Whittaker v Farnsway Mining Constructions P/L

SUPREME COURT OF QUEENSLAND

CITATION:

Whittaker v Farnsway Mining Constructions P/L [2004] QSC 160

PARTIES:

DEWAYNE WILLIAM WHITTAKER
(plaintiff)
and
FARNSWAY MINING CONSTRUCTION PTY LTD 010 562 713
(defendant)

FILE NO/S:

9987 of 2000

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

26 May 2004

DELIVERED AT:

Brisbane

HEARING DATES:

16, 17, 18, 19 February 2004

JUDGE:

Douglas J

ORDER:

Judgment for the plaintiff for $831,958.96

CATCHWORDS:

EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – GENERALLY - FORESEEABILITY OF INJURY - Duty to take reasonable care to avoid exposing an employee to an unnecessary risk of injury

TORTS – NEGLIGENCE - DANGEROUS PREMISES - INJURIES TO PERSONS ENTERING PREMISES - WHO IS LIABLE – OCCUPIER – GENERALLY – Where the risk was not so obvious as to limit the content of the duty owed – Where there was no difficulty associated with removing the risk – Where the risk was caused by an uneven walking surface at a work site

TORTS - PROOF OF NEGLIGENCE - ONUS OF PROOF – GENERALLY – Where there is an inference that the accident happened because of the defendant’s act or omission leading to a breach of duty – Where the evidentiary onus rests on the defendant to point to other evidence suggesting that no causal connection exists

INDUSTRIAL LAW - INDUSTRIAL SAFETY, HEALTH AND WELFARE – QUEENSLAND - WORKPLACE HEALTH AND SAFETY LEGISLATION - AVAILABILITY OF A CIVIL ACTION UNDER ACT – Where there is a cause of action in damages arising from section 28(1) of the Workplace Health and Safety Act (Qld) 1995

Workplace Health and Safety Act 1995, s. 28(1)

Hamilton v Nuroof (Western Australia) Pty Ltd (1956) 96 CLR 18, referred to
Thompson v Woolworths (Q’land) Pty Limited [2003] QCA 551, referred to
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, referred to
Chappel v Hart (1995) 195 CLR 232, referred to
Schiliro v Peppercorn Childcare Centres Pty Ltd (No. 2) [2001] 1 Qd R 518, referred to
DNM Mining Pty Ltd v Barwick [2004] NSWCA 137, referred to

COUNSEL:

S C Williams QC with him M J Burns for the plaintiff
J A Griffin QC with him C S Harding for the defendant

SOLICITORS:

Paul Everingham & Co. for the plaintiff
O’Mara’s Lawyers for the defendant

1. DOUGLAS J:  The plaintiff, Mr Whittaker, was injured at work on 11 January 1997 and again on 27 October 1997.  The first accident occurred while he was descending from a dump truck at the Macarthur River Mine in the Northern Territory.  It was treated as a moderately significant sprain of the left ankle and kept him away from work for about 8 weeks.

1. In July 1997 he was transferred to Thalangar and then to the Pajingo Mine near Charters Towers in Queensland.  At that site there was a metal grate consisting of walkway…