Binns v Thomas Borthwick and Sons (Aust) Pty Ltd - [2005] QSC 237

SUPREME COURT OF QUEENSLAND

CITATION: Binns v Thomas Borthwick & Sons (Aust) Pty Ltd [2005]
QSC 237
PARTIES: DAVID RUSSELL BINNS
(plaintiff)
v
THOMAS BORTHWICK & SONS (AUSTRALIA) PTY
LTD (ACN 120 065 535 104)
(defendant)
FILE NO/S: Mackay S44 of 2004
DIVISION: Trial Division
PROCEEDING: Trial
DELIVERED ON: 1 September 2005
DELIVERED AT: Brisbane
HEARING DATE: 13, 14 and 18 April 2005
JUDGE: Mullins J
ORDER: The defendant pay the plaintiff the sum of $333,680.20
CATCHWORDS: EMPLOYMENT LAW –LIABILITY FOR EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE PLACE OF WORK – where plaintiff required to work
in cold storage room – where plaintiff exposed to carbon
monoxide while working in cold storage room – where
plaintiff collapsed after exposure to carbon monoxide but did
not lose consciousness – where plaintiff suffered from
consequent behavioural difficulties and psychiatric condition
– whether the plaintiff suffered an organic brain injury from
carbon monoxide exposure
DAMAGES – MEASURE OF DAMAGES – LOSS OF EARNING AND EARNING CAPACITY – RE- EMPLOYMENT OF WORKER – where plaintiff returned to work for a short time after being exposed to carbon monoxide – where plaintiff ceased working after 9 months as a result of psychiatric condition – where plaintiff attempted workplace rehabilitation but was unsuccessful – whether plaintiff’s psychiatric condition is likely to prevent him from returning to paid employment – damages for loss of future earning capacity assessed on the basis that plaintiff is unemployable – discount of 40% applied to assessment to cover chance that plaintiff may engage in some paid employment and vicissitudes
Gallagher v Queensland Corrective Services Commission (unreported, Sup Ct (Q), No 1302 of 1995, 30 July 1998) Hirst v Nominal Defendant [2004] QSC 272
COUNSEL: J J Clifford QC and G F Crow for the plaintiff
W D P Campbell for the defendant
SOLICITORS: Macrossan & Amiet for the plaintiff
Bruce Thomas Lawyers for the defendant

MULLINS J: The plaintiff was employed at the defendant’s meatworks at Bakers Creek, Mackay when he was exposed to carbon monoxide between 4 and 12 June 2001 (“the incident”). The plaintiff claims to have suffered carbon monoxide poisoning, a chronic organic brain syndrome resulting in a 15% whole body permanent partial disability relating to ongoing cognition difficulties and a 15% whole body permanent partial disability relating to behavioural difficulties and a consequential psychiatric condition (a generalised anxiety disorder). He seeks damages for negligence and/or breach of contract of employment and/or breach of statutory duty.
The defendant admitted in its defence that the plaintiff was exposed to carbon monoxide between 4 and 12 June 2001 and that the exposure to carbon monoxide was caused by the negligence and/or breach of contract and/or breach of statutory duty of the defendant. What is disputed by the defendant is the allegation that the plaintiff was exposed to high levels of carbon monoxide and suffered carbon monoxide poisoning as a result. The defendant also disputes the nature and extent of the personal injury which the plaintiff claims…

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: [2005] QSC 237
Decision Date: 1 September 2005

CaseChat Overview and Summary

Binns v Thomas Borthwick and Sons (Aust) Pty Ltd involved a dispute between the plaintiff and the defendant regarding liability for injury to the plaintiff at common law. The plaintiff, who had a history of consistent employment, was working as a slaughterman for the defendant when he suffered an injury to his left wrist and left elbow due to repetitive work practices. Later, the plaintiff was exposed to carbon monoxide in a cold storage chiller room at the defendant's meatworks, resulting in further injuries. The plaintiff sought damages for personal injury, psychiatric illness, and loss of earnings.

The court had to decide whether the defendant was liable for the plaintiff's injuries under common law principles. The key issues were whether the defendant breached its duty to provide a safe place of work and whether the injuries were a result of that breach. The court also had to assess the damages to be awarded to the plaintiff.

The court found that the defendant was liable for the plaintiff's injuries. It determined that the defendant failed to provide a safe place of work by not ensuring that the cold storage chiller room was free from carbon monoxide emissions. The court held that the defendant was vicariously liable for the injuries caused by the carbon monoxide emissions. The court also found that the plaintiff's psychiatric illness was a result of the injuries caused by the carbon monoxide emissions. The court awarded the plaintiff damages for personal injury, psychiatric illness, and loss of earnings.

The defendant was ordered to pay the plaintiff the sum of $333,680.20. The court also ordered the defendant to refund $67,844.97 to WorkCover. The court will hear submissions from the parties on the question of costs.

