Clayton v Jetcrete Oz Pty Ltd - [2017] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:

Clayton v Jetcrete Oz Pty Ltd [2017] QDC 3

PARTIES:

WENDY LEE CLAYTON

(Plaintiff)

v

JETCRETE OZ PTY LTD (ACN 137 775 903)

(Defendant)

FILE NO/S:

81/2014

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Cairns

DELIVERED ON:

25 January 2017

DELIVERED AT:

Cairns

HEARING DATE:

12, 13 & 14 September 2016 & 30 November 2016.

JUDGE:

Morzone QC DCJ

ORDER:

1. Judgment for the defendant.

2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the plaintiff will pay the defendant’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – whether alleged incident occurred – credit of plaintiff in issue - breach of common law and/ or statutory duties – whether injury caused by defendant’s breach.

DAMAGES - MEASURE OF DAMAGES – PERSONAL INJURIES – back injury – pre-existing conditions –assessment of loss and damage.

LEGISLATION:
Workers’ Compensation and Rehabilitation Act 2013 (Qld) (as at 13 July 2012), ss 305B, 305C, 305D, 305E & 306J
Workers Compensation and Rehabilitation Regulation 2003

CASES:

Withyman v NSW [2013] NSWCA l0 at [65]
Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353
Andar Transport Pty Ltd v Bramble Limited (2004) 317 CLR 424
Turner v South Australia (1982) 56 ALJR 839
Queensland Corrective Services Commission v Gallagher [1998] QCA 426
Woolworths Ltd v Perrins [2015] QCA 207 at [173]
Wyong Shire Council v Shirt (1980) 146 CLR 40
McLean v. Tedman (1984) 155 CLR 306
Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45
Rosenberg v Percival (2001) 205 CLR 434
Vairy v Wyong Shire Council (2005) 223 CLR 422
Benic v New South Wales [2010] NSWSC 1039
Erickson v Bagley [2015] VSCA 220
Pollard v Trude [2008] QSC 119
Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268
Reed v Warburton [2011] NSWCA 98

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312.

COUNSEL:

G Houston for the Plaintiff

B. F. Charrington for the Defendant

SOLICITORS:

Shine Lawyers for the Plaintiff

Kaden Boriss Legal solicitors for the Defendant

The plaintiff claims she suffered a debilitating back injury by overexerting herself whilst pushing concrete down the chute of a concrete agitator truck. She has sued the defendant for consequential loss and damage, but the defendant rejects the claim as being incredible.

Background

The plaintiff was born on 2 November 1958. She was 57 years old at trial.

The plaintiff was employed as a concrete agitator truck driver/operator for the defendant. The defendant company was in the business of a shotcrete contractor, and provided concrete spraying service to the Ernest Henry Mine, via Cloncurry in Queensland.

The plaintiff worked 2 weeks on and 2 weeks off on a fly-in fly-out basis. She had twelve-hour shifts over 2 weeks at the mine and would return to her home in Cairns for her two weeks off.

During her two weeks off, before returning to work…

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.

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Details

Case: [2017] QDC 3
Decision Date: 25 January 2017

CaseChat Overview and Summary

Clayton commenced proceedings against Jetcrete Oz Pty Ltd, seeking damages for injuries sustained during his employment. Clayton alleged that Jetcrete Oz Pty Ltd was negligent in failing to provide a safe working environment, resulting in a back injury. The dispute was heard and determined in the Federal Circuit Court of Australia. The case involved complex questions regarding both the occurrence of the incident and the extent to which the injury was caused by the employer’s alleged negligence. Additionally, the court had to assess the impact of Clayton's pre-existing conditions on the damages claim.

The court was required to determine whether the incident that led to Clayton's injuries actually occurred as alleged. If the incident was established, the court had to assess whether Jetcrete Oz Pty Ltd breached any common law or statutory duties. Moreover, the court needed to ascertain if the injury was indeed caused by the employer's alleged breach. The court also had to evaluate the quantum of damages, taking into account Clayton's pre-existing conditions and the extent to which they contributed to his injuries.

In delivering judgment, the court found that Clayton had not proven the occurrence of the incident on the balance of probabilities. Consequently, the court held that Jetcrete Oz Pty Ltd was not liable for negligence. The court dismissed Clayton's claims, finding that the plaintiff failed to establish a causal link between the employer's alleged breach and the injuries claimed. Additionally, the court noted that Clayton's pre-existing conditions complicated the assessment of damages but did not alter the outcome of the case.

The court ordered that judgment be entered in favour of Jetcrete Oz Pty Ltd. Unless either party applied for a different costs order or the parties agreed otherwise within 30 days, Clayton was to pay the defendant’s costs of the proceeding, including reserved costs, to be assessed on the standard basis.

Orders

Orders of the court

1. Judgment for the defendant.

2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the plaintiff will pay the defendant’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.

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.

CITATION:	Clayton v Jetcrete Oz Pty Ltd [2017] QDC 3
PARTIES:	WENDY LEE CLAYTON (Plaintiff) v JETCRETE OZ PTY LTD (ACN 137 775 903) (Defendant)
FILE NO/S:	81/2014
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	Cairns
DELIVERED ON:	25 January 2017
DELIVERED AT:	Cairns
HEARING DATE:	12, 13 & 14 September 2016 & 30 November 2016.
JUDGE:	Morzone QC DCJ
ORDER:	1. Judgment for the defendant. 2. Unless either party applies for, or the parties otherwise agree to, a different costs order within 30 days of this judgment, the plaintiff will pay the defendant’s costs of the proceeding (including reserved costs) to be assessed on the standard basis.
CATCHWORDS:	TORTS – NEGLIGENCE – whether alleged incident occurred – credit of plaintiff in issue - breach of common law and/ or statutory duties – whether injury caused by defendant’s breach. DAMAGES - MEASURE OF DAMAGES – PERSONAL INJURIES – back injury – pre-existing conditions –assessment of loss and damage. LEGISLATION: Workers’ Compensation and Rehabilitation Act 2013 (Qld) (as at 13 July 2012), ss 305B, 305C, 305D, 305E & 306J Workers Compensation and Rehabilitation Regulation 2003 CASES: Withyman v NSW [2013] NSWCA l0 at [65] Czartyrko v Edith Cowan University (2005) 214 ALR 349 at 353 Andar Transport Pty Ltd v Bramble Limited (2004) 317 CLR 424 Turner v South Australia (1982) 56 ALJR 839 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 Woolworths Ltd v Perrins [2015] QCA 207 at [173] Wyong Shire Council v Shirt (1980) 146 CLR 40 McLean v. Tedman (1984) 155 CLR 306 Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 Rosenberg v Percival (2001) 205 CLR 434 Vairy v Wyong Shire Council (2005) 223 CLR 422 Benic v New South Wales [2010] NSWSC 1039 Erickson v Bagley [2015] VSCA 220 Pollard v Trude [2008] QSC 119 Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 Reed v Warburton [2011] NSWCA 98 Allianz Australia Insurance Limited v McCarthy [2012] QCA 312.
COUNSEL:	G Houston for the Plaintiff B. F. Charrington for the Defendant
SOLICITORS:	Shine Lawyers for the Plaintiff Kaden Boriss Legal solicitors for the Defendant