Caruso v Black and White Distribution Pty Ltd
[No 2]  WADC 145
The plaintiff, Mr Caruso (C), alleged that on 2 December 2002,
whilst employed by the defendant, he suffered an injury caused by
their negligence, breach of employment contract and/or breach of
the Occupational Safety and Health Act 1984, which
rendered him totally unemployable for the rest of his life.
As part of his claim, C said that the defendant required him to
service motor vehicles, despite knowing that he had sustained
previous back injuries in 1992 and 1995.
The defendant denied that C suffered an injury at work on 2
December 2002 as a result of any specific incident and contended
that, if he had, it was not caused by their breaches of duty.
In the alternative, the defendant also argued that, if there was
a discrete incident on 2 December 2002, it was caused or
contributed to by C's own negligence and, in any event, he
failed to mitigate his loss by not obtaining work that he was able
It was evident that C had suffered a relatively minor back
injury in 1992 and a more significant back injury in 1995. In fact,
ten pages of the judgment are dedicated to outlining his medical
treatment following the 1995 incident, which included 47
attendances on his GP.
His Honour found that, notwithstanding the 1992 and 1995
incidents, C was capable of working as a workshop manager with a
hands-on component because he knew his limitations, knew the work
restrictions and tried to avoid them.
Findings as to the incident on 2 December 2002
C claimed that the 2002 injury occurred while he was checking
the wheel bearings/suspension on a vehicle. Evidence was led from
C's colleague, who had witnessed the incident in his
'peripheral vision', as well as from 13 medical
practitioners C had seen.
Despite this, his Honour was not satisfied on the balance of
probabilities that the injury occurred as pleaded and was only
satisfied that, whilst at work and servicing a vehicle that he
experienced pain in his back. He was unable to determine what task
C was performing at the time of experiencing that pain.
Nevertheless, the claim was not dismissed solely on this basis.
His Honour commented that issues of negligence involve a
consideration of the evidence as a whole and that if it can be
reasonably inferred that the incident was due to the negligence of
the defendant then, subject to causation, a finding can be made in
favour of the plaintiff (Mummery v Irvings Pty Ltd 
Breach of duty of care
As mentioned above, C submitted that his employer required him
to perform physically demanding duties for extended periods of
time, with full knowledge of his previous injuries. Again, his
Honour was not satisfied that a breach of duty had occurred, on the
basis that C was in charge of the workshop and could organise the
work in the workshop and determine who did the work, how it was
done and which tasks he personally would or would not perform.
His Honour also found that, there was nothing to indicate that
immediately prior to December 2002, C's duties should have been
restricted to clerical or other sedentary work.
Accordingly, he dismissed C's claim. However, he accounted
for the possibility that he had not reached the correct conclusion
and provisionally assessed C's damages above the capped
Whilst to establish a workers' compensation liability, it is
generally enough to demonstrate that an injury occurred at work, in
order to prove negligence and access common law damages, a
plaintiff has to be able to prove exactly how an injury
The decision shows that employees in supervisory roles cannot
place themselves in harm's way or exceed their physical
limitations and then claim negligence on the part of their employer
if they subsequently become injured.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).