Workers' Compensation Update

Court dismisses claim for damages to injured worker due to lack of credibility 

Bakhit v Brisbane City Council [2017] QDC 155

A labourer employed by the Brisbane City Council was unsuccessful in his claim for damages after injuring his back while dismantling temporary fencing at a Council reserve.

The Incident

On 13 July 2011, the Plaintiff lifted a concrete block weighing approximately 31.7kg. The block formed the base of temporary fencing.  After lifting the block, he twisted to walk and felt an acute onset of sharp pain in his lower back radiating to his left leg.  At the time of the alleged injury the Plaintiff did not report it to his direct supervisor, there was no witness to the incident and he did not attend treatment for back pain until 16 July 2011.

The Council argued that the Plaintiff was not required to lift the concrete block on his own and had devised, implemented and maintained a safe system of moving the blocks to be performed by two people using a "lifter".  The Council said it had instructed the Plaintiff how to lift the concrete blocks, but there was no documentary evidence of the Plaintiff's training or instruction in the use of the lifter.  Nonetheless, the Plaintiff conceded he had used the lifter with his supervisor on one occasion prior to the subject event and had been shown how to use the device.

District Court's Decision

The Court held that the liability evidence led by the Council was vague and fell well short of establishing a system of work which required the use of lifting devices.  Despite the fact the lifter was on site, the Council did not ensure the lifter was utilised by the workers.  Accordingly, the Council failed to implement proper instructions and supervise lifts undertaken by workers, thereby breaching its duty to take precautions against a risk of injury to the Plaintiff.

However, in determining the issue of causation, the Court specifically pointed to the following facts:

• The Plaintiff made no mention of the incident to any of his co-workers on 13 July 2011.  He told his treating doctor on 16 July 2011 that his back pain commenced when lifting materials and equipment.

• The treating doctor's referral of 8 October 2011 to the Princess Alexandra Hospital noted the Plaintiff had suffered lower back pain for 6 months.  He later told hospital staff that he had suffered back pain since January 2010.

• The Plaintiff told a medical specialist on 9 December 2011 that the back injury was sustained approximately two to three months earlier, which drew the specialist to infer the injury occurred in early October 2011.

• On 9 December 2011, the Plaintiff signed an application for workers' compensation following his report of injury to his supervisor at the Council.  The Plaintiff recorded the date of injury in the application as "approximately 1 September 2011".

The Court held that the Plaintiff's inability during cross examination to recall conversations that contained inconsistent statements made by him meant there was no credible explanation for the statements.  The combined effect of the inconsistencies in the Plaintiff's evidence in relation to the date of injury, when he experienced pain and the description of the mechanism of injury led the Court to conclude that the Plaintiff's evidence was unreliable and could not be accepted.

The Plaintiff could not prove his injury was sustained on 13 July 2011 and his claim was dismissed.

Significance of the Case

If an injured worker cannot adduce convincing evidence of the date of the accident and the mechanism of the injury, their case will fail.  The case emphasises the importance of a Defendant's cross-examination of the Plaintiff's evidence at trial to properly test a Plaintiff's credibility.  It also is a reminder for local government employers to maintain documentary evidence of manual handling training, and more specifically, documentation of updated training for unique equipment which alters a system of work.

For more information on this article, or to discuss liability issues further, contact Mark Williams on (07) 3243 0000.