Tetu & Anor v James Thane P/L - [1999] QSC 91

IN THE SUPREME COURT
OF QUEENSLAND

No.1835 of 1995

Brisbane
Before the Hon. Justice Atkinson
[Tetu & Anor v James Thane P/L & Ors]
BETWEEN:
  HEATHER JANE TETU
  First Plaintiff
AND:
  MATTHEW HUGHES
  Second Plaintiff
AND:
  JAMES THANE PTY LTD
  ACN 002 995 119
  First Defendant
AND:
  CONRAD INTERNATIONAL HOTELS CORPORATION
  ARBN 010 471 137
  Second Defendant
AND:
  JUPITERS LIMITED
  ACN 010 741 045
  Third Defendant
AND:
  WORKERS' COMPENSATION BOARD OF QUEENSLAND
  Third Party
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered on 21 April 1999

CATCHWORDS: NEGLIGENCE - personal injury - trapeze artist - whether persons maintaining and operating equipment were grossly negligent.
NEGLIGENCE - contribution and indemnity - whether s.47 of the Workers’ Compensation Act 1990 applies.
NEGLIGENCE - apportionment of responsibility - application of s.6 of the Law Reform (Tortfeasor’s Contribution, Contributory Negligence and Division of Chattels) Act 1952.

Counsel:S C Williams QC and J P Kimmins for the plaintiffs
J A Griffin QC and C A Adams for the first and third defendants and the
third party

P H Morrison QC and R A Perry for the second defendant

Solicitors:Gadens Lawyers for the plaintiffs
Bain Gasteen for the first and third defendants and the third party
Allen Allen & Hemsley for the second defendant

Hearing dates: 16 - 20, 25 November and 4 December 1998

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered on 21 April 1999

This case concerns a tragic accident in which a talented young trapeze artist, Heather Tetu, fell and was grievously injured ruining her health and ending her career. The defendants and the third party agreed that the proper payment of damages to her was $1,300,000. The case was also settled in favour of Ms Tetu’s partner, Mr Matthew Hughes, who was the second plaintiff. However the question remained and was vigorously contested as to the relative liability of the first defendant, James Thane Pty Ltd (“Thane”), her employer; the second defendant Conrad International Hotels Corporation (“Conrad”), who controlled the venue where she was performing; the third defendant Jupiters Limited (“Jupiters”), who was the registered lessee of the venue;[1] and the third party, then called the Workers’ Compensation Board of Queensland (“WorkCover”).
[1]Jupiters Limited holds a lease of the land and improvements from Jupiters Custodian Pty Ltd as trustee of Jupiters Trust.
The terms of settlement were as follows:
“1.       Following the settlement of the plaintiffs’ action by the first, second and third defendants, and the third party, it is agreed that, in the first instance, judgment will be entered in favour of the plaintiffs against James Thane Pty Ltd.
2.        The amount of the judgment in the case of the first plaintiff will be $1,300,000, and in the case of the second plaintiff, $150,000.
3.        There will also be an order that the first defendant pay the plaintiffs’ costs.
4.        It is acknowledged by the first, second and third defendants, and the third party, that the purpose of the entry of judgment against the first defendant is…

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: [1999] QSC 91
Decision Date: 21 April 1999

CaseChat Overview and Summary

This case involves a tragic accident in which a talented young trapeze artist, Heather Tetu, fell and was grievously injured, ruining her health and ending her career. The defendants and the third party agreed that the proper payment of damages to her was $1,300,000. The case was also settled in favour of Ms Tetu’s partner, Mr Matthew Hughes, who was the second plaintiff. The question remained and was vigorously contested as to the relative liability of the first defendant, James Thane Pty Ltd, her employer; the second defendant Conrad International Hotels Corporation, who controlled the venue where she was performing; the third defendant Jupiters Limited, who was the registered lessee of the venue; and the third party, then called the Workers’ Compensation Board of Queensland. The court found that the negligence of the second defendant was gross and that the first defendant was 30 percent responsible for the damage, while the second defendant was 70 percent responsible. The third party was liable to indemnify the first and second defendants for their liability to the plaintiffs. The court gave judgment in favour of the plaintiffs against all defendants, with the proportion of liability as stated above.

Orders