Baker v Wood - [2005] QDC 119

DISTRICT COURT OF QUEENSLAND

CITATION:

Baker v Wood & Ors [2005] QDC 119

PARTIES:

AMY REBECCA BAKER

Plaintiff

v

PATRICIA JANE WOOD

First Defendant

and

WHERE ON EARTH PTY LTD

Second Defendant

and

ISIS SHIRE COUNCIL

Third Defendant

and

STATE OF QUEENSLAND

Fourth Defendant

FILE NO/S:

D82/2002

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Maryborough

DELIVERED ON:

23 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2005

JUDGE:

McGill DCJ

ORDER:

Plaintiff’s further amended statement of claim, so far as it pleads anything against the fourth defendant, struck out. Liberty to the plaintiff to replead. Application otherwise adjourned. Costs reserved.

CATCHWORDS:

NEGLIGENCE – Public Authorities – duty – pleading not alleging circumstances giving rise to duty of care or statutory duty – pleading struck out

PRACTICE – Statement of claim – Striking out – negligence – breach of statutory duty – no cause of action pleaded against State of Queensland.

Fire and Rescue Authority Act 1990

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 – applied.

Pyrenees Shire Council v Day (1998) 192 CLR 330 – applied.

COUNSEL:

R A I Myers and E J Howard for the plaintiff
M J Burns and M P Kent for the fourth defendant

SOLICITORS:

Trilby Misso Lawyers for the plaintiff
Crown Solicitor for the fourth defendant.

In the early hours of 23 June 2000 a fire was started on the ground floor of a backpackers’ hostel in Childers. The plaintiff, a young Englishwoman, was then asleep in a room on the floor above. Soon after she was woken by a friend. She was unable to leave in the usual way, but escaped the fire by means of a balcony and the roof of an adjoining building. Most of the residents in the hostel were able to escape with their lives, but sadly 11 perished in the fire. It is alleged in the pleading that the plaintiff found out the following morning that people had been killed. She was acquainted with each of them, and knew two of them very well.

The plaintiff alleges that as a result of what happened to her, including being informed of the death of those people, she suffered psychological injury. By this action she seeks damages in respect of that injury from the person alleged to have been the owner of the premises at the time, the company alleged to have been the lessee carrying on the hostel business at those premises, the local shire council, and the State of Queensland.

The fourth defendant, the State of Queensland, has now applied to have the statement of claim struck out as against it, on the ground that the pleading does not disclose a cause of action against the fourth defendant, and that it has a tendency to prejudice or delay a fair trial of the proceeding. Further or in the alternative, an order is sought that the plaintiff give security for its costs of and incidental to the action. Both of these orders were resisted…

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.

Continue reading Baker v Wood

Details

AGLC: Baker v Wood [2005] QDC 119
Case: [2005] QDC 119
Decision Date: 23 May 2005

CaseChat Overview and Summary

Baker v Wood involved the plaintiff, Baker, suing Wood, who was a public authority, and others for negligence and breach of statutory duty. The plaintiff sought damages for the alleged negligent conduct of the defendant in their role as a public authority. The case was heard in the Supreme Court of Queensland.

The primary legal issue was whether the plaintiff's pleadings adequately stated a cause of action against the defendant for negligence and breach of statutory duty. The court needed to determine whether the plaintiff's allegations sufficiently established the circumstances that would give rise to a duty of care or statutory duty on the part of the defendant. The court also had to consider whether the plaintiff's claims were properly pleaded against the State of Queensland.

The court held that the plaintiff's further amended statement of claim did not sufficiently allege the circumstances giving rise to a duty of care or statutory duty against the defendant, who was a public authority. The plaintiff's claims against the State of Queensland were also found to be inadequately pleaded. Consequently, the court struck out the plaintiff's further amended statement of claim, to the extent it related to the fourth defendant, which was the State of Queensland. The court granted the plaintiff leave to amend and re-plead the claim, while reserving costs for another day. The application was adjourned pending the re-pleading.

Orders

Orders of the court

Plaintiff’s further amended statement of claim, so far as it pleads anything against the fourth defendant, struck out. Liberty to the plaintiff to replead. Application otherwise adjourned. Costs reserved.

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:	Baker v Wood & Ors [2005] QDC 119
PARTIES:	AMY REBECCA BAKER Plaintiff v PATRICIA JANE WOOD First Defendant and WHERE ON EARTH PTY LTD Second Defendant and ISIS SHIRE COUNCIL Third Defendant and STATE OF QUEENSLAND Fourth Defendant
FILE NO/S:	D82/2002
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Maryborough
DELIVERED ON:	23 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2005
JUDGE:	McGill DCJ
ORDER:	Plaintiff’s further amended statement of claim, so far as it pleads anything against the fourth defendant, struck out. Liberty to the plaintiff to replead. Application otherwise adjourned. Costs reserved.
CATCHWORDS:	NEGLIGENCE – Public Authorities – duty – pleading not alleging circumstances giving rise to duty of care or statutory duty – pleading struck out PRACTICE – Statement of claim – Striking out – negligence – breach of statutory duty – no cause of action pleaded against State of Queensland. Fire and Rescue Authority Act 1990 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 – applied. Pyrenees Shire Council v Day (1998) 192 CLR 330 – applied.
COUNSEL:	R A I Myers and E J Howard for the plaintiff M J Burns and M P Kent for the fourth defendant
SOLICITORS:	Trilby Misso Lawyers for the plaintiff Crown Solicitor for the fourth defendant.