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Oxenham v Protector Aluminium Pty Ltd[2016] QDC 312

Oxenham v Protector Aluminium Pty Ltd[2016] QDC 312

DISTRICT COURT OF QUEENSLAND

CITATION:

Oxenham v Protector Aluminium P/L [2016] QDC 312

PARTIES:

OXENHAM, Billy Ryley

(plaintiff)

v

PROTECTOR ALUMINIUM PTY LTD

ACN 088 343 275

(defendant)

FILE NO:

D 155 of 2014

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

2 December 2016

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

19 October 2015; 20 October 2015 and 21 October 2015

JUDGE:

Long SC DCJ

ORDER:

Judgment for the defendant.

CATCHWORDS:

PERSONAL INJURIES – DUTY OF CARE – LIABILITY – Where the plaintiff claims damages for personal injuries, being rectal and associated internal injuries from his fall onto a toilet roll holder – Where such a claim is premised on the contention that the plaintiff slipped when undertaking a manoeuvre in a toilet cubicle, to obtain a roll of toilet paper from a nearby sink and due to the presence of water on the sole of his work boot – Where it is further alleged that the presence of that water was due to previously standing in water that had leaked on to the tiled floor from a the fridge in the adjacent office area – Whether, on the balance of probabilities, the defendant has breached a duty of care owed to the plaintiff – Whether and should the plaintiff establish that there was a duty of care owed to him, the defendant has caused him to suffer the injuries for which he seeks damages – Whether ‘but for’ the plaintiff stepping in water near the fridge, he would not have fallen and injured himself in the toilet cubicle 

DAMAGES – PERSONAL INJURIES – QUANTUM – Where the Court considers an assessment of damages, had the plaintiff been successful in establishing liability

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003, ss 305B, 305B(1)(b), 305C, 305D(1), 305D(1)(a), 305D(1)(b), 305D(2) and 306J

Workers’ Compensation and Rehabilitation Regulation 2014, Items 13, 72, 77 and 154.3

CASES:

Benic v State of New South Wales [2010] NSWSC 1039

Chapman v Hearse (1961) 106 CLR 112

Erickson v Bagley [2015] VSCA 220

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2013] 1 Qd R 319

Pollard v Trude [2008] QSC 119

Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232

Vairy v Wyong Shire Council (2005) 223 CLR 422

Woolworths Ltd v Perrins [2015] QCA 207

Wyong Shire Council v Shirt (1980) 146 CLR 40

COUNSEL:

GJ Barr for the plaintiff

GC O'Driscoll for the defendant

SOLICITORS:

Butler McDermott Lawyers for the plaintiff

BT Lawyers for the defendant

Introduction

  1. [1]
    In this matter, the plaintiff claims for personal injuries sustained on 13 April 2011 and contended to be the result of the breach of duty and/or breach of contract of the defendant.
  1. [2]
    Although the claim is couched in that alternative way, the only basis upon which it is contended that there was a breach of contract is in relation to an implied term of the plaintiff’s contract of employment, obliging his employer to take all reasonable steps to avoid foreseeable risk of injury. Accordingly and as this contention only sought the implication of a duty, as otherwise generally recognised at common law and statute, it is only necessary to consider this matter on the basis of whether it is established that the plaintiff’s claim is established according to those common law principles, including insofar as they have been affected or modified by the provisions of Chapter 5 of Part 8 of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”).

The evidence

  1. [3]
    The plaintiff was born on 10 January 1995 and accordingly and as at 13 April 2011, he was 16 years of age and at trial, was aged 20. For about a month prior to 13 April 2011, he had been employed by the defendant, a supplier of powder-coated aluminium products, and worked at a premises located at 2A Page Street, Kunda Park, as a labourer. After commencing work on 13 April 2011, the plaintiff was left alone with some specified jobs to complete, whilst his immediate supervisor left those premises to attend to some offsite work. The plaintiff describes that after completing some of the jobs allocated to him and at about 11:00am, he went into the office area at the premises. The office area is contained within the large shed, which is the workplace and which is also comprised of a workshop area. Within the office area was a small refrigerator, a small or bar type fridge and approximately 1m high, and this was commonly used by employees to keep lunches and drinks cold.
  1. [4]
    First, he went to the location of the fridge in that office area, to obtain a drink of water. He did that by opening the door, squatting down to get his drink and after having the drink, shutting the fridge door. He therefore describes that he was standing immediately in front of the fridge when he did that. He then described that he walked around a desk and down a hallway to the toilet. This was estimated to be a distance of about 6m.
  1. [5]
    The plaintiff then described that he used the toilet and when he was in a position where his shorts or pants were around his ankles, he stood up in order to obtain a roll of toilet paper that was sitting on the sink, which was in front of him and to his right as he was sitting on the toilet. He described that he had to shuffle a little bit in order to do so and he described:[1]

“I stood up and there was toilet paper on the sink and I had grabbed that and that was when I just went to take a little step back and I had slipped and my feet hit the wall and … I just slipped and that was when I fell on an angle and my feet hit the wall and that was when I dropped the toilet paper and my back hit the wall and I had grabbed the toilet seat on the way down.”

He was then asked about his back hitting the wall and he described that it was “my shoulder first and then I straightened up.  It was the wall to the left of the toilet.”[2]

  1. [6]
    The plaintiff further described that as he went to grab the toilet seat in the circumstances that he had described, he felt the upright and top portion of a metal toilet roll holder and at the top of which was a plastic cap, strike between his testicles and his anus and that it proceeded to enter his anus. He described that as a consequence, there was blood on the toilet roll holder and blood on the tiled floor. The toilet roll holder is described as having a plastic base, a metal pole or upright, perpendicular to the base and a spherical cap.[3]The plaintiff indicated that the toilet roll holder was situated on the floor and toward the front left of the toilet bowl.[4]  
  1. [7]
    The plaintiff further described that he then spent some time in the toilet cleaning up all the blood from the floor, the toilet roll holder and using toilet paper in an attempt to stem the bleeding from his anus. He eventually left the toilet with toilet paper between the cheeks of his backside, as by that time his supervisor, Paul Bruchez, had returned. He said that he only told his supervisor that he did not feel well and although he started performing his work again, he eventually told his supervisor that he felt sick and needed to return to the toilet. He then spent the majority of his remaining working day in the toilet, as he felt like he was going to vomit and was light headed and had to change the toilet paper he had put between his cheeks to stem the bleeding. This continued until about 2:30pm, when he was picked up by his mother.
  1. [8]
    Although and in her evidence, his mother confirmed her observations that the plaintiff looked uncomfortable and uncharacteristically declined an opportunity to drive home, as a learner driver, and that he effectively, on arriving at home, went into the toilet and remained there for some time and until he called out when he began urinating blood and an ambulance was called to take him to the Nambour Hospital, the evidence is that the plaintiff made no disclosure as to the mechanism of his injury to this point and even in the course of initially obtaining treatment at the hospital. Further, the evidence is, that initially the mechanism of injury to his anus was not even disclosed to medical staff and even then, only once a suggestion or concern was raised that his condition may be the result of a sexual assault and that a police investigation would be involved.
  1. [9]
    After that and on further investigation of the plaintiff’s condition, he was found to have a penetrating injury to the anterior rectal wall and base of the bladder. He was operated on the following morning and the operative findings were: a 3cm diameter full thickness defect in the anterior rectal wall, 5cm from the anal verge and communicating with the bladder, a perianal hematoma and a 4cm superficial tear at 6 o’clock extending posteriorly along the natal cleft and there was a defect in the posterior bladder wall. Bilateral ureteric catheters were inserted and brought out through an indwelling catheter and the bladder wall was repaired, the sigmoid colon was mobilised and a colostomy performed.[5] 
  1. [10]
    The plaintiff was an inpatient for three weeks but was subsequently readmitted after a couple of days with fever and a urinary tract infection, necessitating a further week in hospital. He was then discharged and placed on antibiotics for about three weeks. The colostomy remained in place for about six months, until a reversal procedure. And in a report dated 3 November 2011, Dr Cohen observed that the plaintiff’s bowel and bladder function were normal. That doctor further observed that, from a physical point of view, the plaintiff has made a complete recovery and was able to return to employment.[6] 
  1. [11]
    It is consistently noted in the materials, as was evident in the plaintiff giving evidence, that he struggles and has difficulty in speaking of the incident upon which his claim is based. In addition to the physical consequences of the incident, the plaintiff also claims for a psychological injury and although that is complicated by some historical and background factors that are referred to in the report of Professor Whiteford, dated 23 February 2015,[7]that psychiatrist noted and did not expressly disagree with the diagnosis of the plaintiff’s treating psychiatrist, in the aftermath of this incident, of a post-traumatic stress disorder and concurrent depression.[8] 
  1. [12]
    Professor Whiteford noted a significant past history, identifying a conduct disorder, possibly with concurrent attention deficit hyperactivity disorder and prior episodes of depression.  He identified this as a vulnerability to development of the diagnosed mental disorder following the incident, rather than the incident leading to any aggravation of a previous disorder. He also noted that after the plaintiff had gone to live in Katherine in the Northern Territory, some further mental health problems were experienced, in 2013, but that these were primarily due to relationship and work issues at that time.  The expressed opinion was that as at February 2015, the plaintiff no longer had a mental disorder which could be causally attributed to the incident on 13 April 2011.  He maintains a psychological vulnerability to life stressors but there was no permanent psychiatric impairment attributable to the incident on 13 April 2011, no psychiatric treatment required and no psychiatric impediment to the plaintiff returning to fulltime remunerated employment or as to any restriction on the type of work he can do and no ongoing psychiatric impact on domestic or recreational activities.[9] 
  1. [13]
    Professor Whiteford further observed that the psychiatric symptoms following the incident on 13 April 2011, appeared to have persisted to October 2012 and that it was unclear as to how long the symptoms continued after he relocated to Katherine in the Northern Territory.[10]

