Background
The plaintiff alleged he sustained a back injury on 16 February 2013 at a construction site in Townsville where he was employed as a carpenter by the defendant, Heinrich Constructions Pty Ltd (Heinrich). The principal building contractor at the construction site (and therefore the occupier of the site), was the defendant J. Hutchinson Pty Ltd. (Hutchinson). Hutchinson had subcontracted Heinrich to carry out certain parts of the construction work at the site.
Contemporaneous witness statements taken at the time of the event indicated that the plaintiff had injured his back when he coughed prior to works commencing for the day. However, the plaintiff's pleaded case as to the mechanism of injury was:
"while attempting to reposition the fallen bearer back onto the top of the H-frame, the Plaintiff reached to grip the lower end of the bearer;
the Plaintiff lifted the bearer, raising it approximately 1 m above floor level, and as he came upright, his left shoulder/upper arm made contact with the timber plank which he attempted to move or flip over out of the way, so that the Plaintiff could put the header back into its correct location (the lifting activity)".
This very specific and detailed description of the lifting activity was ultimately not accepted as causative of the plaintiff's injury.
Liability
It was accepted that the plaintiff had commenced work that morning when he injured his back, however it was not accepted to be plausible that he hurt his back when he coughed. Lynham DCJ concluded that the more plausible explanation for how the injury occurred was from picking up a heavy object (such as a plank or a bearer) shortly after starting work.
Despite this, Lynham DCJ did not accept that the plaintiff injured his back when performing the actual "lifting activity" particularised. The defendants led evidence that the size of the bearer meant it was impossible for it to fall into an upright position into the H-frame. Similarly, the evidence of Brendan McDougall (the plaintiff's expert) was crucial as the expert accepted, under cross-examination, that the "lifting activity" described by the plaintiff was impossible.
Lynham DCJ noted that the plaintiff's cause of action is predicated upon accepting that he injured his back when he was performing the "lifting activity". However, on the balance of probabilities, it was not accepted that there was a fallen bearer as described by the plaintiff, and accordingly the "lifting activity" did not occur as alleged. Lynham DCJ considered that even if it were accepted that the plaintiff injured his back in another manner that morning, such as when lifting another heavy object, that finding in itself is not capable of establishing that either defendant had breached its duty of care owed to the plaintiff.
Judgement and Findings
Ultimately the court found in favour of the defendants. The plaintiff was accepted on nearly every point, and the only piece of the evidence that went in favour of the defendants was the evidence of Mr McDougall in that he conceded that the "lifting activity" as described by the plaintiff could not have happened. As there were no other tasks identified and pleaded that the plaintiff was performing, Lynham DCJ could not assess whether any other tasks were in breach of the employer's duty of care.
Key Lessons
This decision highlights the difficulties with successfully defending claims in Court, and the very high threshold defendants must meet to satisfy a judge that events did not happen in the way alleged. While ultimately the defendants were able to get the plaintiff’s engineering expert to accept the alleged manor in which the injury occurred was fanciful, the Court made it clear that they would have found in the plaintiff’s favour had a less complicated description of the mechanism of injury been advanced.
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