Smart v Compass Group (Australia) Pty Ltd - [2021] QDC 176

DISTRICT COURT OF QUEENSLAND

CITATION:

Smart v Compass Group (Australia) Pty Ltd [2021] QDC 176

PARTIES:

RICKI MARCUS SMART

(Plaintiff)

v

COMPASS GROUP (AUSTRALIA) PTY LTD

(Defendant)

FILE NO:

283/17

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

13 August 2021

DELIVERED AT:

Townsville

HEARING DATE:

18-19 February 2020 and 26-27 August 2020, at Townsville

JUDGE:

Coker DCJ

ORDER:

1.   That the plaintiff’s claim is dismissed and there be judgment for the defendant.

2.   That any submissions as to costs by the defendant be filed and served within 21 days of today and any response by the plaintiff be filed and served within 21 days of receipt of service.

3.   That either party may seek to address the court as to costs with any such request to be made within 7 days of the date of the plaintiff’s filing date but otherwise that any costs application be dealt with in chambers.

CATCHWORDS:

TORTS – PERSONAL INJURIES – NEGLIGENCE – where the employee alleges a breach of duty owed by the employer led to a workplace injury – where liability and causation are in issue – whether the employer breached its duty of care – whether the plaintiff has discharged the onus of demonstrating any breach of the duty of care – whether any injury sustained was ‘not insignificant’.

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – Assessment of damages – where liability of employer is not proven – where assessment of notional damages is necessary.

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 305B(1) and 305B(2)

CASES:

Fox v State of Queensland [2016] QDC 146

Seage v State of New South Wales [2008] NSWCA 328

COUNSEL:
SJ Deaves for the plaintiff
MD Glen for the defendant

SOLICITORS:
Rapid Legal Solutions for the plaintiff

BT Lawyers for the defendant

Introduction

The Plaintiff in this matter is Ricki Marcus Smart, hereinafter referred to as ‘the Plaintiff’. The Plaintiff claims that on 29 February 2016, due to an unsafe system of work, he sustained an injury to his right knee in the course of his duties at Cannington Mine. He says that the injury led ultimately to the need for a total knee replacement and further, that the injury has rendered him unsuitable to work in any field in which he has previous experience.
The Defendant employer is Compass Group (Australia) Pty Ltd (ACN 000 683 125) hereinafter referred to as ‘the Defendant’. The Defendant says that the Plaintiff’s claim should be dismissed. The Defendant argues that this should be the case because:
(a)the Plaintiff has failed to establish the cause of his fall and has therefore failed to prove his case;
(b)there has been no breach of the statutory modified duty owed by the Defendant;
(c)if any breach has occurred, the Plaintiff has failed to show causation; and
(d)any injury sustained on 29 February 2016 was nominal and a subsequent event has caused the Plaintiff’s ongoing symptomology.
Background
The Plaintiff is 61 years of age having been born 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.

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Details

Case: [2021] QDC 176
Decision Date: 13 August 2021

CaseChat Overview and Summary

In the matter of Smart v Compass Group (Australia) Pty Ltd, the plaintiff, aged 61, sought to recover damages for injuries sustained in a workplace incident. The defendant, Compass Group (Australia) Pty Ltd, argued that the plaintiff's claim should be dismissed due to a failure to establish the cause of the fall, absence of a statutory modified duty breach, lack of causation, and the nominal nature of any sustained injury. The court was tasked with determining whether the defendant breached its duty of care and whether the plaintiff had demonstrated a 'not insignificant' injury. Additionally, the court had to assess the measure and remoteness of damages if liability was not proven.

The primary legal issues the court addressed were whether the plaintiff had established a breach of duty by the defendant and whether this breach led to a compensable injury. The court scrutinised the evidence presented regarding the cause of the fall and the nature of the plaintiff's injuries. The plaintiff argued that the work system was inherently unsafe, involving repeated and unnecessary confrontations with a kerb while unloading baggage. The defendant countered that the plaintiff had not adequately demonstrated the cause of the fall, the existence of a breach, or that the injury sustained was not insignificant. The court also had to consider the statutory modified duty of care owed by the employer and whether any subsequent events contributed to the plaintiff's ongoing symptoms.

The court concluded that the plaintiff failed to discharge the onus of proving the employer's breach of duty and causation. The evidence regarding the cause of the fall was deemed insufficient, and the plaintiff's injury was not deemed significant. The court found that the statutory modified duty was not breached and that any subsequent events did not contribute to the plaintiff's ongoing symptomology. Given the absence of liability, the court did not need to assess the measure and remoteness of damages. Consequently, the plaintiff's claim was dismissed, and judgment was entered in favour of the defendant.

The court ordered that the plaintiff's claim be dismissed and that the defendant pay the costs associated with the proceedings. The defendant was required to file and serve its submissions on costs within 21 days, with the plaintiff then having 21 days to respond. Either party could seek to address the court on costs within 7 days of the plaintiff's filing date, with any subsequent costs applications to be dealt with in chambers.

