Author: Melanie Thorley
Date: 30 November 2010
Case Name: Barns v Parlin
Barns v Parlin Pty Ltd & Ors [2010] WADC 92
This case was heard in the District Court, Perth by Justice Yeats.
Facts:
Barns was engulfed by fire and suffered burns on 60% of his body. At the time he was working as a driller’s offsider at Barrick Gold’s Plutonic Gold Mine site. He was an employee of ChoiceOne, his services were hired by Parlin trading as Drill Power. Drill Power was engaged in drilling at the Mine site.
A large high pressure hose on the rig failed resulting in hydraulic oil being sprayed near the hot engine and turbo which then ignited the oil, causing a fireball which engulfed Barns.
Barns sued Drill Power, Barrick Gold and ChoiceOne for damages arising out of his injuries. Drill Power settled paying $1,013,498.50 plus costs of $30,000. Drill Power then attempted to claim contribution from Barrick and ChoiceOne. Drill Power’s claim against Barrick was unsuccessful. This case relates to their contribution claim against ChoiceOne as a concurrent tortfeasor pursuant to s.7 of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA).
Pleaded Cases:
Drill Power pleaded that ChoiceOne breached their duty of care to Barns in the form of multiple failures of proper safety inspections, detection, and providing proper protective equipment.
ChoiceOne replied in their defence that Drill Power was negligent and had breached their duty of care among other things, by the way they had installed and serviced the hose.
Issues:
Drill Power raised three issues:
1) Whether Drill Power is liable;
2) Whether ChoiceOne is also liable; and
3) If they are liable to what extent.
ChoiceOne submitted two further issues being:
1) Whether the payment by Barrick affects the ‘just and equitable’ apportionment and if so how; and
2) Whether Drill Power’s claim fails because of Drill Power’s breach of contract with ChoiceOne.
Judgement:
ChoiceOne had not led any evidence to support their allegations of negligence and relied on the consent judgement in their payout to Barns. Yeats DCJ was satisfied in finding that the defects in the hose which caused Barns injuries would have been detected if Drill Power had performed suitable checks and placed the hose in a suitable location out of the way from debris which made it difficult to make a proper inspection of the hose before using it.
ChoiceOne denied liability as they argued that they had no control over Barns after they delegated his employment to Drill Power, passing de facto power to Drill Power.
Yeats DCJ considered the issue of non-delegable duty of care by the employer. ChoiceOne argued that the site was remote and Barns was to be on site for three months.
Yeats DCJ held that even though it was a dangerous site which could be accessible for inspection, it may not be reasonable to require ChoiceOne to visit every remote location before placing an employee there.
Yeats DCJ commented that ChoiceOne did nothing to ensure their employees were entering a safe work environment as they felt that their duty was delegated, in this case, to Drill Power and Barrick.
After careful examination of all the evidence Yeats DCJ was satisfied that ChoiceOne had delegated its safety inspection duties to Drill Power and Barrick and that Drill Power had failed in that duty. Yeats DCJ therefore did not find that ChoiceOne could avoid liability for the failure of Drill Power.
If that was the case Yeats DCJ then had to consider ChoiceOne’s ‘just and equitable’ contribution.
Yeats DCJ found that Barns’ injuries were caused by Drill Powers failure to adequately inspect the hose which would have alerted them to the holes. DCJ found it not reasonable to expect ChoiceOne to personally conduct safety inspections or inspect the drill rig. It was appropriate and reasonable for ChoiceOne to delegate safety inspection to Drill Power and Barrick. DCJ Yeats found that Drill Power was in direct control of the equipment and Barrick was responsible for site safety in relation to the equipment.
In relation to the non-delegable duty of care, ChoiceOne had no control of the site and no ready access. Regular safety checks and maintenance were under the control of Drill Power. Due to its non-delegable duty of care ChoiceOne was liable for Drill Power’s failure to inspect the hose adequately, but ChoiceOne was entitled to a complete indemnity from Drill Power. It was therefore not ‘just and equitable’ for ChoiceOne to make any contribution to the damages suffered by Barnes.
Third defendant (ChoiceOne Pty Ltd) was granted complete indemnity.
Observations:
This is a clear reminder that even in the face of the non-delegable duty of care by an employer, companies utilising workers supplied by third party agencies, cannot neglect those aspects of care that are directly within their control or influence, especially when aspects of the work environment are beyond the labour hire companies’ responsibility.
Public liability insurers should also pay attention to this judgment. All too often the view is taken that labour hire companies and their insurers will always be good for a minimum 25% contribution. That is clearly not true and each case should be carefully reviewed on its own merits before deciding whether to issue contribution proceedings.
In Queensland the lack of costs consequences in the various pre-litigation procedures fosters such a scatter gun approach by Claimants and Respondents in terms of issuing notices of claim and contribution notices. Often multiple respondents settle claims in the pre-litigation stage on a purely economic basis. Where such cases do not settle and the next step is formal litigation there should be a detailed re-evaluation by all parties as to who should be joined and why.
Formal litigation under the UCPR brings with it costs consequences and a gravity that does not exist under the pre-litigation regimes. This case serves as a warning not to proceed on rule of thumb assumptions that are often used for negotiation purposes.
MT
Tags: Melanie