Clarke v BHP Billiton Direct Reduced Iron Pty Ltd

[2009] WASCA 134

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Negligence
2. › Personal injury
3. › Workplace injury
4. › Employer's duty of care
5. › Safe system of work
6. › Whether breach of duty established
7. › Manual handling of heavy hot containers
8. › Whether method of carrying was unsafe
9. › Whether employer required to provide trolley or modify container design
1. Appeal
2. › Appeal from findings of fact
3. › Appellate review of trial judge's findings
4. › Whether findings were reasonably open on the evidence
5. › Fox v Percy principles
1. Damages
2. › Provisional assessment
3. › Loss of earning capacity
4. › Global assessment where precise evidence lacking
5. › Whether award manifestly inadequate
6. › Gratuitous services
7. › Principles from Van Gervan v Fenton
8. › Future treatment expenses

Quick Take

An appellate court will not disturb a trial judge's finding that an employer's system of work was safe where that finding was based on acceptance of one expert's evidence over another and was reasonably open on the evidence. Where earning capacity has been reduced but its extent is difficult to assess due to lack of precise evidence, a court may properly assess damages in a global amount, but the amount must be proportionate to the nature and extent of the plaintiff's condition. A claim for gratuitous services cannot be defeated merely because the services were provided by family members or because those providing the services also benefited from them; the test is the plaintiff's need for the services arising from the injuries.