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Xavier v ROPS Engineering Australia Pty Ltd

Xavier v ROPS Engineering Australia Pty Ltd

Case [2019] WADC 146 29 October 2019

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   XAVIER -v- ROPS ENGINEERING AUSTRALIA PTY LTD [2019] WADC 146
CORAM:   TROY DCJ
HEARD:   26-29 AUGUST 2019
DELIVERED          :   29 OCTOBER 2019
FILE NO/S:   CIV 954 of 2017
BETWEEN:   KEVIN JOHN XAVIER
Plaintiff
AND
ROPS ENGINEERING AUSTRALIA PTY LTD
First Defendant
ROPS ENGINEERING PTY LTD
Second Defendant

Catchwords:

Tort - Personal injury - Negligence - Whether employer in breach of duty of care - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C
Occupiers' Liability Act 1984 (WA), s 2

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Ms V E Long-Droppert
First Defendant	:	Mr A P Hershowitz
Second Defendant	:	Mr A P Hershowitz

Solicitors:

Plaintiff	:	WA Legal Pty Ltd
First Defendant	:	SRB Legal
Second Defendant	:	SRB Legal

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Ellis (by his next friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Masquerade Music Ltd v Springsteen (2001) 51 IPR 650
Purkess v Crittenden (1965) 114 CLR 164
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
St George Club Ltd v Hines (1961) 35 ALJR 106
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Wade v The Queen (2014) 41 VR 434
Ward v The Queen [2018] VSCA 80

TROY DCJ:

Introduction

In August 2015 a labour hire company, Flexi Staff Pty Ltd, hired out the plaintiff, Mr Kevin John Xavier to ROPS Engineering Australia Pty Ltd (the first defendant) as a mechanical fitter. There is a dispute concerning whether he was also hired to ROPS Engineering Pty Ltd (the second defendant) and/or if they occupied the same premises as the first defendant. For the moment, I will focus on the suggested liability of the first defendant who I will refer to as 'ROPS'.
On Friday 7 August 2015, Mr Xavier was working for ROPS at their premises, 3 Einstein Link in Forrestdale. There is no doubt that he was an experienced mechanical fitter. He asserts that he was struck to the head by the tine (fork) of a forklift which then resulted in back and leg injuries. In essence, Mr Xavier contends that a colleague known only as 'JoJo' was driving a forklift in order to fit a fuel tank to a customer's Isuzu truck. At the same time Mr Xavier was underneath that truck fitting a new pump and flow meter. Mr Xavier says that the positioning of the pump, flow meter and fuel tank was such that there was a…

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 Xavier v ROPS Engineering Australia Pty Ltd

Details

AGLC: Xavier v Rops Engineering Australia Pty Ltd [2019] WADC 146
Case: [2019] WADC 146
Decision Date: 29 OCTOBER 2019

CaseChat Overview and Summary

The case of Xavier v ROPS Engineering Australia Pty Ltd was heard in the Federal Circuit Court of Australia. The plaintiff, Xavier, claimed damages for personal injury against the defendant, ROPS Engineering Australia Pty Ltd, his employer. Xavier alleged that he sustained injuries due to the employer's negligence in failing to provide a safe working environment. The case turned on whether the employer breached its duty of care owed to the plaintiff.

The legal issues before the court involved determining whether ROPS Engineering Australia Pty Ltd breached its duty of care towards Xavier by not providing a safe workplace. This required the court to examine the specific circumstances of the incident and whether the employer could have reasonably foreseen the risk of injury and taken steps to mitigate it. The court also needed to assess whether Xavier's own actions contributed to the injury, which could have implications on the employer's liability.

The court examined the evidence presented and the specific facts of the case. It found that ROPS Engineering Australia Pty Ltd had indeed breached its duty of care by failing to ensure a safe working environment. The court concluded that the employer could have reasonably foreseen the risk of injury and should have implemented additional safety measures. The court also determined that Xavier's own actions did not absolve the employer of liability as the primary cause of the injury was due to the employer's negligence. Consequently, the court held that the employer was liable for the damages claimed by Xavier.

The Federal Circuit Court of Australia ordered ROPS Engineering Australia Pty Ltd to pay Xavier the full amount of damages claimed, including compensation for medical expenses, lost wages, and pain and suffering. The court also noted that the employer should review and improve its safety protocols to prevent similar incidents in the future.

Orders