Boon v Summs of Qld Pty Ltd - [2016] QCA 38

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 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2015] QSC 162

DELIVERED 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 made

ORDERS:

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 766

Roads 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 respondent

SOLICITORS:

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…

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: [2016] QCA 38
Decision Date: 26 February 2016

CaseChat Overview and Summary

In Boon v Summs of Qld Pty Ltd, the appellant, Boon, sought damages for personal injury caused by the respondent, Summs of Qld Pty Ltd, and its employee, Mr Summerfeldt. The incident occurred when Boon's left hand was injured by the extended blade of a Leatherman knife held by Mr Summerfeldt. Boon alleged that Mr Summerfeldt was negligent in rising from a crouched position without checking for nearby individuals and that Summs of Qld Pty Ltd was vicariously liable for the employee’s negligence as well as directly liable for failing to appropriately supervise or instruct Mr Summerfeldt regarding the use of the knife. The Supreme Court found in favour of the respondent, ordering Boon to pay the respondent's costs. Boon appealed this decision.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Conclusions as to negligence: The learned primary judge accurately summarised the pleaded case for negligence on the part of Mr Summerfeldt as follows:“[64] The plaintiff argues that the injury was foreseeable and significant and a reasonable person in Summerfeldt’s position would have taken precautions. It is argued that the precautions required were minimal because all that Summerfeldt had to do was to look properly before he rose, or not rise until the plaintiff had safely passed, or put the blade away before he rose, or render the blade benign by pointing it towards the ground as he rose. Accordingly, it is argued that in those circumstances Summerfeldt was clearly negligent because he rose without checking to see if there was anyone nearby and as he rose the sharp blade of the Knife was exposed and he did nothing to prevent or minimise what was a foreseeable risk of injury to others.”[18][18]AB682. Her Honour was sceptical of the proposition that Mr Summerfeldt had acted negligently. She elaborated her scepticism in the paragraphs which followed:“[65] It is not entirely clearly (sic) to me that Summerfeldt’s actions were negligent. The plaintiff concedes that the stabbing was unintentional, but argues that Summerfeldt failed to keep a proper lookout. Given the scenario as described by the plaintiff, I conclude that the plaintiff was in fact in a better position to see Summerfeldt than vice versa. The plaintiff was upright at all times and moving towards Summerfeldt, whereas Summerfeldt was crouching and it would appear he did not move from his spot. Summerfeldt clearly did not see the plaintiff, but the plaintiff obviously had observed Summerfeldt given that the plaintiff pleaded that Summerfeldt was in a crouched position and stood up with the Knife in his hand.[66]Given that uncontested scenario, it is clear that it was the plaintiff who moved towards Summerfeldt and he must have seen him rising. To come into contact with the Knife, the plaintiff must have been moving fairly close to Summerfeldt and must have been within an arm's length of Summerfeldt given his injury. There is no evidence that Summerfeldt moved from his position as he rose. There is simply no evidence that Summerfeldt lunged at the plaintiff, came towards him, or even moved from the spot he was crouching on. The evidence would seem to be that he rose on the spot. There is no evidence that Summerfeldt was waving the Knife about or any evidence at all as to how he held it.[67]There is no doubt that the plaintiff did not see the Knife or expect Summerfeldt to be holding a very sharp knife, although he stated in evidence that he had seen Summerfeldt with the Knife earlier in the day. It would seem to me that the undisputed evidence is that the plaintiff moved towards Summerfeldt. The plaintiff must have walked very close to Summerfeldt and entered his space unknown to Summerfeldt because as Summerfeldt rose he obviously did not expect the plaintiff to be so close to him. The accident did not happen simply because Summerfeldt had a knife in his possession. The accident happened because the plaintiff moved very close to Summerfeldt who was using the Knife or had used the Knife to peel an orange.[68]It would seem to me that the plaintiff came towards the Knife which he did not see. A question surely remains as to whether the plaintiff was in fact keeping a proper lookout, as he walked past a group who were obviously taking a lunch break.”[19][19]AB682-683.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2014
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2015] QSC 162
DELIVERED 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 made
ORDERS:	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 766 Roads 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 respondent
SOLICITORS:	Shine Lawyers for the appellant Cooper Grace Ward for the respondent