Brisbane City Council v Miles

SUPREME COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Miles [2011] QCA 250

PARTIES:

BRISBANE CITY COUNCIL
(appellant)
v
RICHARD KENNETH MILES
(respondent)

FILE NO/S:

Appeal No 591 of 2011
DC No 1105 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2011

JUDGES:

Margaret McMurdo P, Margaret Wilson AJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – special relationships and duties – employer and employee – where the respondent was employed by the Brisbane City Council as a bus driver – where the respondent stopped his bus at 7 pm at the terminus to use toilet facilities only accessible by employees – where the footpath leading to the toilet facilities was overgrown with trees and shrubs and was inadequately lit – where the respondent carried the cash tray from the bus to the toilet facilities in accordance with the appellant’s policy – where upon returning to the bus the respondent was ambushed when an assailant jumped from the bushes – where the assailant demanded the respondent hand over the bus money and his own wallet – where the respondent attempted to defend himself – where the respondent suffered physical injury and psychological symptoms – whether the risk of injury to the respondent was reasonably foreseeable

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – causation – generally – where the primary judge did not make a finding about the condition of the assailant – where appellant submitted the condition of the assailant was a factor of significance – where there had been no similar incidents at the terminus – whether the appellant’s breach of the duty of care caused the assault

Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45, considered
Lusk v Sapwell [2011] QCA 59, considered
White v Calstores Pty Ltd [2006] QCA 535, considered

COUNSEL:

S C Williams QC and M X Kehoe for the appellant
L A Stephens for the respondent

SOLICITORS:

Brisbane City Legal Practice for the appellant
Roberts & Kane for the respondent

1. MARGARET McMURDO P:  I agree with Mullins J's reasons for dismissing this appeal with costs.

1. MARGARET WILSON AJA:  I agree with the order proposed by Mullins J and with her Honour's reasons for judgment.

1. MULLINS J:  While employed by the appellant as a bus driver, the respondent was assaulted by an unknown assailant on 28 June 2006 and suffered an injury to his shoulder with consequent psychological symptoms.  The respondent’s claim against the appellant for damages for negligence was successful:  Miles v Brisbane City Council [2010] QDC 501 (the reasons). The learned primary judge found that the risk of an assault to the respondent was reasonably foreseeable, the…