Tep v ATS Australasian Technical Services Pty Ltd  QSC
Fryberg J7 September 2012
This case was decided on credibility where his honour preferred the evidence of the defendant's witnesses to that of the workers as to how the event occurred.
The injured worker was working on scaffolding removing asbestos when he says he leant back onto the scaffolding which gave way resulting in a 2 ½ metre fall on 12 December 2007. He claims he sustained injury to his head, neck, lower back, brain as well as a secondary psychological condition.
The matter proceeded primarily on quantum with liability remaining in issue due to creditability issues with the worker.
The workers case was that he was required to use an angle grinder to cut a metal piping. As he leant against the scaffolding for support, he alleges that, it gave way due to it being incorrectly assembled. He says he inspected the scaffolding before using and thought it was safe, but had failed to notice the railing was incorrectly affixed.
The employer's case was that the worker's accident was caused by the worker sitting on the rail whilst working, jumping from the scaffold to the ground and failing to wear his hardhat. The employer said the scaffolding was correctly assembled and safe to use, denying that the rail gave way as alleged and in fact that the worker was standing on the top rail of the scaffolding when he fell. Following the event, the employer suggests no comments were made about faulty scaffolding by the worker has he alleged.
His honour, Fryberg J, gave considerable consideration to the evidence of the three witnesses ultimately accepting the evidence of the two co-workers over that of the workers, and inferring from the evidence that the worker was in fact standing on the top rail of the scaffolding when he fell.
Judgment was found in favour of the employer.
His honour was still required to provide an assessment of damages. Most providers opined abnormal illness behaviour and overstatement of injuries. He ultimately preferred the evidence of Dr Ohlrich and found the worker would recover from any consequential psychological injury with the recommended treatment.
The Plaintiff's appeal contended that the presiding Judge erred in accepting the Plaintiff's account and effectively did not accept the Plaintiff's version of the accident but rather, preferred one body of evidence (co-workers) over the Plaintiff. On 12 July 2013 the appeal was allowed, the judgement set aside and proceedings to trial division on liability and quantum. It was determined that there was an error made by the judge as to height of the handrail causing him to accept a co-workers evidence, but the worker appealed that this was at odds with the evidence and has therefore constituted a denial of procedural fairness because no issue had been raised.