Cairns Regional Council v Sharp - [2013] QCA 297

SUPREME COURT OF QUEENSLAND

CITATION:

Cairns Regional Council v Sharp [2013] QCA 297

PARTIES:

CAIRNS REGIONAL COUNCIL
(applicant)
v
RAYMOND SHARP
(respondent)

FILE NO/S:

Appeal No 2082 of 2013
DC No 195 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

4 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2013

JUDGES:

Margaret McMurdo P and Gotterson JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused with costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the respondent, who was employed as a gardener by the applicant, was mowing a median strip on a busy Cairns thoroughfare – where the respondent was less than one metre from a 60 kph flow of traffic – where the respondent bent down to pick up a spring which had come off the motor-mower and, upon being startled by the sound of a car horn, knocked the mower handle with his hip and the mower blades moved onto his left hand, partially amputating his ring and little finger – where the respondent successfully brought an action in negligence against the applicant – where the applicant applies for leave to appeal, contending that the primary judge erred in concluding that the applicant had breached its duty of care to the respondent – where the applicant contends that the primary judge improperly considered the matter with hindsight and failed to take into account or give proper weight to the evidence relied upon by the applicant – whether the primary judge erred in concluding that the applicant breached its duty of care to the respondent

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where the applicant contends that the primary judge erred in concluding that its alleged breach of duty caused the respondent's injuries – where the applicant contends that the respondent was injured because of his unpredictable response to a random act of the sounding of a car horn by a passing driver, over which the applicant had no control and the risk of which was slight – whether the primary judge erred in concluding that there existed a causal connection between the breach of duty and the respondent's injuries

EVIDENCE – ADMISSIBILITY AND RELEVANCE – OPINION EVIDENCE – IN GENERAL – where the primary judge permitted Mr McDougall, an engineer experienced in occupational health and safety risk assessment, to give expert evidence identifying deficiencies in the conduct of the mowing task – where the applicant contends that the primary judge wrongly admitted the evidence as Mr McDougall lacked the experience necessary to give opinion evidence; that many of the matters upon which he expressed an opinion were self-evident and should not have been the subject of expert…

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 Cairns Regional Council v Sharp

Details

AGLC: Cairns Regional Council v Sharp [2013] QCA 297
Case: [2013] QCA 297
Decision Date: 4 October 2013

CaseChat Overview and Summary

Cairns Regional Council brought an appeal against a decision of the District Court of Queensland that it was liable for injuries sustained by an employee while performing his duties. The employee, while mowing a median strip on a busy road, was startled by the sound of a car horn and injured his left hand when he knocked the mower handle with his hip, causing the mower blades to move onto his hand and partially amputate his ring and little finger. The District Court found that the Council had breached its duty of care to the employee by not providing a safer environment for him to work in. The Council sought leave to appeal on the basis that the primary judge had erred in concluding that it had breached its duty of care and that it was the cause of the employee's injuries.

The Council contended that the primary judge had improperly considered the matter with hindsight and failed to take into account or give proper weight to the evidence relied upon by the Council. The Council also argued that the primary judge erred in concluding that its alleged breach of duty caused the employee's injuries, as the injury was due to the employee's unpredictable response to the sounding of a car horn by a passing driver. Furthermore, the Council argued that the primary judge wrongly admitted the evidence of Mr McDougall, an engineer experienced in occupational health and safety risk assessment, as he lacked the experience necessary to give opinion evidence and many of the matters upon which he expressed an opinion were self-evident and should not have been the subject of expert evidence.

The court found that the Council had not established that the primary judge had erred in concluding that it had breached its duty of care to the employee or that its breach of duty caused the employee's injuries. The court also found that the primary judge did not err in admitting the evidence of Mr McDougall as he had the necessary experience to give opinion evidence and his evidence was relevant to the issues before the court. The court dismissed the Council's application for leave to appeal with costs.

Orders

Orders of the court

Application for leave to appeal refused with costs.

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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CITATION:	Cairns Regional Council v Sharp [2013] QCA 297
PARTIES:	CAIRNS REGIONAL COUNCIL (applicant) v RAYMOND SHARP (respondent)
FILE NO/S:	Appeal No 2082 of 2013 DC No 195 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	4 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	26 July 2013
JUDGES:	Margaret McMurdo P and Gotterson JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused with costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the respondent, who was employed as a gardener by the applicant, was mowing a median strip on a busy Cairns thoroughfare – where the respondent was less than one metre from a 60 kph flow of traffic – where the respondent bent down to pick up a spring which had come off the motor-mower and, upon being startled by the sound of a car horn, knocked the mower handle with his hip and the mower blades moved onto his left hand, partially amputating his ring and little finger – where the respondent successfully brought an action in negligence against the applicant – where the applicant applies for leave to appeal, contending that the primary judge erred in concluding that the applicant had breached its duty of care to the respondent – where the applicant contends that the primary judge improperly considered the matter with hindsight and failed to take into account or give proper weight to the evidence relied upon by the applicant – whether the primary judge erred in concluding that the applicant breached its duty of care to the respondent TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where the applicant contends that the primary judge erred in concluding that its alleged breach of duty caused the respondent's injuries – where the applicant contends that the respondent was injured because of his unpredictable response to a random act of the sounding of a car horn by a passing driver, over which the applicant had no control and the risk of which was slight – whether the primary judge erred in concluding that there existed a causal connection between the breach of duty and the respondent's injuries EVIDENCE – ADMISSIBILITY AND RELEVANCE – OPINION EVIDENCE – IN GENERAL – where the primary judge permitted Mr McDougall, an engineer experienced in occupational health and safety risk assessment, to give expert evidence identifying deficiencies in the conduct of the mowing task – where the applicant contends that the primary judge wrongly admitted the evidence as Mr McDougall lacked the experience necessary to give opinion evidence; that many of the matters upon which he expressed an opinion were self-evident and should not have been the subject of expert…