Liability

  1. [14]
    The plaintiff’s claim is fundamentally premised upon the contention that he slipped when undertaking the manoeuvre he described in the toilet, due to the presence of water on the sole of his steel-capped work boot and further, that the presence of that water was due to his standing in water that had leaked and remained on the tiled floor in front of the fridge in the office, when he obtained his drink. 
  2. [15]
    In its defence, the defendant had denied that entire sequence of events and denied that the plaintiff had been injured in the way he had pleaded and described in his evidence.  The only pleaded basis for those denials had been in paragraph 8(d) of the defence and in an assertion of the cause of the plaintiff’s injuries being an assault on him, on or about 12 or 13 April 2011, by a person and at a place unknown to the defendant.  However, any such contention was expressly abandoned by the defendant’s counsel, at trial.[11]
  3. [16]
    Accordingly, there effectively remained no explanation for the defendant’s denial of the plaintiff’s contentions and in cross-examination of him, he was not expressly challenged in respect of them, except in respect of what were contended to be prior inconsistent statements made in the investigation of the matter and to some medical practitioners, as to the mechanism of injury.  Apart from one instance where the contention is as to the critical assertion that the mechanism of injury included the slipping of the plaintiff’s footwear due to the presence of water and to which further attention will be focused later in these reasons, it is unnecessary to dwell on the other contented inconsistencies.
  4. [17]
    It suffices to note that they generally were premised upon reliance on recordings by persons who it may be expected were only concerned with obtaining a general rather than forensically detailed explanation from the complainant and then, upon a secondary record of the effect of what had been relayed.  It suffices to observe that in any event, there is an absence of any sufficient indication of any clear inconsistency, as opposed to a record of a less-detailed or less-precisely described sequence of events. 
  5. [18]
    In the circumstances and except in respect of the critical contention that the presence of water on the sole of his footwear and his slipping for that reason being a cause of events resulting in the plaintiff’s injuries (as to which further consideration will follow) and despite the rather extraordinary nature of them, the plaintiff’s evidence as to those circumstances should be accepted.  His explanation provides the only evidence as to how he was injured, and as was the opinion of Dr Cohen, is  consistent with the observations of:
  1. (a)
    external injuries comprising of a perianal hematoma and a 4cm superficial tear at the six o’clock (or posterior) position of the anus and extending along the natal cleft; and
  1. (b)
    the internal injuries being in the anterior anal wall or towards the front of his body and towards and to his bladder, being indicative of an angled entry to the anal canal.[12]

Such indicia are objectively supportive of the plaintiff’s description of falling onto the toilet roll holder.

  1. [19]
    Bearing in mind that the plaintiff was 16 years old at the time and having regard to the nature of the incident and his expressed embarrassment as to it, which on the basis of evidence given to the Court, in conjunction with the realisation of the extent of his injuries, also developed into anxiety in respect of the incident and his obvious distress in giving evidence about it to the Court, it may also be accepted that the plaintiff sought to cover up what had occurred and therefore, cleaned up any obvious indicia of the incident and his bleeding. Further and in these circumstances, it should also be accepted that the rather extraordinary lengths to which the plaintiff went before only disclosing what had occurred, when placed in a position where his explanation was effectively demanded, is also consistent with these considerations, rather than being a reason for doubting the veracity of the plaintiff’s account.
  1. [20]
    It is not in contention that the fridge did leak some water onto the floor, although there is a dispute as to the extent to which it did so.  However, it is common ground that the fact of some leakage of water onto the floor was known and that steps were taken from time to time to mop up the water and mitigation by use of rags and paper towels.  In fact, it was the plaintiff’s evidence that he and others were tasked with doing so, as part of their duties.[13] 
  2. [21]
    On that basis, the plaintiff’s pleaded case is that by reason of a defective seal on the fridge, the leakage of water onto the tiled floor near the fridge was a known consequence and that the presence of water on the tiled floor near the fridge presented a not insignificant foreseeable risk to persons at the premises and that it was reasonable for the defendant to take precautions to avoid the risk, including replacing the defective fridge or the seal or to undertake regular inspections of the tiled floor to ensure water had not leaked from the fridge and/or place a warning sign there and to ensure that the water was immediately removed or to place an absorbent mat or other device upon the tiled floor to ensure that any water that leaked from the fridge would be soaked up, rather than sit and remain on the tiled floor or to place some raised rubber matting near the fridge to prevent the shoes of persons within the premises coming into contact with any water sitting on the tiled floor. 
  1. [22]
    It was not in contention that as his employer, the defendant owed the plaintiff a non-delegable duty to take reasonable measures and adopt means reasonably open to it, to protect the plaintiff from the dangers of his tasks or to take reasonable care to avoid exposing him to unnecessary risks of injury.[14]
  1. [23]
    Accordingly and in those circumstances, the issues to be determined are whether, on the balance of probabilities, the plaintiff has established that the defendant:
  1. (a)
    has breached the duty of care owed to him; and
  1. (b)
    has, thereby, caused him to suffer the injuries for which he seeks damages. 
  1. [24]
    It was not in dispute that the toilet where the plaintiff was injured was available for and expected to be used by employees in the course of their employment, or that it was located in an office area and approximately 6 or 7m from the location of a small fridge, which was also available for the use of the employees, such as to store cool drinks and lunches and therefore, expected to be accessed by employees periodically. Further, it is common ground that it was known to both parties, prior to 13 April 2011, that water would leak from the fridge and onto the tiled floor near it. However, it will be necessary to return to some differences in the evidence as to the extent of the observed leakage.
  1. [25]
    Whilst it was common ground that s 305B and s 305C of the WCRA are to be applied, for the plaintiff, reliance was also placed on the principles expressed in Wyong Shire Council v Shirt[15]and therefore, upon the necessity to consider whether a reasonable person, in the position of the defendant, would have foreseen a risk of injury and if so, as to whether the defendant has failed to act as a reasonable person would have, in response to that risk.  Particular reference was made to the following passage:[16]

“A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.” (citation omitted)

  1. [26]
    In addition, reliance was also placed on the following passage in Chapman v Hearse:[17]

“Whether characterization after the event of its consequences as “reasonable and probable” precisely marks the full range of consequences which, before the event, were "reasonably foreseeable" may be, and no doubt will continue to be, the subject of much debate. But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence.”

  1. [27]
    For each party, it was appropriately recognised that s 305B and 305C of the WCRA are to be applied, in the context of the principles otherwise established at common law.  And it was particularly recognised that the requirement in s 305B(1)(b) and as to a “not insignificant” risk, has effected a departure from the “Shirt formula.”  Those sections provide as follows:

“305B General Principles

  1. (1)
    A person does not breach a duty to take precautions against a risk of injury to a worker unless—
  1. the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  2. the risk was not insignificant; and
  3. in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—

 (a) the probability that the injury would occur if care were not taken;

   (b) the likely seriousness of the injury;

   (c) the burden of taking precautions to avoid the risk of injury.

305C  Other principles

  In a proceeding relating to liability for a breach of duty—

  1. (a)
    the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
  1. (b)
    the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
  1. (c)
    the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.”
  1. [28]
    The application of these sections was considered by Judge Bowskill QC in Rudd v Starbucks Coffee Company (Australia) Pty Ltd,[18]by particular reference to earlier authorities in respect of other equivalent statutory provisions and which included that of the Queensland Court of Appeal in Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd,[19]where it was noted that the critical question is as to whether that injury to the plaintiff was foreseeable, as a not insignificant risk.[20]As to the application of that test in the context of the established common law principle, it was observed:

“The respondent referred to Chesterman J‘s statement in Pollard v Trude[21] that the replacement in s 9(1)(b) of “not insignificant” for the common law formulation of ‘not far-fetched or fanciful’ added little in clarity. Nevertheless, the provision was designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable. I think that it did produce some slight increase in the necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly improbable as to be insignificant, but the obverse proposition may not necessarily be true. The generality of these descriptions makes it difficult to be dogmatic about this, but the statutory language does seem to convey a different shade of meaning. The difference is a subtle one. The increase in the necessary degree of probability is not quantifiable and it might be so minor as to make no difference to the result in most cases. Nevertheless, in deciding claims to which the Act applies the ‘not insignificant’ test must be applied instead of the somewhat less demanding test of ‘not far-fetched or fanciful.’”[22]

  1. [29]
    As also noted by Judge Bowskill QC,[23]similar conclusions have been reached in respect of other equivalent provisions in New South Wales and Victoria.  In addition to specifically noting the observations of Garling J in Benic v State of New South Wales,[24]Her Honour also noted the following observation by Kyrou and Kaye JJA, in Erickson v Bagley:[25]

“…by selecting the phrase ‘not-insignificant,’ the legislature has postulated a test that is more demanding, for a plaintiff, than the common law test, although ‘…not by very much’.  In that way, the statute has sought to ensure that liability is not imposed on a defendant too readily.”

