Comcare v John Holland Rail Pty Ltd (No 4) [2011] FCA 253

Comcare v John Holland Rail Pty Ltd (No 4) [2011] FCA 253

The Court held that most challenged paragraphs sufficiently identified the measures alleged to be required and put the respondents on notice of the case to be met, and that injury was not a necessary element of a s 16 contravention. However, paragraphs 27.3 and 30.3 were deficient because the pleaded hazard identification and risk assessment was confusing and unclear, including as to when or how regularly the assessment should have been conducted. Paragraphs 27.4 and 30.4 were deficient because they did not sufficiently specify the instructions or safe working measures the respondents should have provided. Paragraphs 29 and 32 were also deficient because they referred to persons beyond Mr...

Jurisdiction
Australia
Judgment Date
17 March 2011
Procedural Posture
Practice and Procedure Pleadings Application to Strike Out Statement of Claim / Respondents' Notice of Motion to Strike Out Paragraphs of the Further Amended Statement of Claim at the Commencement of Trial, Alternatively to Stay or Dismiss the Proceeding
Outcome
Paragraphs 27.3, 27.4, 29, 30.3, 30.4 and 32 of the Further Amended Statement of Claim were struck out; costs were reserved; the notice of motion was otherwise dismissed.
Legal Topics
['strike Out of Pleadings' 'adequacy of Statement of Claim' 'employer Duties Under S 16 of the Occupational Health & Safety Act 1991 (cth)' 'contractors and Matters Over Which an Employer Has Control Under S 16(4)']
['practice and Procedure' 'occupational Health and Safety'] ['strike Out of Pleadings' 'adequacy of Statement of Claim' 'employer Duties Under S 16 of the Occupational Health & Safety Act 1991 (cth)' 'contractors and Matters Over Which an Employer Has Control Under S 16(4)']

Case Brief

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Procedural Posture

Practice and Procedure Pleadings Application to Strike Out Statement of Claim / Respondents' Notice of Motion to Strike Out Paragraphs of the Further Amended Statement of Claim at the Commencement of Trial, Alternatively to Stay or Dismiss the Proceeding

Legal Issues

  1. 1 ['Whether paragraphs 17, 21, 27, 28, 29, 30, 31 and 32 of the Further Amended Statement of Claim should be struck out.' 'Whether a pleading alleging contravention of s 16 of the Occupational Health & Safety Act 1991 (Cth) must particularise how injury occurred or prove injury as an element of the cause of action.' 'Whether the Further Amended Statement of Claim sufficiently identified the duty, measures alleged to have been required, relevant risks, and matters over which the respondents had control for the purposes of s 16(4).' 'Whether the proceeding should alternatively be stayed or dismissed generally.']

Ratio Decidendi

The Court held that most challenged paragraphs sufficiently identified the measures alleged to be required and put the respondents on notice of the case to be met, and that injury was not a necessary element of a s 16 contravention. However, paragraphs 27.3 and 30.3 were deficient because the pleaded hazard identification and risk assessment was confusing and unclear, including as to when or how regularly the assessment should have been conducted. Paragraphs 27.4 and 30.4 were deficient because they did not sufficiently specify the instructions or safe working measures the respondents should have provided. Paragraphs 29 and 32 were also deficient because they referred to persons beyond Mr...

Court Disposition

Paragraphs 27.3, 27.4, 29, 30.3, 30.4 and 32 of the Further Amended Statement of Claim were struck out; costs were reserved; the notice of motion was otherwise dismissed.

Orders

  • ['Paragraphs 27.3, 27.4, 29, 30.3, 30.4 and 32 of the Further Amended Statement of Claim be struck out.' "Costs of and incidental to the respondent's notice of motion of 14 October 2010 be reserved." 'The notice of motion be otherwise dismissed.']