MANGISI -v- BOEHM [2021] WADC 76 At 1.00 AM on Saturday, 26 January 2019 Mr Boehm (victim) was leaving the Niche Bar to meet with his girlfriend when he was assaulted by Mr Mangisi (offender). The victim had taken a few steps when he looked up and saw a person punch him in the face. The attack was not provoked by the victim. He remembered falling back, waking up and seeing his friend trying to help him. He was conveyed by ambulance to Sir Charles Gairdner Hospital. The offender admitted the offence and was convicted on 20 June 2019. The victim’s injuries were as follows:
As a result of the injuries and the assault the victim:
The psychological sequelae were confirmed in a report filed by Mr Paul Beros, clinical psychologist. The victim was referred to him by his general practitioner under a mental health care plan. He stated that the victim presented with a range of psychological symptoms secondary to the assault. These included: Panic attacks, generalised anxiety (that is, feeling tense, worried and anxious in a variety of settings), sleep disturbance, re-experiencing phenomenon (that is, including dreams related to the attack, imagery related to the attack), irritability, a sense of worthlessness, a sense of vulnerability, reduced libido, low mood, tearfulness, avoidance behaviour (that is, avoiding crowded public areas, avoiding public transport, social events, work situations). These psychological conditions resulted in significant psychological distress, a reduction in his self-esteem and confidence and a reduction in his social performance and quality of life. Mr Beros’ therapy included insight – directed therapy, cognitive behavioural therapy, and mindfulness-based interventions. He did not expect that any further treatment would be required but said that should the victim experience a relapse he would encourage him to engage with psychological treatment. On 9 September 2020 the victim was awarded $28,164 for injury and loss pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (Act). The award was made up of $25,000 for non-pecuniary loss, $888 for expert reports, $2,198.30 for treatment expenses and $77.70 for travelling expenses. The offender was notified of the decision by letter from the assessor dated 9 September 2020. A notice of appeal was lodged on 8 October 2020 pursuant to s55 of the Act. It was this appeal to the District Court that formed the subject of this decision. Pursuant to s56 of the Act the District Court decided the application afresh, without being fettered by the assessor’s decision, on the evidence and information that was before it. The District Court assessed the evidence and found that the victim’s out of pocket expenses were as follows:
These expenses totalled $3,164 and were allowed. The court considered Woodward v Davies [2021] WADC 73 in assessing non-pecuniary loss. In that matter the court awarded $18,000 for non-pecuniary loss in a case where the respondent’s tooth was fractured in an assault, became infected and had to be extracted. The respondent had ongoing residual symptoms of post-traumatic stress disorder three years after the incident. The court held that a reasonable award in the circumstances of this matter would be $10,000 for non-pecuniary loss and added to it the $3,164 referred to above. The victim was thus awarded compensation in the sum of $13,164. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post Award reduced by appeal court appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/award-reduced-by-appeal-court/
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Essayid v Saint [2021] WADC 61 The plaintiff brought an action against three parties. The Plaintiff injured his hand on 24 September 2017 whilst working on a fishing vessel when a hopper lid closed on the Plaintiff’s hand and caught it. The Plaintiff suffered wounds to three fingers, a fracture of one finger and tendon damage. The injury occurred when the plaintiff turned to his right and looked straight down to pick up a hose in his left hand. He then put his right hand out and onto the metal lip of the hopper tank to steady himself. The foam rubber seal which was around the lip of most of the hopper was missing from the section where the Plaintiff put his hand. The hopper lid closed on the Plaintiff’s hand and immediately caught it. He could not pull his hand away. He screamed out to get attention. Another crew member then immediately raised the hopper lid and came to the Plaintiff’s aid. The primary matter in dispute is the legal relationship between the four parties.