  1. [30]
    However, it is necessary to note that the Victorian legislation in respect of which those observations were direction in Erickson v Bagley, does differ from s 305B, in that s 48 of the Wrongs Act 1958 (Vic) included the following definitional provision for the equivalent provision to s 305B(1)(b):[26]

“ (3) For the purposes of subsection (1)(b)—

  1. (a)
    insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
  1. (b)
    risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.”
  1. [31]
    Notwithstanding that there is no such definitional provision in the WCRA, the position is not distinguishable, particularly in the light of the similar conclusion in Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd and which was reached with the following specific reference to extrinsic material, which may be identified as underlying such common provisions, as have been subsequently legislated:[27]

“The presently relevant passage in the report makes it plain that the expression “not insignificant” was intended to change the effect of the equivalent element in the “Shirt formula”. After adverting to “…a danger that Shirt may be used to justify a conclusion – on the basis that a foreseeable risk was not far-fetched or fanciful – that it was negligent to take precautions to prevent the risk materialising, and to do this without giving due weight to the other elements of the negligence calculus”, the report continued:

“7.15 One suggestion that has been made for dealing with this problem is to modify the formula laid down in Shirt by replacing the phrase ‘not far-fetched or fanciful’ with some phrase indicating a risk that carries a higher degree of probability of harm. … The Panel favours the phrase ‘not insignificant’. The effect of this change would be that a person could be held liable for failure to take precautions against a risk only if the risk was ‘not insignificant’. The phrase ‘not insignificant’ is intended to indicate a risk that is of a higher probability than is indicated by the phrase ‘not far-fetched or fanciful’, but not so high as might be indicated by a phrase such as ‘a substantial risk’. The choice of a double negative is deliberate. We do not intend the phrase to be a synonym for ‘significant. ‘Significant’ is apt to indicate a higher degree of probability than we intend.”” (citation omitted)[28]

  1. [32]
    The defendant also draws specific attention to the observations of McMeekin J in Woolworths Ltd v Perrins,[29]which are to the effect that it is not enough to establish, in the words of McHugh J in Tame,[30]that there has been a “failure to eliminate a risk that was reasonably foreseeable and preventable” and critical to address the question as to whether “the defendant’s failure to eliminate this risk shows a want of reasonable care for the safety of the plaintiff,” as that question is identified in the following passage taken from the judgment of Mason J in Shirt:[31]

“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out, that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”[32]

It is also noted that McMeekin J proceeds to note, in accordance with the observations of Hayne J in Vairy v Wyong Shire Council,[33]the prospective nature of the enquiry, rather than such an enquiry based upon considerations of retrospect or hindsight. 

  1. [33]
    In the application of such principles to the facts of this case, the defendant contends:[34]

“At its highest the risk of injury on the Plaintiff’s case of a slip particularly on tiles that had non-slip qualities where there was a residue of water on the sole of the Plaintiff’s shoes tracked seven metres into the toilet, was insignificant.”

  1. [34]
    For the plaintiff, it was contended that:[35]

“…the relevant risk was the presence of water on the tiled floor near the fridge presented a not insignificant foreseeable risk to the plaintiff that he could suffer injury by coming into contact with that water and slipping on the tiled floor, falling and striking the floor or an object.”

  1. [35]
    In this regard and consistently with the approach of Judge Bowskill QC in Rudd v Starbucks, the plaintiff seeks to rely upon the further observations of the Victorian Court of Appeal in Erickson v Bagley,[36]as follows (noting the relevant identicality of the provisions reflected in s 48(1) and (2) of the Wrongs Act 1958 (Vic), to s 305B (1) and (2) of the WCRA):[37]

“[33] As with the common law, in defining the content of the duty of care, the section focuses on the identification of the risk, its foreseeability, the probability of the risk, and the reasonableness of precautions which are alleged to be required to address that risk. Thus, the first step in the analysis requires the appropriate identification of the risk against which it is alleged that a particular defendant failed to exercise reasonable care. Commonly, the proper identification of the risk can be difficult, if not problematic. Necessarily, the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred. However, the risk, referred to in s 48, is not to be confined to the precise set of circumstances in which the plaintiff was injured. It is well established that, in order that a defendant be held to be negligent, it is not necessary that that defendant should have reasonably foreseen that the particular circumstances, in which the plaintiff was injured, might occur. Rather, what must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred.

[34] The decision of the Court of Appeal of New South Wales in Port Macquarie Hastings Council v Mooney is a useful illustration of the foregoing point.  In that case, the respondent had set out to walk home at sunset from a supermarket.  She proceeded along an unlit gravel footpath, that had been recently completed by the appellant council as a temporary measure, pending construction of a new well-lit path.  After the respondent had walked for some distance, it became very dark.  As she approached a sharp deviation in the path, she strayed from the path, walked for a short distance, and then slipped into a nearby stormwater drain, thereby suffering injury.  In identifying the relevant risk, for the purpose of s 5B of the Civil Liability Act 2002(which is identical to s 48 of the Act), Sackville AJA (with whom Emmett JA and Simpson J agreed) stated:

 ‘The risk of harm that materialised in this case was not, as the primary judge’s formulation perhaps implies, that a pedestrian might become disoriented in complete darkness and fall directly from the edge of the footpath into the stormwater drain.  Nor was the risk of harm simply that a pedestrian unable to follow the path would inadvertently leave the footpath as it deviated sharply near the particular crossover traversing the stormwater drain and suffer injury as a consequence.  The relevant risk of harm created by the construction or completion of a footpath was that in complete darkness a pedestrian might fall and sustain injury by reason of an unexpected hazard on the path itself (such as an unsafe surface or variation in height) or by unwittingly deviating from the path and encountering an unseen hazard (such as loose gravel, sloping surface or a sudden drop in ground level).  The risk of harm created by the construction of the footpath no doubt included the risk that a pedestrian would deviate from the footpath near the crossover and slip on loose gravel on the edge of the stormwater drain.  But the risk of harm created by the construction of the footpath was not confined to the particular hazard that caused the respondent to suffer an injury.’

[35] For the purpose of each of the sub-paragraphs of s 48(1), the Court must consider the question of the foreseeability of the risk, its probability, and the reasonableness of precautions to protect against it, from the viewpoint of the defendant in the circumstances that were known, or ought to have been known, to the defendant. Such an analysis must be prospective, and not retrospective.

[36] Section 48(1)(b) requires a plaintiff to establish that the risk was ‘not insignificant’, as defined by s 48(3).  By selecting the phrase ‘not insignificant’, the legislature has postulated a test that is more demanding, for a plaintiff, than the common law test, although ‘… not by very much’. In that way, the statute has sought to ensure that liability is not imposed on a defendant too readily.” (citations omitted)

  1. [36]
    Ultimately and in application of those principles (and the observations noted above as to the not-insignificant risk test),[38]the Court concluded that the trial judge adopted an approach in defining the relevant risk that was too narrow and further observed:[39]

“The risk, as defined by the judge, was confined to the specific concatenation of circumstances in which the plaintiff was injured.  However, as we have stated, what must be reasonably foreseeable is not the precise set of circumstances in which the hard occurred, but, rather, the type or nature of the event, or harm, that eventuated.”

  1. [37]
    And for the defendant, the Court was referred to Uniting Church in Australia Property Trust (NSW) V Miller; Miller v Lithgow City Council,[40]where the approach taken in Erickson v Bagley (at [33]) was cited with approval.[41]
  1. [38]
    Accordingly and in this instance, the relevant risk is more appropriately that contended for the plaintiff, as the risk of a person coming into contact with the water, by stepping in it and consequently slipping and falling and suffering significant injury by contact with the tiled floor or another object in the vicinity.[42]
  1. [39]
    Such a risk was reasonably foreseeable as a matter of common sense and as much was conceded in the evidence of Mr Bruchez, who gave evidence as an employee of the defendant and a supervisor of the plaintiff on 13 April 2011, and as the rationale for his initiation of an approach and instruction as to the placement of rags or towels under the fridge and periodic mopping, to attempt to stop the spread of the leakage over the floor.[43]
  1. [40]
    Notwithstanding this and the further evidence of Mr Bruchez that after this incident, the leakage of water was resolved with relatively little effort and expense, by arranging for the seal of the fridge to be fixed, the defendant contends that no breach of duty occurred, effectively because the risk of injury was insignificant and in the circumstances, the precautions taken by the employer were not only reasonable but that a reasonable employer, in the defendant’s position, would not have taken the further precautions of repairing or replacing the seal of the fridge and so as to eliminate any leakage of water from it.
  1. [41]
    In support of these contentions, the defendant relied upon the further evidence of Mr Bruchez that the leak from the fridge was minor and was effectively controlled by his initiative as to the placement of rags and towels and that he had not observed any tracking of water from the location and was not aware of any incident of slippage due to the presence of water on the tiled floor.[44]  The defendant also relied upon the evidence of the Workplace Health and Safety Inspector, Mr Huey, who, with the benefit of his experience as a qualified builder, observed the tiles which were commonly present in both the office area and the toilet cubicle, as:[45]

“The type of tile that I identified in the water closet at Protector Aluminium was of a outdoor type tile.  Not necessarily an industrial grade tile but certainly an outdoor tile.  So it’s not the type of tile that I would expect to see in the lounge room of a house where it has nice rounded, smooth finish on it.  It was a traction type tile that would’ve been suitable for being knocked around, having things trolleyed on it.”

