Cairns Regional Council v Sharp [2013] QCA 297
I refer you to my previous post and note the appeal was dismissed.
Margaret McMurdo P and Gotterson JA and Douglas J, Separate reasons for judgment of each member of the Court, each concurring as to the order made
| Catchwords | TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the respondent, who was employed as a gardener by the applicant, was mowing a median strip on a busy Cairns thoroughfare – where the respondent was less than one metre from a 60 kph flow of traffic – where the respondent bent down to pick up a spring which had come off the motor-mower and, upon being startled by the sound of a car horn, knocked the mower handle with his hip and the mower blades moved onto his left hand, partially amputating his ring and little finger – where the respondent successfully brought an action in negligence against the applicant – where the applicant applies for leave to appeal, contending that the primary judge erred in concluding that the applicant had breached its duty of care to the respondent – where the applicant contends that the primary judge improperly considered the matter with hindsight and failed to take into account or give proper weight to the evidence relied upon by the applicant – whether the primary judge erred in concluding that the applicant breached its duty of care to the respondent TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – GENERALLY – where the applicant contends that the primary judge erred in concluding that its alleged breach of duty caused the respondent’s injuries – where the applicant contends that the respondent was injured because of his unpredictable response to a random act of the sounding of a car horn by a passing driver, over which the applicant had no control and the risk of which was slight – whether the primary judge erred in concluding that there existed a causal connection between the breach of duty and the respondent’s injuries EVIDENCE – ADMISSIBILITY AND RELEVANCE – OPINION EVIDENCE – IN GENERAL – where the primary judge permitted Mr McDougall, an engineer experienced in occupational health and safety risk assessment, to give expert evidence identifying deficiencies in the conduct of the mowing task – where the applicant contends that the primary judge wrongly admitted the evidence as Mr McDougall lacked the experience necessary to give opinion evidence; that many of the matters upon which he expressed an opinion were self-evident and should not have been the subject of expert evidence; and that he effectively “swore the issue” – whether the primary judge erred in admitting the evidence of Mr McDougall
Brisbane Barrister – David Cormack |
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