Mater Misericordiae Ltd v Cox - [2021] QDC 142

DISTRICT COURT OF QUEENSLAND

CITATION:

Mater Misericordiae Ltd v Cox & another [2021] QDC 142

PARTIES:

MATER MISERICORDIAE LTD (ACN 096 708 922)
(Appellant)

v

KEITH COX
(First Respondent)

AND

QBE INSURANCE (AUSTRALIA) LIMITED (ACN 003 191 035)

(Second Respondent)

FILE NO:

1/21

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2021

JUDGE:

Porter QC DCJ

ORDER:

1. The appeal is dismissed.

CATCHWORDS:

TORTS – NEGLIGENCE – BREACH OF DUTY – where the appellant claimed from the respondents damages for negligent operation of a truck – whether the learned Magistrate erred in concluding that the respondents had not breached their duty of care – whether the risk of damage was foreseeable and not insignificant – whether the first respondent took precautions against that risk of harm which a professional truck driver would have taken

APPEAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – where factual error is alleged – whether the learned Magistrate erred in analysing the concept of foreseeability by confusing the duty of care the appellant owed to road users with the duty of care the respondents owed to the appellant – whether the learned Magistrate erred in concluding that “the first defendant had no reason to be apprehensive about driving under the footbridge”

LEGISLATION:

Civil Liability Act 2003 (Qld), s.9

CASES:

Fox v Percy (2003) 214 CLR 118

Lee v Lee (2019) 266 CLR 129

Queensland v Masson [2020] HCA 28

Warren v Coombes (1979) 142 CLR 531

COUNSEL:

J. Sorbello for the Appellant

C. Templeton for the Respondents

SOLICITORS:

Turks Legal for the Appellant

SMD Lawyers for the Respondents

SUMMARY

On 13 September 2015, the prime mover driven by the first respondent (Mr Cox) struck an overhead footbridge owned by the Mater as the first defendant tried to turn into the grounds of the Mater’s hospital. The appellant (Mater) sued Mr Cox and his employer (the insured of the second respondent), for damages for breach of their common law duty of care in management and operation of the truck. The learned Magistrate dismissed the Mater’s claim on the basis that the Mater had not made out that the respondents had breached their duty of care.
Mater appealed to this Court on two bases: that her Honour erred in her approach to the articulation of the scope of the respondents’ duty of care by focussing wrongly on the Mater’s duty relating to the accuracy of a warning sign on the footbridge and that her Honour erred in concluding that the respondents did not breach their duty of care.
For the reasons set out below, I have concluded that her Honour did not err in the first respect, but did err in the reasoning which led to her conclusion that the respondents had not breached their duty of care. However, reconsidering that matter on the evidence at trial, I have reached the same conclusion as her Honour.
The appeal…

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.

Continue reading Mater Misericordiae Ltd v Cox

Details

AGLC: Mater Misericordiae Ltd v Cox [2021] QDC 142
Case: [2021] QDC 142
Decision Date: 16 July 2021

CaseChat Overview and Summary

Mater Misericordiae Ltd brought an action against the respondents seeking damages for injuries sustained by the appellant's employee, who was struck by a truck operated by the respondents while crossing a road near their premises. The trial judge found that the respondents had not breached any duty of care they owed to the appellant or its employee. The appellant appealed, contending that the trial judge had erred in concluding that the risk of harm was not foreseeable and insignificant, and that the first respondent had taken precautions that a professional truck driver would have taken.

The court examined whether the trial judge erred in concluding that the respondents had not breached their duty of care. The court held that the trial judge did not err in concluding that the risk of harm was not significant enough to constitute a breach of duty of care. The court found that the trial judge had not confused the duty of care owed by the parties and had correctly considered the precautions taken by the first respondent. The court held that the trial judge's conclusion that the first respondent had no reason to be apprehensive about driving under the footbridge was supported by the evidence.

The appeal was dismissed, and the decision of the trial judge was affirmed. The court held that the trial judge had not erred in his analysis of the foreseeability of the risk of harm and that the first respondent had taken reasonable precautions against that risk. The court found that the trial judge's conclusion that the risk of harm was not significant enough to constitute a breach of duty of care was supported by the evidence.

Orders

Orders of the court

1. The appeal is dismissed.

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:	Mater Misericordiae Ltd v Cox & another [2021] QDC 142
PARTIES:	MATER MISERICORDIAE LTD (ACN 096 708 922) (Appellant) v KEITH COX (First Respondent) AND QBE INSURANCE (AUSTRALIA) LIMITED (ACN 003 191 035) (Second Respondent)
FILE NO:	1/21
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2021
JUDGE:	Porter QC DCJ
ORDER:	1. The appeal is dismissed.
CATCHWORDS:	TORTS – NEGLIGENCE – BREACH OF DUTY – where the appellant claimed from the respondents damages for negligent operation of a truck – whether the learned Magistrate erred in concluding that the respondents had not breached their duty of care – whether the risk of damage was foreseeable and not insignificant – whether the first respondent took precautions against that risk of harm which a professional truck driver would have taken APPEAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – where factual error is alleged – whether the learned Magistrate erred in analysing the concept of foreseeability by confusing the duty of care the appellant owed to road users with the duty of care the respondents owed to the appellant – whether the learned Magistrate erred in concluding that “the first defendant had no reason to be apprehensive about driving under the footbridge”
LEGISLATION:	Civil Liability Act 2003 (Qld), s.9
CASES:	Fox v Percy (2003) 214 CLR 118 Lee v Lee (2019) 266 CLR 129 Queensland v Masson [2020] HCA 28 Warren v Coombes (1979) 142 CLR 531
COUNSEL:	J. Sorbello for the Appellant C. Templeton for the Respondents
SOLICITORS:	Turks Legal for the Appellant SMD Lawyers for the Respondents