by the respondent and the plaintiff but against the wishes of the appellant, the appellant would have had standing to appeal. By that means, the appellant would have kept in play the question whether it was entitled to recover contribution from the respondent. This would have been achieved without falling foul of the procedural difficulties which divided the New South Wales Full Court in Castellan v Electric Power Transmission Pty Ltd …"The decision of the Court of Appeal was upheld by the majority.