Schafer v Glendale RV Syndication

[2022] QDC 263

DISTRICT COURT OF QUEENSLAND

CITATION:

Schafer v Glendale RV Syndication [2022] QDC 263

PARTIES:

DEBORA SCHAFER

(Plaintiff)

v

GLENDALE RV SYNDICATION PTY LTD

ACN 088 169 493

(Defendant)

FILE NO:

258/18

DIVISION:

District Court

PROCEEDING:

Civil

ORIGINATING COURT:

District Court

DELIVERED ON:

2 December 2022

DELIVERED AT:

Townsville

HEARING DATE:

15 – 17 February 2021

JUDGE:

Coker DCJ

ORDER:

1.   Judgment for the Plaintiff in the sum of $397,952.93.

2.   The Defendant is to pay the Plaintiff’s costs upon the standard basis from 31 August 2018.

CATCHWORDS:

TORTS – NEGLIGENCE – CAUSATION – DAMAGES – where the plaintiff was employed as a chef by the defendant – where the plaintiff’s employment required food trays to be stacked in ovens and distribution trolleys – where the plaintiff had a pre-existing degenerative condition in her shoulder – whether unsafe system of work caused injury – whether any pre-existing injuries are relevant to the causing of injury – where expert opinion supported the contention that the work practices were a risk – where expert medical opinion was that the work practices caused the onset of the injury – where a significant portion of the population have the same degenerative condition – whether the defendant had breached its duty of care – whether the risk of injury was foreseeable – whether the breach of duty caused the plaintiffs injury.

LEGISLATION:

Workers Compensation & Rehabilitation Act 2003 (Qld), S 305B, 305C, 305D.  
Civil Liability Act 2003

CASES:

Berhane v Woolworths [2017] QCA 166.
Erickson v Bagley [2015] VSCA 200.
Reed v Warburton [2011] NSWCA 98.
Benic v State of New South Wales [2010] NSWSC 1039.
Calvert v Mayne Nicklass Ltd (No 1) [2006] 1 Qd R 106.
Hopkins v WorkCover Queensland [2004] QCA 155.
Toth v ACI Australia (t/a Laminex Industries) 18/08/1995, unreported decision of Dowsett J.              
Eaton v Putman [1991] 55 SASR 386.
Malec v JC Hutton Pty Ltd [1990] 169 CLR 638.

COUNSEL:

Mylne. P for the Plaintiff

Perkiss. O for the Defendant

SOLICITORS:

O’Shea & Dyer Solicitors for the Plaintiff

BTLawyers for the Defendant

Introduction

1. On the 16^th August 2016, Debora Schafer (hereinafter referred to as ‘the Plaintiff’), commenced employment as a chef at Glendale Aged Care, an aged care facility operated by Glendale Syndication Pty Ltd ACN 088 169 493 (hereinafter referred to as ‘the Defendant’). The Defendant’s business was conducted from the premises situated at 435 Dalrymple Road, Mt Louisa, Townsville.

2. The Plaintiff was employed as a chef by the Defendant from 16^th August 2016 until the 10^th February 2017, though it is more correct to suggest that that employment was until the 5^th January 2017. On that day at approximately 4:00pm, the Plaintiff was working as a chef and in that capacity was preparing a stainless-steel tray to be inserted into a shelf of a steamer oven, which shelf was at approximately shoulder/head height.

3. The tray, though it cannot be exactly gauged, held several pans containing food; weighing,…