Employer not negligent in worker injury

Campbell v Galaxy Plumbing [2013] QSC315

Fryberg J

18 November 2013

Background

The plaintiff alleged that he suffered a tear to his non-dominant left rotator cuff and adjustment disorder arising out of an incident on Monday 18 February 2008 in his employment as a site supervisor (plumber). The alleged circumstances of the incident are that the plaintiff suffered the injury when levelling sand in a 1 metre deep trench, which was 150 metres long, upon which sewer pipe was to be laid.

Liability

The plaintiff was responsible for supervising the staff required to assist him with the task. The employer's records (which were maintained by the plaintiff as the site supervisor) show that he was operating a bobcat and moving 28 loads of spoil on 18 February 2008.

A witness from the employer gave evidence that the plaintiff and his apprentice would have taken all day to move the spoil. The plaintiff called a former co-worker who recalled the plaintiff complaining of injury while levelling fire trenches (not sewer), but he had not worked with him until nine days after then alleged incident.

Dr Stabler, orthopaedic surgeon, was of the opinion that the injury could have occurred as a result of the plaintiff levelling sand in a trench which was 1km long (as was supposedly the account given to him by the plaintiff). When asked whether he could have suffered the injury levelling the sand in a trench of say 30m – he said that it was far less likely.

Dr Christie, whose son-in-law is a plumber, gave evidence to the effect that any number of tasks a plumber undertakes on a daily basis could cause such an injury.

Following the plaintiff's shoulder tear, he underwent surgery in April 2008. Between April and August 2008, the plaintiff suffered a re-tear to the rotator cuff which was double the length of the initial tear. Dr Christie gave evidence that the re-tear could not have happened without some kind of significant trauma (which the plaintiff denied) and that it was too short a period for a re-tear to have occurred due to constitutional changes.

Dr Christie also said that if a re-tear occurs within six months after surgery it is usually no more than the length of the initial tear. The plaintiff no longer works as a plumber. Dr Christie was of the opinion that the Plaintiff could have returned to normal plumbing duties after recovering from the first surgery (but for the re-tear).

The plaintiff alleged that as a result of his injury he suffered an adjustment disorder.

Judgment

Judge Fryberg delivered judgment in favour of the defendant. The claim was successfully defended on both liability and quantum. The plaintiff was ordered to pay the defendant's costs.

His Honour found that the trench work in question was not being performed on the alleged date of injury and that the plaintiff had not met the onus of proving the occurrence of the injury.

In relation to employer negligence, while the judge noted that the plaintiff had made numerous requests for the provision of 'more labour' to the site, this was not in the context of any suggestion that this was needed to avoid injury to any of the workers.

There was no evidence by the plaintiff that the task of levelling the sand was so physically demanding that it could not be performed by one man who was also carrying out a variety of other jobs. His Honour was not satisfied the employer's failure to provide more labourers on 18 February 2008 was negligent.

In relation to quantum, his Honour was satisfied on the evidence of Dr Stabler, that the second tear, which ruptured and expanded the original tear, was probably the result of a traumatic event and the major cause of his present disability.

His Honour found that the adjustment disorder would not have arisen but for the second tear, and that and that it was not caused by the disability.