The Legal Relationship between the Owner and the Plaintiff It was argued that the Owner owed a duty to those on the Vessel to ensure such persons were not exposed to reasonably foreseeable hazards and to provide a safe working environment on board the Vessel. The Owner was held not to be able to discharge the common law duty to take reasonable care for persons on the Vessel and therefore owed no duty. The above obligations were to be discharged by Skipper One on a day-to-day basis and this was held to be recognised in the JV Agreement where it was acknowledged and accepted that those obligations would be undertaken by the Skipper One. This obligation was later assumed by Skipper Two whilst he was the temporary skipper. The Legal Relationship between the Skipper One and the Plaintiff The Plaintiff and Skipper One entered into a Share Fishing Agreement (SFA) that provided that the Plaintiff would work as a Fisherman as required and as mutually agreed between Skipper One and the Plaintiff in the operation and maintenance of the Vessel. The Plaintiff would be paid by way of a share of the profits of the voyages catch and would contribute to the expenses. The SFA expressly excluded any intention to create a relationship of either partnership or employment between Skipper One and the Plaintiff. It that there was no entitlement to annual leave, sick leave, long service leave or other benefits which usually accrue to a relationship of employment and stated that the provision of services by the Plaintiff was on a ‘fee for service‘ basis. The court looked at the relationship between the parties holistically including the remuneration structure, and concluded that, notwithstanding the express words used in the SFA, the Plaintiff was an employee of Skipper One. The Legal Relationship between the Skipper Two and the Plaintiff Skipper Two did not sign any agreement with the Plaintiff. Skipper Two signed an agreement with Skipper One and the Owner which provided for his temporary appointment as skipper for the relevant period. There was no express term of that agreement that Skipper Two would step into the shoes of Skipper One but in practical terms during the voyage, Skipper Two did stand in Skipper One’s shoes vis-à-vis the Plaintiff. This was an effective delegation of the contractual obligations owed to the Plaintiff for a temporary period. Common Law Duty Owed by Skipper One and Skipper Two The common law duty of care owed by an employer to their employee is a personal, non-delegable duty to ensure that reasonable care is taken to avoid exposing his employees to unnecessary risk of injury. The duty includes an obligation to take reasonable steps to provide a safe system of work. The duty owed by Skipper One, as an employer, is non-delegable. He had a duty to provide, maintain and enforce a safe system of work. He is bound by any failure by other persons on the Vessel to meet that duty. The obligation to provide a safe system of work arises out of an employment relationship but it can also be owed by someone other than the employer. The extent of any duty owed is defined by the role discharged by the person who might be said to owe the duty. The Skipper Two had held a Skippers ticket for 10 years and had been fishing for 28 years and could reasonably have foreseen the same risks that Skipper One could foresee. Skipper Two had stepped into the shoes of Skipper One for the duration of the voyage and even though he did not become the Plaintiff’s employer by reason of his assumption of that role, he stood in the shoes of Skipper One specifically in respect to the Plaintiff as it was left to him to undertake any necessary training and give appropriate warnings both to the Plaintiff and also to the rest of the crew. He was obliged to ensure that with a new and inexperienced crew member on board that all necessary safety measures were taken. He owed a duty to the Plaintiff consistent with the duty owed by Skipper One, and it was non-delegable. It was held that these duties had been breached by both skippers. Statutory Duties: Occupational Safety and Health Act 1984 s19. of the Occupational Safety and Health Act 1984 (OSHA) provides that an employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards. s19. Of OSHA provides that a person that has, to any extent, control of (a) a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or (b) the means of access to and egress from a workplace, shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards. The court held that Skipper One had breached his duties pursuant to s19 and the Skipper Two had breached his duties pursuant to s22. Occupiers Liability Act 1985 (WA) S5(1) Occupiers’ Liability Act 1985 provides that 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, …..be 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.” An occupier is defined as a person occupying or having control of premises which include any vessel. The court held that during the period of the temporary appointment of the Skipper Two, Skipper One ceased to be the occupier of the Vessel and the Skipper Two became the occupier. The court went on to hold that the Skipper Two should have bought to the attention of the Plaintiff the risks associated with the operation of the hopper lids, should have instructed him on how to hold onto the Vessel whilst at sea and should have warned and directed all crew to give a warning before operating the hopper lids and to keep a look out. This duty was breached in totality. The court therefore concluded that both Skipper One and Skipper Two were to pay Plaintiff damages in the sum of $23,595 and dismissed the action against the Owner. