Wright v Thomas Borthwick & Sons (Australia) Pty Ltd - [2008] QSC 86

SUPREME COURT OF QUEENSLAND

CITATION:
Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86

PARTIES:
WRIGHT

(plaintiff)
v

THOMAS BORTHWICK & SONS (AUSTRALIA) PTY
LTD
ACN 120 065 535 104

(defendant)

FILE NO/S: Mackay S58 of 2007

DIVISION: Trial Division

PROCEEDING: Trial

ORIGINATING COURT:
Supreme Court at Mackay

DELIVERED ON: 08 May 2008

DELIVERED AT: Rockhampton

HEARING DATE: 12, 13 and 14 February and 10 and 11 April

JUDGE: McMeekin J

ORDERS:

1. There will be judgment for the plaintiff in the sum of$284,173.78.

CATCHWORDS
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff’s injury was an aggravation of pre-existing condition – damages for loss of future earning capacity assessed on the basis that plaintiff is unemployable in former capacity

EMPLOYMENT LAW – LIABILITY FOR EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE AND ADEQUATE PLANT AND APPLIANCES – where the plaintiff was required to use a carcass saw – where the plaintiff suffered a spinal injury in using the saw – whether the plaintiff suffered injury as a result of the employer’s negligence, breach of contract or breach of statutory duty

Workplace Health and Safety Act 1995 (Qld), s26, s27, s28, s37.

Calvert v Mayne Nickless Ltd (No. 1) [2005] QCA 263 followed

Driver v Stewart & MMI [2001] QCA 444 followed

Heggarty v Queensland Ambulance Service [2007] QCA 366 followed

Hopkins v WorkCover Queensland [2003] QSC 257 applied

Hopkins v WorkCover Queensland [2004] QCA 155 followed

Purkess v Crittenden (1965) 114 CLR 164 followed

Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518 applied

Vozza v Tooth & Co Ltd (1964) 112 CLR 316 followed

Wyong Shire Council v Shirt (1980) 146 CLR 40 followed

COUNSEL: G Crow for the plaintiff
J Miles for the defendant

SOLICITORS: Macrossan and Amiet Solicitors for the plaintiff
Bruce Thomas Lawyers for the defendant

MCMEEKIN J: In this action the plaintiff, Mr Wright, claims damages for personal injuries alleged to have been suffered in the course of his employment with the defendant, Thomas Borthwick & Sons (Australia) Pty Ltd. At the material time the plaintiff was employed as an A grade slaughterman working the carcass saw at the Baker’s Creek Meatworks near Mackay. Both liability and quantum are in issue.

LIABILITY

Principles

Mr Wright bases his claim on breach of the employment contract, negligence and breach of statutory duty, that latter duty being imposed by s 28 of the Workplace Health and Safety Act 1995 whereby an employer is obliged to ensure the health and safety at work of its employees. A civil right of action is available to employees for a breach of those provisions by an employer: Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2)[1].
[1] [2001] 1 Qd R 518.

To succeed in relation to the causes of action in negligence and breach of…

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.

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Details

Case: [2008] QSC 86
Decision Date: 8 May 2008

CaseChat Overview and Summary

The plaintiff, Wright, brought a claim against Thomas Borthwick & Sons (Australia) Pty Ltd, his employer, seeking damages for injuries sustained in the course of his employment. The plaintiff suffered a spinal injury while using a carcass saw, which he argued was due to the employer's negligence, breach of contract, or breach of statutory duty. The primary concern was the assessment of damages, particularly for the loss of future earning capacity resulting from the aggravation of a pre-existing condition, which rendered the plaintiff unemployable in his former capacity.

The court was tasked with determining whether the employer was liable for the injuries sustained by the plaintiff and, if so, the extent of that liability. This involved assessing the plaintiff’s loss of future earnings and earning capacity, given his pre-existing condition and the unlikelihood of future employment in his former role. The court had to consider the principles governing the remoteness and measure of damages in tort actions, particularly in cases involving personal injuries.

The court found that the employer was indeed liable for the plaintiff’s injuries, as the use of the carcass saw constituted a breach of the employer’s duty to provide a safe working environment. In assessing the damages, the court concluded that the plaintiff's injury was an aggravation of a pre-existing condition, which made him unemployable in his former capacity. The damages for loss of future earnings and earning capacity were calculated accordingly, taking into account the plaintiff's age, life expectancy, and earning capacity prior to the injury. The court awarded the plaintiff $284,173.78 in total damages.

Orders

Orders of the court

1. There will be judgment for the plaintiff in the sum of$284,173.78.

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.

CITATION:	Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86
PARTIES:	WRIGHT (plaintiff) v THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD ACN 120 065 535 104 (defendant)
FILE NO/S:	Mackay S58 of 2007
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	08 May 2008
DELIVERED AT:	Rockhampton
HEARING DATE:	12, 13 and 14 February and 10 and 11 April
JUDGE:	McMeekin J
ORDERS:	1. There will be judgment for the plaintiff in the sum of$284,173.78.
CATCHWORDS	DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where the plaintiff’s injury was an aggravation of pre-existing condition – damages for loss of future earning capacity assessed on the basis that plaintiff is unemployable in former capacity EMPLOYMENT LAW – LIABILITY FOR EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE AND ADEQUATE PLANT AND APPLIANCES – where the plaintiff was required to use a carcass saw – where the plaintiff suffered a spinal injury in using the saw – whether the plaintiff suffered injury as a result of the employer’s negligence, breach of contract or breach of statutory duty Workplace Health and Safety Act 1995 (Qld), s26, s27, s28, s37. Calvert v Mayne Nickless Ltd (No. 1) [2005] QCA 263 followed Driver v Stewart & MMI [2001] QCA 444 followed Heggarty v Queensland Ambulance Service [2007] QCA 366 followed Hopkins v WorkCover Queensland [2003] QSC 257 applied Hopkins v WorkCover Queensland [2004] QCA 155 followed Purkess v Crittenden (1965) 114 CLR 164 followed Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518 applied Vozza v Tooth & Co Ltd (1964) 112 CLR 316 followed Wyong Shire Council v Shirt (1980) 146 CLR 40 followed
COUNSEL:	G Crow for the plaintiff J Miles for the defendant
SOLICITORS:	Macrossan and Amiet Solicitors for the plaintiff Bruce Thomas Lawyers for the defendant