Wharerau v Rothsey

DISTRICT COURT OF QUEENSLAND

CITATION:

Wharerau v Rothsey [2006] QDC 162

PARTIES:

MAIHI ALEXANDER JAMES WHARERAU

Plaintiff

v.

SEAN ROTHSEY TRADING AS MERKIN PARK STUD

Defendant

FILE NO/S:

BD 1803 of 2003

DIVISION:

CIVIL

PROCEEDING:

TRIAL

ORIGINATING COURT:

BRISBANE

DELIVERED ON:

12 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 February 2006

JUDGE:

ORDER:

Griffin SC

Judgement for the defendant

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – IN GENERAL - Where defendant engaged plaintiff to clear vegetation from land – where plaintiff injured eye while removing lantana – whether plaintiff employee or contractor – whether defendant required to provide safety equipment – whether defendant did provide safety equipment - whether defendant required to ensure plaintiff used safety equipment

McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors [2000] QSC 054

Stevens v Brodribb Sawmilling Co Pty Ltd (1985 – 1986) 160 CLR 16

COUNSEL:

Mr M Horvath for the plaintiff

Mr F Dawson for the defendant

SOLICITORS:

Quinn & Scattini for the plaintiff
McInnes Wilson for the defendant

1. On 9 June 2000, the plaintiff sustained an injury to his left eye whilst working on the defendant’s property clearing lantana.  That injury resulted in a 50 per cent loss of eyesight, translated as a 10 per cent impairment of the whole person.  There is no contest that the plaintiff sustained such an injury on the defendant’s property.  Furthermore, it is accepted that the arrangement between the plaintiff and defendant was one of independent contractor.  The plaintiff sues in negligence, to recover damages for his injury, against the defendant.

1. At an early stage of the trial the parties agreed that the relationship between the plaintiff and defendant was one of independent contractor, although I will refer to the evidence concerning this later, for it has some relevance to the ultimate arguments advanced by both parties.

1. The plaintiff’s case is that, having moved from North Queensland in early 2000 where he had conducted a cleaning business, the plaintiff actively sought employment and saw an advertisement in a Cooroy shop for persons interested in clearing work on the defendant’s property.  Although there was some little contest as to how the plaintiff and defendant met (which is of little or no consequence in the overall case), the plaintiff met the defendant to discuss the nature and extent of the work at the defendant’s property, which was located opposite the land which was to be cleared.

1. The defendant denies the existence of any liability.  He argues that because the plaintiff was an independent contractor, although accepting a degree of responsibility for the plaintiff’s safety, having assured himself that the plaintiff was indeed capable of performing the task requested, that was the end of and extent of the defendant’s liability.  The defendant argues, in effect, that the plaintiff, although supplied with equipment to use, was responsible for his own safety and specifically for the provision of safety equipment or, at least, working in a method and manner that was safe for him.