Bourk v Power Serve Pty Ltd

Case [2008] QSC 29

SUPREME COURT OF QUEENSLAND

CITATION:

Bourk v Power Serve Pty Ltd & Ors [2008] QSC 29

PARTIES:

STEPHEN JOHN BOURK
(plaintiff)

v

POWER SERVE PTY LTD ACN 060 977 513
(defendant)

and

WORKCOVER QUEENSLAND
(first third party)

and

GIO WORKERS’ COMPENSATION (NSW) LTD
(second third party)

FILE NO:

SC 4647 of 2002

DIVISION:

Trial Division

PROCEEDING:

Civil trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

26 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2008 - 7 February 2008

JUDGE:

Chesterman J

ORDER:

1.   Judgment for the defendant against the plaintiff.

2.   Declare that the first third party is liable to indemnify the defendant with respect to the costs incurred by the defendant in defending the plaintiff’s claim against it, and in prosecuting its claim for indemnity against the second third party.

3.   The defendant’s claim against the second third party must be dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – BREACH OF DUTY – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – DUTY OF CARE – where the plaintiff was employed by the defendant – where the plaintiff was involved in an accident whilst carrying out his duties as an employee – whether the defendant breached their duty of care to the plaintiff.

EMPLOYMENT LAW – NEGLIGENCE – BREACH OF STATUTORY DUTY – LIABILITY OF EMPLOYER – DUTY OF CARE – FORSEEABILITY OF INJURY – whether there was a failure to provide a safe system of work – whether the defendant’s breach caused the injury to the plaintiff.

PROCEDURE – COSTS – GENERAL RULE – PARTIES –where defendant has claimed against third parties – whether third parties liable.

Cases

Burrows v The Workers’ Compensation Board of Queensland Appeal 6694 of 1996 unreported judgment 12 June 1997 Court of Appeal Queensland (cited)

Calvert v Mayne Nickless Limited [2005] QCA 263 (applied)

Davie v New Merton Board Mills Ltd [1959] AC 604 (applied)

Dykes v Dunn [1958] VR 504 (cited)

Francis v Emijay Pty Ltd & Ors [2006] QCA 60 (cited)

Goodwin v La Macchia & Ors [1999] NSWSC 963 (cited)

Hardy v St. Vincent’s Hospital Toowoomba Ltd [2000] 2 Qd R 19 (cited)

Jones v Dunkel (1959) 101 CLR 298 (cited)

McLean’s Roylen Cruisers Pty Ltd v McEwan (1984) 58 ALJR 423 (cited)

Miller v Livingstone Shire Council [2003] QCA 29 (applied)

Mynott v Barnard (1939) 62 CLR 68 (applied)

O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 (cited)

Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 17 (applied)

Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518 (cited)

Stanley v Gallagher CA 40537/01 Court of Appeal New South Wales unreported judgment given 14 June 2002 (cited)

Tomalin v S. Pearson & Son Ltd [1909] 2 KB 61 (cited)

Wakelin v London and South-western Railway Co (1886) 12 App Cas 41 (cited)

WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd CA 40263 of 1994 unreported judgment given 14 July 1995 (cited)

Legislation

Workplace Health…

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Details
AGLC
Bourk v Power Serve Pty Ltd [2008] QSC 29
Case
[2008] QSC 29
Decision Date

CaseChat Overview and Summary

Bourk was employed by Power Serve, an electrical contracting company, and was involved in an accident while carrying out his duties. Bourk sued Power Serve, claiming that the company breached its duty of care towards him by failing to provide a safe system of work, resulting in his injuries. Power Serve, in turn, claimed against two third parties, asserting they were liable for the injuries Bourk sustained. The court was required to determine whether Power Serve breached its duty of care to Bourk and whether the third parties were liable for Bourk's injuries.

The court examined whether Power Serve breached its duty of care by failing to provide a safe system of work, which would have led to Bourk's injuries. It also assessed whether the third parties were liable for Bourk's injuries, which would have impacted Power Serve's liability. The court found that Power Serve did not breach its duty of care, as the accident was not foreseeable, and there was no failure to provide a safe system of work. Consequently, Power Serve was not liable for Bourk's injuries. Regarding the third parties, the court ruled that the first third party was liable to indemnify Power Serve for the costs incurred in defending Bourk's claim and prosecuting its claim against the second third party. However, the defendant's claim against the second third party was dismissed as there was insufficient evidence to establish their liability.

Power Serve was found not liable for Bourk's injuries, as the court determined that there was no breach of duty of care. The first third party was ordered to indemnify Power Serve for the costs incurred in defending Bourk's claim and prosecuting its claim against the second third party. The defendant's claim against the second third party was dismissed due to insufficient evidence of their liability.

Orders

Orders of the court

1. Judgment for the defendant against the plaintiff.

2. Declare that the first third party is liable to indemnify the defendant with respect to the costs incurred by the defendant in defending the plaintiff’s claim against it, and in prosecuting its claim for indemnity against the second third party.

3. The defendant’s claim against the second third party must be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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