And as he proceeded to explain, having run his hand over the surface, with “a pitted” surface, as opposed to “a nice smooth, glossy shiny” surface, as the latter type might be found in many homes.[46]

  1. [42]
    Three observations may be made:
  1. (a)
    the investigation of the tiled surface by Mr Huey, is only of general assistance and there was no evidence as to the actual slipperiness of the tiles with water on the surface of them;
  1. (b)
    the evidence of Mr Bruchez as to the method of control of the leakage was in conflict with the evidence of the plaintiff, who described observing the presence of a significant quantity of water in front of the fridge,[47]which in turn, was consistent with the observations of Mr Huey, when he attended the site on 28 April 2014 (15 days after the incident) and saw water on the tiles extending about 300mm away from the fridge door.  Further and as demonstrated in the photographs he then took, no rags or towels were in situ as any control mechanism and he also thereby confirmed the tracking of wet footprints across the tiled floor near that location;[48]and
  1. (c)
    inconsistently with the qualified tenor of his evidence to the Court, Mr Bruchez had also, on 28 April 2011, confirmed to Mr Huey, his own previous observation of water on the tiled floor and extending approximately 20 to 30cm in front of the fridge.[49]
  1. [43]
    Obviously, the evidence of each witness was as to the particular or discreet observations of the presence of water on the tiled floor and it was not the plaintiff’s case that the water was continually present, to the extent which he described. In particular, this was because he and others would periodically clean it up.[50]  However, it is clear that the evidence given to the Court by Mr Bruchez and as to the effectiveness of the measures adopted up to the time of the incident, in averting any significant spreading of leakage from the fridge, should not be accepted.  Rather, it is appropriate to conclude that the defendant allowed a situation to continue, which sought to address the problem by an inefficient and apparently inconsistent system of the use of rags and towels and periodic mopping up of the moisture and which periodically allowed for water to leak and spread onto the tiled floor to a significant extent and which presented the risk of slippage and not insignificant injury to the plaintiff and other employees,.
  1. [44]
    In respect of the requirements of s 305B of the WCRA:
  1. (a)
    as a matter of common sense and as in fact recognised by Mr Bruchez, the risk of someone slipping and suffering injury having stepped into the water, was foreseeable;
  1. (b)
    such risk and particularly in the environment of a hard tiled floor and other hard objects in the vicinity, was both real and not insignificant; and
  1. (c)
    such that in the circumstances and where such a relatively expedient and inexpensive solution of fixing the seal of the fridge was available, a reasonable employer, in those circumstances, would have taken that precaution.
  1. [45]
    Accordingly, it should be concluded that a breach of the defendant’s duty of care for its employees or a want of reasonable care for the safety of the plaintiff, has been established.
  1. [46]
    However, it remains necessary to consider whether the plaintiff has satisfied s 305D and otherwise proved, on the balance of probabilities, that this breach of duty has caused the injuries for which he claims damages.
  1. [47]
    In this matter, the plaintiff’s case is expressly put upon the basis of satisfaction of the requirements of s 305D(1) and not s 305D(2) and as to s 305D(1)(a), upon the contention that “but for the water that leaked onto the tiled floor from the fridge the plaintiff would not have slipped in the toilet”.[51]
  1. [48]
    However, it is at this point that it should be concluded that the plaintiff’s case fails. This is because s 305D(1)(a) is only satisfied here if it is found that on 13 April 2011:
  1. (a)
    the plaintiff did step in water in front of the fridge; and
  1. (b)
    that he slipped and fell and was injured in the toilet cubicle, due to the remaining presence of at least some of that water on the sole of his boot.[52]

There are significant problems in each contention. 

  1. [49]
    As to the presence of and his stepping into water at the fridge:
  1. (a)
    his evidence-in-chief was:[53]

“All right. So how did you get that drink of water from the fridge?‑‑‑I had walked into the office. I walked up to the fridge. I had opened the door. I squatted down to get my drink, took my drink and put it back and that’s when I shut the door.

All right. And was there any water on the floor at that stage?‑‑‑When I walked into the office there was water. There was – there’s always footsteps that – like dirt marks in there. There’s always shine. There was always water on there.

All right. So where did you place your feet when you grabbed your drink?‑‑‑Just at the start of the fridge.

All right. And after you had your drink you said that you shut the door?‑‑‑Yep.

And what did you do after that?‑‑‑That was when I shut the fridge door and I turned around and walked back into the toilet.

All right. Can I just stop you there. What were you wearing on your feet?‑‑‑Steel-capped boots.

And what condition were they in?‑‑‑They were about a month old.

All right. So you said that you walked toward the toilet, was it?‑‑‑Yeah.

And how far is that?‑‑‑About six metres.”

And therefore, did not contain any express assertion of any realisation that he had, at the time, stepped in water at or near the fridge; and

  1. (b)
    that situation was not assisted under cross-examination, as demonstrated by the following passage:[54]

“And on this day there wasn’t water there to drag along, was there?‑‑‑I do not remember if there was that much water to drag along. Sorry.

You actually don’t know if there was any water at all there on this particular day, did you?‑‑‑There was water there.

Why? Why do you say that?‑‑‑When I walked into the office, someone had actually already – must have been in there and walked through. There were footsteps of water going through the office, so – there’s always wet spots that marked in that office. Like, it’s not just a big line of water that – a perfect line.

That formed your belief that there was water there at the time because you’d seen the footsteps?‑‑‑And this was at 7 o’clock in the morning.

All right?‑‑‑Yeah.

But if you just answer that question, the fact that you saw the footprint or water footprint ‑ ‑ ‑?‑‑‑I did see water in the office.

That ‑ ‑ ‑?‑‑‑There wasn’t – I didn’t see any, as a recollection.[55] It’s not something I noticed. No.

You have no recollection ‑ ‑ ‑?‑‑‑At the fridge.

‑ ‑ ‑ there was any water at the fridge, do you?‑‑‑No, but through the office.

You have made an assumption that there was water there because of the prints that you saw?‑‑‑The footprints that I saw?

Yeah?‑‑‑No, because I didn’t clean it up that morning.

No. But if there had been water there that morning at 7, you would have done it because it’s your job?‑‑‑It’s not my job. It’s – we cleaned it up, but there is water in that office that came from that fridge and I definitely didn’t clean it up the day before.

And you do not know if there was any water under your feet at the time that you tell us that you slipped in the cubicle, do you? As a fact?‑‑‑The floor – I did clean the water up that morning before ‑ ‑ ‑

You did?‑‑‑ ‑ ‑ ‑ the accident did occur.

So ‑ ‑ ‑?‑‑‑But I didn’t clean that water up, no. Not as I first walked in there in the morning and noticed it.

All right. But the question that I ‑ ‑ ‑

HIS HONOUR: I’m sorry?‑‑‑It’s ‑ ‑ ‑

I didn’t understand that?‑‑‑Is – are we talking about the water when I first started work or as I’ve walked in to get a drink?

Well it may be both things. Now ‑ ‑ ‑?‑‑‑Because I’m ‑ ‑ ‑

What I need to understand is what you just sought to explain. When you started work that morning, did you clean up water under the fridge?‑‑‑No.

No. All right. Just wait for Mr O'Driscoll’s next question.

MR O'DRISCOLL: Is that because there was no water there to clean up?‑‑‑I do not recall.

And that’s what I was putting to you previously. You have no recollection at the time of 7 o’clock in the morning that there was water there at the fridge or not ‑ ‑ ‑?‑‑‑No.

‑ ‑ ‑ do you?‑‑‑No.

And at the time – at or about 12.30, which is where you allege this event occurred, you have no independent recollection that there was water pooled under the fridge, do you?‑‑‑It wasn’t pooled, but yes, there was water there.

But the basis of your belief was the print or the track mark of the boot through the office?‑‑‑That was when I first started in the morning, yes.

Okay. So what’s the basis of your belief that there was water there at the time you were at the fridge?

HIS HONOUR: When you had the drink.

