Tabulo v Bowen Shire Council

SUPREME COURT OF QUEENSLAND

CITATION:

Tabulo v Bowen Shire Council [2004] QSC 038

PARTIES:

MIKE BRENNAN TABULO
(Plaintiff)
and
BOWEN SHIRE COUNCIL
(Defendant)

FILE NO/S:

S 635 of 2002

DIVISION:

Trial

PROCEEDING:

Claim for damages

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

5 March 2004

DELIVERED AT:

Townsville

HEARING DATE:

9-11 February 2004

JUDGES:

Cullinane J.

ORDER:

I give judgment for the plaintiff against the defendant in the sum of $176,113.98 on the claim in contract and in the sum of $126,790.90 in the claim for breach of statutory duty.

I order the defendant to pay the plaintiff’s costs to be assessed, such costs to be payable as and from the 17^th of June 2002, such costs to be limited to the amount which would have been recoverable had the action been instituted in the District Court.

CATCHWORDS:

EMPLOYMENT LAW – NEGLIGENCE – BREACH OF STATUTORY DUTY – LIABILITY OF EMPLOYER – DUTY OF CARE – FORSEEABILITY OF INJURY– FAILURE TO PROVIDE A SAFE SYSTEM OF WORK – where employer suffered injuries in the course of building a retaining wall - whether employer owed a duty to provide scaffolding or like structure to reduce risk of injury - where employer claims employee feigned the injury – whether contributory negligence applies due to manner of work performed.

DAMAGES –MEASURE OF DAMAGES – PAIN AND SUFFERING – QUANTUM – LOSS OF EARNING CAPACITY – claim for damages for injuries sustained in course of employment, past and future economic loss.

Law Reform (Tort Feasors Contribution Contributory Negligence and Division of Chattels) Act 1952 (Qld)
Workcover Queensland Act 1996 (Qld) s. 312
Workplace Health and Safety Act 1995 (Qld) s.28(1)

Astley v Austrust Ltd (1998-99) 197 CLR 1
Hawthorne v Thiess Contractors Pty Ltd & WorkCover Queensland 2001 QCA 223
Martin v Mackay City Council (2001) QSC 433
Rogers v Brambles Australia Ltd 1998 1 Qd.R. 212

COUNSEL:

Mr Moon for the plaintiff
Mr Campbell for the defendant

SOLICITORS:

Ruddy Tomlins & Baxter for the plaintiff
HBM Lawyers for the defendant

1. The plaintiff was born on 18^th July 1960.  He has instituted proceedings against the defendant Council by whom he was employed at the time as what is described as a form worker for personal injuries which he alleges were sustained by him on or about the 30^th June 1999.

1. It is the plaintiff’s case that he fell from a wall which had an unguarded edge to a drop of some two metres and sustained injury.  The defendant denies that he fell as alleged or that he sustained any injury.  Alternatively the defendant says that if he did fall and sustain injury it is not liable to him in damages.

1. The plaintiff was employed by the defendant pursuant to an arrangement which involved the taking on of a number of employees through a training or placement programme for a period of one year.  The plaintiff describes this position as a trainee labourer.  The employment it seems, was arranged as part of a…