Bakhit v Brisbane City Council

DISTRICT COURT OF QUEENSLAND

CITATION:

Bakhit v Brisbane City Council [2017] QDC 155

PARTIES:

OSMAN BAKHIT

(plaintiff)

v

BRISBANE CITY COUNCIL

(defendant)

FILE NO/S:

BD 1197/15

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 4 and 5 May 2017

JUDGE:

Rafter SC DCJ

ORDER:

The plaintiff’s claim is dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – REQUIREMENTS FOR CLAIM OF NEGLIGENCE – DUTY OF CARE – EMPLOYER AND EMPLOYEE – where the plaintiff alleges injury to his lumbar spine while lifting temporary fencing blocks by himself – whether the plaintiff injured his lumbar spine on the date and in the manner alleged – whether a system of work was in place for the lifting of temporary fencing blocks – whether the plaintiff had been instructed in any system of work for the lifting of temporary fencing blocks – whether the system of work caused the injury – if so whether the defendant breached its duty of care –  whether the defendant is liable for the plaintiff’s injury – if so quantum of damages

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305C, s 305D, s305E, s306N
Workers’ Compensation and Rehabilitation Regulation 2014 (Qld)

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48, considered
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, considered
Castro v Transfield (Qld) Pty Ltd (1983) 47 ALR 715, considered
Downes v Affinity Health Pty Ltd [2016] QCA 129, considered
Ferraloro v Preston Timber Pty Ltd (1982) 42 ALR 627, considered
Guirguis Pty Ltd & Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83, considered
Lusk v Sapwell [2012] 1 Qd R 507; [2011] QCA 59, considered
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319; [2012] QCA 315, considered
The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103, considered

Turner v State of South Australia (1982) 42 ALR 669, considered

COUNSEL:

SD Anderson and JP Morris for the plaintiff

MT O’Sullivan for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Brisbane City Legal Practice for the defendant

Introduction

1. The plaintiff was employed as a labourer by the Brisbane City Council.  He says that he injured his back on 13 July 2011 while lifting a concrete block that formed the base of temporary fencing.  The defendant denies liability on the bases that any incident on 13 July 2011 did not occur as alleged by the plaintiff, and that it devised, implemented and maintained a safe system whereby concrete blocks were to be lifted by two people using an item of equipment referred to as a “lifter.”  The quantum of damages is also in dispute.

The plaintiff’s case

1. The plaintiff’s case is that between the time when he commenced employment with the defendant in 2007 and 13 July 2011, he received no…