Stain v Wirralie Gold Mines Pty Ltd

[2001] WADC 160

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   STAIN -v- WIRRALIE GOLD MINES PTY LTD [2001] WADC 160

CORAM:   REGISTRAR KINGSLEY

HEARD:   23 MAY 2001

DELIVERED          :   3 JULY 2001

FILE NO/S:   CIV 1598 of 2000

BETWEEN:   TREVOR STAIN

Plaintiff

AND

WIRRALIE GOLD MINES PTY LTD
Defendant

Catchwords:

Practice - Application to amend statement of claim - Adding cause of action based on statute

Legislation:

Mines Safety and Inspection Act 1994

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     Mr G Droppert

Defendant:     Mr C Pruitti

Solicitors:

Plaintiff:     Separovic & Associates

Defendant:     Pullinger Readhead Stewart

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

Crisa v John Shearer Ltd [1981] 27 SASR 422

Kirkpatrick v Lewis Construction Pty Ltd [1964] VC 515

O'Connor v S P Bray Ltd (1937) 56 CLR 464

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY: The plaintiff in his minute of proposed substituted statement of claim seeks to plead at par 4A that the defendant owed a duty of care to the plaintiff pursuant to s 9(1) of the Mines Safety and Inspection Act 1994.  The defendant objects to the proposed amendment and the principal argument is whether an event proscribed by statute creates a private right of action.

2. The starting point to consider the question are the comments of Dixon J in O'Connor v S P Bray Ltd (1937) 56 CLR 464 where he says at 478:

   "In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law."

3. Dixon J, on the same page, comments:

   "… I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person of whom the duty laid is, under the general law of negligence, found to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or the scope of the legislation of which it forms a part a contrary intention appears.  The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on."

4. The Mines Safety and Inspection Act 1994 is an Act:

   "to consolidate and amend the law relating to the safety of mines and mining operations and the inspection and regulation of mines, mining operations and plant and substances supplied to or used at mines; to promote and improve the safety and health of persons at mines and for connected purposes."

5. Section 9 falls under Part 2 of the Act.  Part 2 is generally headed:

   "General duties relating to occupational safety and health."

6. Defendant's counsel submits, both in oral and written submissions, that to recognise a private right to arise from a statutory provision what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on must be defined specifically.  In developing an argument based on O'Connor's case, defendant's counsel submits that even if the statutory duty reflects the general common law, unless the statutory duty has a defined and specific scope of operation then the law will be slow to recognise the statutory duty as creating a private right.

7. Defendant's counsel goes on to argue that s 9 of the Act is broad and unspecific in its scope and for that reason does not create a correlative private right of action.  I am referred to the terminology within the section, such as working environment, and hazards and practicable; and the broad scope, by reference to extending the statutory duty to contractors, and the requirement for employers to consult and co-operate with safety and health representatives.

8. Plaintiff's counsel argues that general provisions have been found to provide a proper basis for a claim of statutory duties.  I am referred to Crisa v John Shearer Ltd [1981] 27 SASR 422 where a section of the Industrial Safety Health and Welfare Act 1972 (SA) requiring every employer to take reasonable precautions for the health and safety of workers founded a civil  action.  In Kirkpatrick v Lewis Construction Pty Ltd [1964] VC 515 Sholl J at 518 commented:

   "There is no reason in principle why a private right of action showed not to be conferred by statute which does to more than impose in general terms an obligation to keep machinery safe and efficient."

9. It is also the case that the fact there is a penal provision does not resolve the question of whether or not a private right of action accrued – see O'Connor's case and Kirkpatrick.

10. As a general rule a plaintiff is entitled to have their case heard on the facts found and to argue the question of law before the trial judge.  It is only in cases where it can be seen, at the outset, that however the facts are found there is no basis for the legal conclusion sought by the plaintiff that the plaintiff ought be deprived of the right to be heard on the present issue.

11. The authorities clearly indicate there is no settled line of authority – as it must be when one has to examine the particular statute carefully.  In this case the preamble to the Act reflects that the safety of persons at mines are within the legislative intention, and that intention is given voice in s 9.  I am of the opinion that the amendments sought by the plaintiff ought be allowed to be dealt with by the trial Judge.

12. I will hear counsel on the form of the orders and costs.