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Failure to establish negligence

Schonell v Laspina, Trabucco & Co Pty Ltd [2013] QSC 90
Martin J
11 April 2013

A recent decision of Martin J of the Supreme Court saw the Plaintiff failed to establish negligence against his employer. The Court reiterated the principal that when considering what reasonable measures employers should adopt in to avoid a foreseeable risk of injury, the test should not be considered with the benefit of hindsight, but rather looking forward to identify what response should have been made. In this case, the Court accepted that the measures adopted by the employer were reasonable.

Background

The worker was a block layer at a construction site. He was working on platform set up on ladders. As he stepped off the platform onto the ladder, the ladder gave way causing him to injure his left knee. Liability and quantum were in issue.

Liability

The Plaintiff's claim was dismissed with the Court concluding that the Plaintiff failed to demonstrate that the employer had caused or contributed to the injury, or that the employer was otherwise negligent.

The Plaintiff case centred on the following arguments:

  1. The accident was caused by a defective brace on the ladder and the employer was negligent as they failed to conduct regular inspections of the ladder and that the worker who set up the ladder, had also failed to properly inspect the ladder;
  2. A conventional ladder should have been used;
  3. The platform positioned on the ladder should have been set up using plank clamps to secure the planks and reduce the degree of flexing of the trestle platforms.

Whilst Martin J accepted that there was a defective brace on the ladder, he accepted evidence that both the employee who set up the ladder and the Plaintiff had made a visual inspection of the ladder prior to its use and both were satisfied that it was safe. Those inspections and checks did not reveal any fault or likelihood that the brace was going to break.

The Court concluded that the visual inspections and checks were a practically useful means of identifying fault or potential fault in the ladder (despite the fact that no fault was found by them prior to use). Having regard to the inspections completed prior to the ladders use, he did not accept that a system of regular inspections would have identified the fault in the ladder.

The Court also rejected the Plaintiffs argument a conventional ladder should have been used as there was nothing to suggest that the type of ladder used was dangerous or otherwise inappropriate.

With respect to the Plaintiff's contention that a plank clamp should have been in use, the successfulness of this argument was somewhat dependent upon the accepted mechanism of injury.

To this end, the Plaintiff claimed that as he was descending from the platform onto the ladder, his left foot became caught against the second plank on the trestle platform causing him to suffer the injury. The Defendants argued that this version of events should not be accepted by the Court submitting that it was a recent invention of the Plaintiffs designed to allow him to argue that the plank clamps should have been in place.

During cross examination of the Plaintiff on the issue, the Defendants called for the Plaintiffs statement given to his solicitors at the commencement of his claim, detailing the mechanism of injury. However the Plaintiffs solicitors did not obtain such a statement (despite a claim of $2,000,000.00 being advanced) in what Martin J stated appeared to be a deliberate attempt to avoid their disclosure obligations under section 279 of the Workers Compensation and Rehabilitation Act 2003. The judge noted that “it would, at the very least, seem that the solicitors acted in a way which was contrary to the objects of the WCR Act”.

Whilst a letter confirming the claimant's instructions was ultimately produced to the Court, Martin J noted that the Plaintiffs version in that letter did not contain any reference to his foot becoming caught. Accordingly the Court found that his foot was not caught between the planks but rather his left knee twisted as he attempted to return to the platform.

Given the Trial Judge's findings regarding the mechanism of injury it was unnecessary to deal in detail with the argument about the possible use of plank clamps. However he stated that had he found that the Plaintiffs foot had become caught in the planks, he would not have heard that it was demonstrative of negligence as the argument was based on “inappropriate and impermissible use of the benefit of hindsight”. He also took into account that there was no requirement in any Australian Standard or relevant legislation to use the clamps nor was there any practice for clamps to be affixed on scaffolds to be used by Block Layers in Brisbane.

Injury/Quantum

Despite finding that there was no negligence on behalf of the employer, the Court considered quantum finding that the appropriate award of damages was $1,118,991 gross of the WorkCover refund.

It was accepted that the Plaintiff was suffering from Chronic Regional Pain Syndrome (CRPS), despite some divergence in the medical opinion. Ultimately the Court accepted the balance of the evidence that the claimant did suffer CRPS.

Whilst it was accepted that the claimant suffered injuries as a result of the subject event and continued to suffer the effects of those injuries, the Court formed the view that the Plaintiff was “exaggerating his condition and was consciously presenting himself in a way designed to elicit sympathy and to support his claim”.

The Judge found it noteworthy that the claimants past and current partner were not called to give evidence regarding his condition. Nor was his sister whom he resided with for a period following the accident. No explanation was provided as to why these witnesses were not called to provide such evidence such that the judge drew the inference that none of them would have been able to give evidence assisting the Plaintiffs case.

Appeal

Queensland Court of Appeal QCA 324

29 October 2013

The plaintiff's appeal was dismissed. The injured worker failed because he did not prove that the defect caused his injury. It was “possible” but the evidence didn't go beyond a mere possibility, and he did not establish that the defect was discoverable by some reasonable means that the employer failed to adopt.