Serra v Couran Cove Management Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Serra v Couran Cove Management P/L [2012] QSC 130

PARTIES:

ALBERTO ANTONIO SERRA

(plaintiff)

v

COURAN COVE MANAGEMENT PTY LTD

ABN 83 102 820 253

(defendant)

FILE NO/S:

BS7387/09

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

31 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

5, 6, 7, 8 December 2011

JUDGE:

Douglas J

ORDER:

Action dismissed.  Judgment for the defendant.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the plaintiff worked as an electrical mechanic for the defendant – where the plaintiff was attacked by a co-employee and suffered injuries from the attack – where the plaintiff and the co-employee had been involved in a confrontation shortly prior to the attack – where the co-employee was said to have tampered with a glass washer such that the plaintiff suffered an electric shock – where the co-employee was said to have caused password protection on the work computer rendering the plaintiff unable to carry out his work – where the co-employee wrote a racially discriminatory note providing instructions for the plaintiff in relation to a particular piece of work – where the co-employee was reprimanded for the racially discriminatory note – whether the injury suffered by the plaintiff was foreseeable – whether the defendant breached the duty it owed to the plaintiff by failing to investigate, reprimand or discipline the co-employee – whether causation established

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 referred
Antoniak v The Commonwealth (1962) 4 FLR 454 referred
Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355 referred
Hegarty v Queensland Ambulance Service [2007] QCA 366 cited
Hudson v Ridge Manufacturing Company Ltd [1957] 2 QB 348 referred
Lusk v Sapwell [2011] QCA 59 referred
Vairy v Wyong Shire Council (2005) 223 CLR 422 cited

COUNSEL:

S D Anderson for the plaintiff

R C Morton for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

McInnes Wilson Lawyers for the defendant

1. Douglas J:  Mr Alberto Serra, the plaintiff, worked as an electrical mechanic at Couran Cove Resort between 21 May 2007 and 13 July 2007.  On the latter date he was attacked by a co-employee, a Mr Peter Markan, who was another electrician at the Resort.  He suffered injuries from the attack and his damages have been agreed by the parties at $200,000 including interest and clear of any refunds to WorkCover Qld. 

1. His argument supporting his claim for damages is that his employer, the defendant, should have dismissed Mr Markan before 13 July 2007, with the effect that he was no longer present at the Resort by that date, or have reprimanded or counselled him before then because of his earlier conduct.  Had the defendant done that then the plaintiff contends that his injuries would not have occurred.  His case is that the defendant was negligent and in breach of its employment contract with…