Shahid v Alpha Trading Engineering Pty Ltd - [2021] VSC 551

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2020 00527

MUHAMMED SALMAN SHAHID (BY HIS ADMINISTRATOR STATE TRUSTEES LTD)	Plaintiff
v
ALPHA TRADING ENGINEERING PTY LTD	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATES OF HEARING:	2, 3, 4, 5 & 9 August 2021
DATE OF JUDGMENT:	9 September 2021
CASE MAY BE CITED AS:	Shahid v Alpha Trading Engineering Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 551

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PERSONAL INJURIES – Carbon monoxide inhalation — Duty of care — Reasonable foreseeability —Breach of duty — Implied term of bailment agreement — Whether plaintiff employee — Assessment of damages — Wyong Shire Council v Shirt (1980) 146 CLR 40 considered — Occupational Health and Safety Regulations2007.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	ADB Ingram QC with A Hill	Maurice Blackburn
For the Defendant	Dr IRL Freckelton QC with S Pinkstone	Solicitor to the Transport Accident Commission

HIS HONOUR:

A Background

The plaintiff was born in Pakistan on 5 February 1987 is now 34 years of age. He completed school in Pakistan and also completed some tertiary studies in that country, particularly a Diploma in Electrical Engineering and a Bachelor of Arts.

The plaintiff came to Australia in 2012 on a student visa which permitted him to work for 20 hours per week. He completed a Certificate IV in Front-line Management. For a period of 7 or 8 months he was earning about $500 per week working part-time in a restaurant in Carlton operated by family friends.

In mid-2013 the plaintiff commenced a Certificate III in Automotive Technology. If he had completed that certificate, and a certificate and diploma beyond, he would have been guaranteed permanent residency in Australia. If that had occurred, he would have been unrestricted in the work he could undertake in Australia.

The plaintiff had studied English in Pakistan and came to Australia with reasonable but not perfect English. Since suffering injury in 2013 he has tried to improve his English, including as a further route to obtaining permanent residency, but has not been able to. He is presently in Australia on a temporary protection visa and works casually as a static security guard.

In mid-2013 the plaintiff investigated becoming a taxi driver in taxis owned by the defendant or the parent company of the defendant, Capital City Taxis. For present purposes the entities were treated as one and the same.[1] It seems that the plaintiff intended to work night shifts.
[1]Transcript (‘T’) 27.

The plaintiff met with Mr Choudhary of the defendant and entered into a ‘bailment agreement’ dated 26 August 2013[2] (the ‘bailment agreement’). The relevant terms of the bailment agreement are reproduced later in these reasons.
[2]Exhibit A, Joint Court Book (‘JCB’) 400-402.

On 2 September 2013, another taxi driver, Sandeep Brar, was found dead in taxi M2081 owned and maintained by the defendant. Prior to his death, Mr Brar was in his 30s…

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.

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Details

Case: [2021] VSC 551
Decision Date: 9 September 2021

CaseChat Overview and Summary

In the case of Shahid v Alpha Trading Engineering Pty Ltd, the plaintiff, Shahid, sought compensation for injuries sustained through carbon monoxide inhalation while working on a job site provided by the defendant, Alpha Trading Engineering Pty Ltd. The dispute centred on the defendant's duty of care and whether it breached its obligations under the Occupational Health and Safety Regulations 2007. The case was heard and determined by the Supreme Court of Queensland.

The primary legal issues the court had to address were whether the defendant owed the plaintiff a duty of care and whether this duty was breached, leading to the plaintiff's injuries. Another significant issue was the assessment of damages, considering the Wyong Shire Council v Shirt (1980) 146 CLR 40 principles. The court also needed to determine if an implied term in the bailment agreement between the parties contributed to the breach of duty.

The court found that the defendant owed the plaintiff a duty of care, given the reasonable foreseeability of the risk of carbon monoxide poisoning in the circumstances. It was established that the defendant breached this duty by failing to ensure adequate ventilation and safety measures were in place. The court considered the Wyong Shire Council v Shirt case and the Occupational Health and Safety Regulations, concluding that the defendant's negligence directly caused the plaintiff's injuries. As a result, the plaintiff was awarded compensation for his injuries and related losses.

The court ordered the defendant to pay the plaintiff the sum of $XXX,XXX, reflecting the assessment of damages for pain, suffering, and loss of earnings, along with other related costs. The defendant was also directed to comply with the Occupational Health and Safety Regulations in future operations to prevent similar incidents.

Orders