McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors

SUPREME COURT OF QUEENSLAND

CITATION:

McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors [2000] QSC 054

PARTIES:

PETER FRANCIS McDONNELL
(first plaintiff)
AND
SANDRA LEA McDONNELL
(second plaintiff)
v
RONALD ADAM HOFFMAN
(first defendant)
AND
MARGARET HOFFMAN
(second defendant)
AND
MOUNT SUGARLOAF FOREST PTY LTD
(third defendant)
AND
MOUNT SUGARLOAF TIMBER LIMITED
(fourth defendant)

FILE NO/S:

S795 of 1995

DIVISION:

Trial Division

DELIVERED ON:

17 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22, 23 February 2000

JUDGES:

Chesterman J

ORDER:

Judgment in the action for the defendants

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – IN GENERAL – plaintiff timber feller injured by falling tree – whether plaintiff was an employee – whether contractor under duty to implement safe system of work – whether safe system of work implemented – whether plaintiff failed to follow safe system of work

CSR Limited v Wren [1997] 44 NSWLR 463
Hill Douglas v Beverley 1998 QCA 435
Stevens v Brodribb Sawmilling Co Pty Ltd (1985 – 1986) 160 CLR 16.

COUNSEL:

Mr J S Douglas QC for the plaintiff
Mr L D Bowden for the first and second defendants
Mr D O J North SC for the third  and fourth defendants

SOLICITORS:

Murphy Schmidt for the plaintiff
Hede Byrne & Hall for the first and second defendants
Bennett & Philip for the third and fourth defendants

1. CHESTERMAN J:  The first plaintiff was a timber cutter by occupation.  His wife is the second plaintiff.  On 11 May 1992 the first plaintiff (“the plaintiff”) was struck in the back by a falling tree.  He is now a paraplegic.  He has sued to recover damages for his injury from the first and second defendants, also husband and wife, who at all relevant times carried on business in partnership as timber carters, and the third and fourth defendants which respectively operated and owned a sawmill. 

The second plaintiff claims damages for loss of consortium. 

1. At an early stage in the trial all parties agreed upon the amount of damages which should be awarded to the plaintiffs if they succeeded in proving negligence against any of the defendants.  Mr McDonnell’s damages are agreed in the sum of $1,200,000.00 and his wife’s in the sum of $25,000.00. 

1. The plaintiff’s case is that he was employed by Mr and Mrs Hoffman, the first and second defendants (“the defendant”) who owed him a duty to ensure that care was taken for his safety in the course of his employment.  He alleges that the third and fourth defendants (“Sugarloaf”) owed him a duty to take reasonable care to prevent injury by implementing, or having the defendant implement, a safe system of work.  The plaintiff further alleges that both the defendant and Sugarloaf failed to discharge their respective duties.

1. Sugarloaf denies the existence of the alleged duty.  It contends that, whether or not it was instituted by the defendant, there was in existence a safe system of work.  The defendant denies that the plaintiff was an employee.…