The recent NSW Court of Appeal decision in Small v K&R Fabrications has upheld the trial decision that a worker’s evidence was implausible and therefore there was no breach of duty.

The plaintiff was a subcontractor for K&R Fabrications who was undertaking maintenance work at Bluescope Steel’s Port Kembla site. The plaintiff was engaged to replace three metre long steel channel beams. He alleged that as he was holding a beam, which was cut by a boilermaker, the beam fell and he dropped his arms, causing the plaintiff to twist and injure his back.

The trial judge heard evidence that the plaintiff was asked by a boilermaker to hold the end of a beam. The plaintiff described the boilermaker was on the inside of the conveyor structure, kneeling down on the other side of the plaintiff. The plaintiff expected that the beam would sag or buckle as it was cut through, but the whole weight of the beam dropped into his arm. The plaintiff also claimed he had no experience or instruction with the work involving the cutting and replacing of the beam.

The Court accepted the plaintiff suffered an injury at work and that trade assistants did assist with beams being cut. However, the trial judge found that the description given by the plaintiff that a boilermaker cutting a beam whilst kneeling inside the conveyor structure below the level of the beam was implausible. The trial judge was not satisfied on the balance of probabilities of the veracity of the plaintiff’s account and the plaintiff therefore failed to prove how the injury was in fact suffered.

The Court of Appeal upheld the trial decision, stating without knowing how the injury occurred, the Court could not be satisfied that there was a breach of duty of care. The trial judge was correct in her decision given the lack of evidence to support the plaintiff’s claim. The appeal was dismissed.

Significance of the case

The injured worker must adduce evidence of a version of the incident which will be accepted at trial. The onus of proving how the accident occurred is on the plaintiff, and the defendant is not obliged to explain how the worker was injured where the plaintiff fails to convince the court.