Thompson v Restoration Inc - [2001] WADC 278

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THOMPSON -v- RESTORATION INC [2001] WADC 278

CORAM: FENBURY DCJ

HEARD: 3 & 4 DECEMBER 2001

DELIVERED : 14 DECEMBER 2001

FILE NO/S: CIV 2562 of 1998

BETWEEN: BRETT RICHARD THOMPSON
Plaintiff
AND
RESTORATION INC
Defendant

Catchwords:

Damages for personal injury - Plaintiff relies upon Occupiers Liability Act - Injury not due to state of premises - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: In Person
Defendant: Mr M W Schwikkard

Solicitors:

Plaintiff: Not applicable
Defendant: Blake Dawson Waldron

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

Nil

Case(s) also cited:

Nil

FENBURY DCJ: In this action the plaintiff as invitee or licensee sues the defendant as an occupier of premises, for damages for personal injuries sustained whilst the plaintiff was on the defendant's premises.
The plaintiff was unrepresented at trial, however, he had solicitors at some stage who drafted the pleadings. In the statement of claim which was prepared by the plaintiff's original solicitors the cause of action is pleaded as follows:
"3.On or about 27 August 1992 ('the material date') the defendant was in the process of moving its operations from premises at Carole Road, Maddington in the State of Western Australia ('the premises') to premises located at 8 Lower Park Road, Maddington in the said State ('the new premises').
4.On the material date the plaintiff was working at the premises pursuant to a Work and Development Order administered by the Ministry of Justice.
5.On the material date the defendant was the occupier of the premises and thereby owed a duty to the plaintiff pursuant to Section 5 of the Occupiers Liability Act 1985 to take reasonable care for the plaintiff's safety whilst he was working at the premises.
6.Further, the defendant and its servants and/or its agents owed a duty to the plaintiff not to expose the plaintiff to a risk of injury or damage whilst he was engaged in performing his duties pursuant to the Work and Development Order at the premises and/or to take all reasonable measures to ensure the premises where the plaintiff was working were safe.
7.At about 11.00 am on the material date the plaintiff with another person was dismantling heavy steel shelves which were about 8 metres in length and on which the defendant stored household white goods when they were not being repaired and restored.
8.The plaintiff was working at one end of the shelf and the other person was working at the other end.
9.The plaintiff was standing up a ladder holding the weight of one end of the shelf with his right hand at a level above his head and was using a rubber hammer with his left hand trying to dislodge the shelf from its wall fittings when the other person let go his end of the shelf causing the plaintiff to bear the full weight of the shelf before it fell to the floor ('the incident')."
It is to be observed that the plaintiff relies upon the Occupiers Liability Act 1985. Section 5 of that Act provides for the duty of care of an occupier in the following terms:
"1.Subject to sub-sections 2 and 3 the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, … the such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger." (emphasis added)
In his evidence the plaintiff stated that in August 1992 he had fathered a child for the first time and decided to deal with a number of legal issues in his life thereby freeing himself for the duties of fatherhood. He apparently owed a considerable sum in unpaid fines of various kinds and he had also been ordered to perform hours of community service.
In the result the plaintiff communicated with the Ministry of Justice and was directed to perform hours of unpaid community work to fulfil a "work and development order" and also to perform community services hours. Thus it was that at the behest of the Ministry of Justice, the plaintiff attended at the premises of the defendant to perform physical work. The defendant was apparently a charitable organisation that was in the process of moving premises. Assistance was required in order to do so. I was told that four people, one of whom was the plaintiff's wife, had also been directed by the Ministry of Justice to perform unpaid work at the premises.
On the day in question the plaintiff said that he was standing on a ladder emptying heavy items off a shelf that was a considerable height above the ground. The plaintiff said his feet were some 5 to 6 ft above the ground at the time. The sorts of items stored on those shelves were reconditioned pieces of electrical equipment including clothes tumble driers, vacuum cleaners and the like. It was very unclear whether there were items actually on the shelf at the time or not.
