Bourk v Power Serve Pty Ltd - [2008] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:

Bourk v Power Serve P/L & Anor [2008] QCA 225

PARTIES:

STEPHEN JOHN BOURK
(plaintiff/appellant)
v
POWER SERVE PTY LTD ACN 060 977 513
(first defendant/first respondent)
WORKCOVER QUEENSLAND
(second defendant/second respondent)
GIO WORKERS’ COMPENSATION (NSW) LTD
(third defendant/not a party to the appeal)

FILE NO/S:

Appeal No 2170 of 2008
SC No 4647 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2008

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

(a) The appeal be allowed;

(b) Judgment for the first respondent against the appellant given on 26 February 2008 be set aside;

(c)   The order for costs against the appellant in favour of the first respondent made on 6 March 2008 be set aside;

(d)   There be judgment for the appellant against the first respondent on the appellant's claim in the sum of $694,317.05; and

(e)   The first respondents pay the appellant's costs of and incidental to the appeal.

Further orders of McMurdo P

Costs orders [(c) and (e) above] set aside1.

2.   Parties are allowed to make submissions as to the appropriate costs orders in accordance with the Practice Direction

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – BREACH OF STATUTORY DUTY – CAUSATION – where the appellant was unsuccessful in proceedings against his employer, the first respondent, for negligence and breach of statutory duty due to injuries sustained by the appellant in a fall from a power pole when the pole strap attached to his safety harness failed – where the primary judge found that the failure of the pole strap caused the injury – where s 28(1) Workplace Health and Safety Act 1995 (Qld) imposes an obligation on the employer to ensure the workplace health and safety of its workers – where the appellant argued that an employee need only prove that his injury is causally connected with an unsafe act or omission of his employer to establish a breach of s 28 Workplace Health and Safety Act 1995 (Qld) – whether the appellant must further prove that had there been a system of inspections and checks the defect in his pole strap would have been detected before he fell

EMPLOYMENT LAW – THE CONTRACT OF SERVICES AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE SYSTEM OF WORK – GENERALLY – where the appellant was unsuccessful in proceedings against his employer, the first respondent, for negligence and breach of statutory duty due to injuries sustained by the appellant in a fall from a power pole when the pole strap attached to his safety harness failed – where the primary judge found that the failure of the pole strap caused the injury – whether 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: [2008] QCA 225
Decision Date: 8 August 2008

CaseChat Overview and Summary

In the case of Bourk v Power Serve Pty Ltd, the appellant, Bourk, initiated proceedings against his employer, Power Serve Pty Ltd, alleging negligence and breach of statutory duty after sustaining injuries from a fall from a power pole. The incident occurred when the pole strap attached to his safety harness failed. The primary judge found that the failure of the pole strap caused the injury. Bourk argued that to establish a breach of section 28 of the Workplace Health and Safety Act 1995 (Qld), an employee only needed to prove a causal connection between the injury and an unsafe act or omission by the employer. Bourk contended that he did not need to prove that a system of inspections and checks would have detected the defect in the pole strap before the fall.

The court was required to determine whether the employer had implemented a safe system of work and whether Bourk had successfully established causation. The appeal hinged on the interpretation of section 28 of the Workplace Health and Safety Act 1995 (Qld) and the extent of the employer's duty to ensure workplace safety. The court considered the statutory obligations imposed on employers to ensure the health and safety of their workers. It also examined whether the failure to implement a system of inspections and checks constituted a breach of statutory duty and whether Bourk's injury was causally connected to an unsafe act or omission by the employer.

The court found that Bourk had successfully established causation and that the employer had a duty to implement a safe system of work, which included a system of inspections and checks. The court held that Bourk did not need to prove that such a system would have detected the defect in the pole strap. The appeal was allowed, setting aside the judgment and costs order against Bourk. Judgment was entered in favour of Bourk against Power Serve Pty Ltd in the sum of $694,317.05, with the employer ordered to pay Bourk's costs of the appeal.

Orders

Orders of the court

(a) The appeal be allowed;

(b) Judgment for the first respondent against the appellant given on 26 February 2008 be set aside;

(d) There be judgment for the appellant against the first respondent on the appellant's claim in the sum of $694,317.05; and

(e) The first respondents pay the appellant's costs of and incidental to the appeal.

Further orders of McMurdo P

Costs orders [(c) and (e) above] set aside1.

2. Parties are allowed to make submissions as to the appropriate costs orders in accordance with the Practice Direction

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:	Bourk v Power Serve P/L & Anor [2008] QCA 225
PARTIES:	STEPHEN JOHN BOURK (plaintiff/appellant) v POWER SERVE PTY LTD ACN 060 977 513 (first defendant/first respondent) WORKCOVER QUEENSLAND (second defendant/second respondent) GIO WORKERS’ COMPENSATION (NSW) LTD (third defendant/not a party to the appeal)
FILE NO/S:	Appeal No 2170 of 2008 SC No 4647 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 August 2008
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2008
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	(a) The appeal be allowed; (b) Judgment for the first respondent against the appellant given on 26 February 2008 be set aside; (c) The order for costs against the appellant in favour of the first respondent made on 6 March 2008 be set aside; (d) There be judgment for the appellant against the first respondent on the appellant's claim in the sum of $694,317.05; and (e) The first respondents pay the appellant's costs of and incidental to the appeal. Further orders of McMurdo P Costs orders [(c) and (e) above] set aside1. 2. Parties are allowed to make submissions as to the appropriate costs orders in accordance with the Practice Direction
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – BREACH OF STATUTORY DUTY – CAUSATION – where the appellant was unsuccessful in proceedings against his employer, the first respondent, for negligence and breach of statutory duty due to injuries sustained by the appellant in a fall from a power pole when the pole strap attached to his safety harness failed – where the primary judge found that the failure of the pole strap caused the injury – where s 28(1) Workplace Health and Safety Act 1995 (Qld) imposes an obligation on the employer to ensure the workplace health and safety of its workers – where the appellant argued that an employee need only prove that his injury is causally connected with an unsafe act or omission of his employer to establish a breach of s 28 Workplace Health and Safety Act 1995 (Qld) – whether the appellant must further prove that had there been a system of inspections and checks the defect in his pole strap would have been detected before he fell EMPLOYMENT LAW – THE CONTRACT OF SERVICES AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE SYSTEM OF WORK – GENERALLY – where the appellant was unsuccessful in proceedings against his employer, the first respondent, for negligence and breach of statutory duty due to injuries sustained by the appellant in a fall from a power pole when the pole strap attached to his safety harness failed – where the primary judge found that the failure of the pole strap caused the injury – whether the…