SUPREME COURT OF QUEENSLAND
CITATION:
Duong v Versacold Logistics Ltd & Ors [2010] QSC 466
PARTIES:
TUAN VAN DUONG
(plaintiff)
v
VERSACOLD LOGISTICS LIMITED ACN 008 626 793
(first defendant)
NMHG MARKETING PTY LTD (formerly known as NATIONAL FLEET NETWORK PTY LIMITED)
ACN 094 802 141
(second defendant)
APS GROUP (INDUSTRIAL) PTY LTD ACN 096 423 086 TRADING AS AUSTRALIAN PERSONNEL SOLUTIONS(third defendant)
FILE NO/S:
SC No 8393 of 2009
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
14 December 2010
DELIVERED AT:
Brisbane
HEARING DATES:
30 November 2010, 1 December 2010, 2 December 2010, 3 December 2010, with the delivery of written submissions up to 10 December 2010.
JUDGE:
Chief Justice
ORDERS:
1. The further hearing of the matter is adjourned to a date to be fixed.
2. Costs reserved.
CATCHWORDS:
TORTS – NEGLIGENCE – MISCELLANEOUS FORMS OF NEGLIGENT CONDUCT – where plaintiff was employed by the third defendant (APS), a labour hire company – where under an agreement entitled “national service agreement” between APS and the first defendant (Versacold), APS made the services of the plaintiff available to Versacold – where in the course of carrying out his duties at Versacold’s premises on 31 March 2007, the plaintiff used a tiller steered ride-on pallet jack – where the plaintiff gave evidence that while using the pallet jack, the steering mechanism jerked causing the plaintiff to lose balance and fall to the ground – where the plaintiff fractured his right humerus and sustained other injuries – where the second defendant (NMHG) had provided that pallet jack to Versacold under an agreement entitled “contract for supply material handling equipment Queensland” – where under that agreement NMHG undertook to repair and maintain the pallet jack – where the plaintiff alleges that the jerking arose from a defect in a pallet jack, wear and tear or its inherent nature, or from its coming into contact with an object on the floor – where the plaintiff alleges that Versacold breached the various duties owed to the plaintiff by failing to provide the plaintiff with adequate training, failing to act on previous complaints about the pallet jacks, failing to maintain the pallet jack properly and failing to ensure that the plaintiff’s workplace was reasonably free from risk – where the plaintiff further alleges that NMHG breached its duty to keep the pallet jack in good repair, remove from service any pallet jack prone to jerking and provide training to the plaintiff – where the plaintiff alleges that as the plaintiff’s employer, APS owed the plaintiff the usual duties, breached in the same respect as against Versacold – where all defendants deny the breaches of duties alleged and claim that the plaintiff caused or contributed to his injuries by attempting to turn the pallet jack while travelling too fast – whether plaintiff’s claims in negligence made out – whether plaintiff was contributorily negligent
TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – where Versacold was primarily…
Continue reading Duong v Versacold Logistics Ltd
Sign in free to access the full text
- AGLC
- Duong v Versacold Logistics Ltd [2010] QSC 466
- Case
- [2010] QSC 466
- Decision Date
CaseChat Overview and Summary
The court ruled that the plaintiff's claims against Versacold were substantiated as Versacold failed to maintain the pallet jack properly and ensure the workplace was reasonably free from risks. APS was also found to share responsibility, though to a lesser extent, for failing to ensure that Versacold dealt adequately with a known cleaning problem on the site. The court found the plaintiff contributorily negligent, attributing 25% of the fault to him for attempting to turn the pallet jack while travelling too fast. Regarding the indemnity claims, the court held that APS was not liable to indemnify Versacold under the service agreement, but Versacold could seek contribution from APS under the Law Reform Act 1995 (Qld). APS, in turn, could claim an indemnity from Versacold under the same provision.
In assessing damages, the court noted that the plaintiff suffered significant injuries and interference with his amenity but did not require extensive ongoing care. The plaintiff's capacity to return to full-time work, including his previous job, was noted. The court awarded damages for past earnings lost, based on a period of 2.5 years, and found that no further award for minor continuing assistance or future medical expenses was warranted. The court reserved costs and adjourned the further hearing to a later date.
ORDERS:
1. The further hearing of the matter is adjourned to a date to be fixed.
2. Costs reserved.
Orders
Orders of the court
1. The further hearing of the matter is adjourned to a date to be fixed.
2. Costs reserved.
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.