Proctor : November 2017
35 PROCTOR | November 2017 only – where the appellant submitted on appeal that on a proper construction of the easement, the appellant is entitled to unlimited use of the car parks and that there was no basis for the learned primary judge’s selection of a ten-hour time limit – whether the learned trial judge was correct in her Honour’s construction of the easement – whether enjoyment of the facilities confers a right to unlimited use of the facilities – where the only issue for determination is the proper construction of the Easement and in particular cl 2 thereof – where the rights of access and use granted in favour of the Dominant Tenement under the easement are limited in the manner provided for by the Easement – where although the Grantor (and others having like right) have an entitlement to the use and enjoyment of the marina berth facilities, that entitlement is qualified to the extent that the Grantee and marina berth users are to have “free and uninterrupted right of access and use of the marina berth facilities at all times” – where the easement does not expressly impose a limitation on the duration of use of the marina facilities in terms of a continuous period during which the carparks may be used – where it certainly does not limit the use to no more than ten hours – where there is nothing to suggest the carparks should be shared equally – where on the contrary, it is apparent from the terms of cls2 and cls5 that the Grantor’s use of the carparks yields to that of the Grantee and to the rights granted under the easement. Appeal allowed. The declaration made on 23 August 2016 is varied to the extent that the words “and that such use of any of the 64 carparks may be for a continuous period not exceeding ten hours” are deleted. Unless the parties file submissions as to costs in accordance with Practice Direction 3 of 2013, paragraph 52(4), within 14 days of the publication of these reasons, the respondent is to pay the appellants’ costs. Brisbane Youth Service Inc v Beven  QCA 211, 22 September 2017 General Civil Appeal – where the appellant is an organisation that provides counselling and other support services to homeless and drug affected young people – where the respondent was hired by the appellant to work as a family support worker – where one of the appellant’s clients was a young woman, T, with a history of making sexual advances towards staff of the appellant – where the respondent was assigned to work with T – where the respondent’s role was to act as an advocate for T and to deliver an educative program to T – where senior staff members of the appellant questioned whether T was an appropriate client – where T eventually indecently touched the respondent at a meeting at government offices that had been organised by the appellant – where the respondent developed a major depressive disorder as a result of the assault – where the respondent had a pre-existing vulnerability due to childhood sexual abuse and this increased the severity of her impairment – whether the risk of harm to the respondent was reasonably foreseeable – where sexual assaults frequently occur in the most unlikely, and public, of situations – where those who are prone to commit them often do so on occasions that a normal person would regard as fraught with the risk of embarrassing discovery – where a normal person does not commit sexual assaults – where having regard in particular to T’s frequent episodes of irrational sexual behaviour, including her serial sexual fixations, it was foreseeable that an assault of the kind that actually happened could have happened and that it could have happened anywhere – where the respondent was aware of T’s behavioural history but agreed to work with T – whether the respondent accepted the risk of suffering an injury of the kind she suffered – whether the risk of this kind of injury is inherent in the nature of social work – where the issue of the risk of physical violence to which social workers might be exposed has not emerged for the first time only in this litigation – where it had been the subject of professional literature that also includes studies about how those risks can be prevented – where the appellant’s attitude was simply to assert, without evidence, that the respondent was justifiably regarded by the appellant as capable of both judging the extent and of running the risk of physical assault from a client like T – where however, it is not self-evident that social workers, unlike almost all other workers, implicitly accept the sole obligation of assessing, upon the information available to them, the risk of injury when undertaking work with a client of the employer so as to absolve the employer from the usual duty to ensure the safety of the workplace – where nor is it self-evident that social workers, because they possess appropriate learning, skill and experience to gauge such risks, do so – where this was a case in which the employer knew the risks that T presented to its staff – where this was also a case in which the employer had an appreciation of its own limitations in dealing with some of the problems presented by T and knowledge of the existence of other services that were better suited – where the employer also knew that its employees had a vocation which would impel them to make personal sacrifices if they believed that by doing so they might serve another human being – where the presence of risk of injury in dangerous occupations does not work to throw the responsibility of avoiding such risks onto the shoulders of employees beyond the application of the law relating to contributory negligence and, in appropriate cases, the doctrine of volenti non fit injuria – where s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides that a person does not breach a duty to take precautions against a risk of injury unless the risk was foreseeable, the risk was not insignificant and a reasonable person would have taken precautions – where T had a history of making sexual advances towards staff of the appellant – where senior staff members of the appellant questioned whether T was an appropriate client for the appellant – whether the risk of injury to the respondent was not insignificant – whether the appellant should have taken precautions – whether it would have been reasonable for the appellant to have taken precautions by discontinuing its provision of services to T – where the step of dispensing with T as a client, as a necessary precaution to avoid the risk of harm to the respondent, was a reasonable one to take – where T would not have been abandoned without On appeal ELECTRONIC COSTING Portal Fast Safe & Secure Streamline your process by uploading your file & documents via our portal above, saving you time & hassle. Contact Michael Graham on 0418 194 734 or email email@example.com to discuss in-house legal costing services for your firm.