More pages in this section
Suffered a work injury whilst following your employer's instructions?
Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd  QDC 3
The plaintiff was employed by the defendant as a sheet metal tradesman. The defendant had installed a stainless-steel benchtop weighing approximately 120kg. Following installation, the benchtop had been moved to a back room by a third party and was damaged.
The plaintiff alleged that he returned to the site, with a director of the defendant and a co‑employee to repair the benchtop. Following the defendant’s directions, the plaintiff lifted the benchtop initially with the director to move it from the back room, so it could be repaired.
The plaintiff alleged he started to experience pain whilst lifting the benchtop. Later, after returning to the defendant’s premises, the plaintiff turned to wave goodbye to a colleague when he alleged that he suffered agonising pain and thereafter suffered.
Due to the substantial and debilitating pain in his lumbar spine as a result of the incident, the plaintiff brought a claim against the defendant. The plaintiff also claimed to suffer secondary psychiatric injuries.
The defendant denied liability, asserting the plaintiff never lifted the benchtop and any back injury was caused by the plaintiff twisting his back when waving goodbye to a colleague. The defendant also contended any injury arising from that movement was the exacerbation of a pre-existing back condition.
The defendant denied the work performed by the plaintiff was unreasonable or unsafe, and asserted that the plaintiff was an experienced sheet metal tradesman who had received oral training and instruction from the defendant and had been fully trained in safe systems of work during his apprenticeship and earlier jobs.
The defendant also contended as an alternative that the plaintiff should have been aware of the obvious risk to him of lifting the benchtop, asserting contributory negligence to be set at 100%.
Having considered the medical evidence, the Court held that it supported the plaintiff’s history of events and provided no substantial alternative or explanation as to how the plaintiff could have been injured this way.
Liability of the Employer
It is well established that an employer owes a duty of care to their employees, to provide a safe environment, system of work and the means for their workers to perform their duties safely.
Although employers may wish to find the most efficient way of completing a task, it must not come at the expense of reasonable safety precautions and unreasonable risk of injury to their staff.
This also extends to providing reasonable education, training, equipment and assistance to ensure their staff is competent to perform their tasks safely.
Here, the Court formed the view that the director of the defendant was a person who prioritised efficiency over all else, including safety. It became apparent to the Court that the director’s preference was to return employees to productive manufacturing work rather than spending time on a repair job for which the defendant was not being paid.
The Court found there was evidence that the defendant gave no substantive training to its employees in safety measures and procedures and had not contacted the plaintiff since he stopped working.
Those facts indicated that the defendant held an attitude in the business of disregarding the welfare of employees and disregarding safe procedures if they would limit the work that could be done.
Contributory Negligence and Obvious Risk
The Court rejected the defence of contributory negligence and obvious risk by the defendant. The Court found the plaintiff was complying with the instructions from his employer. The Court did not accept that the plaintiff’s conduct in carrying out the task in accordance with his instructions amounted to contributory negligence on his part.
A plaintiff is not contributorily negligent simply by following the instructions of their employer. Contributory negligence can only be made if it was reasonably practicable for the plaintiff to have taken an alternative approach, which would have removed the risk of injury.
The Court found no reasonable alternative approach to complete the task, other than to help his employer lift the benchtop as he was instructed to do so.
Instead, the Court noted that the obvious way to avoid the risk of injury was to wait for further assistance or to bring in appropriate lifting equipment to help with the lift. The Court held that a reasonable person in the defendant’s position would have taken some or all of those steps.
The Court concluded the injury suffered by the plaintiff occurred by lifting the benchtop with the director. The Court accepted the plaintiff had suffered a psychiatric impairment, predominantly caused by chronic pain as a consequence of his spinal injury.
The plaintiff was awarded the sum of $755,282.70 including interest, in damages as a result of this work injury.
How We Can Help
The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Workers’ Compensation legislation. If you are dissatisfied with your current representation, our experts can also offer a second opinion.
If you, or someone you know has been injured at work, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed.