The recent WA District Court decision in Holden v Macmahon
Contractors Pty Ltd  WADC 202 concerns the plaintiff, Mr
Holden (H), who suffered significant spinal injuries at the
Sinclair mine near Leonora, while working under the instruction of
H was working on a truck when a strut holding up an awning-style
door gave way, causing the door to swing down and hit him in the
back of the head. At the time of the injury, the truck was leased
to M by a third party - Envirocoat (E).
M admitted liability and the parties agreed to damages in the
sum of $800,000 inclusive of workers' compensation and
interest. However, M commenced proceedings against E claiming
contribution pursuant to s.7(1)(c) of the Law Reform
(Contributory Negligence and Tortfeasors' Contribution) Act
1947 (the LR Act). M also claimed indemnity pursuant to a
contract between the two parties and damages for breach of
There was some confusion as to the cause of the strut failure.
H's work colleague, Mr Prince (P), who was working with him at
the time, could not recall exactly how the accident occurred.
A number of experts gave evidence, leading to four hypotheses
ranging from a slow loss of compression due to a gas leak to P
using excessive force and breaking the strut just prior to the
Interestingly, the latter was given some consideration,
primarily because P was in a 'bad mood' at the time, to the
point where H initially thought that he had been assaulted by P
when struck by the door. However, His Honour said that being 'a
bit peeved' fell a long way short of supporting a finding that
P's mood caused him to use such excessive or egregious force as
to completely rupture a perfectly sound strut connection.
The Trial Judge concluded that the cause of the door collapse
was the failure of the already damaged strut whilst P was opening
the door. It was not possible to make a finding as to how the strut
was damaged in the first place.
M owed H a duty of care, analogous to that owed by an employer,
to provide and enforce a safe system of work and provide and
maintain safe equipment. E, as a manufacturer, owed a duty of care
to consumers and users of its product. So far as the contractual
warranties were concerned, E also warranted that its equipment
would be "of the best quality".
His Honour found that M was directly negligent for failing to
properly train and supervise the people under its control in the
use of the service truck and for failing to enforce a safe system
of work for P and H.
As to the second duty, M's case was primarily based on the
premise that the struts were not suitable for the conditions in
which they were used. M also submitted that E's design system
was inadequate and that it should have sought and implemented
professional design input from a mechanical engineer or similarly
His Honour dismissed M's allegations of negligence and/or
breach of contract against E. In doing so, he commented that a
product is unfit for its purpose if it has a defect which
unacceptably increases the likelihood of its failure, which in this
case it did not. The test of foreseeability and breach is not
whether 99 trucks out of 100 were problem-free, nor is it that E
had received no complaints. The test is whether an identified risk
of injury was neither far-fetched nor fanciful.
The Trial Judge therefore concluded that M was not entitled to
an indemnity from E nor was E liable to H. Accordingly, all of the
blame for H's accident lay with M and it was liable for the
full amount of compensation of $800,000.
This decision highlights the importance for employers and
occupiers of taking responsibility for the maintenance of equipment
under their control, whether or not they are the owners.
Furthermore, regardless of warranty periods, if the product is not
inherently faulty or unfit for its purpose, the manufacturer or
designer is unlikely to be held liable.
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.
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