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A question of requirement

Drummond v Gunne Constructions [2013] QDC 043
Kingham DCJ
22 March 2013

The worker was employed as a plant operator. He allegedly suffered a lower back injury while rolling a heavy concrete pipe at the employer's premises on a Sunday (not a work day). The claimant alleged that he was expected to perform the task in an unsafe way. The employer claimed that it did not know that the worker was intending to perform this task, and he was in any event acting contrary to the standard procedure to use two people to roll the pipe.

The Facts

The worker had been employed as a plant operator for a number of years. At the time of the incident the claimant had been assigned by the employer to assist with some earth moving works on the premises of the employers neighbour. The job involved laying pipes for a drain.

The claimant says that by the end of work on a Friday, he realised that another half pipe was needed to complete the job. He says that the employer was aware that this further work needed to be undertaken over the weekend, and the employer expected him to get the job done before Monday, when another job was to start.

As a result, he claims that the employer knew he would be attending at the employer's premises to obtain the half pipe and would be doing so without any assistance. As a result, he would be required to move the pipe alone. He claims that while doing so he suffered an injury to his back.

There was no dispute that the event occurred. However the employer denied knowledge that the claimant was intending to attend at the premises on that day. It also asserted that the system of work was always to move these pipes with two people, and the claimant was aware of that.

The Notice of Claim delivered by the claimant contained a typographical error, but appeared to clearly read that he was aware that this was a two person task. However as the case developed he alleged that he had been trained that this was a one person task, it was always performed as a one person task, and workers would be chastised if they assisted each other with this task.

Ultimately the trial became a contest between the claimant and the employer about whether the employer knew and required the claimant to perform this task, and whether the proper system was for a one or two person movement of the pipe.

Judgement

The trial judge found against the worker on liability. As a result the claim was dismissed and no damages were awarded.

The trial judge found that the claimant was not a reliable witness. He was dogmatic and asserted direct memory of things that were highly improbable, when it was clear that he did not remember other things that would be expected. He asserted that all of the medical records, recording a significant history of lower back pain, were inaccurate. He was found to attempt to “improve” his evidence when faced with difficulties, and his explanation of the meaning of the Notice of Claim was found not to be credible.

The court accepted the employer's evidence that it did not direct him to attend the premises on the weekend and did not know that he would do so. It further accepted the evidence of the employer that the system of work was for the pipes to be moved by two workers together.

As a result, the court found that the claimant's injury was caused by the claimant attending, at the premises on the weekend without notification to the employer when he knew he would not have any assistance with a two person task. It was found that there was no breach of duty by the employer that had caused or contributed to the claimant's injury. Effectively he was the author of his own misfortune.

The worker's claim was dismissed. The worker has been ordered to pay WorkCover's costs of the trial.