In the recent decision of Bergin v Queensland Cork & Timber Solutions Pty Ltd [2019] QDC 141, the Queensland District Court found that an employer had not breached its duty of care to an employee in circumstances where:

  1. the risk of injury to a worker performing the subject task was low, noting the absence of a similar injury to another worker in the 40 years that the employer had been operating; and
  2. the employee was not performing the subject task in the manner instructed.

Both the employer and the workers’ compensation insurer were represented by HopgoodGanim Lawyers’ Senior Associate, Melissa McGarrity and Brett Charrington of Counsel.

Background

In November 2006, the plaintiff suffered an injury to both his left hand and arm and developed a secondary psychological injury. He commenced a claim against his former employer for damages and received a gross settlement figure of $475,000.00 in October 2008. The plaintiff had exhausted these funds by 2012. Between November 2006 and his commencement with Queensland Cork and Timber Solutions Pty Ltd (the employer) in May 2013, the claimant had not worked, save for approximately one month as a floor sander, one week as a bricklayer and three months as a domestic cleaner. The plaintiff commenced work as a floor sander with the employer on 19 April 2013. On 14 May 2013, the plaintiff allegedly sustained an injury to his right hand. The claimant claimed damages for this physical injury and a secondary psychological injury.

Liability

Liability was in dispute.

The plaintiff alleged that on 13 May 2013 he was required to remove an existing floor at a house in Alexandra Headlands. The plaintiff maintained that he was not properly trained in relation to floor removal and was provided with inappropriate tools, namely a circular saw with a broken guard, a standard jemmy bar and a claw hammer with no rubber grip on the handle.

The plaintiff provided evidence that he was instructed to remove the flooring by cutting it in to squares and then removing each square by hammering the jemmy bar underneath and thereafter lift the flooring. He stated that it was his view this method was wasting his time, so he began forcefully ramming the jemmy bar under the flooring. He allegedly developed swelling in his right palm during the afternoon, which subsided overnight.

On 14 May 2013, the plaintiff stated that he continued removing the flooring for around one hour, but that his hand began to swell up again. The plaintiff subsequently left work and attended a doctor. The plaintiff did not return to work with the employer after that date.

Judgement

The Court found that inconsistencies in the plaintiff’s versions of events throughout the life of the claim were critical to the plaintiff’s claim and left the court in doubt as to how the injury was sustained. While her Honour noted that she did not consider the plaintiff dishonest, she believed that there was an element of reconstruction to his evidence.

In relation to liability, the Court found that the heavy manual work being performed by the plaintiff involved a not insignificant risk of injury and a reasonable party in the employer’s position would have foreseen this risk. However, the magnitude of the risk of injury to a worker performing the subject task was low, noting the absence of a similar injury sustained by a worker in the 40 years that the employer had been conducting business.

Further, on the plaintiff’s own evidence, he sustained the injury while performing the subject task in a manner contrary to the method in which he had been instructed and directed to perform the task.

Therefore, the employer did not breach the duty of care that it owed to the plaintiff.

Despite the findings on liability, her Honour considered the potential quantum of the claim. The Court determined that, had the plaintiff been successful in establishing liability, the total award of damages would have only been $60,970.00. This amount is substantially less than the refund of $149,954.87 owing to WorkCover Queensland for benefits received by the plaintiff during his statutory claim.

In reaching this assessment, the Court noted the following:

  1. The plaintiff had only worked for a few months in the 6.5 years prior to the 2013 incident.
  2. It was unlikely that the plaintiff would have continued working for any lengthy period of time, noting his previous left arm/hand injury.
  3. The plaintiff had significant pre-existing psychiatric difficulties.
  4. The plaintiff’s net income in the three years preceding the incident was $7,192.00.
  5. Assessing the claimant’s future treatment expenses was impossible, in circumstances where none of the medical experts had been fully appraised of the claimant’s

pre-existing left arm/hand injury and psychiatric difficulties.

Moving forward

It is worthy to note that the inconsistency of the evidence provided by the plaintiff in this matter was a significant hurdle in proving the incident occurred as alleged and the incident resulted in the injuries the plaintiff claimed. The decision of the Queensland District Court provides a reminder that an employer may not be seen to have breached its duty of care to an employee where the employee fails to perform work duties as instructed.

Further, the Court’s decision reflects the difficulty for a plaintiff in claiming a large sum for future economic loss, in the presence of significant pre-existing injuries and a lacklustre work history.