Contrary to the way the plaintiff's case was pleaded at par 9, in evidence the plaintiff said that he was holding the shelf when another person with a rubber mallet walked by and struck the shelf thereby causing it to come off its attachment and fall resulting in injury to the plaintiff's neck and shoulder. I shall put the considerable difference between the plaintiff's evidence of the incident and the way the incident is pleaded to one side for the moment.
It is obvious that the plaintiff's description of the mechanism or dynamics of the incident demonstrates that the state of the premises had no role to play. The incident was not caused by any danger "due to the state of the premises" or as a result of anything "done or omitted to be done on the premises" in the sense of acts or omissions of the occupier. The incident was caused or contributed to by another person on the premises who, it appears, was not employed by or in any way connected with the occupier. That person committed what could be described as a casual act of negligence or malice as he walked by.
In par 11 of the statement of claim the plaintiff's allegations of negligence are particularised as follows:
"PARTICULARS OF NEGLIGENCE OF THE DEFENDANT ITS SERVANTS OR AGENTS
(a)exposing the plaintiff to a risk of injury or damage of which the defendant knew or should have known;
(b)failing to implement a system whereby the shelf could be safely dismantled;
(c)failing to instruct the plaintiff on safe methods of dismantling the shelves.
(d)failing to provide any equipment to support the weight to the shelf as it was being dismantled; (sic)
(e)failing to warn the plaintiff of the dangers in attempting to dismantle the shelf without the provision of adequate support for its weight;
(f)failing to provide the plaintiff with trestles or scaffolding or some other platform on which to stand when attempting to dismantle the shelf thereby enabling the plaintiff to move away safely if the shelf began to fall;
(g)failing to provide any or adequate assistance for the plaintiff;
(i)failing to supervise the plaintiff adequately or at all in the performance of his duties;
(i)failing to provide the plaintiff with a safe system in which to perform his duties."
The following assertion is then made in par 12:
"12.Further, or in the alternative, the plaintiff's injuries were caused by the beach (sic) of statutory duty owed to the plaintiff by the defendant as occupier of the premises as pleaded in paragraph 5 herein.
PARTICULARS OF BREACH OF STATUTORY DUTY BY THE DEFENDANT AS OCCUPIER OF THE PREMISES
The plaintiff repeats sub-paragraphs 11(a) to (i) herein as particulars of the breach of statutory duty by the defendant, its servants or agents."
The particulars of breach of duty set out in par 11 are those which one might normally find in a claim by an employee against his or her employer. On the face of it I cannot see how the defendant bore the responsibilities alleged. As I have said the defendant is a charitable organisation that was the occupier/proprietor of the premises at which the plaintiff was engaged in performing hours of community service work for the Ministry of Justice. Those hours were being performed at the behest of the Ministry of Justice following court orders and the effect of fines enforcement legislation. The work was unpaid. Clearly the plaintiff was not an employee of the defendant.
In my view the incident pleaded in the statement of claim, or even the incident described by the plaintiff in evidence (which is not the same) is not one that relates in any way to the state of the defendant's premises. The person who was responsible for the act which resulted in the shelf collapsing was unidentified and was not called as a witness but in any event it is common ground that he was not an employee of the defendant but a person like the plaintiff who was there at the behest of the Ministry of Justice following court orders.
Upon analysis it may be that the plaintiff could maintain a case that his relationship with the Ministry of Justice gave rise to duties akin to those that exist in the master/servant relationship and perhaps it might he arguable that the Ministry of Justice is vicariously liable for the casual acts of negligence of another person it had required to perform hours of community work at the premises.
But that is not the plaintiff's case. The Ministry of Justice is not a party to the action.
In my view the plaintiff's action is misconceived and cannot succeed. In short the claim has been brought against the wrong party. It should have been brought against the Ministry of Justice.
As I have stated the plaintiff was unrepresented in this action. At the conclusion of the plaintiff's case, in effect, although perhaps not clearly in terms, a submission of no case to answer was invited from the defendant. The defendant was not called upon to make an election. The submission is upheld.
In the result there should be judgment for the defendant with costs.