Parlin Pty Ltd v Choiceone Pty Ltd

[2012] WASCA 19

Date Heard: 2 AUGUST 2011

Date delivered: 31 JANUARY 2012

Judgment: Newnes, Murphy, Mazza JJA

Negligence – Employee of labour hire firm sent to work for client of firm on drilling rig – Employee injured when high pressure hose on rig failed – Client negligent in failing to inspect hose – Labour hire firm negligent in failing to require client to conduct safety inspection of drilling rig before employee started work – Whether client entitled to contribution from labour hire firm to damages payable to employee –Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA), s 7 – Trial judge found client not entitled to contribution – Trial judge erred in finding that labour hire firm not culpable for failing to require client to conduct safety inspection – Contribution of 20% ordered

Legislation:
Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA), s 7

Principles duty of care

64 In Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [34], Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ said:

It is well accepted that, in the absence of statutory provisions to the contrary, an employer owes a common law duty to its employees to take reasonable care for their safety. The duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work. Of particular significance in the present case are two features of the duty. The first is its non-delegability. In Kondis v State Transport Authority, Deane J said:

‘[I]n the context of the particular relationship of employer and employee and of the undertaking by the employee of the general obligation to work in the interests of the employer, the content of the employer’s duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear.’

The second feature to be noted is that the duty is imposed upon all employers, however the business be formed or structured. As Lord Wright noted in Wilsons and Clyde Coal Co Ltd v English:

‘[T]he whole course of authority consistently recognises a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any share in the conduct of the operations.’ (emphasis in original) (footnotes omitted)

65 Similarly, in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839, the High Court said at [12], [16]:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.

…

An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. (footnotes omitted)

See also Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148 [17] – [19].

78 However, sight should not be lost of the fact that the overarching duties by the respondent were to take reasonable steps to provide safe plant and equipment and a safe system of work, and it was the respondent’s breach of those duties which was causative of Mr Barns’ injury. The appellant owed its own, separate, duty to Mr Barns of the same kind, which it breached and the breach of which was causative. The two torts are separate. Causal potency in the contribution context involves an evaluative judgment. In some cases at least (unlike in Hodge v CSR), where the labour hire company is in breach, it may be difficult to disentangle so as to exclude, with any real confidence or precision, the likely causative potency of the various threads of the breach in the first tort for the purposes of assessing contribution with respect to the second.

 

Perfect v MacDonald & Anor

 [2012] QSC 11

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – GENERALLY – where motor vehicle accident – – where pedestrian struck by motor vehicle – where liability admitted – where contributory negligence is in issue – where plaintiff remained on the road surface as the vehicle approached – whether the plaintiff acted with reasonable care

Date heard: 6 February 2012

Delivered on: 10 February 2012

Judgment: McMeekin J

[21] First, I observe that Mr Perfect had every right to walk on the road surface if he wished. In doing so he must exercise ordinary care and prudence but he does not do so at his peril: Alldridge v Mulcahey[1] per McTiernan J. Secondly, in deciding what ordinary care and prudence demanded the plaintiff’s age is relevant: McHale v Watson [1966] HCA 13; (1964) 115 CLR 199 at 213-4 per Kitto J. He was then a minor, not quite 15 years of age. While there is no evidence about the matter it seems to me plain that a boy of not quite 15 does not have the same degree of “experience, understanding, judgment and thoughtfulness to be expected of an adult”: Broadhurst v Millman [1976] VR 208 at 218 per Gowans and Menhennitt JJ. Thirdly, what is relevant in determining what is “just and equitable having regard to the extent of that person’s responsibility for the damage”[2] requires consideration both of the degrees of departure from the standard of care expected of a reasonable man and the causative effect of the conduct of each party. By that latter statement it is meant that weight is to be given to the degree of danger created by the conduct in question.[3] Hence, in pedestrian cases, typically a heavier share of responsibility falls on the motorist even if the degrees of departure from the standard of reasonable care be more or less equal.[4] On any view the first defendant’s departure from the standard expected of her was gross. Fourthly, the onus lies on the defendant on this issue.