Spiteri v Monduran Aviation Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:                  Spiteri & Anor  v Monduran Aviation Pty Ltd & Ors     [2002] QSC 315

PARTIES:                    FRANCIS JOHN SPITERI

(First Plaintiff)

and

KYM JOY PETERS

(Second Plaintiff)

v  

MONDURAN AVIATION PTY LTD
(First Defendant)

and

JAMES JOHNSTON MULLETT
(Second Defendant)

and

MARK DE LACEY
(Third Defendant)

and

JAMES MULLETT and JOY MULLETT AS            ADMINISTRATORS OF THE ESTATE OF                 IRVING JAMES MULLETT (deceased)
(Fourth Defendant)

FILE NO:  S279 of 2000

DIVISION:                   Trial Division

DELIVERED ON:       9 October 2002

DELIVERED AT:        Rockhampton

HEARING DATE:       8, 9, 10, 11, 12 July 2002

JUDGE:   Dutney J

ORDERS:  Judgment for the first plaintiff against the second defendant in the sum of $121,256.77.      

CATCHWORDS:         NEGLIGENCE – PERSONAL INJURIES – CONTRIBUTORY NEGLIGENCE – where duty of care owed to plaintiff – breach – where plaintiff failed to take reasonable care for his own safety – where reckless disregard for personal safety – where plaintiff fell from an insufficiently supported ladder

Husher v Husher (1999) 197 CLR 138, followed
Muller v Cherrie [2000] QSC 330, followed
Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155, followed
Bradshaw v McEwans Pty Ltd (unreported – High Court – 27 April 1951), followed
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, considered

COUNSEL:Mr J Webb for the Plaintiff

Mr G O’Driscoll for the First, Second, Fourth and Fifth Defendants

Mr De Lacey (in person) for the Third Defendant

SOLICITORS:              Suthers Lawyers for the Plaintiff

McCullough Robertson Hancock for the First,

Second, Fourth and Fifth Defendants

1. Frank Spiteri, the first plaintiff, was on a ladder which fell from near the roof of an aircraft hangar to the concrete floor on 10 June 1997.  He was then 38 years old having been born on 25 May 1959.

1. At the time of the fall Mr Spiteri was erecting a spray painting booth or tent in the hangar.  Mr Spiteri was a spray painter.

1. Mr Spiteri had been a spray painter since commencing his apprenticeship in 1976.  He qualified as a spray painter in 1980.  For some time Mr Spiteri conducted his own business under the name “Frank’s Panel and Paint” in Bundaberg.

1. In 1996 Mr Spiteri suffered injury in a motor vehicle accident for which he brought litigation which ultimately settled.  At about the same time he commenced having marital difficulties.  As a result of these difficulties Mr Spiteri was suffering disabling depression.  He felt unable to carry on the business and sold it in 1997.  Despite these problems Mr Spiteri had largely recovered by the time of the events I am considering and neither was likely to have any material medium or long term effect on him.

1. Following the sale of the business Mr Spiteri proposed moving to Mackay to start panel beating and spray painting there with his new partner, Kym Peters[1].  At the time of the sale of the business Mr Spiteri was receiving money from an insurance company under a sickness and accident policy as a result of his depression.