Judge finds system of work unsatisfactory

25 July 2023

A shady plaintiff’s evidence has been accepted over that of his employer and host employer resulting in him achieving a significant windfall of damages.

In issue

  • An employer and host employer were unsuccessful in discrediting a plaintiff who allegedly sustained injuries when he tripped over a hose attached to a Vac truck.
  • The circumstances giving rise to the claim and whether an injury was sustained by the plaintiff as a consequence of the incident were in issue at trial. Alternatively, the defendants pleaded the plaintiff was contributorily negligent.

The background

The plaintiff alleged that he suffered injuries to his back on 13 September 2012, in the course of his employment while using a Vac truck to clean out Telstra pits, when he essentially tripped over a suction hose.

The plaintiff was employed by the second defendant, Speedie Staff Solutions (Speedie), a labour hire company and he had been provided to the first defendant to work as a labourer.

The plaintiff initially attended the Emergency Department at Armidale Hospital on 17 September 2012, providing a history that he ‘tripped + fell on pipes at work' and he had initially felt pain in his right leg and numbness, or pins and needles in his right foot. He then returned to work on 20 September 2012 and obtained a claim form at the first defendant’s office on 24 September 2012 and a medical certificate.

The plaintiff continued working but attended the hospital again on 20 October 2012 with a bleeding lip but was too intoxicated to give a coherent history. He then returned to the hospital on 30 October 2012 and a nurse removed his sutures.

The plaintiff’s employment was subsequently terminated on 15 November 2012 when he attended a training session and was subjected to a breath test, which he failed.

The plaintiff provided a history that he had attempted to attend the hospital again for treatment but was turned away because his complaint was work-related.

There was a subsequent record of an attendance at the hospital on 27 December 2012, when the plaintiff decided to tell staff that he had injured himself when he fell out of a tree, while intoxicated 3 weeks prior (a story he said he concocted to overcome the quandary of having been turned away on a prior occasion).

After further investigations, the plaintiff ultimately underwent spinal surgery in October 2013.

The level of training and induction provided by the defendants to the plaintiff in relation to his engagement, particularly in relation to the operation of the Vac truck was also in issue, with the plaintiff and representatives of the defendants being cross-examined at trial.

The decision at trial

The defendants sought to challenge the plaintiff’s credit at trial, however, this did not affect the judge’s favourable impression of the plaintiff such that his evidence was accepted. The judge was also motivated in his acceptance of the plaintiff’s evidence by the corroborating evidence of his wife and unsatisfactory presentation of the first defendant’s representative’s evidence.

In the circumstances, the judge did not accept that the plaintiff had been provided with induction and training as described by the first defendant. Additionally, while the plaintiff’s accident involved a tripping hazard, the judge considered the circumstances were better viewed as being an unsafe system of work, that included a tripping hazard as part of its operation. The judge considered that the pressure the plaintiff was under to clean out the pits quickly also contributed.

Observing section 5B of the Civil Liability Act, the judge noted that there was a risk of harm through falling backwards after tripping on a hazard, the risk of a hose behind the plaintiff was foreseeable and the risk was not insignificant, given that a serious personal injury could be sustained. In the circumstances, the judge determined that a reasonable person would have taken precautions to ensure that the system of work was safe. Primarily, the judge considered that there should have been some supervision of the plaintiff’s system of work or the use of an extra worker. Whilst the task could be completed by one person, when under a time pressure, the presence of another worker would have been a reasonable remedy to the risk.

With respect to Speedie’s breach of duty of care, the judge noted that the second defendant did not inspect the plaintiff’s work and although the employer’s representative probably lacked the experience and knowledge to have recognized an unsafe system of work, that in itself was a failure to take precautions.

The judge did not make a finding of contributory negligence against the plaintiff, observing that the system of work was governed by the defendants and it was not for the plaintiff to raise issues of safety. At paragraph 200 of the judgment the judge noted that 'The plaintiff, having had no instruction or correction from either defendant, was required to work in a system that essentially necessitated short cuts.'

The judge otherwise concluded that the appropriate split between the defendants was 80% liability on the part of the first defendant (host employer), and 20% on the part of the second defendant (labour hire employer). In reaching that decision the judge observed that the first defendant supervised, directed and organized the plaintiff’s work and so it bore the majority of the liability. The second defendant specifically involved itself in the welfare of its employees, providing some induction and visiting worksites, such that was still exhibiting a degree of control over its employees.

The plaintiff was awarded damages totaling $1,682,391.42.

Implications for you

Despite the abundance of circumstantial evidence, the defendants were unable to discredit the plaintiff with the result that the court simply accepted the plaintiff’s evidence at face value, and awarded a large sum in damages and made findings in his favour in relation to lack of training and supervision by the defendants.

This decision once again shows the importance of objective evidence at trial and difficulties discrediting plaintiffs without such evidence.

We also note that the judge criticised the documentation produced regarding the level of induction and training provided to the plaintiff by the first defendant, particularly in relation to the operation of the Vac truck itself. This demonstrates again the importance of detailed record keeping, that is also verifiable by multiple sources.

De Vries v JNC Group Australia Pty Limited [2023] NSWSC 777

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