Orders

Orders of the court

1. That the plaintiff’s claim is dismissed and there be judgment for the defendant.

2. That any submissions as to costs by the defendant be filed and served within 21 days of today and any response by the plaintiff be filed and served within 21 days of receipt of service.

3. That either party may seek to address the court as to costs with any such request to be made within 7 days of the date of the plaintiff’s filing date but otherwise that any costs application be dealt with in chambers.

Background

Background to the litigation

The Defendant employer is Compass Group (Australia) Pty Ltd (ACN 000 683 125) hereinafter referred to as ‘the Defendant’. The Defendant says that the Plaintiff’s claim should be dismissed. The Defendant argues that this should be the case because: (a)the Plaintiff has failed to establish the cause of his fall and has therefore failed to prove his case; (b)there has been no breach of the statutory modified duty owed by the Defendant;(c)if any breach has occurred, the Plaintiff has failed to show causation; and(d)any injury sustained on 29 February 2016 was nominal and a subsequent event has caused the Plaintiff’s ongoing symptomology. Background The Plaintiff is 61 years of age having been born on 9 June 1960 in Tasmania. He was 55 years old on 29 February 2016. The Plaintiff has a year 10 education and has no trade qualification. He has worked his whole working life in predominantly physical roles. He lived and worked in Tasmania until about 2005 but having holidayed in Queensland in 2003/2004, determined that the weather was lovely and decided with his wife to make the move. He initially had some labouring work and then for a short time drove a bus for a Townsville company, Sunbus. He then obtained in 2005, work on a casual basis as a bus driver for the Defendant. He then obtained work with the Defendant as a ‘Yardie’ and about a year later, he obtained a role as an Airport Reporting Officer (ARO). The Plaintiff was promoted in or about 2009 to supervisor ARO and remained employed in that role on 29 February 2016 and subsequently, until he resigned later in June 2018. The Plaintiff’s wife, Sally Marie Smart, also obtained work with the Defendant in or about 2007, and he and his wife then enjoyed what was termed, a ‘lifestyle roster’ with the Defendant until she also resigned at the same time as the Plaintiff. The Plaintiff acknowledged that he had previously suffered an injury to his right knee in about 1999 which required some operative intervention in 2001 and 2002 but he said that by the time he commenced work for the Defendant, he was not experiencing any symptoms in his knee. He indicated that he was active until 29 February 2016 walking 20 kilometres three times per week and was also engaged in ten pin bowling. Liability As indicated in the Plaintiff’s outline, his case is one that can be simply put. The system of work in relation to the unloading of baggage at the Cannington Mine Village was inherently unsafe, in that it required workers to confront an obstacle, in the form of a kerb, repetitively and unnecessarily whilst unloading baggage from a trailer to the footpath. As indicated earlier in these reasons, the Defendant contends that for a number of reasons, the Plaintiff’s claim should be dismissed. What does appear to be clear is that on the morning of the 29 February 2016, the Plaintiff and two other employees, Patrick Garlando, also a supervisor ARO and Wayne Lehmann, a security ARO, were rostered on to perform the necessary tasks associated with the arrival of two planes from Townsville and Brisbane carrying workers due to start their duties that day. The flight records show that the Townsville plane arrived at 8.10am and the Brisbane plane landed at 8.36am.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Smart v Compass Group (Australia) Pty Ltd [2021] QDC 176
PARTIES:	RICKI MARCUS SMART (Plaintiff) v COMPASS GROUP (AUSTRALIA) PTY LTD (Defendant)
FILE NO:	283/17
DIVISION:	Civil
PROCEEDING:	Trial
DELIVERED ON:	13 August 2021
DELIVERED AT:	Townsville
HEARING DATE:	18-19 February 2020 and 26-27 August 2020, at Townsville
JUDGE:	Coker DCJ
ORDER:	1. That the plaintiff’s claim is dismissed and there be judgment for the defendant. 2. That any submissions as to costs by the defendant be filed and served within 21 days of today and any response by the plaintiff be filed and served within 21 days of receipt of service. 3. That either party may seek to address the court as to costs with any such request to be made within 7 days of the date of the plaintiff’s filing date but otherwise that any costs application be dealt with in chambers.
CATCHWORDS:	TORTS – PERSONAL INJURIES – NEGLIGENCE – where the employee alleges a breach of duty owed by the employer led to a workplace injury – where liability and causation are in issue – whether the employer breached its duty of care – whether the plaintiff has discharged the onus of demonstrating any breach of the duty of care – whether any injury sustained was ‘not insignificant’. DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – Assessment of damages – where liability of employer is not proven – where assessment of notional damages is necessary.
LEGISLATION:	Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 305B(1) and 305B(2)
CASES:	Fox v State of Queensland [2016] QDC 146 Seage v State of New South Wales [2008] NSWCA 328
COUNSEL:	SJ Deaves for the plaintiff MD Glen for the defendant
SOLICITORS:	Rapid Legal Solutions for the plaintiff BT Lawyers for the defendant