Test v Forgacs Engineering Pty Ltd  QDC 318
Robin QC, DCJ24 October 2012
This case was decided on credibility where the Judge preferred the evidence of the Defendant's witnesses to that of the Plaintiff.
The Plaintiff was working on an elevated platform using an angle grinder and a hammer and chisel to remove zinc anodes from the hull of a cruise liner that was in dry dock.
The Claimant was a casual worker and was working 2 days for 12 hours, with 2 breaks and a lunch break. At the end of the second day the task was completed and the Claimant was advised that he was no longer required.
He then submitted a claim for a lumbar spine injury alleging that he experienced problems the next day after he bend down to tie his laces.
There was some controversy as to whether a smaller jack hammer was available and the approximate weight of the (sledge) hammer being used was 2.5 kilograms. The Plaintiff's co-worker gave evidence for the Defendant to the effect that he had worked on half a dozen ships with no problems.
Evidence was given (and accepted) that approximately half the time was spent using an angle grinder and the remaining time using a hammer and chisel, although the co-worker stated he did more of the work than the Claimant.
The Judge found that it was credible that the Plaintiff would be tired and sore after his work, but whether an injury was sustained was a different matter.
No evidence was presented to suggest any other way of performing the task that would have been safer, nor that the task was one that ought not to have been required of employees at all. On the evidence there were rest breaks in addition to lunch breaks. The system of work was not shown to be unsafe and it was not shown that the Plaintiff was employing some inappropriate technique which additional supervision might have detected and caused to be varied.
The Plaintiff had denied pre-existing lumbar spine problems however records were available from 1999 to shortly before the alleged injury to suggest that this was not the case. His Honour did not accept that the Plaintiff had made a miraculous recovery shortly before this event. The Plaintiff eventually admitted that he had lied to doctors, although he subsequently back tracked from the “clear admissions”.
The Plaintiff admitted to denying any back pain or previous psychiatric history when applying for employment.
His honour also felt confident that the Plaintiff was aware of a gross exaggeration of the damages sought in the Notice of Claim, which he declared as true and correct.
Quantum was assessed on the basis that, at best, the Plaintiff had a back problem for a few months. Pain and suffering was assessed at $7,500. A nominal sum of $2,500 was fond to be appropriate for Past Economic Loss on the basis that the Claimant was a casual worker, had no clear further employment opportunities with Forgacs and had a rather poor working history. This Plaintiff was paid the sum of $7,467.74 under the statutory claim.
The total quantum figure was assessed at $14,417.17 which, after the deduction of the statutory payments ($10,998.41) gave a net figure of $3,418.76.
Costs were awarded to WorkCover on the basis that the Plaintiff's claim failed.