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 2002DIVISION:
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 madeORDERS:
(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…
Keep reading for free
Create a free CaseChat account to read Bourk v Power Serve Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2008] QCA 225
- Decision Date
CaseChat Overview and Summary
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;
(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
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.