The District Court at Townsville has dismissed a personal injury compensation claim brought by Mr Smart, a worker who injured his knee on the job.
Injury Incident
Mr Smart worked at the Cannington Mine and was required to repetitively load and unload bags weighing up to 10kg when flights carrying mine works arrived and departed. On 29 February 2016 he was performing this task. It required he repeatedly step up from the road onto a footpath, put a bag down, then turn and step back down to get another bag. The step up was 16cm high and marked with a broad yellow painted strip. The footpath was painted a contrasting blue colour. It was ‘a nice flat gutter and it steps onto nice flat bitumen… designed to the Australian standard for gutters.’
When stepping down, Mr Smart alleged his ankle gave way, he fell and he injured his knee.
Exact Mechanism of Injury
On 22 April 2016, some 53 days after the work injury, Mr Smart’s doctor recorded ‘someone fell on his right knee 6 weeks back.’ At a follow up appointment a few days later on 25 April 2016 Mr Smart’s doctor recorded ‘a person fell on his knee’ and ‘x-ray is normal.’ Interestingly the x-ray referral written on 22 April 2016 said ‘history of fall’ but despite this the doctor was adamant that her clinical notes about someone else falling on Mr Smart were correct. The Court accepted the doctor’s evidence about how Mr Smart described the mechanism of injury to her on 22 and 25 April 2016 and rejected his evidence and that of his witnesses about how on other occasions a two person team unloaded or loaded bags using a daisy chain system so that it was not necessary to repetitively step up and down the gutter. The Court also accepted evidence from the employer that Mr Smart repeatedly said his knee was fine after the injury. What did seem clear, is that his ankle had given way, in exactly what circumstances the Court was not sure.
Video Demonstration and Reconstruction
The employer created two videos, one of a real plane of workers having bags unloaded in a similar fashion to the task Mr Smart alleged injured him. Another video showed the same thing but as a reconstruction with the same number of bags that Mr Smart had to handle on the day he alleged he was injured. The reconstruction showed the task took about 3 minutes and 35 seconds. The Court accepted this evidence.
Wife’s Diary
The day before trial, on 17 February 2020, Mr Smart, for the first time, gave his solicitor an entry from his wife’s diary that he alleged he wrote soon after the incident on 29 February 2016. However, an analysis of the diary showed that on at least one other occasion Mr Smart must have made an entry well after the date it corresponded with. It just did not make sense to contemporaneously record something because you realised it was so significant, then not give that evidence to your solicitor until one day before trail – if is truly was recorded contemporaneously.
Judgment
The plaintiff, Mr Smart, had his case dismissed because the risk of stepping down, while not carrying anything, from a path down a square gutter to a road with a drop of 16cm, involved only an insignificant risk of injury. There was nothing the employer could reasonable be expected to have done to make the task safer. The case also had other problems but this one was fatal.
Lesson of Plaintiffs
It is hard to see why this case was run to trial. The task involved only 10kg maximum weight bag to be handled. It took only a few minutes, perhaps up to about 5 minutes and there simply was no significant risk. Only one bag was carried at a time and there was no time pressure or difficulty discerning the edge of the gutter.
Of note though is the defendant’s use of a video demonstration as evidence. This is a tactic that is also available to plaintiff’s. Ensuring the Court and your opponent are made aware of the task that caused the injury and what was involved is important. A case will be much less persuasive if it is not made clear to the Court exactly what was involved in the risk that caused the injury. A video demonstration could also be used to show a safer way of performing a task, how long it would take and to prove that it would have been feasible for the defendant to operate in the manner demonstrated.
Workers should also be careful to accurately describe their injuries and the mechanism of injury to their treating doctors. It is important for workers to read their workers’ compensation medical certificates to ensure they have been filled out correctly by their doctor before they leave the consultation. Doctors are often more focused on diagnosis and treatment than mechanism of injury, date or period of injury and if a problem in this regard is only picked up by the plaintiff’s lawyer much later, it can prejudice the plaintiff’s prospects in a personal injury claim.
Smart v Compass Group (Australia) Pty Ltd [2021] QDC 176