Stitz v Manpower Services

[2011] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:

Stitz v Manpower Services & Anor [2011] QSC 268

PARTIES:

JOHN CHARLES STITZ

(plaintiff)

v

 MANPOWER SERVICES AUSTRALIA PTY LTD

(ACN 071 884 994)

(first defendant)

and

AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LTD t/a SMORGAN STEEL REINFORCING

(ACN 069 426 955)

(second defendant)

FILE NO/S:

S658 of 2008

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

9 September 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

4, 5, 6 May and 17, 18 August 2011. Final submissions received 29 August 2011

JUDGE:

McMeekin J

ORDERS:

Judgment for the defendants

CATCHWORDS

TORTS – NEGLIGENCE – CAUSATION – where unsafe system of work existed – whether system of work caused injury – whether plaintiff regularly subjected to forces likely to cause injury

TORTS – INJURY – nature of injury sustained – disagreement of medical experts – where both medical experts were supplied with an inaccurate history of events.

Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Workplace Health and Safety Act 1995 (Qld)

Amaca Pty Ltd v Ellis [2010] HCA 5

Betts v Whittingslowe [1945] HCA 31

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Neill v NSW Fresh Food & Ice Pty Ltd [1963] HCA 4

TNT Australia v Christie (2003) 65 NSWLR 1

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

Waugh v Kippen (1986) 160 CLR 156

Wyong Shire Council v Shirt (1980) 146 CLR 40

COUNSEL:

G Cross for the plaintiff
RAI Myers for the first defendant

SOLICITORS:

Smiths Lawyers for the plaintiff
Spark Helmore for the first and second defendants

1. MCMEEKIN J: Jon Charles Stitz claims damages for a back injury alleged to have been suffered on 9 April 2007 in the course of his employment with the first defendant, Manpower Services Australia Pty Ltd (“Manpower Services”).

1. Manpower Services conducts a labour hire business.  At the material time the plaintiff was employed as a labourer and carried out his employment at the premises of his host employer, the second defendant, Australian Steel Company (Operations) Pty Ltd trading as Smorgon Steel Reinforcing (“Smorgans”)

1. Both liability and quantum of damages are in issue.

1. The defendants have resolved the contribution issues between them.

1. The plaintiff was born on 25 October 1966. He is presently aged 44 years. He was 40 years old at the time of injury.

LIABILITY

The Issues

1. Whilst the defendants accepted that relevant duties were owed they put in issue both causation and breach. In the final analysis three issues were argued:

(a)        The plaintiff was not injured on the day pleaded;

(b)        If the plaintiff was injured on the day pleaded the forces to which he was exposed were not shown to be such as were likely to injure a person of normal fortitude. It followed that his injury was not caused by any aspect of the work system that was in breach of duty.…