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 toCOUNSEL:
S C Williams QC with him M J Burns for the plaintiff
J A Griffin QC with him C S Harding for the defendantSOLICITORS:
Paul Everingham & Co. for the plaintiff
O’Mara’s Lawyers for the defendant
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.
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…
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- Case
- [2004] QSC 160
- Decision Date
CaseChat Overview and Summary
The court examined whether the defendant owed a duty of care to the plaintiff and if that duty was breached. The court found that the risk of injury from an uneven walking surface was not so obvious that it would limit the content of the duty owed. Furthermore, the risk was not associated with any difficulty in removal, and the defendant failed to take reasonable care to avoid exposing the plaintiff to an unnecessary risk of injury. The plaintiff established a prima facie case of negligence, and the evidentiary onus shifted to the defendant to point to other evidence suggesting that no causal connection existed. The defendant did not discharge this onus, leading the court to find the defendant liable for the plaintiff's injuries.
The court also addressed the availability of a civil action under the Workplace Health and Safety Act (Qld) 1995. The court determined that a cause of action in damages arose from section 28(1) of the Act, which allows for such actions. Consequently, the plaintiff was awarded damages in the amount of $831,958.96. The court held the defendant liable for the injuries sustained by the plaintiff due to the breach of duty of care and awarded the plaintiff the specified damages.
Orders
Orders of the court
Judgment for the plaintiff for $831,958.96
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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