SUPREME COURT OF QUEENSLAND
CITATION:
Boon v Summs of Qld Pty Ltd [2016] QCA 38
PARTIES:
JOSHUA DAVID BOON
(appellant)
v
SUMMS OF QLD PTY LTD trading as BIG BILL’S BOBCATS
ACN 140 816 119
(respondent)FILE NO/S:
Appeal No 6085 of 2015
SC No 789 of 2014DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2015] QSC 162DELIVERED ON:
26 February 2016
DELIVERED AT:
Brisbane
HEARING DATE:
6 November 2015
JUDGES:
Holmes CJ and Gotterson JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Appeal allowed.
2. Set aside the order made on 12 June 2015.
3. In lieu thereof, order that there be judgment for the plaintiff in the amount of $215,286.11.
4. Direct that each party file and serve submissions with respect to costs of the proceedings at first instance and on appeal within seven days of the publication of these reasons, such submissions not to exceed four pages.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE - GENERALLY – where three fingers of the appellant’s left hand were cut when he came in contact with the extended blade of a Leatherman knife held by an employee of the respondent – where the respondent would be vicariously liable for the employee’s alleged negligence, and liable for alleged negligence on its own part in failing to appropriately supervise or give instructions to the employee with respect to the use of the knife – where the appellant claimed damages in the Supreme Court for personal injury caused to him by negligence on the part of the respondent and of the employee, together with interest and costs – where judgment was given in favour of the respondent, ordering the appellant to pay the respondent’s costs of the proceeding on the standard basis – where the appellant filed a notice of appeal on 16 June 2015 – whether the respondent is liable in negligence
Civil Liability Act 2003 (Qld), s 9(1), s 55(3)
Uniform Civil Procedure Rules 1999 (Qld), r 766Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, applied
Tep v ATS Australasian Technical Services Pty Ltd [2015] 2 Qd R 234; [2013] QCA 180, cited
COUNSEL:
R J Lynch for the appellant
R N Traves QC, with A Messina, for the respondentSOLICITORS:
Shine Lawyers for the appellant
Cooper Grace Ward for the respondent
HOLMES CJ: I agree with the reasons of Gotterson JA and the orders he proposes.
GOTTERSON JA: The appellant, Joshua David Boon, commenced proceedings in the Supreme Court of Queensland against the respondent, Summs of Qld Pty Ltd trading as Big Bill’s Bobcats, on 24 January 2014. His claim was for damages for personal injury caused to him by negligence on the parts of the respondent and of one of its employees, together with interest and costs.
The…
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- Case
- [2016] QCA 38
- Decision Date
CaseChat Overview and Summary
The primary legal issue in the appeal was whether Summs of Qld Pty Ltd and Mr Summerfeldt were liable in negligence for the injuries sustained by Boon. The court had to determine if Mr Summerfeldt breached the standard of care owed to Boon by not checking for nearby individuals before rising and if Summs of Qld Pty Ltd was vicariously liable or directly liable for the negligence. The court also had to assess whether the injuries were foreseeable and if Boon contributed to the accident by not keeping a proper lookout.
The court found that Mr Summerfeldt did not breach the standard of care owed to Boon. The judge noted that Boon was in a better position to see Mr Summerfeldt, as he was upright and moving towards Mr Summerfeldt, who remained in the same crouched position. The court concluded that Boon moved into Mr Summerfeldt’s space without Mr Summerfeldt’s knowledge. Furthermore, there was no evidence that Mr Summerfeldt moved from his position, waved the knife about, or acted in a manner that would have contributed to the accident. The court held that Boon’s movement towards Mr Summerfeldt and the knife, without seeing it, was the primary cause of the accident. Consequently, the appeal was allowed, and the original order was set aside, resulting in a judgment in favour of Boon.
The final orders of the court were to allow the appeal, set aside the previous order, and enter a new judgment in favour of Boon for the amount of $215,286.11. Both parties were directed to file and serve submissions on the costs of the proceedings at first instance and on appeal, not to exceed four pages.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order made on 12 June 2015.
3. In lieu thereof, order that there be judgment for the plaintiff in the amount of $215,286.11.
4. Direct that each party file and serve submissions with respect to costs of the proceedings at first instance and on appeal within seven days of the publication of these reasons, such submissions not to exceed four pages.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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