MR O'DRISCOLL: When you had the drink?‑‑‑Yes, I did open it, and yes, there was water there.

Okay?‑‑‑Yes, I did have my feet obviously in it at the bottom of the fridge.

HIS HONOUR: So you saw it at the time?‑‑‑Yes, I did, and there was water steps and that’s where I’m saying it led. The water steps between the office and the fridge.

MR O'DRISCOLL: There were water steps between the office and the fridge?‑‑‑Yes.

Okay. And can you tell us how much water that was there? Was there enough – as we spoke about earlier, if you stamp your foot down, water droplets, or was there a small amount on the tile?‑‑‑It only ever filled, like, half those tiles up.

It would only ever fill half the tiles up?‑‑‑It was only ever – it was only half out on that diagram – on that photo of those tiles. It only ever really came out halfway.

Because there was such a slow leak of it?‑‑‑There was enough of a morning, though. Like, the leak wasn’t that slow that of a morning – there was a fair amount of water there of a morning, because obviously no one’s there from 3 in the afternoon to 7 the next morning, so there was a fair amount of water there.”

  1. [50]
    Further and as to the mechanism of his fall in the toilet cubicle:
  1. (a)
    the plaintiff’s evidence-in-chief was:[56]

“Okay. All right. Perhaps if they could be returned. What did you do when you went to the – when you got to the toilet?‑‑‑I had walked into the toilet and that was when I just shut the door behind me and sat down on the toilet. I put my pants around my ankles and that was when I sat at the toilet.

Okay. And once you finished on the toilet what did you do?‑‑‑That was when I had shuffled up a little bit. I stood up and there was toilet paper on the sink and I had grabbed that and that was when I just went to take a little step back and I had slipped and my feet hit the wall and ‑ ‑ ‑

All right. Can I just pause there. The sink where the toilet paper was, where was it in relation to you?‑‑‑What was that, sorry?

Where was the sink within that toilet?‑‑‑Just in front of me, on to your right as you’re sitting on the toilet.

And you said that as you shuffled back from the sink that you slipped. Can you describe that in any more detail?‑‑‑I just slipped and that was when I fell on an angle and my feet had hit the wall and that was when I dropped the toilet paper and my back had hit the wall and I had grabbed the toilet seat on the way down.

All right. You said that your back hit the wall. Which wall was that?‑‑‑My shoulder first and then I straightened up. It was the wall to the left of the toilet.

As you’re sitting on the toilet the wall ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ on your left?‑‑‑Yes.

That’s right. So you said your shoulder. Which shoulder hit the wall?‑‑‑My left.

Your left shoulder and then you said that your back ‑ ‑ ‑?‑‑‑It was just when I straightened up.

Okay. And where were your feet at that stage?‑‑‑My feet had hit the wall.

Which wall?‑‑‑Opposite me.

Okay. And what happened to you after your back had hit the wall?‑‑‑I had slid. As I did slip I was already falling as my feet were going towards the wall and that was when I had tried to grip my hand onto the wall and then I grabbed the toilet seat and that was when it had hit my balls – in between my balls and my anus.”

  1. (b)
    when pressed for further detail in cross-examination, there was the following:[57]

“Okay. So it’s about six or seven metres from where the fridge was to where the toilet was?‑‑‑Yes.

So you would have needed as many strides to get to that point?‑‑‑Multiple people – well, three different people – sorry. Two different people walking in that office that day, yes.

No. From the time you left the fridge to the toilet’s about six or seven metres?‑‑‑Yes.

So on your version, you’ve stood in some water that was there?‑‑‑Yes.

And you’ve walked from the fridge to the toilet?‑‑‑Yes.

Did you – what’s your normal stride? Do you take small steps, long steps, medium steps?‑‑‑Just medium steps.

And ‑ ‑ ‑?‑‑‑I’m a fast walker.

Did you notice any difficulty with your stride? That is, when you were stepping, that there was any water or slipperiness underneath ‑ ‑ ‑?‑‑‑Did I slip over? Did I slip over? No. I didn’t slip over from there.

HIS HONOUR: No. That’s not the question you were asked. You were asked whether you noticed any difficulty in walking?‑‑‑No. I didn’t.

MR O'DRISCOLL: And were you carrying on a normal stride? That is, your right, left, left, right?‑‑‑Just normal. Right, left.

And when – how do you walk? Heel first, or ‑ ‑ ‑?‑‑‑Heel first.

Heel first. No difficulties with whatever water you allege was underneath the bottom of your shoes when it struck the tiles?‑‑‑No.

Stride by stride?‑‑‑No. I did not slide at all.

Yet it become terribly slippery when you were shuffling backwards and forwards or backwards in the toilet?‑‑‑I didn’t – it wasn’t slippery when I was shuffling, no.

It was – not shuffling forward. I understand your story, but shuffling backwards?‑‑‑Shuffling backwards was when I must have, from my recollection, putting my heel first, shuffling ‑ ‑ ‑

So a heel-first shuffle. Can you tell us how you do that?‑‑‑Well, normally shuffling I would just shuffle and drag my feet. If I did take, like, a little step and slip my heel.

Okay. But it’s not three feet from the toilet cubicle to where the toilet paper is resting on the basin at the side, is it?‑‑‑Sorry. Can you repeat that?

It is not three feet from where the toilet cistern is to the basin on the side, is it?‑‑‑I thought it was a couple of feet, yeah.

Okay. Well, how many shuffles is there within whatever distance it is from where you are on the toilet doing your business – I’d imagine you’ve completed. No toilet paper. Can’t get the stuff that’s next to me. I need to go forward. How many shuffles?‑‑‑By the time I stood up and shuffled forward was probably once or twice I shuffled.

Okay. Once or twice. So one or two shuffles, and can you give us an estimate as to what you mean by a shuffle? For example, does your feet remain in contact with the floor? It’s not a step, or is it a small step? Can you give us a bit more detail?‑‑‑It’s not, I didn’t like, step,[58] but I didn’t drag my feet, no.

Okay. You had your pants around your ankles?‑‑‑Yes.

What pair of pants were you wearing? Were they short pants or long pants?‑‑‑They were board shorts.

Board shorts?‑‑‑Yes.

And how long? Did they go down to your knees or beyond?‑‑‑About my knees. Just above my knees.

So whatever movement you’re able to carry out is going to be complicated by the pants being around your ankles. You can’t take a significant step?‑‑‑They were stretchy boardies, though. I could probably take a big enough step if I had to.

But you didn’t have to. You shuffled?‑‑‑Yes, I shuffled.

One or two steps – one or two shuffles?‑‑‑Yep.

My apologies. And with the shuffle, how far do you go? Is it no more than a couple of inches?‑‑‑It – yeah. It’s not that far. Like, it’s ‑ ‑ ‑

So a couple of inches per shuffle?‑‑‑Yeah.

Of the one or two that you did?‑‑‑Yeah.

And no difficulties with any slipperiness between your shoes and the floor?‑‑‑No, not at that time, sorry.

Okay. So if you are one or two shuffles of one or two inches, at its highest, your four inches or so from wherever you were on the toilet?‑‑‑Yeah, I think so.

You stand up?‑‑‑Yes, I did.

You need to wipe your bottom, toilet paper’s there, you move forward slightly?‑‑‑Yeah.

Cistern or toilet bowl is directly behind you?‑‑‑Probably would’ve been just on a bit of an angle as I was sitting up – standing up, sorry.

A bit of an angle as you were standing up. Why did you do that?‑‑‑I – I don’t know why – why I might’ve been on a bit of an angle.

You might’ve been on a bit of angle?‑‑‑I said I don’t know why.

Don’t make this up, Mr Oxenham. If you have a recollection, tell us. And if you don’t have a recollection, tell us, “I don’t know”?‑‑‑I don’t know.

You don’t know. You picked up the toilet paper?‑‑‑Yeah.

And you shuffled the one or two shuffles back of one or two inches?‑‑‑Yes.

And with the shuffles that were going backwards, how did you effect that manoeuvre: was that a dragging of your feet?‑‑‑Can’t remember.

Or a – or a short step backwards?‑‑‑I can’t remember.

Or a similar manoeuvre to what you’ve ‑ ‑ ‑?‑‑‑It was just I’ve stood up and I – I grabbed it and, yeah, I took a slight step back just to sit back down.

Didn’t fall over the board shorts that were around your ankles?‑‑‑No.

How do you know you slipped?‑‑‑Because I felt ‑ ‑ ‑

What was the?‑‑‑ ‑ ‑ ‑ my foot slip, like, slip – slip. Not – not just go trip. It was slip.

Okay. Well, you’ve got your pants around your ankles. You’ve shuffled forward with no problem and no slipperiness. You’re then shuffling backwards a short distance. Did you move with your right or your left foot firstly?‑‑‑My right.

Your right foot firstly?‑‑‑Yes.

And when you’re shuffling back, how are you doing it? Is you’re – are you lifting up your heel and dragging your leg backwards?‑‑‑I can’t remember if I – if I lifted up my heel. It was only a slight step with my right foot back.

