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How can an injured worker recover injury compensation damages for an on-the-job accident when an employer has put in place a safe system of work only to have a co-worker fail to follow the system as a result of a momentary lapse.
Dustin Bartlett was injured on the job in April 2018.
His labour hire employer Sura Pty Ltd had deployed the 37-yr-old’s services to concreting company De Martin & Gasparini for their subcontract job on a new building in Martin Place, Sydney.
Before the morning pour got underway, Bartlett and another worker were directed to move a 10m concrete hose closer to the concrete boom on another part of the site.
DeM&G accepted that a pipe with concrete in it – weighing up to 60 kg – might need four or more people to lift it, A clean and empty pipe could be lifted by just two.
Its safety protocols emphasised the necessity for heavy lifting jobs including concrete pipes to be coordinated and noted that failure to observe that requirement exposed workers to the possibility of injury.
The other worker – who Bartlett was later unable to identify – picked up the concrete hose and began walking at a fast pace before he was ready. Bartlett “was jerked forward and made to walk before [he] had a proper hold of the hose and before [he] had stood up properly”.
He immediately felt an excruciating pain in his lower back that brought on tears, nausea and difficulty in breathing.
Over the next two years he underwent a number of CT and MRI scans of his lumbar spine to assist with identifying the source of ongoing paid but which also revealed pre-existing degenerative change.
In March 2020, he had a microdiscectomy at the L4/5 level carried out by Dr Ferch and in November that year, a left L4/5 revision microdiscectomy.
In February 2021 a revision L4/5 decompression and posterior lumbar interbody fusion was conducted.
Bartlett’s lawsuit against DeM&G did not allege an unsafe system of work but rather that a worker it employed or who was under its control “carried out a casual act of negligence” for which it was liable.
The case came before Justice Michael Elkaim in the NSW Supreme Court where it was put to Bartlett that four people had been involved in the lifting of the pipe.
DeM&G ultimately accepted the futility of disputing the worker’s version of events when its first ‘unimpressive’ eye witness was discredited in his testimony.
The company contended that the worker had given a history to his employer that he had hurt his back in another incident.
The judge rejected that suggestion given the contemporaneous description of the event supplied by the worker to the on-site medical officer: “IP lifted concrete rubber with a work mate, causing a strain on his lower back.”
DeM&G’s third argument to defeat the claim was that the over identified worker was likely an employee of another labour hire company – Civic – over whom it had not been proven to have had control.
It argued that a defendant is not vicariously liable if a co-worker causes injury when the co-worker is not its servant or if the defendant has no authority to control the doing of the act and does not directly authorize it.
His Honour agreed a transfer of liability does not necessarily occur in every labour hire case but it was clear in his view there had been – in this case – a transfer of authority from Sura.
He also agreed there was no evidence about the relationship between DeM&G and workers from Civic but in his view because it was not in dispute that both workers had been directed by DeM&G to perform the job, the unidentified worker should be taken to be a person under its control just as were the labour hire workers from Sura.
The company also contended Bartlett’s simple description of what had occurred to him – being jerked forward – did not permit any finding of negligence because no mechanism of injury had been identified.
Bartlett’s safety expert, Abbas Ali was well able to articulate that the injury was were caused by a hazardous manual task with a high risk of musculoskeletal disorder involving two hazardous manual task characteristics – high force and sudden force – in an unexpected context.
He pointed out that the unexpected movement by the other worker was absent the coordination demanded by the employer’s system.
In considering both sides of the argument the judge agreed that carrying a 50 kg weight was well within the capacity two men if there is coordination between them which did not occur.
“The unidentified worker ignored the demands of coordination and did so under the express authority of the first defendant. I do not mean that he had been instructed to ignore coordination, but rather that he was acting pursuant to the direction of the first defendant to move the pipe”.
Orthopaedic professors Peter Giblin and Nigel Hope concurred that the mechanical mechanism of the injury described by the worker was plausible and that he could not return to his pre-injury duties.
Psychiatrists Ben Teoh and Alex Apler agreed that the worker developed an adjustment disorder with depression as a result of the April 2018 incident secondary to his chronic, severe pain.
On the medical specialists’ description of his post-accident capacity, the court arrived at a a non-economic loss assessment of 35% of the most extreme case, $252,500.00.
It allowed $890,107 for future loss of earnings and future care for four hours per week for the whole of his 40 yr life expectancy, $230,000.
Together with past loss of wages of $564,000, the total award came in at $2,600,000 for which the defendant parties agreed DeM&G would accept 90% responsibility in the labour hire company 10%.
Bartlett v De Martin & Gasparini Pty Ltd [2024] NSWSC 1172 Elkaim AJ, 17 September 2024
Categories: Construction accident