Berhane v Woolworths - [2016] QDC 142

DISTRICT COURT OF QUEENSLAND

CITATION:

Berhane v Woolworths [2016] QDC 142

PARTIES:

BERHANE GHEBREIGZIABIHER BERHANE

(Plaintiff)

and

WOOLWORTHS LIMITED

(Defendant)

FILE NO/S:

4729/13

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 June 2016

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

20 – 23 July 2015, 7 and 10 December 2015

JUDGE:

Devereaux SC DCJ

ORDER:

1. Judgment for the defendant

2. The plaintiff pay the defendant’s costs from 21 October 2013 on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the plaintiff occasioned a shoulder injury while working for the defendant – where the injury suffered by the plaintiff was an aggravation of a pre-existing degenerative condition – whether the defendant had failed in its duty to provide, maintain and enforce a safe system of work – whether any breach of duty was a necessary condition of the occurrence of the harm – whether the plaintiff would have suffered the injury but for the degenerative condition – whether it is appropriate to extend the scope of liability to the injury so caused.

Legislation:

Workplace Health and Safety Act 1995

Workers Compensation and Rehabilitation Act 2003

Cases:

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

McLean v Tedman (1984) 155 CLR 306

Nicol v All Yacht Spars Pty Ltd (1987) 163 CLR 611

Roads Traffic Authority of NSW v Dederer (2007) 234 CLR 330

Roman Catholic Trust Corporation v Finn [1997] 1 Qd R 29

Stitz v Manpower Services Australia Pty Ltd and Anor [2011] QSC 268

Waugh v Kippen (1986) 160 CLR 156

Woolworths v Perrins [2015] QCA 207

Mallett v McGonagle [1970] A.C. 166

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

COUNSEL:

R W Morgan for the plaintiff

R C Morton for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

DLA Piper Australia for the defendant

The plaintiff claims damages for personal injury caused by the negligence and/or breach of contract of the defendant. He suffered a shoulder injury while working at the defendant’s distribution centre at Larapinta. The work activities aggravated a pre-existing injury.

The plaintiff was born on 24 April 1962 in Asmara, Eritrea. After completing school there, he trained as an electrician and worked for the German based company, Siemens. His other employment, before coming to Australia, included working as a ‘community mobiliser’ for an American based entity called International Rescue Committee and as an electrician for the United Nations mission in Ethiopia and he drove a taxi in Sudan. He came to Australia in 2008 to join his wife and children, who came in 2007.

He could not get accreditation as an electrician because, he said, he could not obtain certain documents and could not pay a fee.

In Australia, the plaintiff worked as a cleaner in a hotel; obtained a forklift operating licence and completed a warehouse logistics training course. He started working for the defendant in…

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 Berhane v Woolworths

Details

AGLC: Berhane v Woolworths [2016] QDC 142
Case: [2016] QDC 142
Decision Date: 13 June 2016

CaseChat Overview and Summary

The case of Berhane v Woolworths concerned a claim for damages for personal injury brought by the plaintiff, Berhane, against her employer, Woolworths. Berhane alleged that she had suffered a shoulder injury while working for Woolworths and that this injury was an aggravation of a pre-existing degenerative condition. She claimed that Woolworths had failed in its duty to provide, maintain and enforce a safe system of work and that this breach of duty was a necessary condition of the occurrence of the harm. The central issue for the court was whether Berhane would have suffered the injury but for the degenerative condition and whether it was appropriate to extend the scope of liability to the injury caused by the aggravation of the pre-existing condition.

The court found that Berhane had failed to establish that Woolworths had breached its duty of care. The court held that there was no evidence that Woolworths had failed to provide, maintain and enforce a safe system of work, and that the aggravation of the degenerative condition was not a necessary condition of the occurrence of the harm. The court further found that Berhane would have suffered the injury but for the degenerative condition, and that it was not appropriate to extend the scope of liability to the injury caused by the aggravation of the pre-existing condition. The court found that Berhane's injury was a result of the degenerative condition rather than the work done for Woolworths.

As a result, the court found in favour of Woolworths and dismissed Berhane's claim for damages. The court ordered that judgment be entered for Woolworths and that Berhane pay Woolworths' costs from 21 October 2013 on the standard basis.

Orders

Orders of the court

1. Judgment for the defendant

2. The plaintiff pay the defendant’s costs from 21 October 2013 on the standard basis.

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:	Berhane v Woolworths [2016] QDC 142
PARTIES:	BERHANE GHEBREIGZIABIHER BERHANE (Plaintiff) and WOOLWORTHS LIMITED (Defendant)
FILE NO/S:	4729/13
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 June 2016
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	20 – 23 July 2015, 7 and 10 December 2015
JUDGE:	Devereaux SC DCJ
ORDER:	1. Judgment for the defendant 2. The plaintiff pay the defendant’s costs from 21 October 2013 on the standard basis.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the plaintiff occasioned a shoulder injury while working for the defendant – where the injury suffered by the plaintiff was an aggravation of a pre-existing degenerative condition – whether the defendant had failed in its duty to provide, maintain and enforce a safe system of work – whether any breach of duty was a necessary condition of the occurrence of the harm – whether the plaintiff would have suffered the injury but for the degenerative condition – whether it is appropriate to extend the scope of liability to the injury so caused. Legislation: Workplace Health and Safety Act 1995 Workers Compensation and Rehabilitation Act 2003 Cases: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 McLean v Tedman (1984) 155 CLR 306 Nicol v All Yacht Spars Pty Ltd (1987) 163 CLR 611 Roads Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Roman Catholic Trust Corporation v Finn [1997] 1 Qd R 29 Stitz v Manpower Services Australia Pty Ltd and Anor [2011] QSC 268 Waugh v Kippen (1986) 160 CLR 156 Woolworths v Perrins [2015] QCA 207 Mallett v McGonagle [1970] A.C. 166 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
COUNSEL:	R W Morgan for the plaintiff R C Morton for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff DLA Piper Australia for the defendant