Whittaker v Farnsway Mining Construction Pty Ltd - [2004] QCA 495

SUPREME COURT OF QUEENSLAND

CITATION:

Whittaker v Farnsway Mining Construction Pty Ltd [2004] QCA 495

PARTIES:

DEWAYNE WILLIAM WHITTAKER
(plaintiff/respondent)
v
FARNSWAY MINING CONSTRUCTION PTY LTD ACN 010 562 713
(defendant/appellant)

FILE NO/S:

Appeal No 5489 of 2004
SC No 9987 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2004

JUDGES:

McMurdo P and Jones and Chesterman JJ
Separate reasons for judgment of each member of the Court, McMurdo P and Jones J concurring as to the order made, Chesterman J dissenting in part

ORDER:

Appeal dismissed with costs

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – respondent injured ankle in accident at work – had injured ankle before at different workplace – descended set of stairs and stepped onto grate covering trench – precise nature of unevenness of surface of grate could not be established – whether learned trial judge ought not to have been satisfied that there was any defect in the grate – whether learned trial judge could have found on the evidence that the damage was caused by the later injury – whether learned trial judge was correct to hold that appellant's negligence caused respondent's injury

TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – respondent was jumbo operator at a mine – where earned much more in that position than previously had earned –whether learned trial judge allowed too much for future economic loss – where respondent had received significant payments from interstate statutory insurer for previous ankle injury – where result of learned trial judge's finding is that statutory insurer was not liable to pay those damages – whether payments made by statutory insurer should be deducted from damages awarded against appellant

Work Health Act 1986 (NT), s 176

Blundell v Musgrave (1956) 96 CLR 73, considered
Edwards v Noble (1971) 125 CLR 296, cited
Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, cited
Chappel v Hart (1998) 195 CLR 232, considered
Devries v Australian National Railways Commission (1993) 177 CLR 472, cited
Gamser v The Nominal Defendant (1977) 136 CLR 145, cited
Griffiths v Kerkemeyer (1977) 139 CLR 161, considered
Karanfilov v Inghams Enterprises Pty Ltd [2003] QCA 242; [2004] 2 Qd R 139, cited
Manser v Spry (1994) 181 CLR 428, distinguished
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited
Smith v Day [1992] 1 Qd R 233, cited
Tyrrell v Tyrrell (1981) 25 SASR 73, cited

COUNSEL:

J A Griffin QC, with C S Harding, for the appellant
S C Williams QC, with M J Burns, for the respondent

SOLICITORS:

O'Maras Lawyers for the appellant
Paul Everingham & Co for the respondent

McMURDO P: The facts and issues are set out in the reasons for judgment of Jones J. I am in general agreement with those…

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.

Keep reading for free

Create a free CaseChat account to read Whittaker v Farnsway Mining Construction Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] QCA 495
Decision Date: 23 December 2004

CaseChat Overview and Summary

In the case of Whittaker v Farnsway Mining Construction Pty Ltd, the respondent, who was injured in an accident at work, sought to hold the appellant, his employer, liable for damages due to negligence. The respondent had previously injured his ankle at a different workplace, and he claimed that his current injury was caused by stepping onto a grate covering a trench at the appellant's mine, which had an uneven surface. The precise nature of the unevenness could not be established. The court was tasked with determining whether the trial judge was correct in finding that the appellant's negligence caused the respondent's injury, and whether the learned trial judge had allowed too much for future economic loss considering the respondent had received significant payments from a statutory insurer for his previous ankle injury.

The central legal issues revolved around the identification and attribution of the cause of the respondent's current disability and losses. The appellant argued that the trial judge should not have been satisfied that there was any defect in the grate, and should have attributed the respondent's current condition to the incident on 11 January 1997. The court had to examine whether the evidence supported the trial judge's findings on liability and quantum. Specifically, the court needed to determine whether the trial judge was correct in finding that the appellant's negligence caused the respondent's injury, and if the trial judge had appropriately apportioned the damages considering the payments made by the statutory insurer.

In its reasoning, the court found that the trial judge's findings on liability and quantum were supported by the evidence. The court held that there was sufficient evidence to establish that the grate presented an uneven walking surface, which caused the respondent to twist his ankle and fall. The court rejected the appellant's argument that the trial judge should not have been satisfied that there was any defect in the grate. The court also found that the trial judge's assessment of future economic loss was appropriate, taking into account the respondent's previous earnings and the payments made by the statutory insurer. The court concluded that the trial judge had not erred in his findings, and dismissed the appeal with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

The appellant contends that the learned trial judge erred in certain findings on the issues of liability and quantum. Dealing firstly with liability, the error is said to arise in two ways:-(i) The learned trial judge ought not to have been satisfied that there was any defect in the grate which occasioned the respondent’s injury (grounds 1-4); and(ii) The learned trial judge ought to have attributed the respondent’s present disability and losses to the incident on 11 January 1997 (grounds 5-10). Background facts The respondent was working on a night shift and was about to resume work after having a meal break in the crib room. He was descending a set of stairs at the bottom of which there was a newly dug 450 mm wide trench for the installation of a drain. The trench was covered by walkway mesh. When the respondent stepped onto the mesh his ankle rolled over and he fell to the ground. He described hearing or feeling “a click” in his ankle. He could not get treatment because the first aid section was not open until 7.00 am so he applied an ice pack until the end of the shift. The grate had been thrown across the trench and was resting on soil. After his fall the respondent said he glanced around and thought he saw a small section missing from the edge of the grate. By his original Statement of Claim the respondent alleged that the steel grate “was resting on the soil of the sides of the ditch and did not completely cover the ditch”[2]. Following an amendment to the appellant’s defence, the respondent pleaded a further fact namely, “the said grate was raised approximately 20mm above the surrounding soil on which it stood”.[3] The allegation as to causation was pleaded as:- Thus, proof of the respondent’s case depended upon the limited propositions that the surface of the mesh grate presented an uneven walking surface – whether by reason of having a missing part or by its being raised above the surrounding soil – and this fact caused the respondent to twist his ankle and to fall. The cause of the fall and the mechanics of the fall itself were not able to be established with precision. The respondent gave evidence that he did not feel the grate move, that he did not trip over a raised edge of the grate nor did he establish there was any missing part of the grate. On these bases the appellant submitted that the respondent failed to establish the existence of any defect which caused his injury. On the day following the incident the respondent reported the matter to his superiors. The incident was investigated and remedial action taken. This report (ex 4/10)[4] was the only contemporaneous record of the incident. It was a document the compilation of which required the contribution of three employees of the appellant other than the respondent. They were his supervisor, a departmental head and the safety officer. The substance of that report confirmed the plaintiff’s evidence as to the nature of the incident describing the accident in terms “stepped onto an even surface, twisted ankle”[5] and went on to describe the hazard as “bottom step uneven – needs to be replaced or removed”.[4]Record 334-5[5]Record 334

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:	Whittaker v Farnsway Mining Construction Pty Ltd [2004] QCA 495
PARTIES:	DEWAYNE WILLIAM WHITTAKER (plaintiff/respondent) v FARNSWAY MINING CONSTRUCTION PTY LTD ACN 010 562 713 (defendant/appellant)
FILE NO/S:	Appeal No 5489 of 2004 SC No 9987 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Personal Injury
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	8 October 2004
JUDGES:	McMurdo P and Jones and Chesterman JJ Separate reasons for judgment of each member of the Court, McMurdo P and Jones J concurring as to the order made, Chesterman J dissenting in part
ORDER:	Appeal dismissed with costs
CATCHWORDS:	TORTS – NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – respondent injured ankle in accident at work – had injured ankle before at different workplace – descended set of stairs and stepped onto grate covering trench – precise nature of unevenness of surface of grate could not be established – whether learned trial judge ought not to have been satisfied that there was any defect in the grate – whether learned trial judge could have found on the evidence that the damage was caused by the later injury – whether learned trial judge was correct to hold that appellant's negligence caused respondent's injury TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – respondent was jumbo operator at a mine – where earned much more in that position than previously had earned –whether learned trial judge allowed too much for future economic loss – where respondent had received significant payments from interstate statutory insurer for previous ankle injury – where result of learned trial judge's finding is that statutory insurer was not liable to pay those damages – whether payments made by statutory insurer should be deducted from damages awarded against appellant Work Health Act 1986 (NT), s 176 Blundell v Musgrave (1956) 96 CLR 73, considered Edwards v Noble (1971) 125 CLR 296, cited Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258, cited Chappel v Hart (1998) 195 CLR 232, considered Devries v Australian National Railways Commission (1993) 177 CLR 472, cited Gamser v The Nominal Defendant (1977) 136 CLR 145, cited Griffiths v Kerkemeyer (1977) 139 CLR 161, considered Karanfilov v Inghams Enterprises Pty Ltd [2003] QCA 242; [2004] 2 Qd R 139, cited Manser v Spry (1994) 181 CLR 428, distinguished National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, cited Smith v Day [1992] 1 Qd R 233, cited Tyrrell v Tyrrell (1981) 25 SASR 73, cited
COUNSEL:	J A Griffin QC, with C S Harding, for the appellant S C Williams QC, with M J Burns, for the respondent
SOLICITORS:	O'Maras Lawyers for the appellant Paul Everingham & Co for the respondent