Schonell v Laspina, Trabucco & Co Pty Ltd [2013] QSC 90

JUDGE: Martin J
ORDER: The claim is dismissed
CATCHWORDS: TORTS  –  NEGLIGENCE  –  ESSENTIALS  OF  ACTION FOR NEGLIGENCE – IN GENERAL – where the plaintiff was an employee of the defendant – where the plaintiff stepped from a platform onto a ladder – where the ladder seemed to give way when the plaintiff put his weight onto it – where the ladder had been checked by a fellow employee of the defendant and by the plaintiff – where the ladder did have a defective brace – whether the defendant‘s negligence caused or contributed to the plaintiff‘s injuries where the plaintiff suffers from Complex Regional Pain Syndrome Type 1 – where some medical evidence suggests that pain and symptoms have been exaggerated by the plaintiff – whether the plaintiff has satisfied the burden upon him

 

Martin J

18.

The question which has to be answered is: what would the reasonable person have done to avoid what is now known to have occurred? It was not established that the use of this type of ladder was inappropriate. To guard against the possibility of a failure in some part of the ladder the action of a reasonable person would have been to inspect the ladder at a time close to its proposed use – “the practically useful means”. This was done. The fact that there was a failure does not, by itself, establish negligence.

The descent from the platform

19.

The plaintiff’s account of how he descended from the platform is as follows. After finishing the job he was doing he moved across the platform towards the ladder and stood on the plank closest to the ladder with both feet. He then put both of his hands on the top of the ladder to steady himself and placed his right foot onto the rung of the ladder that was directly below the platform. It was about 200 millimetres below the level of the platform. When he did this, his left foot remained on the plank closest to the ladder. As he transferred his weight onto his right foot, the ladder suddenly “shunted” (that was the term used by the plaintiff), by which he meant that the rung on which he was standing dropped suddenly in height. The plaintiff believed that the ladder was falling and swivelled his weight back onto his left leg. As he did this his left foot became caught on the edge of the adjacent plank and as he returned to the platform his left leg was bent with his weight bearing on the back of his heel. He felt, and heard, a tearing in his left knee like a thick piece of plastic being torn.

20.

The defendant submits that the plaintiff should not be accepted when he says that his left foot became caught against the second plank on the trestle platform and that caused him to suffer injury. It was argued that this version of events was a reconstruction by the plaintiff of what occurred and was inconsistent with the accounts he had given at earlier times of the accident. The defendant, in effect, contended that the version put forward in the plaintiff’s pleading and at trial was designed so as to allow him to argue that the defendant had been negligent in not providing a plank clamp. It is the plaintiff’s case that, had a plank clamp been applied, there would not have been a difference in height between the outer plank and the plank next to it, that is, the plank against which the plaintiff says his left foot became caught.

21.

In the ordinary course of litigation, an accusation of recent invention (which is plainly raised in this case) would be met by a signed statement by the person accused of the invention which would demonstrate the consistency of the person’s account. That cannot occur in this case because of the method used by the plaintiff’s instructing solicitors to take instructions.

22.

In order to understand the procedures undertaken by the plaintiff’s solicitors, I need to refer to s 279 of the Workers’ Compensation and Rehabilitation Act (Qld) 2003 (“WCR Act”). Section 279 appears in chapter 5, part 5 of the Act. The object of part 5 is contained in s 273 and it is “to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense”. Section 274(1) provides that, in accordance with the object of part 5, part 5 is to be applied by the parties to avoid undue delay, expense and technicality and to facilitate the object.

23.

Section 279, provides, so far as is relevant, the following:
“(1) The parties must cooperate in relation to a claim, in

particular by—

(a) giving each other copies of relevant documents about—

(i) the circumstances of the event resulting in the injury; and

(5) This section is subject to section 284.

(6) In this section—
relevant documents means reports and other documentary material, including written statements made by the claimant, the worker’s employer, a contributor, or by witnesses.”

24.

Section 284 provides:

“(1) A party is not obliged to disclose information or a document if the information or document is protected by legal professional privilege.

(2) However, the following must be disclosed even though otherwise protected by legal professional privilege—

(a) investigative reports;

(b) medical reports;

(c) reports relevant to the worker’s rehabilitation;

(d) relevant documents mentioned in section 279, other than correspondence between a party and the party’s lawyer.

…”

25.

