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Wilkinson v BP Australia Pty Ltd

Wilkinson v BP Australia Pty Ltd

Case [2008] QSC 171 21 August 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

Wilkinson v BP Australia Pty Ltd [2008] QSC 171

PARTIES:

PETER NORMAN WILKINSON
(Plaintiff)
v
BP AUSTRALIA PTY LTD
ACN 004 085 616
(Defendant)

FILE NO/S:

Rockhampton 179 of 2007

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

21 August 2008

DELIVERED AT:

Rockhampton

HEARING DATE:

22 and 23 July 2008

JUDGE:

McMeekin J

ORDER:

Judgment for the plaintiff in the sum of $306,565.401.

CATCHWORDS:

TORTS - NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSONS ENTERING PREMISES – where there was a slipping hazard at a workplace - whether the hazard was causative of the fall – whether there was a response of a reasonable occupier

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where quantum and liability are in question – whether the Civil Liability Act 2003 is applicable to the action

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff suffered an injury at the defendant’s premises – whether a defect on the premises caused the injury – whether the plaintiff’s symptoms caused by degeneration

Civil Liability Act 2003 (Qld), s 51, s 83

Civil Liability Regulation 2003 (Qld), Sch 4

Criminal Code andCivil Liability Amendment Act 2007 (Qld), s 9.

Workplace Health & Safety Act 1995 (Qld), s28, s30,

Calvert v Mayne Nickless Ltd (No 1) [2005] QCA 263, applied

Heil v Suncoast Fitness [2000] 2 Qd R 23, applied,

Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124, applied

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48, applied

O’Brien v TF Woollem & Son Pty Ltd [2002] 1 Qd R 622, applied

Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2) [2001] 1 Qd R 5, applied

COUNSEL:

G Crow for the Plaintiff

R Morton for the Defendant

SOLICITORS:

Chris Trevor & Associates for the Plaintiff

Hopgood Ganim for the Defendant

McMEEKIN J: In this action Mr Wilkinson seeks damages for personal injuries suffered when he slipped at the defendant’s fuel terminal on 18 November 2004. Both liability and quantum are in issue.

Circumstances of the accident

At the relevant time the plaintiff was employed as a fuel tanker driver by Latters Transport. He was required to attend at the defendant’s fuel terminal in the course of his employment in order to fill two trailers with distillate fuel. The time was about 4.00 am.

It was necessary for the plaintiff to enter a part of the fuel terminal called the bay loader. That required him to step up from a concrete apron onto the entry to the bay loader. The height of the riser was not proved but appears from the photographs to be about 75 centimetres.[1]
[1]For example see exhibit 11.

On the edge of the step was a metal strip. The plaintiff estimated…

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.

Continue reading Wilkinson v BP Australia Pty Ltd

Details

AGLC: Wilkinson v BP Australia Pty Ltd [2008] QSC 171
Case: [2008] QSC 171
Decision Date: 21 August 2008

CaseChat Overview and Summary

In the case of Wilkinson v BP Australia Pty Ltd, the plaintiff sought compensation for injuries sustained in a fall at the defendant’s premises. The plaintiff alleged that the fall was caused by a slipping hazard on the premises, and that the defendant, as the occupier, failed to maintain a safe environment. The case was heard in the Supreme Court of Queensland, where the plaintiff claimed damages for personal injuries, including loss of earnings and earning capacity, as well as other related costs.

The primary legal issues before the court were whether the slipping hazard on the premises was the cause of the plaintiff’s fall and subsequent injuries, and whether the defendant, as a reasonable occupier, had taken sufficient steps to mitigate the risk. The court also had to consider whether the plaintiff's injuries were directly caused by the alleged defect or by other factors, such as pre-existing conditions. Additionally, the court needed to determine the applicability of the Civil Liability Act 2003 to the case and the appropriate measure of damages.

