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Written by Peter Carter

May 12, 2011

Workers have succeeded twice in two weeks against operators of Brisbane’s state-owned Southbank complex, defeating arguments that their only rights lay in workers’ compensation.
Both claims were by pedestrians who rolled their ankles on shoddy construction – one by Jason Heraud, a state security officer on his way to work in the gallery complex, who stepped “on a protrusion and his foot rolled”. The other was by The Yong-Lip, an employee of a convention centre exhibitor who “rolled his ankle” on an uneven edge between concrete slabs in the basement loading dock. Both claimed damages against the occupier in addition to statutory benefits they had already received.

Heraud received WorkCover statutory payments and started a PIPA claim against the gallery operators, Arts Qld, in December 2008. In June 2009 he elected to accept lump-sum compensation from WorkCover. The PIPA respondent was the State of Queensland and he was employed by the Department of Public Works.

The state brought an application for a declaration that – because it was a legal entity which operated both Public Works and also Arts Qld – the only claims the plaintiff could make were under the Workers’ Compensation and Rehabilitation Act 2003.

Because the claim was made against the state in the capacity other than “qua employer” the court * had no difficulty in dismissing this argument. It made no difference that the employer and the occupier were the same as the PIPA claim did not assert any liability in the state as an employer.

Rather, the proceedings “asserts entitlement to damages against the State of Queensland for what Arts Qld did or did not do as an occupier of the cultural centre. That is not into an entitlement to damages within the meaning of the WCRA and is not an entitlement which is regulated by chapter 5 of the WCRA.”

Meanwhile, over at the convention centre, the suspended slab of the docking area – where The Yong-Lip stumbled – was about 20mm higher than the service road slab. The privately-owned operator of the convention centre also argued that the claimant’s rights were  – because the injury occurred during the course of his employment – governed solely by the WCRA.

“The mere pleading allegations about employment” does not bring the Act into operation where the employment has not “made a material contribution to the injury which resulted from the breach of duty owed”. As it transpired, the claimant’s victory on that point was illusory. Despite the unevenness having been subsequently rectified by concrete grinding at the cost of a few hundred dollars, the risk of injury was – so held the court ** – so slight that, the operators of the centre, were not in breach of “the duty of care that they clearly owed”.

The lip was “the kind of hazard that might be encountered daily by people using car parks such as the one in the centre. As such, slight unevenness can be said to be a normal hazard of daily life in such a place.” The absence of evidence of any other falls or stumbles at that location and that the defendant had not detected the protrusion despite regular inspections, were relevant factors.

It should also be noted that there was neither evidence as to the extent to which members of the public traversed the loading dock surface nor any expert evidence as to any standards applicable to such public areas. With total damages assessed at only $36,000, even a verdict on opposite terms would have proven no great help for this unlucky plaintiff.

* State of Qld v Heraud & Anor [2011] QSC 096 (11/1025) Brisb Dalton J 29/04/2011

** The v AEG Ogden (Convex) Pty Ltd [2011] QDC 051 Dorney QC DCJ 19/04/2011

Categories: Law practice , Personal Injury , Litigation & Law Practice

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