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
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
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
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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An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
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