All News tagged: Workers Compensation Lawyers Qld

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Contributory negligence finding of 50% against pipeline worker

Case note: Kennedy v Queensland Aluminia Limited [2015] QSC 317

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The Supreme Court of Queensland has made a finding of 50% for contributory negligence against a pipeline worker who suffered burns from caustic liquid after failing to follow the training and procedures of his employer.

The Facts

Mr Paul Kennedy (Plaintiff) brought a claim for damages against his employer, Queensland Aluminia Limited (Employer).

The Plaintiff was required to break open a vertical pipe and to replace a “blind” on a section of it. The pipe conveyed caustic solution. The Plaintiff was aware that if the pipe was not isolated effectively from the tank overhead, caustic could emerge from the pipe and it would cause severe burns if he came into contact with it.

The Plaintiff touched the pipe noting that it was hot and believed that it was “live” or “energised”. He closed the pump suction valve by turning a hex nut to what he thought was the closed position. He actually opened the valve. The hex nut was not marked to show when it was opened or closed.

The Plaintiff loosened three bolts on the flange at the base of the pipe where he intended to insert the blind. A “show of liquor” came from the open section of the flange at a steady pace and then the stream reduced to a dribble. He left the task for a break and returned to it half an hour later.

On return, no further caustic was coming from the pipe. He removed the rest of the bolts and while in a kneeling position the caustic shot out, striking him in the chest and face.

The Issue

The Court considered that there were two reasons why the incident occurred:

  1. The Plaintiff opened the pump suction valve instead of closing it.
  2. The Plaintiff did not prove isolation.

The Employer admitted liability for the claim but said that the Plaintiff was contributorily negligent for failing to prove isolation.

The Training

The Employer had a standard procedure for proving isolation. A witness for the Employer explained that in such a situation, a worker is expected to shut the suction valve and open the drain leg by removing the cap. The worker is to use a probe to probe the drain leg to get the flow. The worker is to then open the suction valve to witness the flow. When the flow has stopped, the worker has proved isolation.

The Plaintiff’s evidence at trial demonstrated an inconsistency between his understanding of how to prove isolation and the actual procedure the Employer required staff to follow. The Plaintiff simply turned off the suction valve and then proceeded to open the pipe. The Plaintiff believed that he should break into the pipe “to prove drainage”.

The Court was satisfied that the Plaintiff knew of the use that ought to have been made of the probe. It was set out in a documented tagging procedure. The Plaintiff had seen a power point slide relating to the procedure. A witness for the Employer said that the task the Plaintiff was undertaking was not complex and it was one that staff would be competent to perform after six months in the job. The Plaintiff had been working for the Employer for three years at the time of the incident. He had been promoted and had tag competencies.

The Judgment

In a judgment delivered on 18 November 2015 The Honourable Justice McMeekin found as follows:

  1. The Employer failed to ensure that there was an adequate system of marking the valves to ensure that an operator knew when they were opening or closing them.
  2. The Plaintiff had been adequately trained. He would not have been promoted and given tag competencies, if he was not completely familiar with the Employer’s procedures. He failed to follow instructions in proving the isolation of the system. He had no excuse for doing so. That involved a significant departure from safety procedures.
  3. The Plaintiff’s actions went well beyond “mere inadvertence, inattention or misjudgment”. The Employer’s system was intended to cater for a mistake. The possibility of a valve not being effective was at the heart of the Employer’s system. Had the Plaintiff done as he had been taught, the open valve would have been identified and the work not undertaken.
  4. Liability should be apportioned between the Employer and the Plaintiff 50/50.

His Honour also commented that it was “trite law” that the onus lies on an employer to establish contributory negligence.

Considerations

Here, the Employer established a significant reduction for contributory negligence despite:

  • pleading limited particulars of its case for contributory negligence; and
  • the fact that it could not call a witness who could claim to have directly taught the Plaintiff the procedures.

The case illustrates how important it is for employers and host employers to persist with allegations of contributory negligence where a worker has departed from the Employer’s documented safety procedures and training.

This case will be of particular interest to those working in industries involving isolation and tagging procedures – e.g. mining, gas, infrastructure.

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Kate DenningContributory negligence finding of 50% against pipeline worker
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No compensation for degenerative disc disease

Kirby v Blackwood (Workers’ Compensation Regulator) [2015] QIRC 184

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The Queensland Industrial Relations Commission (Commission) has refused the appeal of a worker seeking compensation for degenerative disc disease.

The Facts

Ms Kaye Kirby (Appellant) underwent a spinal fusion to her L1 – L3 discs in 1991.

In about 2001, she started working for InvoCare Australia Pty Ltd (InvoCare) as a Funeral Manager. She told InvoCare about her pre-employment spinal surgery.

In 2010, she started to suffer back pain and in 2011, sciatica. The Appellant brought a common law claim for a back injury (injury) and a secondary psychiatric injury arising out of her employment with the InvoCare. Before the Appellant could proceed with her common law claim, she had to establish that she had an entitlement to compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

The Appellant alleged that her injury arose out of her work over the period 2011 to 2012.

