Tep v ATS Australasian Technical Services Pty Ltd  QSC 258
This case considered the liability of an employer for an injured worker who claimed he had fallen from an improperly constructed scaffold. As the worker and the employer submitted differing accounts regarding the circumstances of injury, the case turned on witness credibility.
The worker was employed as a leading hand with ATS Australasian Technical Services. On 12 December 2007 the worker was using an angle grinder to cut a metal pipe suspended from the underside of the floor above him. The worker was standing on a mobile scaffold and lent forward on the guard rail for support whereupon it gave way causing him to fall backwards approximately 2.5m onto a concrete floor. The worker suffered injuries to his skull, brain, cervical spine and back as well as a psychological injury and headaches as a result of this event. No one witnessed the Plaintiff’s injuries.
The worker claimed that his injuries were caused by his employer’s negligence and breach of contractual duty. The grounds of the worker’s claim were not particularised in the judgment.
At the time of his injuries the worker was carrying out demolition work on the Newcastle Hospital. It was common ground that the substantive law to be applied in this case was the law of Queensland.
Quantum and liability were in issue at trial.
The worker’s case
The worker stated that prior to commencing work he inspected the scaffold, saw it was ‘not right’ and repaired it with parts dismantled from another scaffold. The worker attributed his failure to identify any defective rails to the fact that he was wearing a full face mask at the time and that it was impractical to inspect each and every connection.
The worker submitted that after he fell he noticed that the scaffold was incorrectly assembled. As a result it had opened ‘like a door’ when he leant on it. The worker stated that he pointed this out to a co-worker following his fall.
The employer’s case
The employer denied that the guard rail ever gave way or that the scaffold was incorrectly assembled. Rather, the employer argued that the worker’s injuries were caused by him sitting or standing on the rail, jumping from the scaffold to the ground and failing to wear a hardhat.
The employer called three witnesses in this regard.
The first witness was working near the worker at the time of injury. This witness testified that he observed the worker standing on the railing of the scaffold some 10 to 15 minutes prior to the event.
The second witness saw the worker on the ground immediately after he fell. This witness testified that the worker did not report anything about broken scaffold.
The third witness was the supervisor on site. This witness spoke with the worker shortly after the event and also testified that the worker made no report as to broken scaffold.
The employer made no allegations of contributory negligence.
The worker made a number of challenges against the evidence of the employer’s first two witnesses.
The worker submitted that the recollection of the first witness was ‘remarkable’ given that he was only asked to recall the circumstances of injury in the week before trial, almost four years after the injury had occurred. The worker went on to argue that the description put forward by this witness as to how he was positioned on the scaffold shortly prior to injury was so precarious and unsafe as to be barely achievable for even a short period of time. His Honour disagreed, taking the view that the situation depicted by this witness was indeed achievable and for more than a short period of time.
As to the second witness, the worker submitted that this witness incorrectly identified the scaffolding from which he fell.
Fryberg J preferred the evidence of the employer’s witnesses over the evidence of the worker. His Honour noted that none of the employer’s witnesses had any reason to not tell the truth and he would have expected that if they had any bias it would have been in favour of their co-worker. His Honour did not consider the lapse of time between the worker’s injuries and the first witness’s recollection of events to be a major factor in assessing credibility as this witness did not give detailed evidence and was truthful in testifying that he was unable to recall specific aspects of the case.
Furthermore His Honour noted that over the course of the claim the worker had inconsistently described the circumstances of injury.
His Honour concluded:
“In the light of the foregoing evidence I have come to the conclusion that I should accept [the employer’s first witness] and [the employer’s second witness] as truthful and generally accurate witnesses, although I acknowledge that neither could have been correct in his estimate of the platform height on the scaffold about which he gave evidence.
… Shortly before the incident Mr Tep was standing on the rail of the scaffold using the angle grinder, and I infer that this was where he was standing at the time he fell.”
The Court ultimately found that the worker’s allegations of negligence or breach of contract could not be attributed to the employer. Accordingly, judgment was given in favour of the employer.
Always compare and contrast each description of the circumstances of injury as reported by the injured worker. Any inconsistent reporting of the circumstances of injury will have an adverse impact on the injured worker’s credibility. Equally, any inconsistent reporting of events by a witness will have an adverse impact on that witness’s credibility.
A copy of the Judgment can be found here.