Conflicting versions of events

Arnold v Tilecorp Pty Ltd [2012] QSC 321
Martin J
25 October 2012

This case was determined according to issues of credit, with His Honour preferring the employer's evidence over that of the worker's as to the system of work he was undertaking at the time. The matter proceeded in relation to both liability and quantum.

Competing allegations

On 26 May 2009 the worker was engaged in tiling for the employer at the Robina Town Centre and alleged he injured his back lifting a 23kg box of tiles from a pallet.

The worker told the Court the pallet was situated on a ramp below where he was standing and due to the presence of a temporary scaffold barricade blocking access to the pallet and an exclusion zone in which a cherry picker was working, he had to reach forward over the platform edge in order to reach and lift the box using an unsafe lifting technique.

The employer's witnesses evidence about the worksite was quite different. They each denied the presence of a cherry picker or that an exclusion zone existed around the pallet of tiles. They denied the pallet was inaccessible stating it was a simple task of descending the ramp to the pallet with no need to lean over any barricade. They also denied any presence of a temporary structure at the edge of the platform stating that a permanent balustrade was already in place and that such a height for the suggested lift was impossible.

Judgment

His Honour concluded the worker's version of events could not be accepted finding:

• there was no cherry picker or exclusion zone adjacent to the tiler's worksite; and
• the temporary barricading was not in place at the relevant time.

His Honour found there was nothing to prevent the worker from having clear access to the pallet and he could have utilised safe lifting techniques. He found the metal balustrading had already been installed and agreed it would have been impossible to lean across to pick up a box of tiles. Therefore, the injury could not have been sustained as alleged.

Judgment was therefore found in favour of the employer and the claim was dismissed.

Damages

If the worker succeeded on liability, his Honour assessed the claim at $351,000.

Appeal Summary - 2 August 2013

This decision was appealed by the claimant and the Court of Appeal delivered their Judgement on 2 August 2013.

The Court found the appellant was unsuccessful in demonstrating that the trial judge had made an error in dismissing the claim. They emphasised the trial judge was entitled to find there was nothing to stop the appellant from adopting the safe lifting techniques and the appellant was aware of the requirements for safe manual handling. The appellant had given evidence at first instance that if the exclusion zone and barricade did not exist then he would have adopted a safe system of work. However based on independent witness testimony the trial judge found that the exclusion zone and barricade were not in existence at the time of the alleged injury on 26 May 2009.

In dismissing the appeal their honours found that the appellant had failed to satisfy the seven grounds of appeal and the trial judge was well positioned to consider the wide range of matters going to the appellant's credit. Therefore the trial judge's decision was not changed by the Court of Appeal.