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post A “Tail” of Two Skippers and an Owner – who is liable to the employee? appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/a-tail-of-two-skippers-and-an-owner-who-is-liable-to-the-employee/ JENNER -v- MUNDRABILLA ROADHOUSE PTY LTD [2021] WADC 59 The Plaintiff was a 68‑year‑old road train driver. In December 2015 he stayed at the Mundrabilla Roadhouse (roadhouse) in Mundrabilla. Mundrabilla Roadhouse Pty Ltd (Defendant) owned and operated the roadhouse. The Plaintiff had stopped for the night at the roadhouse. It had been raining all day and while he walked along an open external footpath at the roadhouse he slipped on the wet footpath and fell. He suffered a fracture to his left fibula and tears to the medial meniscus and medial ligament of his left knee. The Plaintiff alleged that the Defendant was liable for his injuries in that it was caused by its negligence. More particularly he alleged that the Defendant failed to:
The Defendant denied that the footpath was a danger and argued that the accident was caused by the Plaintiff’s own carelessness. Alternatively, that Plaintiff had voluntarily assumed the risk and, pursuant to s 5(2) of the Occupiers’ Liability Act 1985 (WA) (OLA), there was no breach of the Defendant’s statutory duty. Duty to warn The court found that the pathway was wet and presented a moderate risk of slipping, that in the event of slipping and falling that injuries could occur, that there was nothing to grab hold of in the event of a slip to stop oneself from falling, that it was necessary to pay attention to where one was walking and tread carefully, and that the risks of walking on the wet path were patently obvious to any adult with experience of walking outdoors. This was therefore an obvious risk as defined in s5F of the Civil Liability Act 2002 (WA) (CLA). Pursuant to s5(O) of the CLA there is no duty on a Defendant to warn a Plaintiff of an obvious risk. Duty to have made the pathway safer in wet conditions Even if there was no duty to warn of the risk there may have been a duty to modify the pathway to make it safer for visitors to the roadhouse when it was raining. The common law imposed a duty of care on the Defendant to prevent, insofar as was reasonably practicable, the foreseeable risk of injury or harm to the Plaintiff. This is a two-step process (Wyong Shire Council v Shirt – [1980] HCA 12)
The CLA provides as follows: 5B. General principles (1) A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless -- (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -- (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm The court held that there was a foreseeable and not insignificant risk of a person slipping and falling on the wet pathway, and that if a fall occurred there was a probability of physical injury. Thus, the important question was: how would a reasonable person in the position of the owners have responded to that risk? In Department of Housing and Works v Smith [No 2] [2010] WASCA 25 the court articulated the important principles in considering cases of alleged breach of duty by an occupier or lessor:
There is a duty on the Plaintiff to take reasonable care for his own safety, and the Defendant is entitled to rely upon this (Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103). In Jones v Bartlett (2000) 205 CLR 166 the court held that there is no such thing as absolute safety. Simply because a house could be made safer does not mean it is dangerous or defective. The court then held that “the risk of a person who was exercising reasonable care for his or her own safety slipping was very low”. The court then went on to discuss what precautions would a reasonable person in the Defendant have taken, if any, in foresight, to prevent the risk of a slip. The court held that a reasonable person would not have installed drains at the side of the pathway nor guttering along the adjacent roof nor to coat the pathway with a non‑slip surface, as contended for by the Plaintiff. The court held that this was a case where the Defendant would have done nothing. Having found that there was no breach of duty the court dismissed the claim. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post Nothing left to do by owner to avoid Plaintiff’s injuries leads to no compensation appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/nothing-left-to-do-by-owner-to-avoid-plaintiffs-injuries-leads-to-no-compensation/ THOMPSON -v- ST JOHN OF GOD HEALTHCARE INC [2021] WADC 15 On the morning of the 26th of November 2018, the appellant went to gym and performed certain leg exercises. Later in the day she went to work at a hospital, where she was employed as a theatre nurse. She alleged that she suffered an injury at work causing a gradual onset of low back pain radiating into her right leg. Her employer denied this. The dispute between the employer and employee was whether the employer was liable for her unfitness to work. The arbitrator formulated the question as follows: “Whether [the appellant] sustained an injury arising out of or in the course of her employment (s 5(1)(a), Workers’ Compensation and Injury Management Act 1981 (WA) (Act))” His decision was that he was: “… not persuaded, on the balance of probabilities, to accept the assertions made on behalf of [the appellant] that the medical evidence establishes that she sustained a personal injury by accident arising out of in the course of her employment.” The appellant was not entitled to compensation and she then took the matter on appeal to the District Court of Westen Australia. There were two grounds of appeal, namely that:
