Employer liable where procedure not enforced and inadequate training of plaintiff

Cosic v G James Safety Glass (Qld) Pty Ltd [2019] QDC 170

Rosengren DCJ

20 September 2019

Background

On 21 January 2014 the Plaintiff, who is Bosnian, suffered an injury to his lumbar spine in the course of using an Armatec Vacuum lifter to move panes of glass from a trolley to the production line at the Defendant's Eagle Farm premises.

The Plaintiff alleged he was positioning the panes in preparation for the first job of the day to commence. He alleged he was required to move them quickly to maintain a constant supply of glass to the double glaze line. He alleged he had placed the first pane on the double glaze line and was attempting to place the second pane on it and next to the first pane. He alleged this required him to push and pull the lifter laterally across his body when he was standing close to the support post for the lifter thereby suffering his injury.

Liability

Liability was in dispute.

The Plaintiff's case was that the risk that was foreseeable was the risk of a musculoskeletal injury when moving the lifter laterally while in close proximity to the yellow support post i.e the pivot point. Her Honour found that this particular lifter was different because there was no evidence that any of the Defendant's other lifters were attached to posts that were in such close proximity to where the panes were being unloaded and the fact of this close proximity was one of the significant factors that created the risk of injury.

The Plaintiff's case was that the Defendant had not performed a proper risk assessment of the task he was performing when he was injured, that he had not been trained not to operate the lifter in the manner he alleges he was operating it at the time he sustained his injury and that the Defendant failed to enforce a system of work which prohibited that practice.  Her Honour accepted the Plaintiff's arguments over and above the Defendant's evidence to the contrary and found that the Defendant had breached its duty of care to the Plaintiff.

In relation to causation, Her Honour found that it was probable that the Plaintiff's disc prolapse was consequent upon and relevantly caused by the forces involved in the Plaintiff attempting to operate the lifter in the way that Her Honour found that he was, for which the Defendant is liable.

The Defendant submitted that previous evidence was inconsistent with subsequent pleadings and there was no evidence to suggest, except after consulting with the plaintiffs expert engineer, that:

• Prior to the relevant lift he had been instructed to work quickly such that he was moving quickly at the time of the lift/sideways movement;
• The pane of glass he was lifting at the relevant time was significantly larger and heavier than most of the other panes which were to be processed on that day;
• There were other trolleys of glass in his way which also caused difficulty in relation to his lift;
• Because of where he was planning to place a pane of glass that was being manoeuvred by him, he was required to stand close to the pivot point on the right side of the production line.

Her Honour found that the Defendant had breached its duty of care to the Plaintiff for the following reasons: -

The employer failed to undertake a proper risk assessment. That is not to say no risk assessment was perform however her honour found that this was inadequate;

The plaintiff was no provided with “specifically supervised on the job training as provided for in the defendants own work instruction or other adequate training”;

The employer did not follow the demonstrated procedure nor did they supervise the worker in the operation of the lifter in accordance with the documented procedure for the double glazed glass line.

In relation to causation her honour found: -

“It is probable that the plaintiff's disc prolapse was consequent upon and relevantly caused by the forces involved in the plaintiff attempting to operate the lifter in the way that I have found he was, for which the defendant is liable. It has a greater degree of likelihood, sufficient to satisfy the balance of probabilities test, than the hypothesis postulated by the defendant. I find causation to be established.”

Quantum

Her honour awarded Mr Cosic $469,931.45 in damages

Mr Cosic was 62 at the time of the hearing and the Judge awarded economic loss to age 68 when she considered Mr Cosics circumstances and his limited English and the difficulties of a person in their 60's obtaining employment.

Discussions / implications

These findings again emphasise the importance of employers being able to establish in the evidence that they have trained their employee in the system of work that they ask them to undertake and that there is adequate enforcement and supervision of that system.