SUPREME COURT OF QUEENSLAND
CITATION: Wright v Thomas Borthwick & Sons (Australia) Pty Ltd [2008] QSC 86
PARTIES: WRIGHT
(plaintiff)
vTHOMAS 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
COUNSEL: G Crow for the plaintiff
J Miles for the defendantSOLICITORS: 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…
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- Case
- [2008] QSC 86
- Decision Date
CaseChat Overview and Summary
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
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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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