The Court held that an appellant can only appeal on a question of law by virtue of the provisions of s 247(2) of the Act. (Dodson v Woolworths Group Ltd [2020] WADC 157). A question of law can be either an error of law, or an error in which law and fact are mixed (Catholic Education Office of WA v Granitto [2012] WASCA 266). There is no clear difference between errors of law, errors of fact and mixed errors of law and fact, and there is no definitive test for this (Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21). If the ground of appeal does not involve a question of law, then a linguistic reformulation of the problem will not make it so (Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17). An error of law must also be material to the decision so that, but for the error, the decision would, or might, have been different (BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250). The court then looked at the definition of “Injury” in Act. “injury means -- (a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions; or (d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree;” The appellant argued that the arbitrator had incorrectly relied on the test in s5(d) of the Act. Instead, he should have relied on s5(a). The importance being that s5(d) requires that work contributes significantly to a pre-existing condition. “Significant” contribution is not required in s5(a). Employing the wrong test, with its more onerous requirement, led the arbitrator to reject the appellant’s version. The court found that the appellant suffered from an underlying asymptomatic L5 radiculopathy. The appellant alleged that there had been a gradual onset of right leg pain during her shift. In other words, it was her work on that shift which caused her previous asymptomatic low back condition to produce right leg pain. The hospital denied this and alleged it was triggered by her gym exercises earlier that morning. The issue was therefore whether the cause of the appellant’s condition becoming symptomatic was her physical effort at her place of work. Because of the fundamental and contradictory differences between the two scenarios it was necessary to consider the issue of credibility. The Court then looked at the evidence in the case. There were two medical professionals, a GP and a physiotherapist who both recorded that the appellant had told them that the pain in her right buttock and right leg had started when she used the leg press at the gym. The court thus held that it did not matter whether the test s5(a) or s5(d) was employed because on either version the injury was caused by the exercise in gym and not by work. The appeal was therefore dismissed. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post The Gym Or Not The Gym – That Was The Question appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/the-gym-or-not-the-gym-that-was-the-question/ NARRIER [2021] WACIC 6 This case was a Criminal Injuries Compensation (CIC) claim brought by the victim who was the victim of multiple historic domestic violence offences committed by the offender. The best way to approach this case is to understand the powers and limitations on time and compensation provided for in the Criminal Injuries Compensation Act 2003 (Act). The relevant powers and limitations are stated in the sections below: S 9: A compensation application must be made within 3 years after the date on which the offence to which it relates was committed; or if it relates to more than one offence, the last of them was committed. However, an assessor may allow a compensation application to be made after the 3 years if he or she thinks it is just to do so. s 12: A person who suffers injury because of the commission of a proved offence may apply for compensation for the injury and any loss also suffered. s 17: If an alleged offence is committed but no person is charged with the alleged offence, then the person who suffers injury because of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered. s 31: The maximum amount that may be awarded for a single offence is limited in the manner as specified below:
