Samways v WorkCover Queensland

Case [2010] QSC 127

SUPREME COURT OF QUEENSLAND

CITATION:

Samways v WorkCover Queensland & Ors [2010] QSC 127

PARTIES:

SCOTT ANDREW SAMWAYS
(plaintiff)
v
WORKCOVER QUEENSLAND
(first defendant)
and
DE LUCA PROPERTIES PTY LTD
(ABN 80 055 193 514)
(second defendant)
and
LYNSHA PTY LTD
(ABN 97 080 519 919)
(third defendant)

FILE NO:

BS 6092 of 2008

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 – 12 March 2010

JUDGE:

Applegarth J

ORDER:

1.     Judgment for the plaintiff against each defendant.

2.    Declaration that the third defendant is entitled to contractual indemnity from the second defendant in respect of the plaintiff’s claim.

3.    Direct that the parties’ legal representatives consult with each other and submit draft orders, including orders as to costs, within 14 days.

CATCHWORDS:

TORTS – NEGLIGENCE – breach of common law and/ or statutory duties – where the plaintiff was injured when he walked into a stationary bobcat with an elevated bucket on a construction site – whether the injury was caused by the negligence of any or all of the defendants -  whether the plaintiff’s injuries should be reduced on account of contributory negligence by walking into the bobcat

GUARANTEE AND INDEMNITY – INDEMNITIES – CONSTRUCTION OF CONTRACT – whether the second defendant is obliged to indemnify the third defendant for claims for negligence, including claims caused by the third defendant’s own negligence

ACTS CITED

Workplace Health and Safety Act 1995 (Qld), s 27A(2)

CASES

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 cited
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 cited
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269 cited
Davis v Commissioner for Main Roads (1968) 117 CLR 529 cited
DIB Group Pty Ltd trading as Hill & Co v Cole (2009) NSWCA 210
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 considered
Ellington v Heinrich Constructions Pty Ltd (2005) 13 ANZ Ins Cases 61-646; [2004] QCA 475 considered
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 considered
F & D Normoyle Pty Ltd v Transfield Pty Ltd (2005) 63 NSWLR 502 cited
Farrell v Queensland Newspapers Pty Ltd Unreported, Muir J 30 May 1997; upheld on appeal [1998] QCA 18 considered
Fraser v The Irish Restaurant and Bar Co Pty Ltd [2008] QCA 270 cited
Government Insurance Office (NSW) v RJ Green & Lloyd Pty Ltd (1966) 114 CLR 437 cited
Kondis v State Transport Authority (1984) 154 CLR 672 cited
Leighton Contractors Pty Ltd v Fox (2009) 258 ALR 673; [2009] HCA 35 applied
McLean v Tedman (1984) 155 CLR 306 cited
Nilon v Bezzina [1988] 2 Qd R 420 cited
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 applied
Schiliro Peppercorn Childcare Centres Pty Ltd (No 2) [2001] 1 Qd R 518 cited
Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234 cited
Westina Corporation Pty Ltd v BGC…

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AGLC
Samways v WorkCover Queensland [2010] QSC 127
Case
[2010] QSC 127
Decision Date

CaseChat Overview and Summary

The plaintiff, in this case, was injured at a construction site when he walked into a stationary bobcat with an elevated bucket. The plaintiff sued three defendants for negligence. The first defendant was the owner of the bobcat, the second defendant was the person who hired the bobcat and caused it to be positioned at the site, and the third defendant was the person who was responsible for the safety of the site and who employed the second defendant. The court had to determine if any of the defendants were negligent and if so, whether the plaintiff's injuries should be reduced for contributory negligence. The court also had to determine if the second defendant was obliged to indemnify the third defendant for claims for negligence, including claims caused by the third defendant's own negligence.

The court found that all three defendants were negligent in different ways. The first defendant failed to properly secure the bobcat and the second defendant failed to ensure that the bobcat was properly secured. The third defendant failed to ensure that the site was safe. The court found that the plaintiff's injuries should not be reduced for contributory negligence. The court also found that the second defendant was obliged to indemnify the third defendant for claims for negligence, including claims caused by the third defendant's own negligence.

The court found in favour of the plaintiff and ordered that the first, second and third defendants pay damages to the plaintiff. The court also ordered that the second defendant indemnify the third defendant in respect of the plaintiff's claim. The court directed that the parties' legal representatives consult with each other and submit draft orders, including orders as to costs, within 14 days.

This case highlights the importance of proper safety measures on construction sites and the potential liability of multiple parties for negligence. It also highlights the importance of contractual indemnities in allocating liability between parties.

Orders

Orders of the court

1. Judgment for the plaintiff against each defendant.

2. Declaration that the third defendant is entitled to contractual indemnity from the second defendant in respect of the plaintiff’s claim.

3. Direct that the parties’ legal representatives consult with each other and submit draft orders, including orders as to costs, within 14 days.

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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