The Plaintiff alleged that on 29 February 2016, he was required to repetitively step up and down from a standard painted curb in order to transport arriving FIFO workers’ bags from his trailer onto a footpath. He claimed in the process of doing so, whilst stepping down from the curb and therefore not carrying any baggage, his left ankle gave way, causing him to injure his right knee.
The Plaintiff made a number of allegations, but relevantly claimed that at some point prior to his injury, the location of the baggage unload changed from a bus stop located on the same curb, to an area a few metres away. He says previously he was able unload the bags without stepping onto the curb, and after incident he was required to step up and down from the curb with each unload. The Plaintiff also said that on the morning of incident he radioed to the office for assistance and this assistance was refused.
Judgement / Findings
In his analysis of the evidence his Honour Coker J pointed to the fact that the Plaintiff did not seek medical treatment for some 53 days post-injury, and when he did so his GP recorded the injury twice as “someone fell on” his knee. Despite not seeking treatment, he alleged he knew the matter was important and so found it necessary to record the injury and the fact that no one was available to assist in his wife’s diary on the night of the injury. The Plaintiff first produced the diary the night before the first day of trial.
Witnesses for the employer gave evidence the task was a simple one, the weights minimal (the average bag being under 10kg), there was no requirement to rush and that assistance would always be available if called for. The Plaintiff called former Compass employees who gave inconsistent evidence even as between each other about the appropriate system of work and availability of assistance.
His Honour was “entirely unconvinced” by the evidence from the plaintiff and their witnesses regarding the situation in respect of the previous location for unloading not requiring a step up. His Honour accepted the Defendant’s witnesses that the task was unchanged from one location to the other.
His Honour ultimately found the risk of injury was insignificant, and there was no breach of duty by the employer. His Honour also considered the Plaintiff had failed to establish causation, noting his described mechanism of injury did not give any suggestion of a slip, trip or other reason for the ankle giving way – simply that it did so.
Discussion / Implications
This decision shows the importance of using each small piece of evidence available and clearly pleading the same in the defence of the matter. This methodical approach brought into question the plaintiffs version of how the injury occurred.