s34: If two or more offences are committed by one person that are not related offences, and another person suffers injury the amounts awarded must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed. s 38: An assessor must not make a compensation award in favour of a victim if the assessor is of the opinion that the victim did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence. This case involved 17 incidents which occurred over a long period commencing in 1992 and ending in 2002. The application was filed on 8 February 2017. This was approximately 14 years after the last offence was committed on 20 December 2002. The assessor had initially rejected this claim as she was not satisfied it was just for her to extend the time pursuant to section 9(2). The application had been brought approximately 11 years out of time. This refusal went on appeal and the District Court of Western Australia and the court was of the view that the reasons advanced for the delay were sufficient to grant the victim leave to obtain compensation. The matter was then referred back to the CIC assessor for quantification. This case was that assessment of quantum. The assessor found that the offences involved serious and serial abuse of the victim by the offender which often resulted in the offender being treated in hospital. Of these 17 incidents only 4 were proved offences as contemplated in s12 of the Act and the balance were alleged offences as contemplated in s17 of the Act. The reasons generally advanced for not pressing charges against the offender, and these were accepted by the assessor, were that the victim feared further abuse. The assessor decided that the offender was thus not excluded from compensation by s38. Pursuant to sections 31 and 34 of the Act, maximum that could be awarded to the applicant was $100,000. This is because the offences occurred between 1 July 1991 to 31 December 2003 and the maximum that could be awarded for a single offence is $50 000 (s31). The maximum amount that can be awarded if two or more offences are committed by one person must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed (s34). The assessor considered the available evidence including the victim’s psychological injuries as detailed in the psychiatrist, Dr Ng’s report, and her numerous physical injuries. She assessed the victim’s injuries in the sum of $67,500 based on the individual circumstances of each incident and the overarching psychological trauma. She also awarded the victim $1,617 for the cost of the reports and $2.50 for transport which totals $69,119.50. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post Second bite at the cherry for historical domestic violence abuse appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/second-bite-at-the-cherry-for-historical-domestic-violence-abuse/ Izzo [2001] WACIC 4 Background The victim applied for compensation in respect incidents that occurred on three different dates:
The victim and the offender had known each other for a period of about 8 years and had been involved in a sexual relationship. The victim had terminated the relationship, but the offender had repeatedly contacted and communicated with the victim by way of telephone calls, social media, and text messaging. He threatened to harm and injure the victim, her family, and friends if she did not continue the relationship. The offender refused to accept that the relationship had been terminated. On 6 January 2018, the offender met with the victim in Ellenbrook, and he told her that he had a gun. He opened the boot of his car and showed her what she believed to be the handle of a rifle. On the 7th of January 2018, the offender drove to the victim’s home and had in his possession a folding pocketknife. He knocked repeatedly on the rear garage, front door, and window shutters she refused to let him inside telling him she was scared. The offender, in anger, punched the window security shutters near the front door causing them to be dented. He threatened to jump the rear fence and force his way into the house. Police were called and arrested the offender and found the pocketknife nearby. The offender pled guilty to:
The above was contained in, and the offender pled guilty to, a Statement of Material Facts (SMF). This is a prosecution document that is issued to an accused at the time of being charged with an offence. On 6 December 2017, the offender came to the home of the victim whilst drunk. He then threatened to kill the victim, a third party and then turn the gun on himself. He refused to leave the home of the victim and told her that he would organise for her to be tortured by having 20 men rape and then kill her. Order The victim was compensated by way of the following orders:
It was presumably order 3 that caused the offender to request reasons from the Assessor. Discussion The important aspect of the case was that the offender had made submissions to the Assessor following a notice issued by the Assessor pursuant to section 19 of the Act, advising him of the applicant’s application in relation to the proved offences and inviting submissions. The offender provided submissions that included his version of the incidents. These were predictably exculpatory, and the question was whether the Assessor could take notice of these. The short answer was “no” because they went beyond the facts contained in the SMF to which the offender pled guilty. The Assessor stated that she was bound by Underwood v Underwood [2018] WADC 13 [53 to 63] and held that “Where the facts set out in the SMF and the offender’s submissions differed, I must accept the facts as pleaded in the SMF. Accordingly, despite the detail provided in the offender’s submissions, I placed no weight on the