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 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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