Constantinou v Ansett Australia Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Constantinou v Ansett Australia Ltd [2004] QSC 419

PARTIES:

ARTHUR CONSTANTINOU
(plaintiff)
v
ANSETT AUSTRALIA LTD
(ACN 004 209 410)
(defendant)

FILE NO/S:

s228 of 2000
s17 of 2003

DIVISION:

Trial

PROCEEDING:

Claim for damages

ORIGINATING COURT:

SUPREME COURT

DELIVERED ON:

26 November 2004

DELIVERED AT:

TOWNSVILLE

HEARING DATE:

8-10 November 2004

JUDGES:

CULLINANE J

ORDER:

Judgment for the plaintiff against the defendant in the sum of $395,450.40

CATCHWORDS:

MASTER AND SERVANT — SAFE SYSTEM OF WORK — PERSONAL INJURIES — NEGLIGENCE — BREACH OF DUTY — BREACH OF STATUTORY DUTY — BREACH OF CONTRACT — DAMAGES —CONTRIBUTORY NEGLIGENCE — where plaintiff employee fell down open hatch of vessel — whether risk of injury foreseeable — whether defendant owed duty of care to provide a safe system of work — whether plaintiff failed to keep a proper lookout so as to avoid injury —  whether damages can be reduced for contributory negligence in contract after Astley under s. 312 of the Workcover Queensland Act 1996

DAMAGES — MEASURE OF DAMAGES — PAIN AND SUFFERING — QUANTUM — LOSS OF EARNING CAPACITY — whether plaintiff continues to suffer spinal problems and psychiatric problems as a result of the accident — whether plaintiff is malingering — whether there is a loss of earning capacity

Evidence Act 1977 (Qld)
Law Reform (Joint Tort Feasors Contribution, Contributory Negligence and Division of Chattels) Act 1952 (Qld)
WorkCover Queensland Act 1996 (Qld)
Work Place Health and Safety Act 1995 (Qld)

Astley v Austrust Ltd (1998-99) 197 CLR 1
Campbell v CSR Limited & Anor [2002] QSC 266
Martin v Mackay City Council [2001] QSC 433
Rogers v Brambles Ltd (1998) 1 Qd.R 212
Tabulo v Bowen Shire Council [2004] QSC 38
Wylie v ANI Corporation Ltd (2002) 1 Qd.R 320 at 336

COUNSEL:

Mr M Grant-Taylor SC for the plaintiff
Mr S Williams QC together with Mr M O’Sullivan for the defendant

SOLICITORS:

Bennett & Philp Solicitors for the plaintiff
McInnes Wilson Lawyers for the defendant

1. The plaintiff sues in respect of personal injuries suffered by him on 9^th December 1997. 

1. There is an issue as to both liability and the quantum of damages.

1. The circumstances surrounding the occurrence of the incident were dealt with relatively briefly in the evidence, the plaintiff giving the only relevant evidence on the subject.

1. The plaintiff was employed as a concierge/porter and early on that morning went on to a vessel “The Reef Goddess” owned by the defendant for the purposes of travelling from Hayman Island to the mainland (Shute Harbour) to meet guests who were arriving and were to be transported to the island.

1. The vessel was moored at a marina.  The plaintiff entered the vessel at the rear and proceeded towards the front cabin.  After he went on to the vessel he saw a deckhand, one Azzopardi who was washing the outside of the vessel.  The plaintiff’s evidence was that the skipper also was on the vessel at that time although he…