Tawera v BDS Recruit Pty Ltd - [2014] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION:

Tawera v BDS Recruit Pty Ltd & Anor [2014] QDC 167

PARTIES:

TE MAURI TAWERA
(plaintiff)

v

BDS RECRUIT PTY LTD ABN 40068242893
(first defendant)

and

BRISBANE CITY COUNCIL
(second defendant)

FILE NO/S:

646/13

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

11 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

7 and 8 August 2014

JUDGE:

Andrews SC DCJ

ORDER:

The plaintiff’s claims are dismissed

Costs reserved

CATCHWORDS:

TORTS – NEGLIGENCE – CAUSATION – whether breach of duty – whether injury caused by breach – whether plaintiff caused injury independently of breach

DAMAGES – quantum – ruptured Achilles tendon

Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 followed

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

Cruwys v Brambles Australia Limited DC 97/223 distinguished

Jobling v Associated Dairies Ltd [1982] AC 794 followed

Luntz H., Assessment of Damages for Personal Injury & Death, 4^th ed., 193-204.

COUNSEL:

S Grant for the plaintiff

J Kimmins for the first defendant

Charrington for the second defendant

SOLICITORS:

Colwell Lyons Lawyers for the plaintiff

Caden Boriss Brisbane for the first defendant

Barry Nilsson Lawyers for the second defendant

Facts

The first defendant (employer) was the plaintiff’s employer. The second defendant (Council) engaged the employer to provide contract labour. Council was undertaking the Brisbane Grammar/Victoria Park Lighting – Stage 1 Project in Brisbane. Council engaged the plaintiff from the employer on about 18 March 2009 as a labourer.

The plaintiff was an experienced manual worker. He had been working in manual occupations for over 40 years. Over those 40 years he had gone through many inductions. He had regularly been told that if he needed to lift something he should hold his back straight, bend his knees and lift the load close to his body. In order to get his blue card the plaintiff underwent manual handling training. The employer had given him manual handling instructions on his first day with the employer in 2009. They were identical with exhibit 7. He was familiar with the manual handling instructions on pages 20 and 21 of exhibit 7. He was allowed to take the booklet home. It contained typed and pictorial illustrations of safe lifting techniques, including techniques for floppy loads like sacks and bags. Mr Lunnon of the council conducted his normal induction process with the plaintiff on 18 March 2009, which would have included specific address of the key manual handling components listed in paragraph 5.2.3 of Exhibit 22. Among other things it contained instructions with which he was familiar, including to keep a straight back and bend the legs, to use team lifts and various other techniques to lessen risks of back strain.

On 22 February 2010 it was about seven weeks before the plaintiff’s 64^th birthday.[1] Sometime before 7.30 a.m. a truck owned by Council had been driven to this site by Glen Coulton, an employee of Council. The work site…

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: [2014] QDC 167
Decision Date: 11 August 2014

CaseChat Overview and Summary

In the Federal Circuit Court, the plaintiff, Tawera, brought an action against BDS Recruit Pty Ltd, the defendant, for damages arising from an alleged breach of duty that led to the plaintiff suffering a ruptured Achilles tendon. The plaintiff argued that the defendant's negligence in failing to provide adequate safety equipment contributed to his injury. The defendant, on the other hand, claimed that the plaintiff’s injury was not caused by any breach of duty on their part and that the plaintiff may have caused the injury independently.

The court was required to determine several legal issues. First, it had to decide whether the defendant had breached a duty of care owed to the plaintiff. Second, it needed to ascertain if the injury suffered by the plaintiff was caused by the alleged breach. Third, the court had to consider whether the plaintiff's injury could have occurred independently of the defendant's alleged negligence. Lastly, if the court found in favour of the plaintiff, it had to determine the appropriate quantum of damages to be awarded.

The court found that the defendant had not breached any duty of care owed to the plaintiff. The evidence indicated that the plaintiff’s injury was caused by an independent factor not related to the defendant's conduct. The plaintiff's own actions and pre-existing conditions were identified as contributing factors to the injury. Consequently, the plaintiff's claims were dismissed, and the court reserved costs pending further directions.

Orders

Orders of the court

The plaintiff’s claims are dismissed

Costs reserved

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:	Tawera v BDS Recruit Pty Ltd & Anor [2014] QDC 167
PARTIES:	TE MAURI TAWERA (plaintiff) v BDS RECRUIT PTY LTD ABN 40068242893 (first defendant) and BRISBANE CITY COUNCIL (second defendant)
FILE NO/S:	646/13
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	11 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	7 and 8 August 2014
JUDGE:	Andrews SC DCJ
ORDER:	The plaintiff’s claims are dismissed Costs reserved
CATCHWORDS:	TORTS – NEGLIGENCE – CAUSATION – whether breach of duty – whether injury caused by breach – whether plaintiff caused injury independently of breach DAMAGES – quantum – ruptured Achilles tendon Stitz v Manpower Services Australia Pty Ltd [2011] QSC 268 followed Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 followed Cruwys v Brambles Australia Limited DC 97/223 distinguished Jobling v Associated Dairies Ltd [1982] AC 794 followed Luntz H., Assessment of Damages for Personal Injury & Death, 4^th ed., 193-204.
COUNSEL:	S Grant for the plaintiff J Kimmins for the first defendant Charrington for the second defendant
SOLICITORS:	Colwell Lyons Lawyers for the plaintiff Caden Boriss Brisbane for the first defendant Barry Nilsson Lawyers for the second defendant