Worker denied damages in personal injury trial – the dangers of not getting your story straight

20 January 2021

Barry.Nilsson. recently acted for the defendant in a personal injury case in the Townsville District Court, in which the plaintiff alleged he sustained injuries to his lumbar spine as a result of an incident on a worksite in February 2013.

Both liability and quantum were in issue, with the court finding that the plaintiff had not established on the balance of probabilities that he injured himself in the manner he alleged.

In issue

  • The main issue to be determined by his Honour was exactly how the plaintiff injured his back, with both defendants arguing that he did not sustain his injury in the manner alleged. As such, his Honour was required to undertake a comprehensive analysis of all of the factual evidence presented at trial.

The background

The plaintiff sought damages for personal injuries he allegedly sustained at a building site in Townsville (the site) on 16 February 2013. A construction company (Heinrich) who was sub-contracted to perform formwork on the site by the principal contractor (Hutchinson) employed the plaintiff. Barry.Nilsson. acted for Hutchinson in the proceedings.

The plaintiff alleged that he injured his lumbar spine when lifting a fallen bearer on level 8 of the site, approximately 4.8m in length, which was wedged into formwork. He alleged that the bearer was dislodged and fell into the formwork as a result of strong winds from a storm the night before, or in the alternative, as a result of a crane accidentally hitting the formwork causing the bearer to be displaced.

At trial, the defendants argued that the lifting event did not occur at all, and as such, both liability and quantum were in issue. The defendants relied on the plaintiff’s various inconsistent accounts of the events which were provided to various medical providers, engineers as well as lay witnesses on the site. The defendants also questioned the plaintiff’s timeframe of events, with evidence being adduced that he had injured his back prior to the commencement of work on the day of the incident.

The decision at trial

His Honour found in favour of the defendants. Although the court was satisfied on the balance of probabilities that an incident occurred at the site on the morning of 16 February 2013 resulting in the plaintiff sustaining an injury, the court was unable to find in his favour because:

  • Based on lay witness evidence and historical Bureau of Meteorology records, it was clear that there was no significant weather event on the night before the alleged incident which would have been capable of dislodging a 4.8m bearer from formwork;
  • Although it was plausible that a crane was operating the afternoon before the alleged incident and therefore may have dislodged the bearer in some way, the plaintiff had not overcome the ‘threshold issue’ of proving that the bearer had fallen into the position he alleged he found it in prior to injuring his back. In this regard, the his Honour noted that:
  1. There were no other witnesses called at trial who had observed the plaintiff injuring his back, or observed the presence of a fallen bearer on the worksite as had been alleged by the plaintiff;
  2. The expert engineering evidence which was presented at trial effectively established that the bearer was unable to be dislodged from the formwork from a lateral movement, such as a crane, and that if a crane was to have dislodged the bearer, it would have likely resulted in knocking over the entire formwork;
  3. Had a bearer been dislodged in the manner pleaded by the plaintiff, it would have been observed by other witnesses at the site;
  4. Given the plaintiff gave so many different version of events, which included in 1 version describing a different material that he had lifted, it could not be determined on the balance of probabilities that the incident occurred in the manner alleged.

As such, His honour determined that both Heinrich and Hutchinson could not be held liable for the plaintiff’s injuries.

Implications for you

The case highlights the importance for defendants to thoroughly review the evidence provided by the plaintiff during both the pre-court and litigated stages of claims to identify whether there are any significant inconsistencies in their version of events.

McKenzie v Heinrich Constructions Pty Ltd; McKenzie v J Hutchison Pty Ltd - unpublished QDC Dec 2020

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