offender’s version of events as contained in those submissions.” The Underwood decision has complexities of its own and draws upon the decision of Bennett v The State of Western Australia [2012] WASCA 70. Both cases dealt exclusively with the issue of whether the offender can introduce evidence beyond the material facts to which the offender pled guilty. Neither was a case in which the victim sought to introduce such evidence. Strangely, the Court in the Underwood matter then went into this latter issue and said that as a matter of procedural fairness the victim could not go beyond the material facts to which the offender pled guilty. This is a somewhat unusual position to adopt since the victim is not party to such a guilty plea. It is a fundamental rule of procedural fairness that both parties be heard. However, the Court in the Underwood case enunciated seven principles guiding the admission of evidence beyond those contained in the guilty plea. These can be summarised as follows:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post Reintroducing evidence after a plea of guilty appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/reintroducing-evidence-after-a-plea-of-guilty/ CLARK -v- SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD [2021] WADC 11 Introduction In December 2014, the plaintiff was employed by a company called Mineworks when he suffered a back injury whilst working as a painter and sandblaster at the Australian Marine Complex (AMC). This case was a separate tort claim against the defendant, Schneider Electric (Australia) Pty Ltd (Schneider). The job to be completed was the construction of switch rooms (rooms) for Chevron Australia Pty Ltd (Chevron). Chevron had given the contract for the construction of the rooms to Schneider. Schneider then engaged a subcontractor called HVLV Pty Ltd (HVLV). HVLV then engaged Mineworks to supply workers to complete certain of the painting work. Mineworks had no presence on the work site and merely provided workers, of which the plaintiff was one. Schneider controlled the worksite. The Plaintiff worked beneath the switch room structures, which were mounted on concrete filled drums and stood approximately 1.5 m above the ground. The Plaintiff was 1.76 m tall and was required to work 10-hour days, Monday to Friday, and five hours on Saturday. He was therefore required to either stoop or sit and work above his head for extended periods. As a result, he experienced severe lower back pain extending into his buttocks. This was later identified as disc protrusions at the L3/4, L4/5 and L5/S1 levels. Negligence based tort actions generally have four primary components, namely duty of care, breach of that duty, causation and finally damage. The Plaintiff thus sought to show that Schneider owed him a duty of care, which they breached, and finally that this caused the damage or injury which he had sustained. Duty of Care The plaintiff alleged that as an occupier of AMC, or as the head contractor at AMC, Schneider owed him a duty of care. He argued that there were three possible sources for that duty of care:
The court indicated that the common law duty in Western Australia had been superseded by a duty pursuant to Civil Liability Act 2002 (WA). The alleged common law duty was that Schneider should have provided a place of work, or system of work which did not unreasonably expose the plaintiff to the risk of harm. This would be the same as a duty under the Civil Liability Act. S 5 of the Occupiers’ Liability Act 1985 (WA) provides that an occupier of premises has a reasonable duty towards a person entering onto a premises to see that that person will not suffer injury or damage by reason 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. This may, in certain circumstances, be extended, restricted, modified or excluded by agreement. s22 of the Occupational Safety and Health Act 1984 (WA) provides a person that has control of a workplace where persons who are not employees of that person work shall take such measures as are practicable to ensure that persons who are at the workplace are not exposed to hazards. s5B of the Civil Liability Act 2002 (WA) provides that a person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless the risk was foreseeable, that is, it is a risk of which the person knew or ought to have known and that the risk was not insignificant and that, in the circumstances, a reasonable person in the defendant’s position would have taken precautions. Further, that in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to balance the following:
The court then turned to principles governing the duty of principal contractors to the workers of independent contractors, and relied on three cases:
