Murdoch v Commonwealth of Australia & Honeywell Ltd [1999] ACTSC 38 (4 May 1999)

Last Updated: 12 May 2005

NEIL FRANCIS MURDOCH v COMMONWEALTH OF AUSTRALIA and HONEYWELL LIMITED [1999] ACTSC 38 (4 May 1999)

CATCHWORDS

APPORTIONMENT - Of contribution between joint tortfeasors - Negligence action - Just

and equitable requirement - s 12, Law Reform (Miscellaneous Provisions) Act 1955 (ACT).

Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 12

No. SC 811 of 1996

Judge: Higgins J

Supreme Court of the ACT

Date: 4 May 1999

IN THE SUPREME COURT OF THE )

) No. SC 811 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: NEIL FRANCIS MURDOCH

Plaintiff

AND: COMMONWEALTH OF AUSTRALIA

First Defendant

AND: HONEYWELL LIMITED

Second Defendant

ORDER

Judge: Higgins J

Date: 4 May 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The First Defendant, the Commonwealth of Australia, be liable for 80% of the agreed damages sum; that is $304,000, and the Second Defendant, Honeywell Ltd, be liable for 20% of the damages sum; that is, $76,000.

2. This was a claim by the plaintiff for damages for personal injury sustained by him at work on or about 26 April 1995.

3. At the time the plaintiff was employed by the second defendant (Honeywell). The latter had a contract with the first defendant (the Commonwealth) to maintain and monitor fire protection services for new Parliament House.

4. That involved Honeywell making employees, such as the plaintiff, available to enter sprinkler valve rooms to inspect and test equipment.

5. The accident occurred in the northern sprinkler valve room. The plaintiff had entered the room with an apprentice. Having conducted some testing he went to make a `phone call from a wall phone towards one side of the room. For some reason overhead fluorescent strips at that end of the room were not illuminated.

6. Whether for that reason alone or because his attention was focussed on the wall phone, the plaintiff failed to notice a pipe which had been laid over the concrete floor between where the plaintiff needed to walk to get to the phone. He tripped and fell over the pipe.

7. It was subsequently relocated. That would indicate that at any earlier stage it would have been possible to have routed the pipe so that it did not cross a walkway within the room.

8. The plaintiff was aware of the presence of the pipe, though he had not called it to mind at the time of the accident. The light was not so dim that, had he looked, he could not have seen it. No specific warning had been given by either defendant as to the presence of the pipe.

9. It had not previously occurred to the plaintiff that the pipe was a hazard.

10. The plaintiff's claim was settled by agreement on 8 March 1999. By consent, judgment was entered for the plaintiff in the sum of $380,000 plus costs.

11. However, the defendants were not able to agree as to their respective responsibility for the verdict.

12. The issue, therefore, is as to the respective contributions between the defendants.

13. The Commonwealth concedes that it was responsible for the construction, fitout and maintenance of the sprinkler room. Honeywell as the employer, had a non-delegable duty to take all reasonable means to ensure the safety of the plaintiff.

14. Honeywell did not direct its attention to the safety of the sprinkler room. If it had done so, it might well have drawn attention to the state of the floor.

15. As the plaintiff conceded, plant rooms are never entirely safe. However, a pipe laid across a walkway is an obvious and avoidable hazard. It required only that attention be focussed on it from a safety perspective.

16. There was some attention given to the state of the lighting. Mr Adrian Guilfoyle, Chief Engineer at Parliament House, gave evidence concerning the regular inspections of lighting throughout the complex.

17. He had also responded to the identification of the pipe hazard following the plaintiff's fall. It cost $100 to relocate it.

18. The lighting comprised six fluorescent tubes. Two were designed to be permanently "on". The others were controlled by a switch at the door.

19. Whilst it is possible that there was some lighting malfunction, I do not consider that it can be causally related to the plaintiff's fall. He conceded that, despite the dim light, the pipe was apparent if noticed. The effective cause of the accident was the position of the pipe. Even if it had been the subject of some warning, the very risk it created was of a person, intent on performing their legitimate duties, not calling to mind or noticing that it was there.

20. Contribution between tortfeasors is governed by s 12 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT). The apportionment of blame and, hence liability, is to be "just and equitable". It is, necessarily, a discretionary judgment.

21. In my view, the original installation of the pipe by the Commonwealth and its continuing failure to recognise and remedy the hazard outweighs the failure of Honeywell to notice and seek remedy of the hazard.

22. I would apportion responsibility 80% to the Commonwealth and 20% to Honeywell.

23. There will be judgment on the contribution claims accordingly. I will hear the defendants as to costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 4 May 1999

Counsel for the First Defendant: Mr G Stretton

Solicitor for the First Defendant: Australian Government Solicitor

Counsel for the Second Defendant: Mr A Bartley

Solicitor for the Second Defendant: Hunt & Hunt

Dates of Hearing: 8 & 9 March 1999

Date of Judgment: 4 May 1999