The duties the Appellant claimed contributed to her injury included:

  • moving chairs
  • carrying Neverfail water bottles
  • vehicle maintenance
  • coffin deliveries
  • transfer of deceased persons
  • transfer of caskets/coffins and pallbearing at funerals
  • burials

The Appellant’s claim was rejected by the Workers’ Compensation Regulator (Regulator). She appealed the Regulator’s decision to the Commission.

The Issue

The issue for determination by the Commission in the Appeal was whether the Appellant’s injury arose in the course of her employment.

The Experts

The Appellant relied upon the evidence of Dr Gillett, Orthopaedic Surgeon, in support of her claim. Dr Gillett provided a report to the effect that work practices over a period of time in relation to manual lifting, particularly the lifting of coffins, would have placed stress and strain on the lower back and on the Appellant’s fusion. Dr Gillett said that even without the work of a funeral director, the Appellant would have had some increasing degeneration to her lumbar spine. However, he estimated her duties caused an acceleration in her degeneration of 5 years more than what would have occurred.

The Regulator relied upon the evidence of Associate Professor Peter Steadman, Orthopaedic Surgeon. Associate Professor Steadman was of the opinion that the Appellant was suffering from Adjacent Segment Disease (ASD) an almost inevitable consequence of her previous spinal fusion. Importantly, he was ‘unable to ascertain any specific work related event or contribution over a period of time that would indicate employment was the cause of her complaint in terms of the deterioration’. Although he accepted that if the Appellant was undertaking regular heavy lifting of the type described, this would have exacerbated her condition, as Dr Gillett opined.

Both experts agreed that ASD can be a consequence of a spinal fusion.

The Judgment

In a judgment delivered on 30 October 2015, Industrial Commissioner Fisher refused the appeal, finding:

  1. At times the Appellant was required to undertake lifting outside of safe manual handling limits, in lifting oversized coffins. However, the weight of loads borne by her was not satisfactorily established.
  2. The Appellant was symptom free until 2010. The development of her symptoms was not associated with any particular incident or work task.
  3. The onset of the Appellant’s symptoms was more consistent with the evidence of Dr Steadman.
  4. The Commission was unable to accept on the balance of probabilities that the Appellant’s employment was a significant contributing factor to her injury.

Considerations

This case will be helpful for employers and claim managers who are defending manual handling cases. For those with similar claims, what’s most interesting about this case is that the Appellant was unsuccessful despite:

  • the Commission accepting that she had undertaken lifting outside of safe manual handling limits.
  • the employer giving the Appellant manual tasks with knowledge of her pre-employment spinal fusion.

Manual handling cases can be the most difficult types of workers’ compensation claims to defend. However, this decision highlights that workers may fail where they are unable to identify the precise work duties alleged to have caused their injury.

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Kate DenningNo compensation for degenerative disc disease
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Parties review claims as Qld changes workers’ compensation laws

Parties review claims as Qld changes workers’ compensation laws

by Kate Denning Google+

New Qld WorkCover Laws – Changes to Workers Compensation Qld – Workers Compensation Lawyers Qld – Workers Compensation Lawyers for Employers

On 24 September 2015, the Workers’ Compensation and Other Legislation Amendment Bill 2015 (Qld) (Bill) received assent.

The changes

The Bill amended the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Act).  The Act (as amended) provides that:

  1. Workers injured during the period 15 October 2013 to 30 January 2015 and assessed with a Degree of Permanent Impairment (DPI) of 5% (threshold) or less, will be paid ‘additional lump sum compensation’ to compensate them for the fact that they cannot claim common law damages against their employer.
  2. From 31 January 2015 onwards, workers with an accepted claim for compensation under the Act will be able to seek common law damages against their employer, without the need to exceed the threshold.

For respondents

The amendments will be welcomed by respondents to some claims regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) and the Motor Accident Insurance Act 1994 (Qld) (MAIA). It was a consequence of changes to workers’ compensation laws passed in 2013, that respondents to claims could not seek contribution from employers on a joint tortfeasor basis where workers suffered an injury with a DPI of 5% or less: Bonser v Melcanais [2000] QCA 13.

This resulted in general insurers, respondents to PIPA claims and compulsory third party insurers, having to pay 100% of the damages payable to workers in what were otherwise, master/servant claims. This anomaly caused particular problems for organisations with complex company structures. For claims arising out of incidents on or after 31 January 2015, these respondents will now be able to join an employer as a party to a claim in accordance with the Law Reform Act 1995 (Qld) and the regulating legislation.

Contractual indemnities

The changes do not address the Supreme Court decision of Byrne v People Resourcing (Qld) Pty Ltd & Ors [2014] QSC 269. A respondent with a contractual indemnity in its favour (from an employer) can seek to enforce that indemnity against an employer, WorkCover or a self-insurer.

How to respond

We recommend that insurers and PIPA respondents conduct a review of their current Queensland claims to consider potential claims for contribution or indemnity in contract or tort.