The court then turned to the facts of this case and more particularly the relationship between Schneider and HVLV (the intermediate sub-contractor). The contract between Schneider and HVLV provided that HVLV “was responsible for the performance of the subcontract work, relevantly the painting and sandblasting of the switch room structures, was responsible for organising the way in which the work was performed and was responsible for the employment or hiring of workers to perform the work. Further, HVLV maintained ‘complete control and responsibility over its employees’ in the way in which they performed their work duties. The subcontract agreement did not give Schneider the right to control and direct the employees of HVLV as to the manner in which they were to perform their work duties, trades and activities on site. Schneider did not have the right, nor the responsibility, by the subcontract to control and direct how subcontractor employees ought to perform their work duties.” Thus, the court held there was no duty owed by Schneider to the plaintiff. Causation The court raised two issues in relation to causation. The first was that there was no evidence that clearly linked the conditions of work to the final injuries. The second was that there was no evidence that even if Schneider had taken the steps that the plaintiff had put forward (inter alia, a roster-based rotational system of work and a different chair) that these would have avoided or reduced the risk of injury to Mr Clark. Thus, the court held that even if it was wrong on the issue of duty of care, Schneider was still not liable because causation was absent. Conclusion The plaintiff’s action was therefore dismissed. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post Plaintiff’s claim against principal contractor dismissed appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/plaintiffs-claim-against-principal-contractor-dismissed/ UGLE -v- MASTERS [2021] WADC 8 This was a historic child sexual abuse action against the defendant. The plaintiff alleged that he had been declared a neglected child, taken from his parents, committed to the care of the Child Welfare Department, and housed at a Mission (Mission) between 1960 and 1966. The defendant was the assistant superintendent in charge of the Mission at the relevant time. The Plaintiff alleged that while he stayed at the mission, he was in the care of the defendant between 1960 to 1964, and that the defendant indecently dealt with him on two separate occasions. The defendant applied for the setting aside of the writ of summons and a permanent stay of the main action, based on the fact that the alleged offending occurred 56 years ago, being a significant delay. The Court stated that it is a fundamental principle that a plaintiff is entitled to have his or her action tried in the ordinary course of the procedure and business of the court. However, the court may stay such an action if there are exceptional circumstances that make it in the interests of the administration of justice to do so. The burden of proving these exceptional circumstances rests on the defendant and that there are no closed set of cases which bind the court. However, one set of cases where the court will generally grant a stay of proceedings is where the proceedings or there continuance would be vexatious or oppressive and, another set of cases is when the continuation of the matter would bring the administration of justice into disrepute amongst right-thinking people. Oppressiveness will be found where the effect of the proceedings is seriously and unfairly burdensome, prejudicial, or damaging. Courts will generally be more inclined to grant a stay in criminal than in civil matters. The court then considered the impact of the 56-year delay in bringing the application and outlined the obvious difficulties involved such as the loss of evidence and fading of memories. The court then noted the removal by the legislature of any limitation period for the bringing of historic child sexual abuse actions by introducing s6A (5) of the Limitation Act 2005. The court held that the public interest factors that underpin the removal of the limitation period by the legislature are of such a compelling nature that the removal of the limitation period was intentionally made retrospective by Parliament. The court also noted the compelling interests of claimants in having the opportunity to present their allegations in court by providing both therapeutic benefits and a sense of closure. The court stated the most important factor was that the Defendant received a fair trial. A fair trial however was not a perfect trial and the court held that a trial is fair if the defendant has the ability to give instructions, to decide what defense will be relied on and to make the defendant’s version of facts known to the court and his counsel. The court considered several earlier decisions dealing with stays of action and concluded that he medical evidence that was provided showed that the defendant had suffered from a stroke and cognitive impairment. Furthermore, that attending a court hearing may potentially precipitate a life-threatening stroke and that any significant stressor, for example, having to face a court hearing, would carry a significant chance of causing another stroke. The court held that none of the evidence suggested that the defendant would not be able to provide proper instructions to his legal representatives and that his frailties could be accommodated in a non-threatening manner. The application for a stay was thus refused and the mater continues. