Tabcorp Holdings Ltd v Dank - [2011] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION:

Tabcorp Holdings Ltd v Dank [2011] QCA 253

PARTIES:

TABCORP HOLDINGS LIMITED
ACN 063 780 709
(appellant)
v
KATHRYN JANE DANK
(respondent)

FILE NO/S:

Appeal No 1645 of 2011
DC No 410 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

23 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2011

JUDGES:

Margaret McMurdo P, Fraser JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the respondent sustained a back injury at work when lifting a box of photocopy paper from the floor to her desk – where the respondent did not receive training in respect of lifting techniques or storage of boxes – where the respondent was not given directions or instructions as to how to lift the box or not to lift it from the floor – where the respondent had lifted boxes in the same manner many times before – where the respondent’s supervisors were aware of her manner of lifting the boxes and assisted her with lifting them at times – where the trial judge found that the respondent’s injury was caused by the appellant’s negligence – where the appellant contended that the trial judge erred in finding that the risk of injury was foreseeable and known to the appellant – whether the risk of injury was reasonably foreseeable – whether the trial judge’s erred in the finding of negligence

STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – BREACH OF STATUTORY DUTY – DEFENCES – OTHER DEFENCES – where the trial judge found that the respondent had a successful action for breach of the appellant’s statutory duty to ensure the workplace health and safety of the respondent under the Workplace Health and Safety Act 1995 (Qld) – where the appellant argued that the trial judge erred in failing to find that it had discharged its duty under s 22(1)(b) or that it had a defence under s 37 – where the appellant contended that an employer is not liable under the statute where an employee is injured while carrying out an ordinary, everyday task which is not inherently dangerous, provided that its work conditions encourage the employee to deal with such tasks in an ordinary, safe way – whether the trial judge erred in finding the appellant liable for breach of statutory duty

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – LEGAL PRINCIPLES – where the respondent resigned her employment with the appellant shortly after her return to work to take up a career…

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.

Continue reading Tabcorp Holdings Ltd v Dank

Details

AGLC: Tabcorp Holdings Ltd v Dank [2011] QCA 253
Case: [2011] QCA 253
Decision Date: 23 September 2011

CaseChat Overview and Summary

The appeal was brought by Tabcorp Holdings Ltd against a decision that found the appellant negligent and in breach of statutory duty under the Workplace Health and Safety Act 1995 (Qld). The respondent, Dank, had sustained a back injury at work while lifting a box of photocopy paper from the floor to her desk. The dispute centred on whether the appellant owed the respondent a duty of care, if the risk of injury was reasonably foreseeable, and the extent of the respondent's loss of earning capacity. The trial judge found the appellant liable for negligence and breach of statutory duty and awarded the respondent damages.

The central legal issues in the case were whether the appellant owed the respondent a duty of care and if the risk of injury was reasonably foreseeable. Additionally, the court examined whether the trial judge correctly assessed the respondent's loss of earning capacity. The appellant argued that the trial judge erred in finding that the risk of injury was foreseeable and known to the appellant, and that the respondent's injury was due to her own negligence. The appellant also contended that the trial judge erred in finding that it was liable for breach of statutory duty under the Workplace Health and Safety Act 1995 (Qld), and in the assessment of the respondent's loss of earning capacity.

The Court of Appeal found that the trial judge did not err in finding that the risk of injury was reasonably foreseeable and known to the appellant. The Court held that the appellant had a duty of care towards the respondent and that the risk of injury was reasonably foreseeable. The Court also found that the trial judge did not err in finding the appellant liable for breach of statutory duty under the Workplace Health and Safety Act 1995 (Qld). Furthermore, the Court held that the trial judge did not err in assessing the respondent's loss of earning capacity, as it was reasonable to assess the loss based on her work as a carer, given the restrictions on the work she could carry out in that capacity.

The appeal was dismissed with costs to be assessed on the standard basis.

Orders

Orders of the court

Appeal dismissed with costs to be assessed on the standard basis.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Tabcorp Holdings Ltd v Dank [2011] QCA 253
PARTIES:	TABCORP HOLDINGS LIMITED ACN 063 780 709 (appellant) v KATHRYN JANE DANK (respondent)
FILE NO/S:	Appeal No 1645 of 2011 DC No 410 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	23 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	16 June 2011
JUDGES:	Margaret McMurdo P, Fraser JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs to be assessed on the standard basis.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – PARTICULAR CASES – AS BETWEEN EMPLOYER AND EMPLOYEE – where the respondent sustained a back injury at work when lifting a box of photocopy paper from the floor to her desk – where the respondent did not receive training in respect of lifting techniques or storage of boxes – where the respondent was not given directions or instructions as to how to lift the box or not to lift it from the floor – where the respondent had lifted boxes in the same manner many times before – where the respondent’s supervisors were aware of her manner of lifting the boxes and assisted her with lifting them at times – where the trial judge found that the respondent’s injury was caused by the appellant’s negligence – where the appellant contended that the trial judge erred in finding that the risk of injury was foreseeable and known to the appellant – whether the risk of injury was reasonably foreseeable – whether the trial judge’s erred in the finding of negligence STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – BREACH OF STATUTORY DUTY – DEFENCES – OTHER DEFENCES – where the trial judge found that the respondent had a successful action for breach of the appellant’s statutory duty to ensure the workplace health and safety of the respondent under the Workplace Health and Safety Act 1995 (Qld) – where the appellant argued that the trial judge erred in failing to find that it had discharged its duty under s 22(1)(b) or that it had a defence under s 37 – where the appellant contended that an employer is not liable under the statute where an employee is injured while carrying out an ordinary, everyday task which is not inherently dangerous, provided that its work conditions encourage the employee to deal with such tasks in an ordinary, safe way – whether the trial judge erred in finding the appellant liable for breach of statutory duty DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – LEGAL PRINCIPLES – where the respondent resigned her employment with the appellant shortly after her return to work to take up a career…