Injury due to an unsafe system of work

Constance v Bush Services Pty Ltd [2013]

Harrison DCJ

24 June 2013

The Court expects employers to take all reasonable precautions to implement and maintain a safe system of work to ensure that workers are not injured while at work.

Background

The injured worker (the claimant) was employed as a casual banana packer in a banana packing shed and on 12 March 2009 the claimant sustained an injury to her right thumb. The claimant was walking to an area with a secondary conveyor belt to un-jam some boxes and slipped and fell.

Liability

The aspects of the employer's (the defendant) operations were questioned by the Court:

• The concrete floor could become slippery due to the build-up of algae or moss
• Chlorine was required to remove the build-up of algae or moss
• There was no preventative process implemented to proactively manage this risk.

The defendant argued that the algae was cleaned a couple of times a year. Expert witnesses for both the plaintiff and defendant found that there was good grip on the concrete in both wet and dry conditions. The plaintiff's ergonomic expert estimated that considering the conditions as reported by the plaintiff there would have been reduced coefficient of friction by 50% due to the presence of algae or moss.

Credibility issues were raised by the defendant as the claimant had provided numerous versions of how the event occurred. The judge found there was evidence that the concrete had algae or moss upon which the plaintiff had slipped.

Judgment

In awarding damages, the Court heard the opinions of expert orthopaedic hand and upper limb surgeons. One surgeon had apportioned a small permanent impairment to the injury; the other surgeon opined that the injury had resolved when they had examined the plaintiff. Both surgeons' held differing opinions on diagnosis. The judge found that the plaintiff's history and complaints about the ongoing pain at the base of the thumb was related to the work injury sustained.

The judge stated the system of work used was unsafe and this was a breach of the defendant's duties to the plaintiff. Even though cleaning of the algae/moss was undertaken this was not sufficient to prevent it occurring and the risk of injury to employees was foreseeable.

Judge Harrison delivered the verdict for the Plaintiff in the sum of $176.621.87, which was clear of the statutory claim refund.