The court found that the slipping hazard on the premises did cause the plaintiff’s fall and injuries, and that the defendant had not acted as a reasonable occupier in addressing the hazard. The court concluded that the injuries suffered by the plaintiff were directly attributable to the defect on the premises and not due to any pre-existing conditions. The court applied the Civil Liability Act 2003 and assessed the plaintiff's loss of earnings and earning capacity, taking into account the extent of the injuries and their impact on the plaintiff's ability to work. The court awarded damages in the sum of $306,565.40 to the plaintiff.

The court's judgment provides clarity on the liability of occupiers in maintaining safe premises and the assessment of damages for personal injuries in cases where negligence is established. The decision also underscores the importance of adhering to statutory provisions in determining the measure and remoteness of damages in tort actions.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $306,565.401.

Background

Background to the litigation

Full text does not contain this section.

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.

Citations

AGLC Citation

Wilkinson v BP Australia Pty Ltd [2008] QSC 171

Most Recent Citation

Griffiths v State of Queensland [2011] QCA 57

Cases citing this decision · 11 of 11 shown

Greenall v Amaca Pty Ltd
[2023] QSC 137

…Cedzich (1930) 43 CLR 493; [1930] HCA 4, followed COUNSEL: D L Atkinson KC with J Hewson for the Plaintiffs B F Charrington KC for the Defendant K F Holyoak for the Third Party SOLICITORS: Selegov Taylor Lawyers for the Plaintiffs Holman Webb Lawyers for the Defendant BTLawyers for the Third Party…
Kerle v BM Alliance Coal Operations Pty Limited
[2016] QSC 304 Para 1

…[32] [2001] 1 Qd R 518. [33] [2002] 1 Qd R 622. [34] [2002] 1 Qd R 630. [35] [2003] QCA 572. [36] [2000] 2 Qd R 23. [37] [2005] QCA 355. [38][2008] QSC 171.…
House v Anglo Coal (Callide Management) Pty Ltd
[2016] QDC 303 Para 1

…atheson Pty Ltd & Anor [2004] QDC 406 (McGill SC DCJ), Pascoe v Coolum Resort Pty Ltd [2005] QDC 39 (Samios DCJ) and Wilkinson v BP Australia Pty Ltd [2008] QSC 171 (McMeekin J). All are different from this case and from each other, but I have attended to the import of each. On the basis of Dr Morgan’s evidence (…
Hutton v RLX Operating Company Pty Ltd
[2016] QSC 248 Para 1

…d[33]. [27] [2001] 1 Qd R 518. [28] [2002] 1 Qd R 622. [29] [2002] 1 Qd R 630. [30] [2003] QCA 572. [31] [2000] 2 Qd R 23. [32] [2005] QCA 355. [33][2008] QSC 171 [20]-[26].…
Bird v Uniting Church in Australia Property Trust (Q)
[2015] QDC 243 Para 1

…As noted by McMeekin J in Wilkinson v BP Australia Pty Ltd, [18] the onus on the plaintiff is to demonstrate that: [18][2008] QSC 171, at [28].…
Downes v Affinity Health Pty Ltd
[2015] QDC 197 Para 1

…cMeekin J in Wilkinson v BP Australia Pty Ltd, [78] the defendant characterised the onus of the plaintiff in terms of having to demonstrate that: [78][2008] QSC 171 at [28].…
Griffiths v State of Queensland
[2011] QCA 57

…Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518; [2000] QCA 18, considered Wilkinson v BP Australia Pty Ltd [2008] QSC 171, cited COUNSEL: L Kelly SC, with B Charrington, for the appellant G Diehm SC, with R Treston, for the respondent SOLICITORS: Maurice Blackburn Lawyers for the appellant McInne…
Griffiths v State of Queensland
[2010] QSC 290 Para 1

…right of action. [15][2002] 1 Qd R 622. [16] Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124 at [22]. [17] Wilkinson v BP Australia Pty Ltd [2008] QSC 171 at [25]-[26].…
Samways v WorkCover Queensland
[2010] QSC 127 Para 1

