Thornton v Newcrest Mining Ltd - [2010] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: THORNTON -v- NEWCREST MINING LTD [2010] WADC 61

CORAM: MAZZA DCJ

HEARD: 2 DECEMBER 2009 & 3 MARCH 2010

DELIVERED : 30 APRIL 2010

FILE NO/S: CIV 1475 of 2008

BETWEEN: MICHAEL EMERY THORNTON
Appellant
AND
NEWCREST MINING LTD
Respondent

Catchwords:

Appeal - Registrar's decision to grant respondent summary judgment - Action for damages for personal injury - Effect of s 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 (WA) on action - Appellant precluded from recovering damages by s 7(1)(b)

Legislation:

Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 (WA), s 7
Rules of the Supreme Court 1971 (WA), O 16

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr B Nugawela on 2 December 2009
Mr L Gandini on 3 March 2010

Respondent: Mr M Williams

Solicitors:

Appellant: Chapmans
Respondent: DLA Phillips Fox

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

Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
Bayley v Wesfarmers Transport Ltd [2000] WASCA 399
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

MAZZA DCJ: This is an appeal by way of hearing de novo from a decision of Deputy Registrar Hewitt made on 22 August 2009 granting the first defendant summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA). In these reasons I will refer to the plaintiff as the appellant and the first defendant as the respondent.

Background

By writ of summons dated 23 June 2008 the appellant, sought damages for left leg injuries he received in a workplace accident which occurred on 16 February 2004 at the Telfer Mine Site. The respondent was the owner and operator of that mine site. At the time, the appellant was employed, not by the respondent, but by Simon Engineering Pty Ltd ("Simon Engineering").
In very general terms, it is alleged that the respondent was negligent in two ways. First, the appellant's injuries were caused by the failure of the respondent to provide a reasonably safe work site. Second, it is alleged that after he was injured, the respondent's site nurse failed to treat the appellant's injuries properly. The appellant also alleges that the respondent breached certain statutory duties. This plea, save for the allegations against the site nurse, is in terms almost identical to the plea for negligence. It received no attention in the appeal.
There are further allegations that the appellant's injuries were misdiagnosed by the second defendant, a doctor, who was employed by the third and fourth defendants. The writ has not been served on the second, third and fourth defendants and this appeal does not concern these allegations.
The writ of summons is endorsed with a statement of claim. Materially, the claim for negligence against the respondent is pleaded as follows:
"7.On or about 16 February 2004 ('the material date'), the Plaintiff, in the course of his employment, was walking a crane to a new location when a supervisor from…

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.

Continue reading Thornton v Newcrest Mining Ltd

Details

AGLC: Thornton v Newcrest Mining Ltd [2010] WADC 61
Case: [2010] WADC 61
Decision Date: 30 APRIL 2010

CaseChat Overview and Summary

Thornton v Newcrest Mining Ltd was an appeal against the Registrar's decision to grant the respondent summary judgment in an action for damages for personal injury. The appellant had sought damages for injuries sustained in a workplace incident, claiming that the respondent's negligence caused the injuries. The respondent argued that the appellant's contributory negligence precluded him from recovering damages under section 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 (WA). The court was required to determine whether the appellant was precluded from recovering damages due to his contributory negligence under the statutory provision.

The court considered whether the statutory provision applied to the facts of the case and if the appellant's contributory negligence amounted to a total bar on his recovery of damages. The court examined the language of the statute and relevant case law to determine the effect of the provision on the appellant's claim. The court found that the statutory provision applied to the case and that the appellant's contributory negligence was a significant factor in his injuries, amounting to a total bar on his recovery of damages. The court held that the appellant was precluded from recovering damages due to his contributory negligence under section 7(1)(b) of the Act.

The court dismissed the appeal and upheld the Registrar's decision to grant the respondent summary judgment. The court found that the appellant's contributory negligence was a significant factor in his injuries and that the statutory provision applied to the case, precluding him from recovering damages. The court held that the appellant was not entitled to recover any damages from the respondent. The court's decision was final and binding, and the appellant had no further recourse in the matter.

Orders