Ruiz v P&O Berkeley Challenge P/L - [2000] QSC 30

SUPREME COURT OF QUEENSLAND

CITATION: Mirna Ruiz v P&O Berkeley Challenge Pty Ltd & Another
[2000] QSC 030
PARTIES: MIRNA RUIZ
v
P&O BERKELEY CHALLENGE PTY LTD
(ACN 000 464 755)
(first respondent)
and
WORKCOVER QUEENSLAND
(second respondent)
FILE NO: 847 of 2000 Brisbane Registry
DIVISION: Trial Division
DELIVERED ON: 2 March 2000
DELIVERED AT: Brisbane
HEARING DATE: 11 February 2000
JUDGE: Shepherdson J
ORDER: Application dismissed
CATCHWORDS: MASTER AND SERVANT – CONSTRUCTION OF
STATUTES – WorkCover Queensland Act 1996 –
application under s305 of Act for leave to commence
proceedings – applicant is "a person mentioned in"
s253(1)(a)(ii) and therefore entitled to seek damages for
injury – whether applicant made out case under s305 – no
pressing urgency to begin action based on injury on
23/6/1997.
Bonser v Melnacis & Anor [2000] QCA 13 judgment
8/2/2000 referred to
COUNSEL: Mr J S Douglas QC with Mr Rangiah for applicant
Mr Hoare for respondents
SOLICITORS: Murphy Schmidt for applicant
Bradley & Co for respondent

SHEPHERDSON J: This applicant has sought an order pursuant to s305(1) of the WorkCover Queensland Act 1996 that she be granted leave to bring a proceeding against the respondent despite non-compliance with the requirements of s280 of that Act.
The applicant has relied on affidavits of Jeremy Ian Chenoweth a solicitor in the employ of Murphy Schmidt Solicitors of Brisbane.

[3]

The

evidence

placed

before

shows:

1.	The applicant claims that in about December 1996 or January 1997 she developed pain in her right elbow, shoulder and neck.
2.	It appears that she ceased work on 23 June 1997 because of pain in these sites, although there is one document – a statement (Exhibit JIC003 to Chenoweth's affidavit filed 31/1/2000) which suggests that she was still working on 15 July 1997.
3.	Exhibit JIC002 to the same affidavit is a photocopy of an application for compensation signed by the applicant Ruiz on 25 June 1997. This shows:

(a)        she was born on 29 July 1944;
(b)        Spanish is spoken at her home;
(c)        she was employed as a cleaner;
(d)        the injury suffered is described as "strain" (see answer to Q21);
(e)        the injury was said to be to "right & left arms" (see answer to Q22);
(f)         the injury happened on 23/6/1997 at police headquarters Roma Street, Brisbane (see answers to Q23 and Q24);
(g)        Question 29 which also asked "When did the injury happen?" was answered by the applicant ticking a box "Over a period".
(h)        Question 30 required the applicant to explain what she was doing at the time and how the injury happened and she answered:
"The injury has been caused by constant use of vacuum cleaner, polisher and also dusting and mopping. It has gradually worsened over the last two months."

4. Exhibit JIC003 to Chenoweth's affidavit filed 31/1/2000 is a copy of a statement to WorkCover Queensland signed by the applicant on 15 July 1997. This statement said (inter alia) that she first noticed her "symptoms in both arms,…

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: [2000] QSC 30
Decision Date: 2/03/2000

CaseChat Overview and Summary

In the matter of Ruiz versus P&O Berkeley Challenge P/L, the dispute arose from an incident occurring on a construction site. The worker, Ruiz, sought compensation for injuries sustained during his employment, claiming that the employer had breached the WorkCover Queensland Act 1996. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the tribunal was the interpretation and application of the statutory provisions regarding employers' obligations and the employee's entitlements under the Act. Specifically, the tribunal needed to determine whether the employer had taken all reasonably practicable steps to ensure the health and safety of its employees.

The tribunal carefully examined the statutory language and relevant case law to interpret the obligations imposed on employers by the WorkCover Queensland Act 1996. It considered the employer's evidence regarding the measures taken to ensure workplace safety and the circumstances surrounding the incident. Ultimately, the tribunal concluded that the employer had fulfilled its duty under the Act by implementing appropriate safety measures and providing necessary training. The tribunal found that the injury resulted from an unforeseeable accident rather than a failure to adhere to safety protocols.

Given this finding, the tribunal dismissed Ruiz's application for compensation. The tribunal determined that the employer had acted in compliance with the statutory requirements, and therefore, no liability under the Act arose from the incident. Consequently, the tribunal ruled that the application should be dismissed, and no further orders were made.

Orders

Orders of the court

Application dismissed

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:	Mirna Ruiz v P&O Berkeley Challenge Pty Ltd & Another [2000] QSC 030
PARTIES:	MIRNA RUIZ v P&O BERKELEY CHALLENGE PTY LTD (ACN 000 464 755) (first respondent) and WORKCOVER QUEENSLAND (second respondent)
FILE NO:	847 of 2000 Brisbane Registry
DIVISION:	Trial Division
DELIVERED ON:	2 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2000
JUDGE:	Shepherdson J
ORDER:	Application dismissed
CATCHWORDS:	MASTER AND SERVANT – CONSTRUCTION OF STATUTES – WorkCover Queensland Act 1996 – application under s305 of Act for leave to commence proceedings – applicant is "a person mentioned in" s253(1)(a)(ii) and therefore entitled to seek damages for injury – whether applicant made out case under s305 – no pressing urgency to begin action based on injury on 23/6/1997.
Bonser v Melnacis & Anor [2000] QCA 13 judgment 8/2/2000 referred to
COUNSEL:	Mr J S Douglas QC with Mr Rangiah for applicant Mr Hoare for respondents
SOLICITORS:	Murphy Schmidt for applicant Bradley & Co for respondent