Syben v Mackay TFS Pty Ltd - [2009] QSC 367

SUPREME COURT OF QUEENSLAND

CITATION:

Syben v Mackay TFS Pty Ltd [2009] QSC 367

PARTIES:

PAUL GODFREY SYBEN
V
MACKAY TFS PTY LTD

FILE NO/S:

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 November 2009

DELIVERED AT:

Cairns

HEARING DATE:

3-5 August 2009

JUDGE:

Jones J

ORDER:

1. Judgment for the plaintiff against the defendant in the sum of $877,271.22

2. Each party has liberty to make written submissions on costs within the next 14 days.

CATCHWORDS:

DAMAGES – PERSONAL INJURY ASSESSMENT OF DAMAGES – Griffiths v Kerkemeyer – MEASURE OF DAMAGES where the plaintiff has suffered a series of injuries from different incidents with damages to be assessed on the resultant injury – whether s 308C prohibits award of damages for costs of domestic services to be incurred in the future

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – whether gratuitous services were of a kind to prohibit award of damages pursuant to s 308C of Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether occupants of shared accommodation were members of a household for the purpose of definition of “gratuitous services” under s 308A

Workers’ Compensation and Rehabilitation Act 2003 (Qld) Chapter 5 Part 10, s 308, s 308A, s 308C, s 622
WorkCover Queensland Act 1996 (Qld) s 315,

Gray v Insurance Corporation of British Columbia (1987) 46 DLR 269
Griffiths v Kerkemeyer (1977) 139 CLR 161
Kingsland v McIndoe (1989) VR 273
Lawrence v Public Trustee [2001] NSWSC 375
London Borough of Hackney v Ezedinma [1981] 3 All ER 438
Re Cormick; In the Marriage of Cormick (1984) 156 CLR 170
Simmons v Pizzey [1979] AC 37
Van Gervan v Fenton (1992) 175 CLR 327

COUNSEL:

P Lafferty for the plaintiff
G Houston for the defendant

SOLICITORS:

Roati & Firth Solicitors for the plaintiff
MacDonnells Law for the defendant

In a series of work related incidents between 15 November 2002 and 8 April 2004, the plaintiff suffered personal injuries. By this proceeding, he claims damages for those injuries. The defendant has admitted liability to pay those damages but does not agree as to the extent of the injury caused by the incidents nor as to the quantum of applicable damages.

The plaintiff was born on 8 September 1955 and was thus 47 years old at the time of the earliest incident and 48 ½ years old at the time of the last. He was, prior to the incidents, physically fit and capable of doing quite heavy work. He was employed by the defendant as a permanent/casual farm labourer on a banana plantation in Far North Queensland. His primary function was to place bags around the fruiting bananas – a task which involved the use of an elevated platform and which required a high level of physical fitness. The task was usually given to men in their 20s and 30s. On the defendant’s farm, the plaintiff was the oldest bagger and was effectively in charge of the other employees engaged in that task.[1]…

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: [2009] QSC 367
Decision Date: 13 November 2009

CaseChat Overview and Summary

The case of Syben v Mackay TFS Pty Ltd involved the plaintiff, who had suffered a series of injuries from different incidents, seeking damages from the defendant, an employer. The plaintiff's claim was ultimately for the resultant injury, and the court was required to assess the damages in accordance with the principles set out in Griffiths v Kerkemeyer. A significant issue before the court was whether section 308C of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) precluded an award of damages for the cost of domestic services to be incurred in the future. Another central issue was the interpretation of the definition of "gratuitous services" in section 308A of the same Act, specifically whether services provided in a shared accommodation setting could be considered as being provided within a household.

The court found that the plaintiff was entitled to an award of damages for the cost of future domestic services, despite the prohibition in section 308C. The court reasoned that the term "gratuitous services" in section 308A did not extend to services provided in a shared accommodation setting, where the parties were not members of a household in the ordinary sense. The court held that the provision of such services was not of a kind prohibited by the statute, and therefore, damages could be awarded for their cost. The court also considered the principles of causation and proportionality in awarding damages, ensuring that the award was fair and just in the circumstances.

The court determined that the plaintiff was entitled to damages in the sum of $877,271.22, which included compensation for pain and suffering, loss of amenities, and future domestic services. The court further noted that each party had the liberty to make written submissions on costs within the next 14 days. This judgment provides clarity on the scope of "gratuitous services" under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and affirms the entitlement of plaintiffs to damages for future domestic services in appropriate circumstances.

Orders

Orders of the court

1. Judgment for the plaintiff against the defendant in the sum of $877,271.22

2. Each party has liberty to make written submissions on costs within the next 14 days.

Background

Background to the litigation

Full text does not contain this section.

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:	Syben v Mackay TFS Pty Ltd [2009] QSC 367
PARTIES:	PAUL GODFREY SYBEN V MACKAY TFS PTY LTD
FILE NO/S:
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	13 November 2009
DELIVERED AT:	Cairns
HEARING DATE:	3-5 August 2009
JUDGE:	Jones J
ORDER:	1. Judgment for the plaintiff against the defendant in the sum of $877,271.22 2. Each party has liberty to make written submissions on costs within the next 14 days.
CATCHWORDS:	DAMAGES – PERSONAL INJURY ASSESSMENT OF DAMAGES – Griffiths v Kerkemeyer – MEASURE OF DAMAGES where the plaintiff has suffered a series of injuries from different incidents with damages to be assessed on the resultant injury – whether s 308C prohibits award of damages for costs of domestic services to be incurred in the future STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – whether gratuitous services were of a kind to prohibit award of damages pursuant to s 308C of Workers’ Compensation and Rehabilitation Act 2003 (Qld) – whether occupants of shared accommodation were members of a household for the purpose of definition of “gratuitous services” under s 308A Workers’ Compensation and Rehabilitation Act 2003 (Qld) Chapter 5 Part 10, s 308, s 308A, s 308C, s 622 WorkCover Queensland Act 1996 (Qld) s 315, Gray v Insurance Corporation of British Columbia (1987) 46 DLR 269 Griffiths v Kerkemeyer (1977) 139 CLR 161 Kingsland v McIndoe (1989) VR 273 Lawrence v Public Trustee [2001] NSWSC 375 London Borough of Hackney v Ezedinma [1981] 3 All ER 438 Re Cormick; In the Marriage of Cormick (1984) 156 CLR 170 Simmons v Pizzey [1979] AC 37 Van Gervan v Fenton (1992) 175 CLR 327
COUNSEL:	P Lafferty for the plaintiff G Houston for the defendant
SOLICITORS:	Roati & Firth Solicitors for the plaintiff MacDonnells Law for the defendant