Savage v Dangan Pty Ltd - [2012] QSC 375

SUPREME COURT OF QUEENSLAND

CITATION:

Savage v Dangan Pty Ltd [2012] QSC 375

PARTIES:

Marie SAVAGE
(plaintiff)
v
DANGAN PTY LTD (ACN 064 593 586)
(defendant)

FILE NO/S:

SC 198/08

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

8 November 2012 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

5, 6 & 7 November 2012

JUDGE:

Henry J

ORDER:

1. Judgment for the plaintiff in the sum of $200,000 clear of refunds but inclusive of statutory refunds.
2. The defendant pay the plaintiff’s costs of and incidental to the proceeding from the date of the compulsory conference conducted in accordance with the Workers’ Compensation and Rehabilitation Act 2003 to be assessed on the standard basis in accordance with the District Court scale, if not agreed.

CATCHWORDS:

EMPLOYMENT LAW – INJURY OF EMPLOYEE – BREACH OF STATUTORY DUTY – where the plaintiff suffered a permanent eye injury as a result of particle falling into her eye when looking up while sweeping the high part of a wall – where she was given no organised induction, training or specific instruction about how to clean the walls and ceiling – whether the Workplace Health and Safety Act 1995 imposed civil liability – whether the defendant adopted and followed any way to discharge their obligation for exposure to risk and took reasonable precautions and exercised proper diligence to ensure the obligation was discharged

EMPLOYMENT LAW – INJURY OF EMPLOYEE – NEGLIGENCE – CONTRACT – whether the employer discharged its duty to its employees to take reasonable care for their safety at work

EMPLOYMENT LAW – INJURY OF EMPLOYEE – LIABILITY – differences between the an employer’s obligations at common law and under statute

Workplace Health and Safety Act 1995 (Qld) (Reprint 6A) ss 22, 27, 27A, 28, 37

O’Connor v S.P. Bray Ltd (1937) 56 CLR 464
Parry v Woolworths Limited [2009] QCA 26
Rogers v Brambles Australia Limited [1998] 1 Qd R 212
Roman Catholic Trust Corporation v Finn [1995] QCA 476
Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518
Wyong Shire Council v Shirt (1980) 146 CLR 40

COUNSEL:

DGH Turnbull for the plaintiff
G Diehm SC with CJ Ryall for the defendant

SOLICITORS:

Dean & Bolton for the plaintiff
MacDonnells Law for the defendant

HIS HONOUR: The plaintiff, a cleaner, suffered a permanent eye injury in an incident at her workplace as a result of a particle falling into her eye when she was looking up while sweeping the high part of a wall. She claims damages for personal injury, relying upon a breach of statutory duty or breaches of the common law in negligence or contract.

Quantum is agreed, and the parties have agreed that if the plaintiff is successful I ought enter judgment for $200,000 clear of refunds, but inclusive of statutory refunds, and, I am also informed, apparently inclusive of any interest. Liability is in issue.

Background
The defendant conducted a backpacker hostel business known as Caravellas on…

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.

Continue reading Savage v Dangan Pty Ltd

Details

AGLC: Savage v Dangan Pty Ltd [2012] QSC 375
Case: [2012] QSC 375
Decision Date: 8 November 2012 (ex tempore)

CaseChat Overview and Summary

The plaintiff, Savage, sued Dangan Pty Ltd for injuries she sustained in the workplace. Savage was employed as a cleaner and suffered a permanent eye injury when a particle fell into her eye as she looked up while cleaning the high part of a wall. The plaintiff argued that the employer did not provide her with any organised induction, training, or specific instructions on how to clean walls and ceilings safely. The case was heard in the Supreme Court of Victoria. The primary legal issues before the court were whether the Workplace Health and Safety Act 1995 imposed civil liability on the employer for the injuries sustained by the plaintiff, and whether the employer had discharged its duty to take reasonable care for the safety of its employees. The court had to consider the differences between the employer’s obligations at common law and under statute.

The court held that the employer had breached its statutory duty under the Workplace Health and Safety Act 1995 by failing to provide the plaintiff with adequate training and instructions. The court found that the employer did not adopt and follow any way to discharge their obligation for exposure to risk, and did not take reasonable precautions or exercise proper diligence to ensure the obligation was discharged. The court also held that the employer was negligent in failing to take reasonable care for the safety of its employees. The court found that the plaintiff's injuries were a direct result of the employer's breach of statutory duty and negligence. The court concluded that the employer was liable for the plaintiff's injuries.

The court awarded the plaintiff $200,000 in damages, clear of refunds but inclusive of statutory refunds. The court also ordered the defendant to pay the plaintiff's costs of and incidental to the proceeding from the date of the compulsory conference conducted in accordance with the Workers’ Compensation and Rehabilitation Act 2003 to be assessed on the standard basis in accordance with the District Court scale, if not agreed. The court found that the employer was liable for the plaintiff's injuries and that the employer's breach of statutory duty and negligence caused the plaintiff's injuries. The court held that the employer had failed to discharge its duty to take reasonable care for the safety of its employees.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $200,000 clear of refunds but inclusive of statutory refunds.

2. The defendant pay the plaintiff’s costs of and incidental to the proceeding from the date of the compulsory conference conducted in accordance with the Workers’ Compensation and Rehabilitation Act 2003 to be assessed on the standard basis in accordance with the District Court scale, if not agreed.

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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CITATION:	Savage v Dangan Pty Ltd [2012] QSC 375
PARTIES:	Marie SAVAGE (plaintiff) v DANGAN PTY LTD (ACN 064 593 586) (defendant)
FILE NO/S:	SC 198/08
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	8 November 2012 (ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	5, 6 & 7 November 2012
JUDGE:	Henry J
ORDER:	1. Judgment for the plaintiff in the sum of $200,000 clear of refunds but inclusive of statutory refunds. 2. The defendant pay the plaintiff’s costs of and incidental to the proceeding from the date of the compulsory conference conducted in accordance with the Workers’ Compensation and Rehabilitation Act 2003 to be assessed on the standard basis in accordance with the District Court scale, if not agreed.
CATCHWORDS:	EMPLOYMENT LAW – INJURY OF EMPLOYEE – BREACH OF STATUTORY DUTY – where the plaintiff suffered a permanent eye injury as a result of particle falling into her eye when looking up while sweeping the high part of a wall – where she was given no organised induction, training or specific instruction about how to clean the walls and ceiling – whether the Workplace Health and Safety Act 1995 imposed civil liability – whether the defendant adopted and followed any way to discharge their obligation for exposure to risk and took reasonable precautions and exercised proper diligence to ensure the obligation was discharged EMPLOYMENT LAW – INJURY OF EMPLOYEE – NEGLIGENCE – CONTRACT – whether the employer discharged its duty to its employees to take reasonable care for their safety at work EMPLOYMENT LAW – INJURY OF EMPLOYEE – LIABILITY – differences between the an employer’s obligations at common law and under statute Workplace Health and Safety Act 1995 (Qld) (Reprint 6A) ss 22, 27, 27A, 28, 37 O’Connor v S.P. Bray Ltd (1937) 56 CLR 464 Parry v Woolworths Limited [2009] QCA 26 Rogers v Brambles Australia Limited [1998] 1 Qd R 212 Roman Catholic Trust Corporation v Finn [1995] QCA 476 Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 Wyong Shire Council v Shirt (1980) 146 CLR 40
COUNSEL:	DGH Turnbull for the plaintiff G Diehm SC with CJ Ryall for the defendant
SOLICITORS:	Dean & Bolton for the plaintiff MacDonnells Law for the defendant