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Written by Peter Carter

November 30, 2012

The dockworkers at Brisbane’s Cairncross slipway were under some pressure to complete routine hull maintenance, during the Sun-Princess’ two-day docking there in August 2009 in preparation for its next Pacific Ocean cruise.
Gerry Test’s role in this task was to employ an angle grinder to “criss-cross grooves into the anode” and then chisel out the accumulated zinc in pieces from the hull of the 77,000 tonnes Italian built, Liberian registered vessel.

The deposits – which naturally occur as a result of the discharge of electricity in seawater at four discharge points on the hull – necessitated, he claimed, lifting, bending, twisting, reaching and straining over two 12 hour shifts, during which he reported increasing low back pain and left sciatica.

His response to the stubborn metal bonded to one of the more troublesome anodes was to swing a 2.5 kg sledgehammer above his shoulders. Test’s evidence was that after hours and hours of backbreaking work he suddenly felt “Whoa, something had snapped in my back”. It was painful enough to make him “suck wind”. He took a few breaths, got down had a cup of coffee and a smoke.

In his back injury lawsuit against his employer, Test established that the crew were working to a fixed schedule and that an email plea had been sent by the supervisor to management about the obstinate accumulations as follows:

We need some burly men who can use a large Jack Hammer above ones head. My blokes have been using Cold Chisels, Air Chisels, crow bars etc with little success and I have done the calculations and we will not finish in time.

Usually required only to perform as a “sentry”, the court noted the plaintiff was hardly “burly”. Unquestionably an arduous task, the court accepted “the plaintiff would be tired and sore” but whether an injury would foreseeably result “is another matter”.

There was, for example, no evidence of why the “radical” sledgehammer measure was required, or that he had even used a jackhammer. The metal was eventually “got off” using the angle grinder method alone.

“At worst for the defendant, it knew that the plaintiff was being put to work”, observed the court. The plaintiff’s case was “devoid of suggestions that to what would have been a reasonable response by the defendant”.

Having “considered this aspect carefully” his honour was not persuaded that the “circumstances had alerted the defendant to the desirability of devising some different manner of working”. “Discreditable” to the plaintiff, was the “gross exaggeration” of the claim as presented in his Statement of Loss and Damage which, so said his honour, could justify a court in “rejecting or entertaining grave reservations about the plaintiff ‘s evidence generally”.

Another black mark, the plaintiff had admitted lying to doctors.

Regardless of the attack on credit, he was accepted to be a general genuinely hard worker albeit with significant prior back history. Test’s explanation for concealing prior neck and back injuries when applying for the dry dock job was accepted as “entirely credible” on the basis that he wouldn’t have been given the job had they been disclosed.

In the final result however, the plaintiff failed on “all four of the issues on which he needed to succeed upon:  foreseeability, preventability, reasonableness and causation”. With damages – assessed at a mere $14,500 due to a poor work history and prior disability – the three day District Court trial proved in hindsight, an extravagant exercise.

The Sun Princess is owned by Carnival Corporation, as was the ill-fated Costa Concordia that was sailed into a reef and sank on the western coast of Italy in January 2012.

Test v Forgacs Engineering Pty Limited [2012] QDC 318 Brisbane Robin QC, DCJ 24/10/2012

Categories: Personal Injury , Litigation & Law Practice

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