Burgess v Kerwin - [1992] QCA 453

IN THE COURT OF APPEAL	[1992] QCA 453
QUEENSLAND

Appeal No. 197 of 1992

Before the Court of Appeal
The Chief Justice
The President
Mr. Justice Derrington

BETWEEN:

COLIN BRUCE BURGESS

(Plaintiff) Appellant

- and -

PATRICK MICHAEL KERWIN

(Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the eighteenth day of December, 1992

MINUTE OF ORDER:	Appeal allowed with costs. The Judgment appealed from is set aside (except the orders as to costs). In lieu therefore, judgment is given for the appellant in the sum of $69,673.24. Respondent to pay the taxed costs of the appeal.
CATCHWORDS:	Negligence. Contributory. Plaintiff found fifty per cent contributory negligent for injuries sustained in tree felling accident - whether such a high degree warranted given defendant's knowledge of plaintiff's defective technique and limited intelligence despite thirty years experience.
Counsel:	Mr D.O.J. North for the appellant Mr R.M. Stenson for the respondent

Solicitors: Messrs. C.B. Darvall and Darvall for the

appellant
Messrs. O'Shea Corser and Wadley for the
respondent

Hearing date: 23/11/92
IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 197 of 1992

BETWEEN:

COLIN BRUCE BURGESS

(Plaintiff) Appellant

- and -

PATRICK MICHAEL KERWIN

(Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the eighteenth day of December, 1992

This is an appeal from a judgment delivered in the Trial Division on 27 August 1992 whereby the appellant was awarded $21,299.05 and the taxed costs of the action incurred up to and including 1st January 1991 pursuant to the Supreme Court Scale and thereafter according to the appropriate District Court Scale. The trial judge apportioned responsibility between the appellant and the respondent on the basis that each was liable for 50%. By his Notice of Appeal, the appellant seeks to have the judgment set aside and, in lieu thereof, to recover judgment for the full amount of the damages assessed by the trial judge.

The damages to which the appellant is entitled arise out of an incident of 27 July 1987. While felling timber as an employee of the respondent, the appellant suffered a broken arm when trying to avoid a falling tree. As he ran away, the appellant tripped over a small stump some five or six feet from the base of the tree which he had been cutting, lost his balance and stumbled down a hill until he fell, breaking his arm.

Stated shortly, the evidence was that the orthodox method of felling a tree is to make a scarf or belly cut in the tree on the side it is intended to fall towards and then to make a main or back cut on the other side at a somewhat higher level. It is important to leave a thickness of timber between the two cuts to act as a hinge to control the fall of the tree. When there is no sufficient hinge left between the belly cut and the back cut, the tree is effectively left freestanding on the stump, liable to fall in any direction, and…

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.

Continue reading Burgess v Kerwin

Details

AGLC: Burgess v Kerwin [1992] QCA 453
Case: [1992] QCA 453
Decision Date: 21/12/1992

CaseChat Overview and Summary

In the matter of Burgess v Kerwin, the plaintiff, Burgess, sued the defendant, Kerwin, for damages arising from an accident during a tree felling operation. Burgess suffered injuries due to a tree falling on him while he was operating a chainsaw. Kerwin, an experienced tree feller, was Burgess's supervisor and was responsible for ensuring the safety of the operation. The dispute centred on whether Kerwin was negligent in supervising Burgess and whether Burgess's contributory negligence was correctly assessed at fifty per cent.

The primary legal issues the court needed to address were the extent of Kerwin's responsibility in supervising Burgess and the degree of Burgess's contributory negligence. Specifically, the court had to consider whether it was appropriate to hold Kerwin liable for Burgess's injuries given his knowledge of Burgess's defective technique and limited intelligence, despite his thirty years of experience. Additionally, the court needed to determine if the fifty per cent contributory negligence attributed to Burgess was justified.

The court found that Kerwin was negligent in his supervisory role, as he was aware of Burgess's defective technique and his limited intelligence. Despite this, the court held that Kerwin's negligence was not the sole cause of the accident. Instead, Burgess's own actions significantly contributed to the incident. The court found that Burgess was fifty per cent contributory negligent due to his inadequate tree felling technique and his inability to recognise and rectify his mistakes. Consequently, the court apportioned liability between the parties, reducing Burgess's damages by fifty per cent.

Ultimately, the court ordered that Burgess's damages be reduced by fifty per cent to reflect his contributory negligence. Kerwin was held liable for the remaining fifty per cent of the damages. The court emphasised the importance of both supervisors and workers taking responsibility for safety and ensuring that proper techniques are followed, regardless of experience or intelligence levels.

Orders