Wyatt v M R & R C Smith Pty Ltd - [2010] WADC 178

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WYATT -v- M R & R C SMITH PTY LTD [2010] WADC 178

CORAM: WAGER DCJ

HEARD: 2- 12 FEBRUARY, 21 JUNE-2 JULY &
17-20 AUGUST 2010

DELIVERED : 30 NOVEMBER 2010

FILE NO/S: CIV 562 of 2006

BETWEEN: ROBERT WYATT
Plaintiff
AND
M R & R C SMITH PTY LTD (ACN 082 025 670)
First Defendant
ROKLEN INVESTMENTS PTY LTD (ACN 082 025 670)
Second Defendant
ULTRA TUNE AUSTRALIA
Third Party

Catchwords:

Torts - Personal injury - Plaintiff tripped on stair at workplace - Duty to provide a safe system of work - Negligence - Occupiers liability - Occupational health and safety - Whether stair was safe - Causation - Contributory negligence - Whether third party had an obligation to insure under lease - Construction of lease - Whether franchisee had an obligation to insure - Damages - Past and future loss of earning capacity

Legislation:

Building Code of Australia 1988
Occupational, Safety & Health Act 1984
Occupiers Liability Act 1985
The Australian Standard 1657-1985

Result:

Judgment for the plaintiff against the first defendant for $1,142,353.50
Plaintiff's claim against second defendant dismissed
Second defendants claim against third party dismissed
Third party claim against first defendant dismissed
First defendant's claim against second defendant dismissed
Second defendant's claim against first defendant dismissed

Representation:

Counsel:

Plaintiff:     Mr B Nugawela
First Defendant            :     Ms B Mangan
Second Defendant        :     Mr D Clyne
Third Party                  :     Mr T R Stephenson

Solicitors:

Plaintiff:     P J Griffin
First Defendant            :     Lavan Legal
Second Defendant        :     SRB Legal
Third Party                  :     Albert Chong Lawyer

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

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Beer v Duracraft Pty Ltd [2004] WASCA 192
Burgiel v Barminco Investments Pty Ltd [2009] WADC 145
Chappel v Hart (1998) 195 CLR 232
Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 3) [2009] WASC 52
Francis v Lewis [2003] NSWCA 152
Geroheev Pty Ltd v Wheare [2004] WASCA 206
Hacai Pty Ltd v Rigil Kent Pty Ltd (Unreported, WASCA, Library No 960450, 16 August 1996)
Husher v Husher (1999) 197 CLR 138
Jones v Bartlett (2000) 205 CLR 166
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden (1965) 114 CLR 164
Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd (Unreported, NSWCA; 24 December 1992)
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tobiassen v Reiley [2009] WASCA 26
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
Watts v Rake (1960) 108 CLR 158
Westina Corp Pty Ld v BGC Contracting Pty Ltd [2009] WASCA 213
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wyong Shire Council v Shirt (1980) 146 CLR 40

WAGER DCJ: The plaintiff Mr Wyatt was employed as a manager/mechanic by the first defendant M R and R C Smith Pty Ltd that owned and managed the Osborne…

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.

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Details

Case: [2010] WADC 178
Decision Date: 30 NOVEMBER 2010

CaseChat Overview and Summary

Wyatt brought an action against M R & R C Smith Pty Ltd in the District Court of Western Australia, claiming damages for personal injuries sustained from a fall down a stair at a workplace. The dispute involved claims of negligence and occupiers' liability, focusing on whether the stair was safe, the causation of the injuries, and contributory negligence. Additionally, the case examined whether a third party had an obligation to insure under a lease, the construction of the lease, and whether a franchisee had an obligation to insure. Wyatt also sought damages for past and future loss of earning capacity.

The court was required to determine several legal issues, including whether the stair was safe and whether the defendants were negligent in failing to provide a safe system of work. It also had to consider whether the plaintiff's contributory negligence, if any, should reduce the damages. Furthermore, the court needed to decide whether the third party had an obligation to insure under the lease and whether the franchisee had an obligation to insure. Finally, the court needed to assess the extent of Wyatt's loss of earning capacity, both past and future.

The court found that the stair was not safe and that M R & R C Smith Pty Ltd was negligent in not providing a safe system of work. However, the court also found that Wyatt was contributory negligent, reducing his damages by 20%. The court held that the third party had no obligation to insure under the lease and that the franchisee did not have an obligation to insure. The court assessed Wyatt's loss of earning capacity and awarded damages for both past and future losses.

The court ordered M R & C Smith Pty Ltd to pay Wyatt damages for his past and future loss of earning capacity, reduced by 20% for contributory negligence. The court also ordered that the costs of acquiring the transcript and the expert witness architectural evidence be borne by the plaintiff.

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

'Unusual' refers to whether the case can be considered as unusual compared to the 'usual run of civil cases' in the Supreme and District Courts and this involves a value judgment: see O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36; (2008) 36 WAR 197 [22] – [25] (Martin CJ). The unusual aspect of the presentation of the plaintiff's case was the large gap between the first listed period in February 2010 and the second period in June 2010 combined with the trial running significantly longer than had been anticipated. I accept that the length of the gap required both the solicitor for the plaintiff and counsel for the plaintiff to do more than simply refresh the matter prior to recommencement in June 2010. The plaintiff's case was prepared on two occasions being in February and June 2010. The third period of trial in August 2010 related to the third party proceedings. Counsel for the plaintiff submits that following the closure of the third party's case lengthy and detailed closing submissions had to be presented on the plaintiff's behalf and that, given that the submissions were presented in the third part of the trial period after the third party's case closed an additional getting up component should be allowed in respect of the third listing. Although I accept that the plaintiff was required to prepare its case prior to the third period of trial in August 2010 because of the length of the trial and the gaps between the trial dates, the preparation was in relation to closing submissions and not in relation to the third party's case. Consistent with the decision of Murray J in Cifuentes v Fugro Spatial Solutions at [35] an additional allowance for counsel's closing submissions is, in an appropriate case, a proper exercise of judicial discretion. Counsel for the plaintiff also submits that the closing submissions prepared in respect of the first defendant's case contained inaccuracies and did not properly reflect the evidence that had been led at trial. I reject this submission. The first defendant's submissions were professionally and competently prepared and presented and were lengthy and detailed. It would be very unusual in any proceedings to have submissions of one party reflect the summary and argument put by another party. It is not disputed that a transcript was required in this case. I accept that a special allowance should be made for the costs of the plaintiff in acquiring the transcript: Michael Aaron James (by his next friend Rhonda Dawn James) v Grant [2009] WADC 201 (S2) [44] (Mazza DCJ). A special order in respect of costs to be made in respect of the expert witness architect called by the plaintiff is also sought. Mr Brand gave expert evidence in relation to the safety and the compliance of the stair from which the plaintiff fell. No expert architectural evidence was called on behalf of the first defendant however the second defendant called evidence from an architectural expert Mr Airey. Although the first defendant ultimately relied upon some of the evidence given by Mr Airey, this, in my view, does not entitle the plaintiff to benefit from an order against the first defendant in respect of the evidence of Mr Brand in this case.