…e in the circumstances must be determined from the perspective of Mr Heilbronn, avoiding hindsight bias.[11] [8] Wilkinson v BP Australia Pty Ltd [2008] QSC 171 at [28]. [9] Roads and Traffic Authority of New South Wales v Dederer (supra) at 338 per Gummow J. [10](1980) 146 CLR 40 at 47-48. [11] Roads and Traffic…
Willett v United Concrete Pty Limited
[2009] NSWSC 957

…ed v Christie & 2 Ors [2003] NSWCA 47 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 Wilkinson v BP Australia Pty Ltd [2008] QSC 171 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 PARTIES: Plaintiff - David Willett First Defendant - United Concrete Pty Limited Second…
Dowell v Queensland Rail
[2009] QDC 47 Para 1

…onsiderations in a case such as this have helpfully been set out by His Honour Justice McMeekin at paragraph [28] in Wilkinson v BP Australia Pty Ltd [2008] QSC 171. As Justice McMeekin observed: ‘the measure of the discharge of the defendant’s duty of care to the plaintiff is what a reasonable person would in al…

View all 11 citing cases →

Cases cited in this decision · 13 of 13 shown

Director of Public Prosecutions v Cicolini
[2007] QCA 336 Para 1

…the matters of defence referred to in s 26, s 27 and s 37 of the Workplace Health and Safety Act .[21] [19][2005] QCA 263 at [83] per Jerrard JA. [20][2007] QCA 336 at [106] per Keane JA. [21]See Calvert supra at [87].…
Newberry v Suncorp Metway Insurance Ltd
[2006] QCA 48

…R 23, applied, Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124, applied Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48, applied O’Brien v TF Woollem & Son Pty Ltd [2002] 1 Qd R 622, applied Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2) [2001] 1 Qd R 5, applied COUNSEL: G Crow for the Plai…
Calvert v Mayne Nickless Ltd (No 1)
[2005] QCA 263 Para 1

…onus then passes to the defendant to show the matters of defence referred to in s 26, s 27 and s 37 of the Workplace Health and Safety Act .[21] [19][2005] QCA 263 at [83] per Jerrard JA. [20][2007] QCA 336 at [106] per Keane JA. [21]See Calvert supra at [87].…
Henderson v Dalrymple Bay Coal Terminal
[2005] QSC 124 Para 1

…e decision in Schiliro . [9][2002] 1 Qd R 622. [10][2002] 1 Qd R 630. [11][2003] QSC 15 at [19] – [29]. [12][2000] 2 Qd R 23. [13]S 23(b) [14][2005] QSC 124 at [22].…
Thompson v Woolworths (Qld) Pty Ltd
[2005] HCA 19 Para 1

…ty would fail to observe and avoid it: Thompson v Woolworths (Qld) Pty Ltd .[18] [16](1987) 162 CLR 479 at p 488. [17](1980) 146 CLR 40, 47-48. [18][2005] HCA 19; [2005] 79 ALJR 904.…
Hopkins v WorkCover Queensland
[2004] QCA 155 Para 1

…kess v Crittenden [40] and Hopkins v WorkCover Queensland [41]. [39](1960) 108 CLR 158. [40](1965) 114 CLR 164, 168. [41][2003] QSC 257 and on appeal [2004] QCA 155.…
Hopkins v WorkCover Queensland
[2003] QSC 257 Para 1

…ned in Watts v Rake [39], Purkess v Crittenden [40] and Hopkins v WorkCover Queensland [41]. [39](1960) 108 CLR 158. [40](1965) 114 CLR 164, 168. [41][2003] QSC 257 and on appeal [2004] QCA 155.…
Townsend v BBC Hardware Ltd
[2003] QSC 15 Para 1

…did not give a private right of action did not sit comfortably with the decision in Schiliro . [9][2002] 1 Qd R 622. [10][2002] 1 Qd R 630. [11][2003] QSC 15 at [19] – [29]. [12][2000] 2 Qd R 23. [13]S 23(b) [14][2005] QSC 124 at [22].…
Malec v JC Hutton Pty Ltd
[1990] HCA 20 Para 1

