Case note: Krobath v Thiess Pty Ltd  QSC 309
A 55 year old dump truck operator has successfully sued his employer, Thiess Pty Ltd (the Defendant) for an injury to his lumbar spine arising out of the drop of a load of rocks into the tray of the rear dump truck he was operating. His back injury payout was $719,698.18 plus costs.
The defence of this claim was conducted by the Defendant’s insurer, WorkCover Queensland.
The Plaintiff sought damages for an incident where an excavator dropped a load of rocks, including a rock which was approximately 2-3m wide, into the tray of the rear dump truck he was operating. The impact of the jolt, tossed him about ‘violently’ in the cabin.
The Plaintiff first reported his injury to the employer on 29 February 2012. While the injury was not immediately reported to the Defendant, the Plaintiff’s overburden tally sheet for 1 November 2011 contained an unusual note at 5:50pm made by the Plaintiff which was:
- Big rock drop into tray
The Plaintiff’s explanation for why he did not report the injury were that he:
- did not feel any symptoms of an injury until the following morning; and
- felt that his job would be in jeopardy if he complained.
The first time that the Plaintiff consulted a doctor after the incident was on 23 November 2011.
His GP’s notes recorded a ‘jarring’ ‘incident’ to the Plaintiff’s back but also recorded, ‘no injury’. An added problem for the Plaintiff was that his GP’s notes contained the words, ‘5/12 LS back pain’ – which the doctor interpreted to mean, five (5) months of back pain. The GP with whom the Plaintiff attended on 23 November 2011, had not seen him previously.
Issue for determination
The Defendant filed an Amended Defence at the commencement of the trial, admitting that if the Plaintiff was injured in the way alleged, the incident and any injuries sustained by the Plaintiff were caused or contributed to by the negligence and/or breach of contract of the Defendant.
Accordingly, His Honour Justice Crow reasoned that the only issue for determination was whether the Plaintiff injured his back in the way he claimed.
However, further questions arose about the extent to which the injury was contributed to buy the Defendant’s conduct, because of arguments advanced by the Defendant.
WorkCover Queensland’s case
The Defendant denied the allegations by the Plaintiff that between approximately 4:40pm and 6:30pm on 1 November 2011, the Plaintiff was operating a dump truck and that the excavator in question was loading trucks.
The evidence at trial revealed that this was technically correct. The dump truck and the excavator were not operating for the whole of that two (2) hour period.
However, the Defendant’s own records identified that both the excavator and the dump truck would have been operating at 5:50pm, being the time of the ‘big rock’ incident shown in the Plaintiff’s overburden tally sheet.
The Defendant also led evidence that:
- the Plaintiff had a pre-existing back condition;
- the incident did not cause the injury; and
- the Defendant had safe procedures in place with respect to loading of large rocks.
Findings of the Court
The Court was satisfied that the injury was sustained as a result of the incident on 1 November 2011. In a judgment delivered on 20 December 2018 in Rockhampton, found in favour of the Plaintiff. The hearing was 10-12 December 2018.
The Court accepted that while there was no contemporaneous report of an injury by the Plaintiff to his employer, the Plaintiff’s reasons for not complaining were adequately explained.
It is unclear whether the pleadings involved a dispute about section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). Section 305B requires a Plaintiff to prove that a risk of this type was forseeable, not insignificant and, that a reasonable person in the position of the Defendant would have taken particular precautions to address that risk.
With respect to the Defendant’s procedures, while the judgment does not specifically deal with section 305B of the WCRA, it:
- lists several similar incidents at the workplace in the months prior to 23 November 2011, involving other workers; and
- observes that efficient management for mine equipment, ‘reasonably requires the deployment of skilled operators between different plant’.
The Court determined that the entry in the doctor’s notes referring to a back injury over five (5) months was a mistake. There was no corroborating evidence to support a finding that the Plaintiff had been suffering ongoing back problems before the incident. In fact, to the contrary:
- he had passed a mine medical examination;
- he had worked numerous 12.5 hour shifts without complaint or any limitation visible to other workers;
- his last attendance with that medical practice was in July 2010 (16 months prior); and
- no other medical practitioner took that history in the course of the claim.
As to whether the incident caused the Plaintiff’s injury, the Court found that the evidence from the Defendant’s expert Dr Atkinson, Neurosurgeon, supported a view that workers suffer neck and back injuries in incidents just like this. This was notwithstanding Dr Atkinson’s evidence that symptoms of injury and an incident like this, generally occur simultaneously.
This case and our previous article, ‘Injuries from vibration or a sudden jolt’will be of interest to those in the mining and construction industries.
Judgments in cases like these reveal that some of the key considerations for the Courts are:
- previous complaints about equipment;
- the condition of any equipment;
- reporting of the incident;
- pre-existing degeneration; and
- expert evidence on liability.
A chronology which sets out all of the events, evidence and witnesses can assist parties to understand the strengths and weaknesses of their case, at an early stage.
A defence advanced about a pre-existing medical condition should be well supported. In this case, the single entry in the Plaintiff’s GP’s notes (in the absence of other evidence about that pre-existing condition) was insufficient.