Australia: Personal injuries - Employer win in the Cairns District Court – Clayton v Jetcrete Oz Pty Ltd [2017] QDC 003

Last Updated: 14 February 2017
Article by Belinda Hughes

Kaden Boriss Legal was recently successful in defending a claim by a worker seeking damages for personal injury sustained at work. The worker failed on all counts. Most importantly, she did not satisfy the Court that she undertook the task she said caused her to sustain injury. The Court went on to hold that she also failed to prove the employer was negligent for the incident.

The win is significant given the jurisdiction in which the matter was heard where few defendants win. It shows it is important to take issue with unmeritorious cases, even in the North.


The Plaintiff, Wendy Clayton, was a 53 year old concrete agitator driver who sought damages for injury sustained to her back on 13 July 2012 when allegedly pushing stiff concrete down the agitator chute of a truck.

The Plaintiff was a fly in, fly out worker and the incident occurred on her first rostered shift day for the period. Her evidence was when she arrived she reported to her supervisor that she had been receiving chiropractic treatment during her time off and she requested time off work in the following week.

The Plaintiff alleged the employer was on notice about her back problems and failed to follow internal policies in referring her to a medic for treatment before allowing her to work.


The most significant issue in dispute was whether the incident occurred, as alleged by the Plaintiff. WorkCover Queensland, on behalf of Jetcrete Oz Pty Ltd, led significant evidence from concreters employed by an unrelated company to the effect that it did not. These concreters were adamant the Plaintiff did not undertake the task, was not ever out of their view and it was one of them who performed the task the Plaintiff was complaining about.

The Plaintiff also had a number of credit issues.

We had located significant Facebook evidence on the Plaintiff. It showed she had been involved in multi-level online marketing of organic products for which she boasted financial success despite advising the Court in her initial evidence and signed statement of loss and damage that she had not earned income since the incident. Surprisingly, the Plaintiff's lawyers were unaware of this evidence until the Plaintiff was cross-examined.

She had also misrepresented the extent of her pre-existing back and psychiatric conditions on pre-employment medical examinations and continued to water down her evidence about the length of time she was allegedly undertaking the relevant task.

His Honour, Judge Morzone QC, did not accept the Plaintiff's evidence and she failed to establish she undertook the task as alleged.

However, he also found there was no breach of duty as the risk of injury was not foreseeable. The Plaintiff also failed to demonstrate the risk of injury was "not insignificant" or that a reasonable person would be required to take precautions against the risk of injury in the circumstances claimed, particularly as it was an unusual occurrence for the employer to be dealing with stiff concrete that needed to be manually pushed down the chute and the employer had in place a thorough risk assessments for usual tasks, training and appropriate work systems.

Insurers, employers, lawyers and those who are regularly presented with InterSafe reports will take heart with His Honour's views on the relevance of standard comments generated by the InterSafe Group and Mr McDougall's evidence with respect to his findings as detailed in the InterSafe report. Importantly, the Court accepted ''the defendant's submission that Mr McDougall's report and opinion (perhaps more aptly characterised as advocacy) was written through the prism of hindsight. Hindsight has no place in the assessment of the risk of injury".

With reference to the report and literary basis on which the findings are made, His Honour, Judge Morzone QC, said "I afford little weight to the literature review conducted by Mr McDougall from international jurisdictions. Whilst such literature might be sound from an academic perspective of an occupational health and safety expert, in my view it is a level of knowledge that exceeds the expected knowledge of an employer in the position of the defendant".

The decision is significant. It shows that despite legal speculation to the contrary, claims will not succeed simply because they are heard in Northern Courts. It is still necessary for a Plaintiff to establish, on the balance of probabilities, that the incident occurred and that the employer breached its duty of care to the worker.

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.

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