Osborne v Downer EDI Mining Pty Ltd - [2010] QSC 470

SUPREME COURT OF QUEENSLAND

CITATION:

Osborne v Downer EDI Mining Pty Ltd & Anor [2010] QSC 470

PARTIES:

JOHN ARTHUR OSBORNE
(plaintiff)
v
DOWNER EDI MINING PTY LTD
(defendant)
NEWCREST MINING LTD
(third party)

FILE NO/S:

S579 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

14 December 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

6, 7, 8, 9 December 2010

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff against the defendant in the sum of $432,201.80.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where plaintiff fell 12 metres through a stope in the mine floor – where no direct evidence of cause of accident – where risk of injury reasonably foreseeable – where inexpensive remedial measures would have avoided the foreseeable risk – whether the defendant breached the duty of care owed to the plaintiff under general law – whether the defendant breached its statutory duty

TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the plaintiff was an experienced miner – where the plaintiff failed to detect the open stope – whether the plaintiff departed from the standard of care reasonably expected – whether the negligence of the plaintiff contributed to the occurrence of the accident

Workers’ Compensation and Rehabilitation Act 2003 (Qld),
s 307

Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29, cited

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, considered
Hill-Douglas v Beverley [1998] QCA 435, distinguished
McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 54
ALR 3, distinguished
Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362, cited
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, followed
Vozza v Tooth & Co Ltd (1964) 112 CLR 316, considered
Wylie v ANI Corporation Ltd [2002] 1 Qd R 320; [2000] QCA 314, distinguished

COUNSEL:

G W Diehm SC, with A Luchich, for the plaintiff
R C Morton for the defendant
D H Tait SC, with S T Farrell, for the third party

SOLICITORS:

Butler McDermott Lawyers for the plaintiff
Corrs Chambers Westgarth for the defendant
CLS Lawyers for the third party

EEKIN J: McMThe plaintiff, Mr John Osborne, claims damages for personal injuries suffered in the course of his employment with the defendant, Downer EDI Mining Pty Ltd, on 6 May 2005 at a gold mine at Cracow conducted by the third party, Newcrest Mining Ltd.

The defendant and the third party have resolved the issues between them on the basis that they will share equally any liability found in the defendant. Quantum of damages is agreed at $1,150,000 inclusive of the refund due to WorkCover Queensland.

The Issues

The only remaining live issue is the liability of the defendant to the plaintiff.

Mr Osborne was, at the relevant time, a long hole driller of some 20 years experience. He…

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.

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Details

Case: [2010] QSC 470
Decision Date: 14 December 2010

CaseChat Overview and Summary

The plaintiff, Osborne, sued Downer EDI Mining Pty Ltd for injuries sustained when he fell 12 metres through a stope in the mine floor. The dispute centred on whether the defendant breached its duty of care under the common law and statutory provisions, and whether the plaintiff's contributory negligence should reduce any award. The matter was heard in the Supreme Court of Queensland.

The court was required to determine whether the defendant owed a duty of care to the plaintiff and if this duty was breached. The court also needed to assess whether the plaintiff's actions contributed to the accident, and if so, whether this should mitigate the defendant's liability. The key issue was whether the risk of injury was reasonably foreseeable, and whether inexpensive remedial measures could have prevented the incident.

The court found that the defendant breached its duty of care as the risk of injury was reasonably foreseeable, and inexpensive measures could have prevented the incident. The court noted that the defendant failed to inspect and secure the open stope, despite being aware of the risk. The court also found that the plaintiff was not negligent as an experienced miner should not have failed to detect the open stope. The court concluded that the defendant's breach of duty caused the plaintiff's injuries.

The court awarded judgment for the plaintiff in the sum of $432,201.80, representing general damages for pain and suffering, and loss of amenity. The court held that the plaintiff's contributory negligence did not reduce the defendant's liability, as the primary cause of the accident was the defendant's breach of duty.

Orders

Orders of the court

Judgment for the plaintiff against the defendant in the sum of $432,201.80.

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:	Osborne v Downer EDI Mining Pty Ltd & Anor [2010] QSC 470
PARTIES:	JOHN ARTHUR OSBORNE (plaintiff) v DOWNER EDI MINING PTY LTD (defendant) NEWCREST MINING LTD (third party)
FILE NO/S:	S579 of 2008
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	14 December 2010
DELIVERED AT:	Rockhampton
HEARING DATE:	6, 7, 8, 9 December 2010
JUDGE:	McMeekin J
ORDER:	Judgment for the plaintiff against the defendant in the sum of $432,201.80.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where plaintiff fell 12 metres through a stope in the mine floor – where no direct evidence of cause of accident – where risk of injury reasonably foreseeable – where inexpensive remedial measures would have avoided the foreseeable risk – whether the defendant breached the duty of care owed to the plaintiff under general law – whether the defendant breached its statutory duty TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the plaintiff was an experienced miner – where the plaintiff failed to detect the open stope – whether the plaintiff departed from the standard of care reasonably expected – whether the negligence of the plaintiff contributed to the occurrence of the accident Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 307 Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29, cited Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, considered Hill-Douglas v Beverley [1998] QCA 435, distinguished McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3, distinguished Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362, cited Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, followed Vozza v Tooth & Co Ltd (1964) 112 CLR 316, considered Wylie v ANI Corporation Ltd [2002] 1 Qd R 320; [2000] QCA 314, distinguished
COUNSEL:	G W Diehm SC, with A Luchich, for the plaintiff R C Morton for the defendant D H Tait SC, with S T Farrell, for the third party
SOLICITORS:	Butler McDermott Lawyers for the plaintiff Corrs Chambers Westgarth for the defendant CLS Lawyers for the third party