Klein v SBD Services Pty Ltd

Case [2013] QSC 134

SUPREME COURT OF QUEENSLAND

CITATION:

Klein v SBD Services Pty Ltd [2013] QSC 134

PARTIES:

TIMOTHY JAMES KLEIN

Plaintiff

And

SBD SERVICES PTY LTD

Defendant

FILE NO/S:

S271 of 2011

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

 30 May 2013

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

29-30 April, 1-2 May 2013

Final submissions received: 9 May 2013 (Defence), 15 May 2013 (Plaintiff)

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff in the sum of $289,502.13.

CATCHWORDS:

TORTS – NEGLIGENCE – LIABILITY – whether the alleged incident occurred – where the identification of the object is in issue – where the defendant accepts liability if the object is found to be over 100kg

TORTS – NEGLIGENCE – LIABILITY – where both parties submit a Blatch v Archer inference should be drawn

TORTS – NEGLIGENCE – LIABILITY – CREDIT – where plaintiff knowingly deceived medical practitioners – where the plaintiff claims a conspiracy theory on the part of the defendant

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – where the defendant claims contributory negligence on the part of the plaintiff

TORT – QUANTUM – where the true extent of the injuries claimed are in issue – to what extent should post accident employment be considered

Coal Mining Safety and Health Act 1999

Workers Compensation and Rehabilitation Act 2003

ASIC v Hellicar [2012] HCA 17

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301

Blatch v Archer (1774) 1 Cowp 63

Hopkins v WorkCover Queensland [2004] QCA 155

Koven v Hail Creek Coal Pty Ltd [2011] QSC 51

Kondis v State Transport Authority (1984) 154 CLR 672

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362

Phillips v MCG Group Pty Ltd [2013] QCA 83

Purkess v Crittenden (1965) 114 CLR 164

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Smith v Topp [2003] QCA 397

Watts v Rake1960) 108 CLR 158

COUNSEL

Mr G Crow SC with Mr S Deaves for the plaintiff

Mr G O’Driscoll for the defendant

SOLICITORS:

Macrossan & Amiet for the Plaintiff

Roberts Nehmer McKee for the Defendant

  1. McMeekin J: The plaintiff, Timothy James Klein, claims over $1.9M in damages for a back injury with, at most, a 6% permanent impairment which he alleges was suffered on 1 February 2009 in an incident at his workplace.  He was then employed by the defendant, SBD Services Pty Ltd, as an underground coal miner. 

  1. Liability and quantum of damages are in issue.

  1. This judgment is far longer than is typical of a claim for damages for a back injury arising from a single incident. I have felt constrained to address the many arguments advanced. The judgment has been arranged as follows:

1.     The Liability Issue – [5]

2.     The Defendant’s Arguments – [9]

3.     Assessment of the Plaintiff – [10]

4.     Common Ground - [22]

5.     The Plaintiff’s Version of Events – [27]

6.     The Plaintiff’s Case on the Identity of the…

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AGLC
Klein v SBD Services Pty Ltd [2013] QSC 134
Case
[2013] QSC 134
Decision Date

CaseChat Overview and Summary

In the matter of Klein v SBD Services Pty Ltd, the plaintiff alleged that the defendant was negligent in the handling of a load which resulted in personal injuries. The case was heard in the Supreme Court of Victoria. The plaintiff contended that the object which caused his injuries weighed over 100kg and sought damages from the defendant who accepted liability if this was the case. The defendant, however, denied responsibility, contending that the object weighed less than 100kg. The plaintiff also argued that the defendant conspired with medical practitioners to downplay the extent of his injuries, and that the defendant's conduct was contributory negligent. The defendant countered that the plaintiff's own actions contributed to his injuries. The court was required to determine whether the object was over 100kg, whether a Blatch v Archer inference should be drawn, whether there was a conspiracy between the defendant and medical practitioners, and whether the plaintiff was contributorily negligent.

The court held that the weight of the object was not determinable with certainty and thus the onus was on the plaintiff to prove that it was over 100kg. It found that the Blatch v Archer inference was applicable in this case, as the defendant had exclusive control of the object which caused the plaintiff's injuries. The court rejected the plaintiff's claim of conspiracy, finding that there was no evidence to support this assertion. Regarding contributory negligence, the court found that the plaintiff was not contributorily negligent in this case. The court held that the plaintiff's post-accident employment should be considered in determining the true extent of his injuries.

The court ultimately found in favour of the plaintiff, awarding damages in the sum of $289,502.13. The court held that the plaintiff had proven on the balance of probabilities that the object which caused his injuries was over 100kg and thus the defendant was liable. The court rejected the defendant's argument that the plaintiff's own actions contributed to his injuries, finding that the plaintiff was not contributorily negligent. The court also held that the plaintiff's post-accident employment should be taken into account when determining the true extent of his injuries.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $289,502.13.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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