State of Qld v Heraud

SUPREME COURT OF QUEENSLAND

CITATION:

State of Qld v Heraud & Anor [2011] QSC 96

PARTIES:

STATE OF QUEENSLAND

(applicant)

v

JASON JAMES HERAUD

(respondent)

and

GHD CONSTRUCTIONS PTY LTD

(third party)

FILE NO/S:

BS1025/11

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

29 April 2011

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

16 March 2011

JUDGE:

Dalton J

ORDER:

Application dismissed

CATCHWORDS:

Workers’ Compensation – Occupier’s liability – Rights against employer and occupier – State both employer and occupier – Government department as employer – Exclusions to the operation of Personal Injuries Proceedings Act 2002 (Qld)

Personal Injuries Proceedings Act 2002 (Qld), s 6(2)(c)
Public Service Act 2008 (Qld), ss 14, 24

Workers’ Compensation and Rehabilitation Act 2003 (Qld), ss 10, 30, 48(5), 239(2)(b)

Devlin v South Molle Island Resort [2003] QSC 020
Glenco Manufacturing Pty Ltdv Ferrari [2005] 2 Qd R 129
Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157
Pukeroa v Berkeley Challenge Pty Ltd & Ors [2005] QCA 49
Watkins v GRM International Pty Ltd [2007] 1 Qd R 389

COUNSEL:

K Philipson for the applicant

G Hampson for the respondent

SOLICITORS:

GR Cooper, Crown Solicitor, for the applicant

Gouldson Legal for the respondent

1. DALTON J:  Mr Heraud was employed by the State of Queensland acting through the Department of Public Works.  On 5 June 2008 he was working as a security officer protecting works being undertaken on a building site at the Queensland Cultural Centre.  That centre is owned and controlled by the State of Queensland acting through Arts Qld.  Mr Heraud was walking to the onsite safety office to start work.  He says he stepped on a protrusion; his foot rolled, and he suffered an injury to his ankle.  Mr Heraud made a claim to WorkCover Queensland.  He was assessed as having a seven per cent permanent impairment.  He received weekly compensation payments.  He was offered an election between a lump sum payment and the right to bring a claim for damages for his injury.  He chose the former and was paid by the end of July 2009.

1. On 20 December 2008 solicitors acting for Mr Heraud delivered a notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).  The respondent to the PIPA claim was named as, “State of Queensland (Arts Qld)”.  The incident said to give rise to the injury for the purpose of the PIPA proceeding is the same incident in respect of which the claim was made to WorkCover.  The injury claimed in the PIPA proceeding is the same injury as that claimed against WorkCover.  Crown Law took carriage of the PIPA proceedings on behalf of the State.  WorkCover Queensland was handling the claim made to it.

1. The notice of claim under PIPA says that State of Queensland, by Arts Qld, caused the incident because it:

“1.Failed to provide a safe workplace;

2.Failed to ensure the workplace was free from the risk of injury;

3.Failed to remove the subject protrusion from the…