…ngly to reflect that degree of probability.[49] [49] Hopkins v WorkCover Queensland [2004] QCA 155 per Mackenzie J at [34]; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643.…
Australian Safeway Stores Pty Ltd v Zaluzna
[1987] HCA 7 Para 1

…he risk and the likelihood that persons coming on to the property would fail to observe and avoid it: Thompson v Woolworths (Qld) Pty Ltd .[18] [16](1987) 162 CLR 479 at p 488. [17](1980) 146 CLR 40, 47-48. [18][2005] HCA 19; [2005] 79 ALJR 904.…
Purkess v Crittenden
[1965] HCA 34 Para 1

…us. The principles are explained in Watts v Rake [39], Purkess v Crittenden [40] and Hopkins v WorkCover Queensland [41]. [39](1960) 108 CLR 158. [40](1965) 114 CLR 164, 168. [41][2003] QSC 257 and on appeal [2004] QCA 155.…
Watts v Rake
[1960] HCA 58 Para 1

…t bears an evidential onus. The principles are explained in Watts v Rake [39], Purkess v Crittenden [40] and Hopkins v WorkCover Queensland [41]. [39](1960) 108 CLR 158. [40](1965) 114 CLR 164, 168. [41][2003] QSC 257 and on appeal [2004] QCA 155.…
Wyong Shire Council v Shirt
[1980] HCA 12 Para 1

…ersons coming on to the property would fail to observe and avoid it: Thompson v Woolworths (Qld) Pty Ltd .[18] [16](1987) 162 CLR 479 at p 488. [17](1980) 146 CLR 40, 47-48. [18][2005] HCA 19; [2005] 79 ALJR 904.…

Legislation cited in this decision · 5

Civil Liability Act 2003 (Qld)
51 2 mentions (from Para 1)
Criminal Code and Civil Liability Amendment Act 2007 (Qld)
9 2 mentions (from Para 1)
Safety Act 1995 (Qld)
28 2 mentions
Workplace Health and Safety Act 1989 (Qld)
1 mention (from Para 1)
Workplace Health and Safety Act 1995 (Repealed) (TAS)
1 mention (from Para 1)

CITATION:	Wilkinson v BP Australia Pty Ltd [2008] QSC 171
PARTIES:	PETER NORMAN WILKINSON (Plaintiff) v BP AUSTRALIA PTY LTD ACN 004 085 616 (Defendant)
FILE NO/S:	Rockhampton 179 of 2007
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	21 August 2008
DELIVERED AT:	Rockhampton
HEARING DATE:	22 and 23 July 2008
JUDGE:	McMeekin J
ORDER:	Judgment for the plaintiff in the sum of $306,565.401.
CATCHWORDS:	TORTS - NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSONS ENTERING PREMISES – where there was a slipping hazard at a workplace - whether the hazard was causative of the fall – whether there was a response of a reasonable occupier DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL PRINCIPLES – where quantum and liability are in question – whether the Civil Liability Act 2003 is applicable to the action DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff suffered an injury at the defendant’s premises – whether a defect on the premises caused the injury – whether the plaintiff’s symptoms caused by degeneration Civil Liability Act 2003 (Qld), s 51, s 83 Civil Liability Regulation 2003 (Qld), Sch 4 Criminal Code andCivil Liability Amendment Act 2007 (Qld), s 9. Workplace Health & Safety Act 1995 (Qld), s28, s30, Calvert v Mayne Nickless Ltd (No 1) [2005] QCA 263, applied Heil v Suncoast Fitness [2000] 2 Qd R 23, applied, Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124, applied Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48, applied O’Brien v TF Woollem & Son Pty Ltd [2002] 1 Qd R 622, applied Schiliro v Peppercorn Childcare Centres Pty Ltd (No 2) [2001] 1 Qd R 5, applied
COUNSEL:	G Crow for the Plaintiff R Morton for the Defendant
SOLICITORS:	Chris Trevor & Associates for the Plaintiff Hopgood Ganim for the Defendant