A slight step with your right foot back?‑‑‑It wasn’t a big step.

You’ve only gone forward four inches so far on your version or so, so the same distance back. You accept the same distance back? You moved forward, you go back the same distance. It’s not a trick question?‑‑‑Yes.

And then you’ve moved with your left foot?‑‑‑And then that was when I brought my left foot back but it was when I took my right step that I slipped.

So when you took your left foot back it was okay?‑‑‑My ‑ ‑ ‑

You took ‑ ‑ ‑?‑‑‑My right foot, sorry. Like, when I brought my right foot back was my first step.

You – so you slipped on the first step backwards?‑‑‑It’s my first step that I put my foot back and then as I brought my left foot back was when I slipped and that was my ‑ ‑ ‑

Okay?‑‑‑ ‑ ‑ ‑ right foot there as I picked my foot up.

Okay. Slipped on your right foot. I’m just struggling, Mr Oxenham, that if you are then in front of the toilet, four inches there, why you just didn’t hit the toilet that’s directly behind you?‑‑‑I don’t know.

We weren’t there. You were the only one that was there?‑‑‑It’s four years ago.”

  1. [51]
    In this context and where the plaintiff confronts the obvious possibility that there was some other explanation for his fall, not involving the presence of water emanating from the fridge on his boot, particularly in the movements he described as occurring in the toilet cubicle with his pants around his ankles, some appearance of reconstruction of events and particularly as to the asserted role of the presence of water on the sole of the boot, is evident. And, such a conclusion is also indicated by what he said to Mr Huey, when interviewed by him on 17 May 2011, as follows and when asked to explain how he sustained injury in the toilet cubicle:[59]

“I was left – Jenny was on holidays for two days and I was left with a couple of jobs, and Paul had to duck out for half an hour to the other factory to do some paperwork and get some supplies and I was left with two jobs.  I had – Paul had left and I did those.  I did one job.  And after I had finished the job, I went into the office where the fridge and freezer was.  And there with – the fridge – freezer and fridge door doesn’t shut properly.  It’s just a single door for the freezer and fridge and the freezer leaks water out from where it’s been – where it’s been defrost.  And I had walked in and there’s water on the ground and I’ve walked in to get a drink and I must’ve walked – and I must’ve walked into the water.  Well, I had walked into the water.”

And it may be noted that in cross-examination as to the concluding part of that statement, there were the following answers:[60]

“Do you remember saying that?‑‑‑I do not remember saying that to him, no.

I’ll put it to you that you did?‑‑‑No.  I’ve read it.

And at that stage you were uncertain as to whether or not you had walked into the water or not?‑‑‑Yep. 

You were uncertain, weren’t you, whether you had walked into the water or not?‑‑‑It was when I saw the water in the office that I presumed I ‑ ‑ ‑

Yeah?‑‑‑ ‑ ‑ ‑ must have walked into it.

You presumed that you must have walked into it.  And that gave some explanation for how you slipped in the cubicle, didn’t it?‑‑‑Yes, yes.

You couldn’t otherwise work out how you could’ve slipped.  It must have been the water?‑‑‑Yes, it must’ve been the water I slipped – walked in, yes.

Yeah.  But you do not know that for a fact?‑‑‑About the water at the fridge or in the office?

No, that you slipped on the water.  That it was the water that – on – underneath your boot that caused you to slip in the cubicle?‑‑‑I know that was a fact, that I slipped, yes.”

  1. [52]
    In the circumstances, it is not simply a matter of acceptance of the plaintiff’s evidence of his sense of his boot slipping on the tiled surface, rather than tripping over his clothes. It would be necessary to find that any such slipping of his boot was due, in some material way, to the remaining presence of water that had been collected near the fridge, on the sole of the boot. The plaintiff’s concessions that he had not noticed any sense of his relatively new boots slipping on the tiled surface, as he traversed the distance of approximately 6m to the toilet cubicle, before he used the toilet and then commenced the critical manoeuvres, underlines the inherent improbability of that explanation. In the circumstances, that contention is not established as being more probable than not and it should not be found that but for the plaintiff stepping in any water that was near the fridge, he would not have fallen and injured himself in the toilet cubicle and therefore, the plaintiff has not established factual causation, as required by s 305D(1)(a) of the WCRA.
  1. [53]
    Although and in the light of that finding it is strictly unnecessary to do so, it should be noted that it would otherwise have been concluded that the plaintiff had satisfied the scope of liability test contemplated by s 305D(1)(b) of the WCRA. It suffices to observe that it would have been concluded that this requirement was satisfied in accordance with the following submission for the plaintiff:[61]

“[80] On the premise that the court finds that that there was a foreseeable, not insignificant risk of harm that could have been avoided by the taking of reasonable precautions, and having found that factual causation is established, it is submitted the court would be satisfied that the scope of liability contemplated by subsection 305D(1)(b) of the WCRA is also satisfied.

[81] The “injury so caused” as that term is used in subsection 305D(1)(b) of the WCRA comprised both external and internal injuries resultant from the Plaintiff slipping and falling onto an object. That is a materialisation of the precise risk asserted by the Plaintiff. The factual link between the breach and the injury could not be said to be tenuous. The result created by finding the scope of liability to be satisfied could not be said to be absurd or unjust or unacceptable. It does not fit within the examples stated by the New South Wales Court of Appeal or the High Court in Wallace v Kam which warrant a non-extension of the scope of liability.”[62]

Quantum

  1. [54]
    Accordingly, the following assessment proceeds upon an assumption that the plaintiff had succeeded in establishing liability for the consequences of the incident in the toilet cubicle, on 13 April 2011 (“the incident”).
  1. [55]
    As has been noted, the plaintiff was born on 10 January 1995. He was 16 years old at the time of injury and was 20 years old at the time of trial. On 13 April 2011, he sustained a 3cm diameter full thickness defect in his anterior rectal wall, 5cms from the anal verge and communicating with his bladder. Further, there was perianal haematoma, a 4cm superficial tear extending posteriorly along the natal cleft and blood clots found in his rectum.[63]
  1. [56]
    On 14 April 2011, he underwent surgical repair of the bladder and a transanal repair of the rectal laceration and thereafter, required a defunctioning sigmoid colostomy. There was a further surgical procedure for the removal of ureteric stents and change of his catheter, on 21 April 2011[64]and a further procedure on 5 May 2011, for change of his indwelling catheter and the insertion of a peripherally inserted central catheter (“PICC Line”), due to a urinary tract infection.  Further review, by way of cystograms and “trial of void”, occurred on 26 May 2011 and the plaintiff was discharged from hospital on 27 May 2011.[65]
  1. [57]
    Thereafter:
  1. (a)
    the PICC Line remained in situ, until approximately June 2011;[66]
  1. (b)
    the colostomy was removed after a period approaching 6 months, on 4 October 2011;[67]
  1. (c)
    against the background of an adolescent conduct disorder that had affected the plaintiff’s schooling, he sustained a post-traumatic stress disorder, as a result of the incident, with symptoms lasting approximately 2 years[68]but and in the opinion of Dr Whiteford, there is no ongoing psychiatric difficulty likely to affect the plaintiff embracing life and working into the future;[69]and
  1. (d)
    the plaintiff has been left with some abdominal scarring, as viewed by the Court.
  1. [58]
    The plaintiff described no ongoing difficulty in bowel function but did describe some experience of abdominal pain:
  1. (a)
    on one occasion and transiently, as he was dragging a jet ski across sand; and
  1. (b)
    on only one further occasion, when medical treatment was sought at the Katherine Hospital, on 14 May 2013 and in respect of pain along his scar line, but which resolved without any medical intervention.[70]

General damages

  1. [59]
    As contended for the plaintiff,[71]his bowel injury should be regarded as the dominant injury for the purpose of ascribing an injury scale value (“ISV”) pursuant to the Workers’ Compensation and Rehabilitation Regulation 2014 (“the WCRR”). It is further contended that an ISV of 13 is appropriate, having regard to:
  1. (a)
    Item 72 of the WCRR, which ascribes an ISV range of 7 to 18 for a moderate bowel injury and having regard to the examples as to the types of injuries falling towards the lower and upper ends of that range. It is contended that the plaintiff’s bowel injury falls somewhere towards the middle;
  1. (b)
    Item 77 of the WCRR, which provides an ISV range of 3 to 6 for a minor bladder injury, which in the plaintiff’s case was an injury that essentially resolved;
  1. (c)
    Item 13 of the WCRR, which provides an ISV range of 0 to 1 for a minor mental disorder; and
  1. (d)
    Item 154.3 of the WCRR, which provides an ISV range of 4 to 8 for moderate scarring.
  1. [60]
    The defendant did not raise any particular contention as to the plaintiff’s reference to these items and also contended for an assessment under Item 72 as the dominant injury, but contended for a range of 10 to 13. In the circumstances and particularly having regard to the length of hospitalisation and additional procedures in respect of the catheterisation of the plaintiff and the requirements of Part 2 of Schedule 8 of the WCRR(and particularly s 3) in the assessment of a ISV for multiple injuries, the submission for the plaintiff that “an ISV of 13 for the dominant injury, is adequate to reflect the impact of the multiple injuries”, should be accepted.  Accordingly, general damages are assessed in the sum of $17,900.

