Black v. Warwick Shire Council - [2009] QSC 123

SUPREME COURT OF QUEENSLAND

CITATION:

Black v Warwick Shire Council [2009] QSC 123

PARTIES:

NEVILLE JOHN BLACK
(plaintiff)
v
WARWICK SHIRE COUNCIL

(defendant)

FILE NO/S:

BS 8548 of 2007

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

25 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5, 6 and 7 May 2009

JUDGE:

White J

ORDER:

The plaintiff’s claim against the defendant is dismissed.

CATCHWORDS:

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE PLACE OF WORK – where plaintiff was employed by defendant Council as a back hoe operator – where plaintiff worked on road repairs near a cattle feedlot and at a sewerage treatment plant involving contact with cattle waste – where plaintiff contracted Q fever encephalitis – where plaintiff was not vaccinated under the defendant’s workplace health and safety infection control procedure – where defendant owed plaintiff a common law duty of care not to expose him to risk of injury it knew or ought to have known whilst carrying out his work – whether there was a reasonably foreseeable risk of injury to plaintiff in the course of employment – whether defendant breached common law duty of care

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DISCHARGE AND BREACH – GENERALLY – where plaintiff was employed by defendant Council as a back hoe operator – where plaintiff worked on road repairs near a cattle feedlot and at a sewerage treatment plant involving contact with cattle waste – where plaintiff contracted Q fever encephalitis – where plaintiff was not vaccinated under the defendant’s workplace health and safety infection control procedure – whether defendant breached statutory duty of care imposed by provisions of the Workplace Health and Safety Act 1995 (Qld)

Workplace Health and Safety Act 1995 (Qld), s 22(2), s 26(3), s 28(1), s 29B, s 37(1)(b)

New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20, applied
Sheridan v Warrina Community Co-operative Ltd [2005]
1 Qd R 187; [2004] QCA 308, considered
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, considered
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, applied

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, applied

COUNSEL:

Dr G J Cross for the plaintiff

Mr W D P Campbell for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Bruce Thomas Lawyers for the defendant

The plaintiff, Neville John Black, is a 64 year old married man who was diagnosed as suffering from Q fever encephalitis in March 2004. He was then employed as a back hoe operator by the defendant, Warwick Shire Council (“the Council”), which after amalgamation with the Stanthorpe Shire Council is now the Southern Downs Regional Council.

It is not in contention that…

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: [2009] QSC 123
Decision Date: 25 May 2009

CaseChat Overview and Summary

In the case of Black v. Warwick Shire Council, the plaintiff sought to recover damages for injuries sustained during his employment as a back hoe operator for the defendant council. The plaintiff contracted Q fever encephalitis, a condition he alleged arose from his exposure to cattle waste while working on road repairs near a cattle feedlot and at a sewerage treatment plant. The central dispute centred on whether the council breached its common law and statutory duties of care by not vaccinating the plaintiff against Q fever, a known risk in his line of work.

The legal issues before the court included determining whether the council owed the plaintiff a common law duty of care to provide a safe working environment, which encompassed not exposing him to reasonably foreseeable risks of injury. Additionally, the court had to consider whether the council breached its statutory duty of care under the Workplace Health and Safety Act 1995 (Qld). This involved an examination of the council's infection control procedures and whether it had failed to implement adequate measures to protect the plaintiff from known hazards.

The court found that the council did not breach its common law duty of care. It held that while the council had knowledge of the risks associated with Q fever, the risk was not deemed reasonably foreseeable given the plaintiff's specific circumstances and the measures taken to mitigate the risk. Furthermore, the court concluded that the council had complied with its statutory obligations by implementing appropriate health and safety procedures, including the provision of vaccinations where necessary. The court dismissed the plaintiff's claim, finding that the council had not breached any duty of care.

The final orders of the court were that the plaintiff’s claim against the defendant council is dismissed.

Orders

Orders of the court

The plaintiff’s claim against the defendant is dismissed.

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:	Black v Warwick Shire Council [2009] QSC 123
PARTIES:	NEVILLE JOHN BLACK (plaintiff) v WARWICK SHIRE COUNCIL (defendant)
FILE NO/S:	BS 8548 of 2007
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	25 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5, 6 and 7 May 2009
JUDGE:	White J
ORDER:	The plaintiff’s claim against the defendant is dismissed.
CATCHWORDS:	EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE PLACE OF WORK – where plaintiff was employed by defendant Council as a back hoe operator – where plaintiff worked on road repairs near a cattle feedlot and at a sewerage treatment plant involving contact with cattle waste – where plaintiff contracted Q fever encephalitis – where plaintiff was not vaccinated under the defendant’s workplace health and safety infection control procedure – where defendant owed plaintiff a common law duty of care not to expose him to risk of injury it knew or ought to have known whilst carrying out his work – whether there was a reasonably foreseeable risk of injury to plaintiff in the course of employment – whether defendant breached common law duty of care EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – DISCHARGE AND BREACH – GENERALLY – where plaintiff was employed by defendant Council as a back hoe operator – where plaintiff worked on road repairs near a cattle feedlot and at a sewerage treatment plant involving contact with cattle waste – where plaintiff contracted Q fever encephalitis – where plaintiff was not vaccinated under the defendant’s workplace health and safety infection control procedure – whether defendant breached statutory duty of care imposed by provisions of the Workplace Health and Safety Act 1995 (Qld) Workplace Health and Safety Act 1995 (Qld), s 22(2), s 26(3), s 28(1), s 29B, s 37(1)(b) New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20, applied Sheridan v Warrina Community Co-operative Ltd [2005] 1 Qd R 187; [2004] QCA 308, considered Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, considered Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, applied Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, applied
COUNSEL:	Dr G J Cross for the plaintiff Mr W D P Campbell for the defendant
SOLICITORS:	Shine Lawyers for the plaintiff Bruce Thomas Lawyers for the defendant