Micallef v Collier

DISTRICT COURT OF QUEENSLAND

CITATION:

Micallef  v Collier [2004] QDC 120

PARTIES:

SAM MICALLEF

Plaintiff

v

DAVID COLLIER

Defendant

FILE NO/S:

BD1178/1999

DIVISION:

Civil Jurisdiction

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

11 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2004

JUDGE:

Rackemann  DCJ

ORDER:

Judgement for the plaintiff in the sum of $118,115.30

CATCHWORDS:

PERSONAL INJURIES: negligence, Grade 1 compound comminuted fracture of the left tibia and fibula, 17-19% whole of person disability

COUNSEL:

Mr F Dawson for the plaintiff

Self-representation for the defendant

SOLICITORS:

Messrs Bennett & Philp for the plaintiff

Self-representation for the defendant

1. The plaintiff’s claim is for personal injuries which occurred in an accident on          4 April 1998 and resulted in the plaintiff suffering a grade 1 compound comminuted fracture of the left tibia and fibula.

1. Both liability and quantum were in issue, but the former was the most controversial issue at trial.  The issue of liability depends, in turn, upon issues of credit. 

1. It is common ground that, from time to time, the plaintiff was engaged by the defendant to perform work, including welding and labouring work, for which he was paid, in cash, on the basis of an hourly rate.  The work was carried out at a construction site at the Pacific Highway near Yatala, the work site where the defendant was working as a subcontractor.  The defendant would instruct the plaintiff as to when to attend the site and was in charge of the work which the plaintiff was required to undertake.

1. As at the relevant date, a worker was defined under the WorkCover Queensland Act 1996 as an individual who worked under a contract of service and was a PAYE taxpayer. The plaintiff was not a PAYE taxpayer and hence was not a worker as defined under that legislation at the relevant time. Nevertheless, I accept the submission of counsel for the plaintiff that the defendant owed the plaintiff a duty of care, including a contractual duty to provide a safe system of work and a duty at law to take reasonable care for his safety.

1. The plaintiff’s version of events is that the accident occurred at the work site in the morning when he was hit on the leg by a drilling rig.  The circumstances leading up to that accident, on his version of events, were that while setting up for work, the plaintiff was asked by the defendant to pick something up and place it on a drilling rig which was hanging by its chain from the arm of an excavator under the control of the defendant.  The plaintiff complied with that request, however the defendant began to operate the excavator so as to lift the drilling rig before the plaintiff had retreated, thereby resulting in the plaintiff’s leg being hit by the rig. 

1. If the accident occurred in that way, then I accept the plaintiff’s contention that the defendant breached his duty of care and is liable[1].    The defendant did not contend to the contrary.  Rather,…