Calvert v Mayne Nickless Ltd

[2004] QSC 449

SUPREME COURT OF QUEENSLAND

CITATION:

Calvert v Mayne Nickless Ltd [2004] QSC 449

PARTIES:

CELIA CALVERT
(plaintiff)
v
MAYNE NICKLESS LIMITED
(defendant)

FILE NO:

154/02

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

13 December 2004

DELIVERED AT:

Brisbane

HEARING DATES:

2, 3, 4, 5, 6, 10 August 2004

JUDGE:

Wilson J

ORDER:

Judgment is awarded for the plaintiff against the defendant in the sum of $489 657.05.

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where plaintiff was a nurse employed by the defendant hospital – where plaintiff injured her back while lifting a patient – where defendant hospital did not provide a lifting hoist – whether defendant hospital breached its duty of care, its contract with the plaintiff and/or its statutory duty under the Workplace Health and Safety Act 1995 - consideration of whether “the actual and direct event giving rise to the [plaintiff’s] injury was reasonably readily foreseeable by the [defendant] within s 312(1)(b) of the Workcover Queensland Act 1996 – consideration of defendant’s obligation under s 28(1) of Workplace Health and Safety Act 1995 – existence of advisory standard – onus of proof that obligation discharged under s 26 or of defence under s 37

WORKERS COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – AMOUNT OF COMPENSATION DURING INCAPACITY – LUMP SUM PAYMENTS FOR SPECIFIC INJURIES AND LOSSES – GENERALLY – where plaintiff had suffered previous injuries to her spine – where plaintiff has had continuous pain since the incident - where plaintiff no longer able to work as a nurse – effect of s 317 of Workcover Queensland Act 1996 in assessment of future economic loss – effect of s 315(b) of Workcover Queensland Act 1996 on availability of damages for gratuitous services where plaintiff lives alone

Workplace Health and Safety Act 1995 (Qld), ss 7, 26, 28, 37 Workcover Queensland Act 1996 (Qld), ss 311, 312, 314, 315, 317, 318

Brkovic v JO Clough & Son Pty Ltd (1983) 57 ALJR 834, followed
Chapman v Hearse (1961) 106 CLR 112 at 121, cited
Hopkins v Workcover Queensland [2003] 257, cited
Joynson v State of Queensland [2004] QSC 154 at paras [114] – [116], cited
Karanfilov v Inghams Enterprises Pty Ltd [2003] QCA 242 at para [52], not followed
Nagel v Queensland Rail [2004] QDC 358 at para [56], followed
Plumb v State of Queensland [2000] QCA 258 at paras [17] – [18], cited
Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 at 533, followed
Slivack v Lurghi (Australia) Pty Ltd (2001) 205 CLR 304, referred to
Smith v Topp [2002] QSC 341, cited
Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 47, cited

COUNSEL:

GW Diehm for the Plaintiff
KN Wilson SC and KF Holyoak for the defendant

SOLICITORS:

Gall Standfield & Smith for the plaintiff

Hopgood Ganim Lawyers for the defendant

1. WILSON J:  The plaintiff Celia…