Witherington v Lev's Fabrications Pty Ltd  QDC 266
21 November 2014
This case highlights the high duty of care placed on employers to provide workers with a safe place of work, safe systems of work, appropriate training and to assess the risk involved in all aspects of an employee's work.
The Plaintiff sustained injury in two incidents. The first occurred on 12 April 2010 when the Plaintiff dislocated his left shoulder lifting a 6kg roll of poly piping from the ground onto a shelf at waist height. The employer's business was quiet at the time and the Plaintiff was undertaking a general clean-up of the work site.
Liability, causation and quantum were in issue for the first incident. The employer contended the Plaintiff was undertaking a one-off simple task that did not require specific instruction, the coil weighed only 6kg, the Plaintiff was not required to twist while lifting it and the Plaintiff was aware of manual handling practices although it conceded it had not provided the Plaintiff with any manual handling training or assessed the risk associated with the task.
The Plaintiff had previously dislocated his left shoulder outside of work in a fight and then subsequently dislocated his shoulder on two further occasions both outside of work. The employer relied on medical evidence to the effect that after the first dislocation occurred it was likely the Plaintiff would sustain further dislocations when his arm was placed on a certain angle.
The second incident occurred on 14 July 2010 when a metal press fell onto the Plaintiff's ankle causing him to sustained fractures to his right ankle. Liability was admitted for the second incident as the metal press should have been secured to the floor to prevent movement. However, quantum was in issue as there was medical evidence indicating the Plaintiff would have little ongoing restrictions and limitations after having the metal work removed from his foot, which all doctors had recommended.
In this matter, it was argued that there was little risk of injury from the task given the weight of the coil, the Plaintiff's age and apparent fitness, his understanding of manual handling techniques from previous workplaces, his ability to safely lift items up until this incident and the nature of the task which was a one-off, simple lift. However, the evidence was the employer had not provided any manual handling training, undertaken any risk assessments or provided the Plaintiff with any instructions on how the task ought to be undertaken.
The Judge noted employers are responsible for identifying, assessing and managing workplace risks, which the employer did not do, and that there were safe ways the task could have been performed but the employer took no steps to ensure the task was undertaken in a safe way to prevent the Plaintiff from injury and accordingly found the employer liable.
The Court also found the Plaintiff's shoulder injury had been aggravated to the extent it became necessary for him to have surgery following the workplace incident.
The Court awarded the Plaintiff $503,865.95 in damages.