Arnold v Tilecorp Pty Ltd - [2013] QCA 211

SUPREME COURT OF QUEENSLAND

CITATION:

Arnold v Tilecorp Pty Ltd [2013] QCA 211

PARTIES:

DAVID BRUCE ARNOLD
(appellant)
v
TILECORP PTY LTD
ACN 010 868 943
(respondent)

FILE NO/S:

Appeal No 10477 of 2012
SC No 4900 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

1 May 2013

JUDGES:

Muir JA, Philippides and Ann Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where appellant claims he injured his back lifting a box of tiles from a pallet over a balustrade – whether an event occurred at the work site on the day of the injury – whether the trial judge erred in failing to consider all scenarios available on the evidence – whether the trial judge failed to evaluate the evidence available to support the second “balustrade hypothesis”

Suvaal v Cessnock City Council (2003) 77 ALJR 1449; (2003) 200 ALR 1; [2003] HCA 41, cited

COUNSEL:

R A I Myers with B Munro for the appellant
A S Mellick for the respondent

SOLICITORS:

Shine Lawyers for the appellant
Gadens Lawyers for the respondent

MUIR JA: I agree that the appeal should be dismissed with costs for the reasons given by Philippides J.

PHILIPPIDES J:

Background

The appellant, David Bruce Arnold, appeals against the decision of the trial judge dismissing his claim for damages for personal injury against his employer, the respondent, Tilecorp Pty Ltd.

The appellant’s case was that on 26 May 2009, while working as a tiler for the respondent at the Robina Town Centre, he injured his back lifting a box of tiles from a pallet. At that time the appellant and others were laying tiles on an area referred to as the Promenade, which was described as a large public area about 240 square metres in area designed to accommodate seating for cafes abutting the Promenade and for general access to the Centre. It had a sweeping curved edge along which a wide ramp was placed to provide access to and egress from the Promenade.

At the trial, on the issue of liability the appellant gave evidence and called Mr O’Sullivan (an ergonomist), while the respondent called Harry Himberg (a supervisor), Antony Blake (another supervisor), Clinton Patmore (a tiler also working on the Promenade) and Heath Mills (a labourer and safety officer).

The decision of the trial judge

The broad description of the events in question, as described as follows by the trial judge, was not in dispute.

“[3] By 26 May the [appellant] had been employed on the site for about four weeks. He had been working on various jobs, but was assigned to the Promenade when wet weather prevented work on other areas. He said that he was injured on the second day of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCA 211
Decision Date: 2 August 2013

CaseChat Overview and Summary

In this matter, the appellant brought an action against the respondent, a corporation involved in the construction industry, for injuries sustained in an incident at work. The appellant alleged that he injured his back while lifting a box of tiles from a pallet over a balustrade. The trial judge found that the appellant had failed to prove his case and dismissed the claim. Dissatisfied with the outcome, the appellant appealed to the court.

The court was required to consider whether the trial judge had erred in failing to consider all scenarios available on the evidence and in failing to evaluate the evidence available to support the second "balustrade hypothesis." The court examined the evidence presented and the findings made by the trial judge. It found that the trial judge had considered all relevant scenarios and had evaluated the evidence in relation to the second hypothesis.

The court held that the trial judge had not erred in his evaluation of the evidence. The court found that the appellant had failed to establish his case on the balance of probabilities and dismissed the appeal. The court found that the appellant had not discharged the onus of proving that the injury occurred in the manner he alleged, and that the trial judge had correctly found that the appellant had not established a causal link between the incident and the injury.

The court dismissed the appeal with costs. The court found that the trial judge's decision was supported by the evidence and that there was no basis for the appellant's contention that the trial judge had failed to consider all scenarios available on the evidence or had erred in evaluating the evidence in relation to the second hypothesis. The court held that the appellant's appeal was without merit and dismissed it with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Arnold v Tilecorp Pty Ltd [2013] QCA 211
PARTIES:	DAVID BRUCE ARNOLD (appellant) v TILECORP PTY LTD ACN 010 868 943 (respondent)
FILE NO/S:	Appeal No 10477 of 2012 SC No 4900 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 May 2013
JUDGES:	Muir JA, Philippides and Ann Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where appellant claims he injured his back lifting a box of tiles from a pallet over a balustrade – whether an event occurred at the work site on the day of the injury – whether the trial judge erred in failing to consider all scenarios available on the evidence – whether the trial judge failed to evaluate the evidence available to support the second “balustrade hypothesis” Suvaal v Cessnock City Council (2003) 77 ALJR 1449; (2003) 200 ALR 1; [2003] HCA 41, cited
COUNSEL:	R A I Myers with B Munro for the appellant A S Mellick for the respondent
SOLICITORS:	Shine Lawyers for the appellant Gadens Lawyers for the respondent