Court of Appeal

Boon v Summs of Qld Pty Ltd [2016] QCA 038 (15/6085) Holmes CJ and Gotterson JA and Applegarth J 26 February 2016

Full-text: QCA16-038.pdf

Catchwords

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE - GENERALLY – where three fingers of the appellant’s left hand were cut when he came in contact with the extended blade of a Leatherman knife held by an employee of the respondent – where the respondent would be vicariously liable for the employee’s alleged negligence, and liable for alleged negligence on its own part in failing to appropriately supervise or give instructions to the employee with respect to the use of the knife – where the appellant claimed damages in the Supreme Court for personal injury caused to him by negligence on the part of the respondent and of the employee, together with interest and costs – where judgment was given in favour of the respondent, ordering the appellant to pay the respondent’s costs of the proceeding on the standard basis – where the appellant filed a notice of appeal on 16 June 2015 – whether the respondent is liable in negligence

Summary Notes

General Civil Appeal – where three fingers of the appellant’s left hand were cut when he came in contact with the extended blade of a Leatherman knife held by an employee (Mr Summerfeldt) of the respondent – where the respondent would be vicariously liable for the employee’s alleged negligence, and liable for alleged negligence on its own part in failing to appropriately supervise or give instructions to the employee with respect to the use of the knife – where the appellant claimed damages in the Supreme Court for personal injury caused to him by negligence on the part of the respondent and of the employee, together with interest and costs – where judgment was given in favour of the respondent, ordering the appellant to pay the respondent’s costs of the proceeding on the standard basis – where the appellant filed a notice of appeal on 16 June 2015 – whether the respondent is liable in negligence – where the appellant’s principal challenge to the analysis of risk is centred upon the learned trial judge’s statement at paragraph 74 of the Reasons that the appellant had failed to establish that a reasonable person in Mr Summerfeldt’s position would have foreseen that using a sharp knife to peel an orange during lunch would have involved a risk of injury to persons nearby, including the appellant – where the conduct of Mr Summerfeldt in rising from a crouched position with a knife in his hand, the knife having a long, sharp blade which was unsheathed exposed the appellant to the risk of injury – where there was a foreseeable risk that a passer-by such as the appellant might have been struck by the blade of the knife; that Mr Summerfeldt ought reasonably to have known, at least, of that risk; and that the risk was not an insignificant one – where the last conclusion is fortified by the admitted fact that the location where the incident occurred was frequently traversed by workers – where these intermediate conclusions compel an ultimate conclusion that Mr Summerfeldt acted negligently and that his negligence caused the appellant’s injury – where it is open to this Court pursuant to the powers given to it by r 766 of the Uniform Civil Procedure Rules 1999 to make an award of damages based on the findings of fact at first instance, adjusted as this Court considers appropriate – where the appellant submits that $700 per week after tax inadequately reflects the income he would have earned during this period – where the adoption of averages for twelve-month periods assumes an employment pattern from 5 June 2012 with periods of substantial intermittent non-employment – where such a pattern does not sufficiently recognise a potential substantial period of continuing full-time employment at Downer EDI after that date. Appeal allowed. Order set aside. In lieu thereof, order that there be judgment for the plaintiff in the amount of $215,286.11. Direct submissions on costs.

Uniform Civil Procedure Rules considered

Rule 766 — General powers