Raitilava v Gold Coast City Council

DISTRICT COURT OF QUEENSLAND

CITATION:

Raitilava v Gold Coast City Council [2004] QDC 436

PARTIES:

ILARIO RAITILAVA

Plaintiff

v

GOLD COAST CITY COUNCIL

Defendant

FILE NO/S:

BD3616/2003

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

5 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22 April 2004

JUDGE:

McGill DCJ

ORDER:

Judgment for the defendant.

CATCHWORDS:

EMPLOYMENT LAW – Injury to employee – liability of employer – safe system of work – no obligation to prevent healthy employee from working within his capacity.

COUNSEL:

P A Hastie for the plaintiff
K S Howe on behalf of the defendant

SOLICITORS:

Murphy Schmidt for the plaintiff
Minter Ellison for the defendant.

1. The plaintiff has worked for the defendant, generally as a labourer, since 1978.  He has developed osteoarthritis of the right wrist.  The plaintiff alleges that this condition was caused by the work that he did, and the way he did that work, during the course of his employment, and that it arose because of a failure on the part of the defendant to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury.

1. Osteoarthritis is progressive and it would have developed over a relatively long period.  But the plaintiff’s condition was brought to light by two specific events.  The first was on 25 September 1998.  On that occasion the plaintiff, who was off duty but on call, was called into work about 9.00pm or 10.00pm to assist someone else who was repairing a broken water main:  p.98.  A backhoe was in attendance.  While there another emergency call came through about a broken service elsewhere, and the plaintiff went to attend to it:  p.99.  When he arrived he had a look at the problem and thought he could fix it himself.[1]  The plaintiff began to dig down to uncover the break at that job, where the water main was close to the roadside, and as he dug he must have hit some hard rock or concrete with his shovel.  He had dug about two feet into the ground, and until that point he was digging through a mixture of road base, soil, sand and rocks:  p.122.  This jarred his wrist, which became so painful that he could not carry on, and he went to the hospital. 

   [1]It was late at night and he thought it would be hard to get a machine in, and the others were at the other job;  but his evidence was that he thought he could do the job himself:  p.99.

1. After a fairly lengthy wait the plaintiff was seen by a doctor at the hospital and given some painkillers, which he was very keen to receive, and sent home:  p.100.  On the following Monday he went to a doctor at a 24 hour medical clinic near the Southport Hospital, and subsequently went to the defendant’s depot and reported the incident and filled in the appropriate form:  p.101.  He had some time off work as a result, but after being given a clearance…