Bulley v Q Bridge Pty Ltd & Kinhill Cameron McNamara Pty Ltd [1998] QSC 81

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) t < <"" ,;<~< ••~-.- --~ :;!;;U COPIES iSSUltta I Slale Reporting Bureau Oate::B / d- / q g SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 173 of 1995 WILLIAM FRANCIS JAMES BULLEY Plaintiff and Q BRIDGE PTY LTD (Formerly known as J W ARMSTRONG PTY LTD). Defendant and KINHILL CAMERON McNAMARA PTY LTD Third Party TOWNSVILLE .. DATE 20/2/98 JUDGMENT 1 4th Floor, The Law Courts, George Street, Blisbane Q. 4000 Telephone: (07) 3247 4362. Facsimile: (07) 3247 5532 -- 1 of 4 -- 200298 T17/wAE MIT TSVSC4241 (Cullinane J) HIS HONOUR: In this case the quantum of damages are admitted in the sum of $484,000. The plaintiff suffered serious injuries, when on 13 February 1993 in the course of his employment as a leading hand, he was struck by a gantry, which the evidence suggests, weighed something about 10 tonnes and which fell on him. The evidence contains an adequate description of the gantry and of its function and there was no dispute about the description which appears. In the opening, counsel for the 10 plaintiff described what is shown in the'various photographs contained in Exhibit 1 and it was accepted by the defendant that that description was adequate. The gantry had been constructed for the purposes of enabling work to be carried out by the defendant on a number of railway bridges over major rivers in North Queensland. The first bridge on which the work had been carried out was a bridge over the Tully River and the plaintiff was injured in the course of work being carried out on the second bridge, namely 20 the bridge over the North Johnstone River. The purpose of the gantry was to enable work to be carried out which would not interfere with the operations of the Railway while it was done. The work generally involved widening and raising the superstructure of the bridges over the rivers so that greater quantities of freight could be carried on somewhat larger carriages and also, I understand, with a view to the ultimate electrification of the system generally. 2 JUDGMENT 30 -- 2 of 4 -- \ 200298 T17/WAE M/T TSVSC4241 (Cullinane J) It is plain that a trolley, which had been manufactured by the defendant at the premises of Mr Teitzel, an employee of the defendant, was quite inadequate to bear the weight of the gantry as it passed over gaps between the spans of the bridges and this fact was freely acknowledged by Mr Armstrong, the principal of the defendant. It would have been inadequate on the bridge over the Tully River and there were features of the bridge over the North Johnstone River which increased the inadequacy. The evidence suggests that when the trolley was first constructed it was constructed not for the purposes of bearing the weight of the gantry, but to ensure that there was no lateral movement of the gantry as it passed over the spans and the gaps between them. In my view it is plain that there was no proper assessment of the risks associated with this task in so far as they may have involved any risk of injury to the plaintiff or other members of the workforce and, of course, it follows a failure to take appropriate steps to obviate them. The plaintiff, in my view, has established a breach of section 9 of the Workplace Health and Safety Act and the defendant has failed to discharge the onus of proof which rests upon it of demonstrating that there were no practicable means which might have been taken to avoid the injury. Indeed, after the accident a trolley, which was designed so as to adequately bear the weight, was used and instructions were given as to the manner in which the work should be carried out. 3 JUDGMENT 10 20 30 -- 3 of 4 -- 200298 T17/WAE M/T TSVSC4241 (Cullinane J) In addition, the plaintiff has established a cause of action based upon the breach by the defendant of its duty, which is a non-delegable one, to the plaintiff. I am also satisfied that some of the specific particulars of negligence alleged, in so far as they allege that there was a failure to assess the work tasks in the context of safety and to design and enforce a safe system of work and in a failure to provide a safe means of bearing the weight of the gantry as it passed over the spans, have been made out. There is no allegation of contributory negligence. 10 In the result there will be judgment for the plaintiff against the defendant in the sum of $484,000, with costs to be taxed. I order that the costs of the application in respect of which an order was made on 14 June 1996, including the reserved costs, remain reserved. 4 JUDGMENT 20 -- 4 of 4 --