Parry v Woolworths Limited

Case [2009] QCA 26


SUPREME COURT OF QUEENSLAND

CITATION:

Parry v Woolworths Limited [2009] QCA 26

PARTIES:

MERVYN JOHN PARRY
(appellant)
v
WOOLWORTHS LIMITED
(respondent)

FILE NO/S:

Appeal No 6685 of 2008
DC No 776 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2008

JUDGES:

McMurdo P, Fraser JA and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed

2.   Order of Searles DCJ of 17 June 2008 set aside

3.   Judgment entered for the plaintiff for the amount assessed by the trial judge of $82,327.73

4.   Leave granted for both parties to make submissions within 10 days of the judgment date, and in accordance with paragraph 37A of Practice Direction No. 1 of 2005, as to the costs of the trial and the appeal

CATCHWORDS:

WORKERS’ COMPENSATION – LIABILITY TO PAY COMPENSATION – LIABILITY OF EMPLOYER – where the appellant sustained a lower back injury whilst assisting another employee to lift a tub of meat in the course of his employment – where appellant had sustained back injuries prior to this particular incident – where the appellant required surgery for an acute prolapsed disc injury approximately five months after this particular incident – whether the appellant failed to prove that there was a risk of injury in lifting the tub of meat – whether the ‘risk of injury’ referred to in s 28 of the Workplace Health and Safety Act 1995 includes a risk that is ‘trivial’ – whether the trial judge erred in finding that the respondent had not breached its statutory duty under s 28 of the Workplace Health and Safety Act 1995 – whether the trial judge erred in fact in finding that the acute prolapsed disc injury was not sustained when the appellant assisted the other employee to lift the tub of meat

WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – whether the trial judge erred in construing a medical report as meaning that the appellant’s working life had not been shortened by the incident in question – whether the award for general damages was inadequate

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – COSTS – GENERALLY – where the trial was adjourned when the appellant applied for leave to file a reply pleading estoppel – where the trial judge concluded that the adjournment was due to the appellant’s unreasonable delay in pleading estoppel and ordered the appellant to pay the respondent’s costs thrown away under s 316(4) of the Workers’ Compensation and Rehabilitation Act 2003 – where the appellant contended that his delay was in fact due to the late disclosure of a report by the respondent – whether the respondent should pay the appellant’s costs thrown away by the adjournment

ESTOPPEL – GENERAL PRINCIPLES – where the appellant pleaded that the respondent was estopped from claiming that the…

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AGLC
Parry v Woolworths Limited [2009] QCA 26
Case
[2009] QCA 26
Decision Date

CaseChat Overview and Summary

The appellant, Parry, appealed against the decision of the District Court of New South Wales, where his claim for compensation from Woolworths Limited was dismissed. Parry claimed that he had sustained a lower back injury whilst assisting a colleague to lift a tub of meat during his employment. Despite prior back injuries, Parry required surgery for an acute prolapsed disc injury approximately five months after the incident in question. The legal issues in this case revolved around whether Parry had proven that there was a risk of injury in lifting the tub of meat and if the trial judge was correct in finding that Woolworths had not breached its statutory duty under s 28 of the Workplace Health and Safety Act 1995. The court also considered whether the trial judge had erred in concluding that Parry's acute prolapsed disc injury was not sustained during the lifting incident. Furthermore, the court examined the adequacy of the award for general damages and the trial judge's interpretation of a medical report in relation to the shortening of Parry's working life. Additionally, the case involved an examination of the costs associated with the proceedings, particularly the costs thrown away due to the adjournment of the trial when Parry applied for leave to file a reply pleading estoppel.

The Court of Appeal found that the trial judge had erred in several respects. Firstly, the court held that the trial judge had incorrectly interpreted the meaning of 'risk of injury' under s 28 of the Workplace Health and Safety Act 1995, which includes a risk that is 'trivial'. The appellate court concluded that the trial judge had erred in fact in finding that Parry's acute prolapsed disc injury was not sustained when he assisted the other employee to lift the tub of meat. Furthermore, the Court found that the trial judge had erred in construing a medical report as meaning that Parry's working life had not been shortened by the incident in question, and that the award for general damages was inadequate. The court also found that the trial judge had erred in concluding that Parry had failed to prove the essential elements of the claimed estoppel and that the adjournment of the trial was due to Parry's unreasonable delay in pleading estoppel. The Court of Appeal held that the adjournment was, in fact, due to the late disclosure of a report by Woolworths, and thus the appellant should not bear the costs thrown away by the adjournment.

The Court of Appeal allowed Parry's appeal and set aside the order of Searles DCJ of 17 June 2008. The appellate court entered judgment for the plaintiff in the amount assessed by the trial judge of $82,327.73. The court granted leave for both parties to make submissions within 10 days of the judgment date, in accordance with paragraph 37A of Practice Direction No. 1 of 2005, as to the costs of the trial and the appeal. The court did not address the issue of costs directly in the summary but indicated that it would be addressed in the submissions by both parties.

Orders

Orders of the court

1. Appeal allowed

2. Order of Searles DCJ of 17 June 2008 set aside

3. Judgment entered for the plaintiff for the amount assessed by the trial judge of $82,327.73

4. Leave granted for both parties to make submissions within 10 days of the judgment date, and in accordance with paragraph 37A of Practice Direction No. 1 of 2005, as to the costs of the trial and the appeal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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