Orders

Orders of the court

The defendant pay the plaintiff the sum of $333,680.20

Background

Background to the litigation

The defendant called neurologist Dr John Cameron, psychiatrist Professor Harvey Whiteford, psychologist Dervla Loughnane, job placement consultant Paul Gablonski and neurologist Dr Alison Reid. Plaintiff’s background The plaintiff was born in 1959. He left school when he was 13 years old. He worked as a farmhand over the next 5 years with his parents who did seasonal work picking vegetables. From 1979 he worked for 2 years as a dairy supervisor at the Queensland Agricultural College. He then was employed as a potato picker and field hand in the Gatton area for another 2 years. The plaintiff and Mrs Binns moved to Bowen in late 1983 where they worked tomato picking and packing. In the latter part of 1984 they returned to the Gatton area for a period of about 12 months, before returning to Bowen. Both in Gatton and Bowen the plaintiff did farm work. He then obtained seasonal work at the defendant’s meatworks at Bowen. He worked as a slaughterman for a number of years. He also obtained work as a night cleaner at the meatworks. When not working at the meatworks, he worked as a farm labourer. The plaintiff and Mrs Binns moved from Bowen to Sarina in December 1995. The plaintiff obtained work at the meatworks at Bakers Creek as a slaughterman and Mrs Binns obtained work there as a packer. The plaintiff worked continuously at the meatworks as a slaughterman until the meatworks closed down in October 1997. The plaintiff and Mrs Binns then commenced a cleaning business, but when the meatworks reopened in April 1998, they both returned to working at the meatworks. In 1989 the plaintiff suffered an injury to his left wrist and left elbow as a result of repetitive work practices. He underwent carpel tunnel surgery and an ulnar nerve transplant. He did not work for a number of months. When he returned to work, he ceased working on the slaughter floor and commenced working as a labourer in the boning room. Prior to the incident, the plaintiff had a history of consistent employment. In early 2001 the plaintiff had been complaining of giddiness, if he turned or stood too quickly. He underwent an MRI scan of his brain and pituitary gland on 14 February 2001 which revealed ectasia of the left vertebral artery. The plaintiff’s general medical practitioner, Dr Owczarek, referred him to a neurosurgeon, Dr Baker. The plaintiff had an appointment to see Dr Baker on 15 June 2001. The incident Immediately prior to 4 June 2001 the plaintiff was working in the boning room when he was required to put the correct lids on cartons of meat packed in cryovac to correspond with what meat was in the carton. The plaintiff was competent in performing this role and got on well with his fellow employees. As of 4 June 2001, the place for performing the plaintiff’s task was changed to a cold storage chiller room that had been recently converted from its prior use as a cold storage freezer. The plaintiff was training two employees to do his job. There was a door to the cold room that gave access to and egress from the cold room for the employees. It was usually closed while they were working. On the western side of the cold room there was another entrance to the load out area that had strips of plastic hung in the doorway to keep the cold air in. There was no window in the cold room. A forklift powered by LPG operated in the cold room. Through a fault in equipment on the forklift, the forklift emitted carbon monoxide. There was a build up of carbon monoxide in the cold room at the end of each day, but the employees including the plaintiff were unaware that this was happening.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The future cost of anti-depressant medication should be calculated on the basis of the anticipated expenditure of $28.60 per month for the remainder of the plaintiff’s life. An allowance for vicissitudes should also be made in respect of this calculation. Conclusion It was common ground between the parties that the amount of the refund to WorkCover is $67,844.97. The assessment of damages can be summarised as follows: It follows that the defendant should be ordered to pay the plaintiff the sum of $333,680.20. I will hear submissions from the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Binns v Thomas Borthwick & Sons (Aust) Pty Ltd [2005] QSC 237
PARTIES:	DAVID RUSSELL BINNS (plaintiff) v THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD (ACN 120 065 535 104) (defendant)
FILE NO/S:	Mackay S44 of 2004
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	1 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	13, 14 and 18 April 2005
JUDGE:	Mullins J
ORDER:	The defendant pay the plaintiff the sum of $333,680.20
CATCHWORDS:	EMPLOYMENT LAW –LIABILITY FOR EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE PLACE OF WORK – where plaintiff required to work
in cold storage room – where plaintiff exposed to carbon monoxide while working in cold storage room – where plaintiff collapsed after exposure to carbon monoxide but did not lose consciousness – where plaintiff suffered from consequent behavioural difficulties and psychiatric condition – whether the plaintiff suffered an organic brain injury from carbon monoxide exposure
DAMAGES – MEASURE OF DAMAGES – LOSS OF EARNING AND EARNING CAPACITY – RE- EMPLOYMENT OF WORKER – where plaintiff returned to work for a short time after being exposed to carbon monoxide – where plaintiff ceased working after 9 months as a result of psychiatric condition – where plaintiff attempted workplace rehabilitation but was unsuccessful – whether plaintiff’s psychiatric condition is likely to prevent him from returning to paid employment – damages for loss of future earning capacity assessed on the basis that plaintiff is unemployable – discount of 40% applied to assessment to cover chance that plaintiff may engage in some paid employment and vicissitudes
Gallagher v Queensland Corrective Services Commission (unreported, Sup Ct (Q), No 1302 of 1995, 30 July 1998) Hirst v Nominal Defendant [2004] QSC 272
COUNSEL:	J J Clifford QC and G F Crow for the plaintiff W D P Campbell for the defendant
SOLICITORS:	Macrossan & Amiet for the plaintiff Bruce Thomas Lawyers for the defendant