Jones v Persal & Co - [1999] QDC 189

IN THE DISTRICT COURT
HELD AT MARYBOROUGH
QUEENSLAND

[Jones v. Persal & Co]

[Before McGill DCJ]

Plaint No 136 of 1997
  (Brisbane No 1442 of 1999)
BETWEEN:
  BRETT ANDREW JONES
  Plaintiff
AND
  PERSAL & COMPANY
  Defendant

JUDGMENT

Judgment delivered: 23 July 1999

Catchwords: EMPLOYER AND EMPLOYEE - duty to provide safe system of work - whether owed to employee helping out - whether within statutory duty - whether breach

EMPLOYER AND EMPLOYEE - contract of service - liability of employer for breach of implied term - whether contributory negligence excluded
DAMAGES - personal injury - measure of - back - wrist
Astley v. Austrust Ltd (1999) 73 ALJR 403 - followed and applied
Lister v. Romford Ice & Cold Storage Co Ltd [1957] AC 555 - distinguished
Simonius Vischer & Co v. Holt & Thompson [1979] 2 NSWLR 322 - followed

Counsel:R.C. Morton for the plaintiff
M.T. O’Sullivan for the defendant

Solicitors: Carswell & Co for the plaintiff
Tutt & Quinlan for the defendant

Hearing Date(s): 2 March, 16 April 1999

IN THE DISTRICT COURT
HELD AT MARYBOROUGH
QUEENSLAND

Plaint No 136 of 1997
(Brisbane No 1442 of 1999)

BETWEEN:

BRETT ANDREW JONES

Plaintiff

AND

PERSAL & COMPANY

Defendant
REASONS FOR JUDGMENT -McGILL D.C.J.

Delivered the 23rd day of July 1999

On 22 August 1996 while the plaintiff was at work at the defendant’s premises he climbed a bull bar at the front of a truck to assist two other employees of the defendant who were fitting a cherry picker boom assembly to the truck. He slipped and fell on to the floor of the workshop, landing on his wrists and suffering injury. The plaintiff claims damages in respect of the injuries and their consequences, relying on negligence, breach of contract and breach of statutory duty, specifically that imposed by s.28 of the Workplace Health and Safety Act 1995 (“the 1995 Act”). Liability and quantum are both in issue.

Liability: Circumstances of Accident
The plaintiff was employed as a fitter and turner and had been working for the defendant for about two years. The defendant operated an engineering works in a series of connected buildings in one of which there were three bays where work could be done on motor vehicles: p.160. Also in this building was an office, and the truck in question was in the bay closest to the office, with the cab of the truck facing towards the office door, although the door was in a wall parallel to the direction of the truck. The other two work bays were parallel to this bay and further away from the office, and were used normally for relatively minor work: p.160. Unfortunately I do not have the benefit of a diagram of the shed; various witnesses gave evidence about where things were by reference to a diagram in Exhibit 1, but by reference to things which were off the page and sometimes the evidence was a little difficult to follow, or expressed in vague terms.

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.

Keep reading for free

Create a free CaseChat account to read Jones v Persal & Co and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] QDC 189
Decision Date: 23 July 1999

CaseChat Overview and Summary

The District Court of Queensland heard a case involving Brett Andrew Jones, who sued his employer, Persal & Company, for injuries sustained while assisting in the assembly of a cherry picker boom on a truck. Jones slipped and fell from the bull bar of the truck, injuring his wrists and back. He claimed damages for negligence, breach of contract, and breach of statutory duty under the Workplace Health and Safety Act 1995. The court held that Persal & Company owed Jones a duty of care and was liable for breach of this duty, as well as for breach of the implied term in the contract of employment to take reasonable care to avoid exposing him to unnecessary risks. The court found Jones contributory negligent for his decision to climb the bull bar, but apportioned liability between Jones and Persal & Company. Damages were assessed for pain and suffering, loss of amenities, past and future economic loss, special damages, medication costs, past and future gratuitous care, and interest. The total awarded was $218,601, which included $8,624 in interest. Persal & Company was ordered to pay Jones’s costs of and incidental to the action to be assessed.

Orders