Proving that a breach of duty has occurred can be very difficult

duty-of-care-negligence

In order to establish liability for a workcover claim, it is usually sufficient to demonstrate that an injury occurred at work. However in order to prove negligence and as such access common law damages, a seriously injured worker has also to be able to prove exactly how his/her injury occurred at his/her workplace. The following interesting District Court of WA judgement shows that workers in supervisory roles cannot place themselves in harm’s way or exceed their physical limitations and then claim negligence on the part of their employer if they subsequently become injured.

Proving that a breach of duty has occurred can be very difficult

Background of the legal case

The injured worker, Mr C, alleged that on 2 December 2002, whilst employed by the defendant (Black and White Distributions/his employer), he suffered a serious back injury caused by their negligence, breach of employment contract and/or breach of the Occupational Safety and Health Act 1984 (WA) which rendered him totally unemployable for the rest of his life.

As part of his claim, the injured worker, Mr C,  alleged that the defendant/his employer required him to service motor vehicles, despite knowing that he had sustained previous back injuries in 1992 and 1995.

The employer (defendant) denied that C suffered an injury at work on 2 December 2002 as a result of any specific incident and also stated that, if he had, it was not caused by their breaches of duty.

The employer (defendant) also argued that, if there was a discrete incident on 2 December 2002, it was caused or contributed to by the injured worker’s own negligence and, in any event, he failed to mitigate his loss by not obtaining work that he was able to undertake.

The Court heard that Mr  C had suffered a relatively minor back injury in 1992 and a more significant back injury in 1995. (In fact, about 10 pages of the judgment are dedicated to outlining his medical treatment following the 1995 incident, which included 47 attendances on his GP.)

The judge found that, notwithstanding the 1992 and 1995 incidents, Mr C , the injured worker, was capable of working as a workshop manager with a hands-on component because he knew his limitations, knew the work restrictions and tried to avoid them.

Findings as to the alleged  work incident of 2 December 2002

The injured worker (Mr C) claimed that the December 2002 injury occurred while he was checking the wheel bearings/suspension on a vehicle.

Evidence was given from the injured worker’s colleague, who had witnessed the incident in his ‘peripheral vision’, as well as from 13 medical practitioners C had seen.

Despite this, the Judge was not satisfied on the balance of probabilities that the injury occurred as pleaded and was only satisfied that, whilst at work and servicing a vehicle that he experienced pain in his back. He was unable to determine what task the injured worker was performing at the time of experiencing that pain.

Nevertheless, the claim was not dismissed solely on this basis. The Judge commented that issues of negligence involve a consideration of the evidence as a whole and that if it can be reasonably inferred that the incident was due to the negligence of the defendant then, subject to causation, a finding can be made in favour of the plaintiff (Mummery v Irvings Pty Ltd [1956] HCA 45).

Breach of duty of care?

As mentioned above, the injured worker submitted that his employer required him to perform physically demanding duties for extended periods of time, with full knowledge of his previous injuries. Again, the Judge was not satisfied that a breach of duty had occurred, …

…on the basis that the injured worker was in charge of the workshop and could organise the work in the workshop and determine who did the work, how it was done and which tasks he personally would or would not perform.

The Judge also found that, there was nothing to indicate that immediately prior to December 2002, the injured worker’s duties should have been restricted to clerical or other sedentary work.

Accordingly, the Judge dismissed the injured worker’s claim. (C’s damages were assessed as just above the capped amount.)

The decision shows that workers in supervisory roles cannot place themselves in harm’s way or exceed their physical limitations and then claim negligence on the part of their employer if they subsequently become injured. Real tough one!

 

You can read the full text of the judgement here: Caruso v Black and White Distribution Pty Ltd [No 2] [2013] WADC 145 (2)

 

Revised May 2014



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