Other heads of damage

  1. [61]
    As to the other heads of damage:
  1. (a)
    the sum for out of pocket expenses was agreed at $5,893.22;[72]
  1. (b)
    the Fox v Woodcomponent was agreed at $454; and
  1. (c)
    it was expressly conceded for the plaintiff that the pleaded claim for future expenses was not made out on the evidence.[73]
  1. [62]
    In addition, it was common ground that the amount of the refund repayable to WorkCover, is $15,247.55.

Economic loss

  1. [63]
    Accordingly, the only remaining issues are as to any allowances for past and future economic loss and any consequential allowances for superannuation and interest.
  1. [64]
    As to the plaintiff’s employment:
  1. (a)
    in his 3 full weeks of employment with the defendant prior to the incident, his net earnings totalled $1,132 or approximately $375 net per week; and
  1. (b)
    he ultimately returned to employment, upon obtaining a labouring job with Ultimate Spray Pty Ltd, on 19 July 2012 and had found that he was able to cope with the requirements of that position and was, at the time of trial, earning approximately $530 net per week.
  1. [65]
    The plaintiff’s claim for past economic loss is pursued on the uncontested basis that:
  1. (a)
    after his hospitalisation, he was first restricted as to employment by his colostomy and after removal of that by being restricted to not lifting more than 10-15kgs;[74]and
  1. (b)
    otherwise, he was likely to have continued in the employment of the defendant at the net rate of $375 per week.
  1. [66]
    Although there were differences in approach to the calculation, the appropriate award is for 66 weeks at $375 per week, or $24,750. Again and despite there being variations as to approach, the calculation of interest on that sum made for the plaintiff, at $712.72, is the appropriate award.[75]  And the defendant conceded an amount of $2,250 for past loss of superannuation contributions. 
  1. [67]
    The plaintiff’s claim for future economic loss is entirely premised on the possibility that, in the future, the plaintiff may suffer incisional herniae or bowel obstruction secondary to adhesions resulting from his injury and the surgical treatment of it. It is pointed out that at the age of 20, he is facing a substantial working life. The contention is that he will suffer loss, if he experiences herniation or bowel obstruction in the future and as a consequence, requires time away from work for medical treatment and recuperation. In addition, it was contended that “a relapse in his mental state, secondary thereto, could prolong any absence from the workforce”.[76]
  1. [68]
    Although such prospects of physical complications were identified in the report of Dr Al-Timimi to Dr Welsh,[77]the plaintiff particularly relies upon the evidence of Dr Cohen in respect of the identified risks[78]and an application of the principle discussed, as follows, in Malec v JC Hutton Pty Ltd:[79]

“…questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”

  1. [69]
    For the plaintiff, it was contended that although the chances of future hernia or bowel obstruction may each be regarded as relatively low, some allowance should be made because and contrary to the submission for the defendant, the chances cannot be dismissed as being speculative, in the sense discussed above. It was contended that, in accordance with s 306J of the WCRA, a global sum should be allowed and, having regard to the facts, that the plaintiff was currently earning $530 net per week and confronting a further working life of some 47 years.  The submission was for an allowance of $50,000 and in addition, loss of superannuation contributions at 9.5% or $4,750. 
  1. [70]
    The defendant accepted that an allowance of the type sought was permitted by s 306J[80]but rather, contended that the plaintiff has established “no more than a mere possibility that there will be any medical complication in the future” and correctly points out that the effect of Dr Cohen’s evidence is that there cannot be specification of “a timeframe within which there may be a complication, how bad that complication may be, what treatment it may require and what effects it may have on the plaintiff.”[81]
  1. [71]
    However and notwithstanding that correct overview of the effect of the evidence relied upon by the plaintiff, it is nevertheless necessary to note that Dr Cohen otherwise noted each concern as a distinct possibility and his response, as follows, in re-examination is more supportive of the need for some assessment, rather than a conclusion of insignificance to an extent that the risks ought to be disregarded, or be concluded as speculativein the sense discussed in Malec v JC Hutton Pty Ltd:[82]

“Thank you, Doctor.  And in any event, whilst the risk remains present, it may not in fact occur at all?‑‑‑That’s correct.

And any analysis that it may occur is really speculation?‑‑‑It’s speculation.  It’s on probabilities.  If someone has had major abdominal surgery as he had, there is a chance that he may have developed adhesions and therefore may run into the sorts of trouble we’re talking about, but he may not.”

  1. [72]
    Therefore, the contentions of the defendant go to the assessment of the degree of probability of the future loss of some earning capacity of the plaintiff. Whilst the evidence establishes the possibility that no such risk may eventuate, the evidence also identifies the risk of temporary, but not insignificant loss of earning capacity and therefore, financial loss in respect of each possible future complication and the possibility that there may be more than one such occurrence.[83]For instance, Dr Cohen indicated a prospect of 6-8 weeks for recuperation from a hernia repair[84]and the prospect of recuperation from surgery for any bowel obstruction, which would depend on the extent of any requisite surgery.[85]
  1. [73]
    In the circumstances and notwithstanding the merely general assistance provided in the evidence, the court should make some assessment of the, albeit low, probability of such loss being occasioned. Whilst the plaintiff draws attention to the award in Rudd v Starbucks Coffee Company (Australia) Pty Ltd,[86]there is only limited assistance to be gained, because of the different nature of the considerations affecting that assessment.
  1. [74]
    The evidence of Dr Cohen identifies that if the risks do eventuate and although what might occur depends on contingencies, there is the prospect of some significant interruption of the plaintiff’s earning capacity for weeks or months at a time, for full recuperation and particularly if surgical intervention is required. However, the plaintiff’s reliance on the concessions made by Dr Whiteford as to the possibility of any recovery being complicated and extended by psychological sequellae, is more problematic and additionally, dependant on the plaintiff making a “psychological connection to the original trauma” and then dependant on “the extent of his reaction and the emergence of the anxiety symptoms and then their duration”. Any such occurrence may be expected to be transient and also expected to last for only weeks to months. [87]As Dr Whiteford summarised, in re-examination:[88]

If – if there is a – a – an – a – an injury, or a medical event, or a trauma that is, as I said, psychologically associated with the injury in April 2011 then the likelihood of re-experiencing some psychological symptoms of a PTSD type are likely even though the duration is likely to be transient.

And less than what he experienced previously?‑‑‑And – and less severe than experienced previously, yes.

The risk of extension of any recovery and interruption of future earning capacity, due to psychological complication, ought be disregarded as relevantly too insignificant or speculative.

  1. [75]
    In the present matter and particularly noting that the exercise is in the valuing of a prospective loss, which might occur sometime over a substantial period into the future and at a lump sum present value, a modest award only is warranted. An allowance of $10,000 (including for loss of superannuation contributions) would be appropriate.
  1. [76]
    Accordingly, a summary of this assessment of the damages that would have been awarded, had the plaintiff established liability, is as follows:
  1. (a)
    General damages       17,900.00
  1. (b)
    Past economic loss      24,750.00
  1. (c)
    Interest on past economic loss     712.72
  1. (d)
    Past superannuation       2,250.00
  1. (e)
    Future economic loss (including superannuation)   10,000.00
  1. (f)
    Out of pocket expenses      5,893.22
  1. (g)
    Fox v Woodcomponent     ___454.00
  1. (h)
    Sub-total       $61,959.94
  1. (i)
    Less refund to WorkCover      15,247.55
  1. (j)
    Total        $46,712.29

Conclusion

  1. [77]
    Accordingly, the judgment is for the defendant, and the Court will further hear the parties in respect of costs.

Footnotes

[1]  T1-30.21-35.

[2]  T1-30.37-38.

[3]  See Ex 1, Tab 5, at p 12.

[4]   He marked the location on Ex 1, at Tab 5 p 10.

[5]  Ex. 1, Tab 1, Report of Dr Cohen, at p 16.

[6]  Ex. 1, Tab 1, Report of Dr Cohen, at [9].

[7]  Ex. 1, Tab 1, Report of Prof Whiteford, p 7-8.

[8]  Ibid, at p 11.

[9]  Ibid, at p 13.

[10]  Ibid, at p 12.

[11]  T1-74.15-20.

[12]  T2-17.32 – T2-19.40.

[13]  T1-27.25-43 at 1-50.29-51.2.

[14]  See: Vozza v Tooth & Co Ltd (1964) 112 CLR 316, at [318]; Czatyrko v Edith Cowan University (2005) 79 ALJR 839, at [12] and cf: s 305 of the WCRA, definition of “duty”.

[15]  (1980) 146 CLR 40.

[16]  Ibid, at 47-48 per Mason J.

[17]  (1961) 106 CLR 112, at 120-121.

[18]  [2015] QDC 232.

[19]  [2013] 1 Qd R 319.

[20]  Ibid at [26]-[29]

[21]  [2008] QSC 119, at [39].

