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Catch up on cases reported this year in CCH Pinpoint’s Torts – Workers Compensation practice area.
Finding open to jury: RTW did not cause psychological injury
A worker on night shift for a food manufacturer slipped on rain-affected floor at the entrance injuring her ankle was unsuccessful in her attempt to overturn a jury’s verdict that her employer’s negligence did not contribute to her resulting psychological injury. She sought damages in negligence, claiming that when she returned to work on modified duties, she was subject to bullying intimidation and harassment for 4 months due to the employer’s negligence. The jury found that the employer was not negligent in relation to the fall. It also found that the return to work plan was not managed negligently, and did not cause her psychological injuries. On appeal, the court found that the jury’s verdict concerning the return to work was not of a rare kind that no reasonable jury could reach, given there was little evidence led by the worker. Further, the verdict that there was no negligence concerning the fall injury was open to the jury, since the employer had taken steps to avert the injury with non-slip mats at the entrance and corridor, warning signs for the wet floor, and ensuring cleaners were on shift.
Ross v Gruma Oceania Pty Ltd (2022) Aust Torts Reports ¶82-797; [2022] VSCA 87 (13 May 2022)
Scaffolding contractor fails to provide exclusion zone and safe system of work
A labour-hire truck driver was awarded $1.35 million in damages for a spinal injury suffered when a scaffolding bench fell on him from 3 storeys. The worker was employed by a labour-hire company and was working exclusively for a company which was the head scaffolding contractor at the site of the incident (the principal contractor). When he attended the site to pick up scaffolding, it was not dismantled, and he was instructed by crew of the principal contractor to help dismantle it. The injury he suffered left him permanently incapacitated. He sued his employer and the principal contractor for damages in negligence. The court found that the site was under the principal contractor’s control, and it was responsible for instructing the worker. The principal contractor owed a duty to use reasonable care to ensure that the system of work for dismantling the scaffolding was safe. It breached that duty by failing to provide an exclusion zone or establish a safe system of work. It was held solely liable for the damages caused, as the employer had no control over the worker or the conduct of work at the site.
Alelaimat v Synergy Scaffolding Services (No 3) (2022) Aust Torts Reports ¶82-798; [2022] NSWSC 536 (5 May 2022)
$1.1 million damages: employer totally relied on occupier’s safety system with respect to faulty equipment
A concrete delivery driver, who suffered a back injury when a faulty slump stand was not “tagged out”, has been awarded $1.1 million in damages due the negligence of his employer and the site occupier. The court found that the employer passively and overly relied on the occupier to implement its safety system for responding to faulty equipment, which placed the employer’s workers at risk of injury when the occupier failed to enforce its systems, and limited its management’s ability to direct drivers to ensure their safety. A fellow employee had witnessed the slump stand “slamming down” on the platform earlier in the day, and had reported the matter to the occupier’s batcher, as required by the system if equipment was faulty. The court found that while the occupier took safety seriously and required immediate notification of faults, it did not implement its system completely by failing to tag out the slump stand. The employer allowed its employees to report faults to the occupier alone and even though they were encouraged to alert their own supervisors at the site, there was an over reliance on the occupier’s systems.
Trtovac v Total Mix Pty Ltd & Anor (2022) Aust Torts Reports ¶82-799; [2022] VSC 149 (31 March 2022)
Appeal reversal: Repeated turning caused spinal injury in racecourse manager
A course manager at Manning Valley Race Club, whose cervical spine disease was aggravated by having to turn his neck around when operating the ground’s levelling equipment, was successful in his $1 million damages appeal. The Court of Appeal found that the injury he suffered was reasonably foreseeable and his employer breached its duty of care to him. At issue were divergent accounts by the worker of how many times he was required to turn around while operating the machine (which varied from once or twice a minute to 10 times a minute for 5 or 6 seconds). The appeal court found that the trial judge’s reasons were inadequate, failing to properly deal with the worker’s best evidence or explain why the account least favourable to him was accepted. Undue emphasis was placed on the frequency of turning. The evidence established the worked was required to repeatedly to his neck to monitor and adjust the height of the leveller. The gravamen of that evidence was that it was not an occasional backwards glance, but repeated, sustained twisting of his neck. Whether this was described as constant did not matter. It was plainly foreseeable that a man who operated a machine in the course of his employment involving repetitive, sustained twisting of his neck may foreseeably by doing so aggravate, accelerate or exacerbate his cervical spine condition.
Cavanagh v Manning Valley Race Club Ltd (2022) Aust Torts Reports ¶82-800; [2022] NSWCA 36 (15 March 2022)
Failure to collect and install ergonomic seat recommended in RTW plan caused aggravation
A truck driver has been awarded $1.4 million in damages for 2 separate back injuries suffered in the course of his employment. The first incident occurred when he lifted 2 aluminium trailer gates from beneath his trailer. After surgery he returned to full-time long-haul truck driving duties. The second incident occurred 5 months after his return to work when his prime mover struck a pothole, aggravating his back condition so that he was unable to work. The driver contended the first incident was a result of the employer having an inadequate system of work for moving the gates, and the second its failure to install a specially designed seat, which sat for 5 months in a warehouse awaiting deployment. The employer conceded during the trial to breaching its statutory duty with respect to the first incident, as well as its statutory duty and duty of care with respect to the second incident. It had argued that the existing driver’s seat was in virtually new condition. However, the court found that though the seat may have been in good condition for an uninjured worker, it was not for the worker with an injured spine. An OT appointed by WorkSafe had reported that the seat was inadequate and recommended an ergonomic seat before the worker’s return to work. Indeed, the employer purchased the ergonomic seat but did not pick it up, although the worker requested this. The court was satisfied that the employer’s failure to install the ergonomic seat caused the back injury aggravation, since the seat would have reduced the impact to the spine when striking the pothole.
Ottrey v Bedggood’s Transport Pty Ltd (2022) Aust Torts Reports ¶82-802; [2022] VSC 59 (9 March 2022)
For earlier cases reported this year, see:
• Workplace Negligence Case Alert (No 2 of 2022), 3 June 2022.
• Workplace Negligence Case Alert (No 1 of 2022), 22 February 2022.
Take advantage of the Workplace negligence case finder: ¶100-000, which curates the decisions from all states and territories in Australia from 1999 to date, allowing you to search and compare verdict outcomes using various filters.
For recently reported statutory claim cases, see:
• Workers Compensation Statutory Case Alert (No 12/2022), 28 May 2022.
• Workers Compensation Statutory Case Alert (No 11/2022), 24 May 2022.
• Workers Compensation Statutory Case Alert (No 10/2022), 20 April 2022.
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