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post To stay or not to stay – the Court answers a historically sexually abused plaintiff appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/to-stay-or-not-to-stay-the-court-answers-a-historically-sexually-abused-plaintiff/ ROBERTS [2021] WACIC 3 On a September evening in 2017, festivities commenced at the Harness Horse of the Year Awards at a Perth hotel. After the awards were concluded the party moved to a local Casino and restaurant. During the evening, much alcohol appears to have been consumed by some of the persons present and, as is not infrequently the case, physical violence followed. The applicant and her boyfriend had an argument. She later tried to talk to him and presumably continue their discussion when the offender, for reasons that are unclear, took it upon herself to physically stop the applicant from reaching her boyfriend. A scuffle of some sort broke out between the two women when the offender phoned another friend reporting to him that the applicant had assaulted her. This information appears to have been incorrect and as the friend hurried over to the offender they became involved in some form of physical fight. The offender and the applicant then left the scene of this fight and moved out of sight of the others. The offender then ran up to the applicant and struck her with a stiletto shoe to the right side of the applicant’s forehead. The applicant stumbled and fell to the ground (offence). The applicant was taken by ambulance to Royal Perth Hospital where hospital records indicated that she sustained a 3cm laceration which required sutures. A charge of assault was laid by the applicant against the offender who was later charged with Unlawful Wounding pursuant to the Criminal Code Act Compilation Act 1913. The matter was heard at trial in the Magistrates Court. The offender proffered self-defence as a defence to the charges, but the magistrate rejected her version, and was convicted. The applicant then filed a criminal injuries compensation claim pursuant to s12 of the Criminal Injuries Compensation Act 2003 (ACT). S12 provides that a person who suffers injury because of the commission of a proved offence may apply for compensation for the injury and any loss also suffered. The applicant described how she has been psychologically injured by the assault. She indicated that she feared going out for fear of being attacked by the offender again. She stated that she had become hypervigilant and could not relax and enjoy herself. She further explained that she had been left with a scar on her forehead. This made her feel self-conscious and feared being judged by others. Consequently, she felt that she needed to cover the scar with make-up and stated that she wanted to have surgery to reduce the appearance of the scar. In support of her claim, she filed a report from an Aesthetic and Reconstructive Plastic Surgeon. The assessor stated that s30 of the Act sets out the general powers of an assessor, which includes the power to award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered. She also stated that the ordinary tortious principles for assessment of damages are generally employed in assessing the amount of compensation under the Act. The assessor held that S41 is a two-step process. First, to determine whether the applicant contributed to her injuries, and if so, second, to determine if it is just to reduce or refuse the award. This contribution requires a causal nexus between the applicant’s conduct and the injuries sustained. It was held that the causal nexus was absent and therefore s41 did not avail the offender. The assessor made an award to the applicant of an amount of $27,033.25. The post Stiletto attack appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/stiletto-attack/ Parke [2021] WADC 1 In this case the applicant alleged that he had been assaulted and suffered mental and nervous shock and physical injuries. He sought compensation pursuant to the Criminal Injuries Compensation Act 2003 (Act). The case was unusual in that there was oral evidence led before the assessor of several witnesses including the applicant, his son in law and policemen. The applicant stated to the police that he had travelled from Geraldton to Perth to collect some fish for his daughter’s boyfriend. He was driving his wife’s vehicle and arrived in Midland at around 4.00 pm. He then stopped in Midland to go to the bathroom. He could not recall where in Midland he stopped, nor did he know if he went to a public toilet or used bushland. He stated that when he returned to the car, he saw that the window was smashed and that he was then approached by three men whose identity was unknown to him. Two of the men hit him and he fought back. One of the men then struck him to the head and face several times with a metal device. He was robbed of his wallet and phone during the incident. He then drove to the Swan Districts Hospital where a CT scan revealed complex and comminuted fractures through the nasal bones, nasal septum extending into maxilla on the left side. After hearing evidence, the assessor concluded that the applicant had suffered injuries but that they were not sustained in the manner alleged by him. Rather she concluded as follows:
This case raised three important legal points:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. The post Something fishy about this claim! appeared first on A & E Legal. via A & E Legal https://www.aelegal.com.au/blog/something-fishy-about-this-claim/ |