[22]  [2013] 1 Qd R 319, at [26].

[23]  [2015] QDC 232, at [183]-[184].

[24]  [2010] NSWSC 1039, at [96]-[101].

[25]  [2015] VSCA 220, at [36].

[26] Erickson v Bagley [2015] VSCA 220, at [35].

[27]  “Final report of the review of the law of negligence”, D Ipp, P Cane, D Sheldon, I Macintosh, Treasury Department, Commonwealth of Australia, October 2002.

[28] Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2013] 1 Qd R 319, at [25]. It may be noted that these observations were made in reference to equivalent provisions in the Civil Liability Act 2003, which were noted in the Explanatory Memorandum for the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2010 and which in respect of the introduction of provisions including s 305B and which noted that s 305B was “modelled on similar provisions in the Civil Liability Act 2003”.

[29]  [2015] QCA 207, at [149]-[150].

[30] Tame v New South Wales (2002) 222 CLR 49, at [99].

[31]  (1980) 146 CLR 40, at 47-48.

[32]  To similar effect, reference was also made to Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, at [61] and Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250, at [178]-[182].

[33] (2005) 223 CLR 422, at [124] and following.

[34]  Defendant’s further submissions, dated 11/11/15, at p 7.

[35]  Plaintiff’s written submissions, at [30].

[36]  [2015] VSCA 220.

[37]  Ibid, at [33]-[36].

[38] ­ See paragraph [29], above.

[39] ­ Ibid, at [40].

[40]  [2015] NSWCA 320, at [100]-[129].

[41]  Ibid at [118].

[42]  See: plaintiff’s written submissions, at [66]-[67].

[43]  T2-40.8 – 2-42.1-15.

[44]  T2-29.30-2-32.5.

[45]  T1-98.15-20.

[46]  T1-98.14-43.

[47]  T1-53.9-20.

[48]  See: Ex. 1, Tab 5.

[49]  T2-34.22-2-40.23.

[50]  T1-50.25-T1-51.10.

[51]  See: plaintiff’s written submissions, at [74]-[77] and cf: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, at 440.

[52]  Questions as to proof of causation are to be approached as a matter of common sense: March v Stramere (1991) 171 CLR 515, at 522-523 and although and as discussed in Cross v Moreton Bay Regional Council [2013] QSC 215, proof of material contribution may suffice, proof of the fact of such contribution is necessary.

[53]  T1-29.11-34.

[54]  T1-51.10-1-53.20.

[55]  Although the word “any” is recorded as “[indistinct]” in the transcript, this is confirmed on listening to the audio recording.

[56]  T1-30.16-1-31.8.

[57]  T1-53.20-1-56.45.

[58]  Although the words “I didn’t” are recorded as “[indistinct]” in the transcript, this is confirmed on listening to the audio recording.             

[59]  See: Ex. 6 and transcript Marked “A”, at p 15.15-24.

[60]  T1-65.14-37.

[61]  Plaintiff’s outline of submissions, at [80]-[81].

[62]  The reference to Wallace v Kam, is particularly to the judgment of Allsop P: [2012] NSWCA 82, at [12]-[27] and the dismissal of appeal by the High Court: [2013] HCA 19.

[63]  Ex. 3, Operation Report, dated 14/4/11.

[64]  Ex. 3, Operation Report, dated 21/4/11.

[65]  Ex. 3, Discharge Summary, dated 27/5/11.

[66]  Ex. 3, Report of Dr Russell to Dr Welsh, dated 28/6/11.

[67]  Ex. 3, Discharge Summary, dated 4/10/11.

[68]  Ex. 2, Doc 2.3 at pp 23-29; Report of Dr Cash, dated 17/2/12.

[69]  Ex. 1, Doc 1.1, p 13.

[70]  Ex. 1, Doc 2.2 pp 10-15; Katherine Hospital Records

[71]  See: plaintiff’s submissions, at [91] and T2-19.44 – 2-20.15.

[72]  See: Ex. 4 and T1-84.1-12

[73]  See: plaintiff’s written submissions, at [116].

[74]  Ex. 3, Report of Dr Martin to Dr Welsh, dated 7/3/12.

[75]  Particularly as to compliance with the requirements of s 306M(3) of the WCRA.

[76]  Plaintiff’s written submissions, at [106].

[77]  See: Ex. 3.

[78]  T2-21.20 – 2-26.15.

[79]  (1990) 169 CLR 638, at 643.

[80]  See: defendant’s further submissions at [27]-[30] and the references to Brooks v Zammit & Anor [2011] QSC 181 and Perfect v MacDonald [2012] QSC 11, at [46]-[51], as decisions upon an analogous provision in s 55 of the Civil Liability Act 2003. For the plaintiff there was also reference to Vowles v Osgood & Anor [2012] QSC 82, at [55]-[56] and Allianz Australia Insurance Limited v McCarthy [2012] QCA 312. 

[81]  Ibid, at [31]-[32].

[82]  T2-26.9-15.

[83]  Plaintiff’s written submissions, at [106].

[84]  T2-22.44 – 2-23.5.

[85]  T2-23.13 – 2-25.17

[86]  Plaintiff’s written submissions, at [111].

[87]  T3-6.10-36.

[88]  T3-7.45 – 3-8.5.

Close

Editorial Notes

  • Published Case Name:

    Oxenham v Protector Aluminium P/L

  • Shortened Case Name:

    Oxenham v Protector Aluminium Pty Ltd

  • MNC:

    [2016] QDC 312

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    02 Dec 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
1 citation
Jump To
Cite 1 - (2009) 239 CLR 420
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
1 citation
Jump To
Cite 1 - [2012] QCA 312
Benic v New South Wales [2010] NSW SC 1039
2 citations
Jump To
Cite 1 - [2010] NSW SC 1039
Cite 2 - [2010] NSW SC 1039
Brooks v Zammit [2011] QSC 181
1 citation
Jump To
Cite 1 - [2011] QSC 181
Chapman v Hearse (1961) 106 C.L.R., 112
2 citations
Jump To
Cite 1 - (1961) 106 C.L.R., 112
Cite 2 - (1961) 106 C.L.R., 112
Cross v Moreton Bay Regional Council [2013] QSC 215
1 citation
Jump To
Cite 1 - [2013] QSC 215
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
1 citation
Jump To
Cite 1 - (2005) 79 ALJR 839
Erickson v Bagley (2015) VSCA 220
5 citations
Jump To
Cite 1 - (2015) VSCA 220
Cite 2 - (2015) VSCA 220
Cite 3 - (2015) VSCA 220
Cite 4 - (2015) VSCA 220
Cite 5 - (2015) VSCA 220
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
2 citations
Jump To
Cite 1 - (1990) 169 CLR 638
Cite 2 - (1990) 169 CLR 638
March v Stramere (1991) 171 CLR 515
1 citation
Jump To
Cite 1 - (1991) 171 CLR 515
Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd[2013] 1 Qd R 319; [2012] QCA 315
5 citations
Jump To
Cite 1 - [2013] 1 Qd R 319
Cite 2 - [2013] 1 Qd R 319
Cite 3 - [2013] 1 Qd R 319
Cite 4 - [2013] 1 Qd R 319
Cite 5 - [2013] 1 Qd R 319
Perfect v MacDonald [2012] QSC 11
1 citation
Jump To
Cite 1 - [2012] QSC 11
Pollard v Trude [2008] QSC 119
2 citations
Jump To
Cite 1 - [2008] QSC 119
Cite 2 - [2008] QSC 119
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
1 citation
Jump To
Cite 1 - (2007) 234 CLR 330
Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232
3 citations
Jump To
Cite 1 - [2015] QDC 232
Cite 2 - [2015] QDC 232
Cite 3 - [2015] QDC 232
Tame v New South Wales (2002) 222 CLR 49
1 citation
Jump To
Cite 1 - (2002) 222 CLR 49
Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320
2 citations
Jump To
Cite 1 - [2015] NSWCA 320
Cite 2 - [2015] NSWCA 320
Vairy v Wyong Shire Council (2005) 223 CLR 422
2 citations
Jump To
Cite 1 - (2005) 223 CLR 422
Cite 2 - (2005) 223 CLR 422
Vowles v Osgood [2012] QSC 82
1 citation
Jump To
Cite 1 - [2012] QSC 82
Vozza v Tooth & Co Ltd (1964) 112 C.L.R 316
1 citation
Jump To
Cite 1 - (1964) 112 C.L.R 316
Wallace v Kam [2013] HCA 19
1 citation
Jump To
Cite 1 - [2013] HCA 19
Wallace v Kam [2012] NSWCA 82
1 citation
Jump To
Cite 1 - [2012] NSWCA 82
Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250
1 citation
Jump To
Cite 1 - [2012] NSWCA 250
Woolworths Limited v Perrins[2016] 2 Qd R 276; [2015] QCA 207
2 citations
Jump To
Cite 1 - [2015] QCA 207
Cite 2 - [2015] QCA 207
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
4 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40
Cite 3 - (1980) 146 C.L. R. 40
Cite 4 - (1980) 146 C.L. R. 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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