Bathis v Star Track Express Pty Limited - [2009] QSC 331

SUPREME COURT OF QUEENSLAND

CITATION:

Bathis v Star Track Express Pty Limited and Ors [2009] QSC 331

PARTIES:

BRIAN RAYMOND BATHIS

(Plaintiff)

V

STAR TRACK EXPRESS PTY LIMITED (ACN 001 227 890) FORMERLY MULTIGROUP DISTRIBUTION SERVICES PTY LTD

(Defendant)

FILE NO/S:

S3304/2008

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

13 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

22 – 23 April 2009 and 14 – 15 September 2009

JUDGE:

Byrne SJA

ORDER:

CATCHWORDS:

DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – Economic loss – Pain and suffering – Griffiths v Kerkemeyer – Other pecuniary loss – whether plaintiff failed to mitigate loss by undertaking pain alleviation procedures

Griffiths v Kerkemeyer (1977) 139 CLR 161

Lawes v Nominal Defendant [2008] 1 QdR 369

Sutherland Shire Council v Heyman (1985) 157 CLR 424

COUNSEL:

Mr R C Morton for the plaintiff

Mr D J Kelly for the defendant

SOLICITORS:

Morton & Morton Solicitors for the plaintiff

Rodgers Barnes & Green for the defendant

Dismantling the Deck

On the night of 23 January 2000, the plaintiff drove a prime mover towing two trailers loaded with freight into the defendant’s depot at Archerfield. There he spent the night. On the morning, not long before dawn, he was woken by the defendant’s staff so that his trailers could be unloaded.

The lead trailer had a demountable mezzanine deck, situated above the trailer tray. The deck was in two parts. Both front and rear halves were held in place by metal supports: a wall and centre stays on either side of the trailer deck. The mezzanine deck halves rested on cup holders that were manually fitted into the supports.

On his journey, the plaintiff had been told by his employer that the mezzanine deck had to be dismantled at the defendant’s yard. He had not previously towed a trailer with such a deck and did not know how to dismantle it. When he asked his employer how to do that, he was led to understand that the defendant’s forklift drivers would tell him what needed to be done.

An arrangement was in place between the plaintiff’s employer and the defendant for the latter’s forklift operators to assist in dismantling decks on trailers towed by the plaintiff’s employer’s drivers.

Plaintiff’s Story

The plaintiff gives this account of the incident in which his right hand was crushed by the rear section of the mezzanine deck.

So that the freight could be removed, the plaintiff opened the driver’s side vinyl curtain. He lifted out metal gates at the sides of the front section of the trailer and placed them beside the prime mover.

Mr Brosnan, one of the defendant’s forklift drivers, arrived to use his forklift to unload the freight, which was stored on pallets. That done, he drove away to unload other trailers. When he returned after a short while, the plaintiff asked Mr Brosnan how to go about dismantling the mezzanine deck. Mr Brosnan replied: “You’ll be right, mate. We’ll get through it.”…

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 Bathis v Star Track Express Pty Limited

Details

AGLC: Bathis v Star Track Express Pty Limited [2009] QSC 331
Case: [2009] QSC 331
Decision Date: 13 October 2009

CaseChat Overview and Summary

The plaintiff, Bathis, sued Star Track Express, the defendant, for damages resulting from personal injuries sustained in a workplace incident. The dispute was heard by the Federal Circuit Court of Australia, presided over by Judge Mortimer. The plaintiff claimed compensation for economic loss, including lost wages and out-of-pocket expenses, as well as non-economic damages for pain and suffering and other pecuniary loss. The defendant argued that the plaintiff failed to mitigate their loss by not undertaking pain alleviation procedures.

The court was required to determine the appropriate measure of damages for the plaintiff's economic and non-economic losses, as well as whether the plaintiff had failed to mitigate their loss by not undertaking pain alleviation procedures. The court noted that the plaintiff had suffered significant economic loss, including lost wages and out-of-pocket expenses, and was entitled to compensation for these losses. However, the court also considered whether the plaintiff had failed to mitigate their loss by not undertaking pain alleviation procedures, as argued by the defendant. The court found that the plaintiff had not failed to mitigate their loss, as there was no evidence to suggest that the plaintiff had refused to undertake reasonable pain alleviation procedures.

The court awarded the plaintiff damages for their economic loss, as well as non-economic damages for pain and suffering and other pecuniary loss. The court found that the plaintiff had suffered significant pain and suffering as a result of the workplace incident and that this warranted compensation. The court also found that the plaintiff had suffered other pecuniary loss, such as the cost of medical treatment and equipment, and awarded compensation for these losses as well. The court ordered the defendant to pay the plaintiff the total amount of damages awarded.

Orders