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Kate DenningParties review claims as Qld changes workers’ compensation laws
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Tip truck tray injury not caused by host employer negligence

Tip truck tray injury not caused by host employer negligence

Thomas v Trades & Labour Hire Pty Ltd & Anor [2015] QSC 264

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Facts

Mr Grant Thomas (Worker) was employed by Trades & Labour Hire Pty Ltd to work at the Gold Coast City Council (Host Employer) as a driver and operator of a tip truck (truck).  The Worker was an experienced driver and had worked around trucks for most of his working life.

The Worker took a load of broken pieces of concrete curbing in the Host Employer’s truck to the Suntown Tip at Arundel. The truck was fitted with a tipper tray, which could be raised and lowered hydraulically. The Worker decided to discharge the load under the tailgate, with it swinging on its horizontal axis.  The Worker chose this method, believing that the pieces of concrete were small enough to go under the tailgate. A sample of concrete pieces taken from the load after the incident contained pieces around 600mm wide.

He released two clasps securing the bottom of the tailgate tray from inside the truck cabin. As he was discharging the load, the Worker noticed something wrong with the tailgate. He said it looked as though one corner of the tailgate was hitting the ground. He went to inspect the issue.

The Worker pushed on the tailgate and it fell to the ground, falling on him and causing serious injury to his left foot.

Issue

The matters in issue at trial were whether:

  • the Worker had pushed the tailgate immediately prior to it falling to the ground or whether it had ‘popped off’.
  • the Host Employer had an adequate system of maintenance in place for the truck.
  • the Host Employer provided adequate training and instructions to the Worker.

Judgment

The Worker had given prior inconsistent statements about the sequence of events leading up to the tailgate falling off. He told a co-worker after the event that he had pushed on the tailgate. He also said that he pushed on the tailgate in his Notices of Claim.  However at trial, the Worker said that he was just thinking about pushing on the tailgate and didn’t actually push on it.

The Host Employer had given a written instruction to workers to ‘immediately report’ any problems with vehicles.

Expert evidence was led about whether the hinge pin, which was holding the tailgate on, was wearing prior to the incident and whether that wear should have been detected. The Court found that the crack to the hinge pin was probably caused during manufacture and present for up to six (6) months prior to the incident.

Despite this, the Court did not consider that it was reasonable for inspection of the pin to form part of any inspection or maintenance process.

The Court found that the cause of the cause of the hinge pin breaking and the tailgate falling off, was the Worker pushing on the tailgate. This was despite the evidence of the Defendants’ and Plaintiff’s engineers, that the tailgate could have fallen off without any interference by the Worker.

The Court gave judgment for the Defendants.

Considerations

This case will be of assistance to those managing claims involving workers with many years of industry experience, who disobey a written instruction by an employer. Particular emphasis was placed upon the instruction given to the Worker in the judgment. It may also be of interest to those compulsory third party insurers whose policies extend beyond driving, to the ‘use of’ a vehicle.

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Kate DenningTip truck tray injury not caused by host employer negligence
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Back injury answering work mobile arose ‘in the course of employment’

Back injury answering work mobile arose ‘in the course of employment’

Injury in the course of employment – Injury during the course of employment – Injury working from home – Injury working remotely – Workers Compensation Lawyers for Employers – Workers Compensation Lawyers Qld

Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121

The Queensland Industrial Relations Commission (QIRC) has upheld an appeal of a worker for acceptance of his claim for a back injury suffered while running to answer a work call on his mobile phone.

Facts

Mr Robert Ziebarth (worker) was employed as the Fleet Service Manager at Blenners Transport Pty Ltd (employer). He was responsible for maintenance repair issues associated with the employer’s fleet of trucks. The worker was required to work for at least 55 hours per week. He was also required to make himself available to work additional hours if required and was required to be on-call from time to time. He was supplied with a work telephone for the purpose of performing his duties. Importantly, it was agreed that at all material times the worker was ‘on-call’.

The worker had been chastised on a number of occasions by his superior in the past for not answering his mobile phone. At 10:00 pm his mobile rang with a distinctive ring tone for a work related call, while he was in the shower. He got out of the shower and slipped on the wet tiles, injuring his back.

Issue

The main issue for determination was whether the injury arose out of or in the course of the worker’s employment for the purposes of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

Determination

In a judgment delivered on 23 June 2015, O’Connor J, Deputy President of the QIRC determined the injury was suffered in the course of employment’ because:

  1. It was a term of the contract of employment that the worker make himself available to be on call from time to time.
  2. He was supplied a work telephone for the purpose of carrying out his employment duties, including those employment duties required of him whilst he was on call.
  3. He was on-call at the time of the incident.
  4. He was induced or encouraged to engage in the activity that he did.

The QIRC found that the work related injury was not, as submitted by the Workers’ Compensation Regulator, the running. The activity to be considered was the answering of the work mobile phone.

Considerations

With an increased demand for flexible work arrangements, this decision may be of interest to those in human resources and management.  Critical to this decision was the fact that the worker was ‘on-call’ and that the worker felt a need to answer the call because of ‘driver safety and the public safety’. A different outcome may occur in similar circumstances where staff elect to do work remotely but are not actually ‘on-call’.

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Kate DenningBack injury answering work mobile arose ‘in the course of employment’
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.