Unsafe system of work – manual handling…

…negligence – consent orders granting leave to appeal

On 27 April 2015 the respondent suffered lower back injuries in the course of his employment, with the applicant as a labourer.  

The respondent was injured when he adopted the ‘bear hug’ method of removing a bollard, under the mistaken assumption it was not secured to the ground.

At trial, the issues in dispute related to whether the applicant had devised a safe system for removing the bollards, whether the respondent departed from that system, and the credibility and reliability of witness evidence.

The respondent succeeded at trial and was awarded damages in the sum of $236,811, with costs.

The applicant appealed on the basis the trial judge erred by failing to make findings on the issues in dispute, and by making a finding of negligence on a basis which was not open on the evidence. The respondent consented to the appeal, including that a re-trial be ordered.

Decision

The appeal was allowed and a re-trial was ordered.

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Ratio

The Court of Appeal found that the trial judge failed to make critical findings on the credibility of the applicant’s account of the system of work, and what the respondent was instructed to do. It was also found that there was a failure to make critical findings about the actual system of work in place by the applicant. 

Further, the Court of Appeal highlighted that the trial judge’s finding on the inadequacy of the system of work – with respect to a method of checking bolts had been removed prior to lifting the bollard – was neither the case put by the respondent, nor an issue in dispute between the parties. 

Consequently, the trial judge failed to consider all of the evidence, and made a determination upon a factual finding that did not arise from the case pursued by either the respondent or the applicant, and was therefore not open for his Honour to find.

This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Hugh Powell, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.