McEwan v Adpiosus Pty Ltd

[2006] QDC 87

DISTRICT COURT OF QUEENSLAND

CITATION:

McEwan v Adpiosus Pty Ltd & Anor [2006] QDC 087

PARTIES:

JOSHUA GARY McEWAN Suing by his Litigation Guardian AMANDA LOUISE McEWAN
Plaintiff

v

ADPIOSUS PTY LTD
ACN 010 507 605
First Defendant

and

RUSSELL DOUGLAS SKERMAN and
MARGARET ANN SKERMAN
Second Defendants

FILE NO/S:

BD1338 of 2005

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

28 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28-29 July 2005 and 2-3 February 2006

JUDGE:

McLauchlan QC, DCJ

ORDER:

Judgment for Plaintiff

CATCHWORDS:

Fire, Embers, Injury to Plaintiff’s foot, Negligence, s 74(1) Fire and Rescue Authority Act 1990 (Qld)

COUNSEL:

Mr Geraghty for the Plaintiff

Mr Kimmins for Second Defendants

SOLICITORS:

Hunter Solicitors for the Plaintiff

McCullough Robertson for the Second Defendants

1. The plaintiff was born on 20 July 1982.  In 1997, when he was 14 years old, he lived with his parents in Corsa Street, Beaudesert.  In close proximity to his house there was a large undeveloped area of land with a track which crossed it from east to west, leading through the land towards the showgrounds and golf course which abutted the land.  The track also forked to give access to the main road, which ran along its northern boundary, the Nerang-Beaudesert Road.  The evidence indicates that this land was used by local residents for a variety of purposes.  People used it for access to the golf course, and, in that connection at least, vehicles used the track in question.  The plaintiff himself used to ride his bicycle along the track to go to school, because it provided easier access than the roads in the area, which were quite steep.  Other people used the track for jogging or as a means of access to the main road.  The plaintiff and other young people also used the land for recreational purposes.

1. In March and April 1997, some clearing had been carried out on the land, and cut timber and vegetation had been piled up and was being progressively burnt, in the week commencing 7 April 1997.  On 8 April 1997 the plaintiff, at some time after arriving home from school, during daylight hours, entered the land to investigate the remains of a fire which he had observed from the bus on his way home. In the course of this investigation, he trod on some hot embers and suffered a burning injury to his right foot.

1. The land at the time contained two lots; Lot 1 on registered plan 207468, and Lot 2 on registered plan 840773.  These lots had been acquired by the first defendant for development in or around 1995 and were in the ownership and occupation of the first defendant as at April 1997.  On 13 March 1997 the first defendant obtained a quote from “R and M Plant Hire”, a partnership conducted by the second defendants, for clearing the site for development.  The quotation was for –  “selective clearing of approximately 75 acres of site of trees and regrowth, collection and stacking of…