WCRA: importance of identifying the correct risk for foreseeability

Boon v Summs of Qld Pty Ltd [2016] QCA 38

Gotterson JA delivered the leading judgment with Holmes CJ and Applegarth J concurring.

Three of appellant’s fingers were cut by a leatherman knife, which was held by an employee of the respondent. The knife came into contact with appellant’s hand as he walked past the employee of the respondent, who was in the process of standing up from a crouching position where he had been peeling an orange at lunch.

The appellant claimed negligence on the part of the respondent and of their  employee. In June 2015, judgment was given for the defendant (respondent), and the plaintiff (appellant) was ordered to pay costs.

The appellant’s principal challenge was to the learned primary judge’s conclusion relating to the foreseeability of risk and its significance.  The appellant argued that there was a misidentification of the factual factors.

The Court of Appeal found that the learned primary judge erred regarding the conduct which exposed the appellant to the risk of injury. The Court reiterated the importance of correctly and precisely identifying the actual risk which is paramount in the assessment of the breach of duty: Roads and Traffic Authority (NSW) v Dedered (2007) 234 CLR 330[2007] HCA 42 (applied).

The Court of Appeal held the conduct which exposed the appellant to risk was the employee rising from a crouched position with a knife which had a long, sharp, exposed blade, rather than, as held by the learned trial judge, the using of a knife to peel an orange.

The Court of Appeal held there was a foreseeable risk that a passer-by could be struck with the blade. The employee ought reasonably to have known of that risk, and the risk was not insignificant. A reasonable person would have taken precautions to avoid striking a passer-by. Therefore, the employee acted negligently, and this negligence caused appellant’s injury [31] – [32]. Vicarious liability was not in issue.

The Court of Appeal held that the appellant’s case should not have been dismissed and upheld the appeal.

The appellant also argued that the trial judge erred in reducing past economic loss to $700 per week. The trial judge arrived at this figure, which was significantly less than what the appellant earned at the respondent’s worksite, as the appellant was prone to leaving jobs following personality clashes. The Court of Appeal found that the figure of $850 per week was more appropriate.

The appellant also submitted that the claim future loss earning capacity should have been assessed at $100,000 instead of $50,000. The Court of Appeal found by reference to s 55(3) of the Civil Liability Act 2003 (Qld), there was no justification for an award of $100,000 in the absence of a wage-rate based calculation to support the allowance.

 

General damages of pain, suffering and loss of amenities of life $21,850.00
Past economic loss $82,928.00
Interest on past economic loss $2,718.98
Past occupational superannuation $7,562.79
Future economic loss $50,000.00
Future superannuation loss $5,650.00
Fox v Wood damages $8,113.00
Past gratuitous care $11,340.00
Future expenses $1,800.00
WorkCover special damages $21,747.78
Medicare Australia refund $897.00
Out of pocket expenses $647.06
Interest on out of pocket expenses $32.50
TOTAL $215,286.11

Appeal allowed, total amount substituted.

David Cormack – Brisbane Barrister and Mediator

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