During the cross-examination of the plaintiff, Mr Campbell called for the statements given by the plaintiff to his instructing solicitors. He relied on s 279 of the WCR Act. From the argument which then ensued it appears that the plaintiff’s solicitors deliberately did not obtain a signed statement from the plaintiff in order that there would not be a document which fell within s 279. They instead took his instructions, reduced them to writing and asked him for his comments. The plaintiff then revised the document and returned it to his solicitors. The production of this document was resisted at trial but, after some negotiation, a redacted version was provided. Because the documents were provided I do not need to decide whether the actions of the solicitors – remarkable not least for commencing an action seeking damages of $2,000,000 without a signed statement – would have protected the documents from disclosure. It would, at the very least, seem that the solicitors acted in a way which was contrary to the objects of the WCR Act.

26.

The document which was produced became Exhibit 23. It had been amended by the plaintiff in a number of respects in response to a request from his solicitors. In “Revision 2A2” the plaintiff said:

“As Tim stepped onto the ladder to dismount the scaffold with his right leg the ladder’s outside legs slipped out slightly which lead Tim to believe he was going to fall so he braced his left leg on the aluminium plank which caused all his body weight to be placed on his left leg and further pressure put on the knee because his body weight went backwards slightly. Tim felt a plastic ripping sensation in his knee.”

27.

He was cross-examined on this and said:

“You didn’t say anything there about your left foot becoming caught in any way? – It wasn’t written there and I wasn’t sure on the full description of what was going on, so what was written there, I just – I made changes in that paragraph and some of the things remained the same.”

28.

On another occasion in cross-examination he said that the solicitor:

“…had a ‘little difficulty understanding some of the terminologies I was using as well. It was foreign to him what I was talking about.
What, that your left foot got caught on the plank? – well, some of the things I was talking about, some of the ways of the scaffold so I don’t know whether he missed it then.’”

29.

The changes made by the plaintiff were mostly concerned with the various heights of objects, including the ladder, and the fact that the planks were aluminium, not wood. It did not involve the mechanics of the positioning of his left foot or whether it became trapped.

30.

In the instructions given by the plaintiff’s solicitors to some of the experts retained on his behalf the incident was described in this way:

“As our client stepped on to the ladder to dismount the scaffold with his right leg, the ladder’s outside legs slipped out slightly which led our client to believe that he was going to fall, so he braced his left leg on the aluminium plank which caused all of his body weight to be placed onto his left leg and further pressure put on the knee because his body weight went backwards slightly. Our client felt a plastic ripping sensation in his knee.” (Instructions to Dr Todman, Ex 5)

31.

A similar description of the circumstances of the injury was given to Dr Walden (Ex 6), Dr Lotz (Ex 7), and Dr Gillett (Ex 19).

32.

The first document which records the details of the incident consistently with the way the plaintiff gave evidence in this trial is the second notice of claim of 21 July 2011. The first time that the plaintiff gave this “detailed” description of the incident came following a meeting with a physiotherapist and ergonomist.

33.

It must also be recorded that in the instructions given to his solicitors, which he later amended, there are other details, in particular concerning the plaintiff going to the first aid office, discussions had with Mr Polistena concerning the incident, and when the plaintiff first noticed the crack in the brace, which have been established on the evidence.

34.

When the plaintiff first saw Dr McMeniman, the plaintiff’s version of events was summarised by Dr McMeniman as being to the effect that “he was getting off some scaffolding when he slipped and twisted his left knee …”. Clearly, the twisting could have occurred in a number of ways including the manner now relied upon by the plaintiff. For reasons which I will deal with later, I find the plaintiff to be a person given to exaggeration and to claiming greater pain and injury than he actually suffers. The mechanism by which he says his left foot was caught is something which is of considerable importance for his case. He is an intelligent man who, had his foot been so caught, would have realised the significance of that fact. It is something which he would have been able to describe in simple terms. In all the circumstances, I have come to the conclusion that, while I accept that his left knee was twisted as he attempted to return to the platform, his foot was not caught against the edge of the plank next to the plank closest to the ladder.

Conclusion on Liability

35.

The plaintiff has not demonstrated that any action or lack of action by the defendant either caused or contributed to his injury or that the defendant was otherwise negligent. The claim must be dismissed.

You don’t have to be a big business to make big improvements to your work safety

Workplace Health and Safety Queensland

Laspina Trabucco is a family run block laying business that wanted to improve its work safety after a number of injuries and common law claims. Last year, in consultation with Workplace Health and Safety Queensland’s Injury Prevention and Management program (IPaM), the company implemented some simple but effective changes to the way they manage workplace health and safety.

Laspina Trabucco is aiming to achieve a 30 per cent reduction in claims costs this year. The company had previously relied on the larger organisations with whom they contracted to take the lead on safety. However a below average return to work history and workers’ compensation record prompted the review of their own safety systems.

Over the past year the business has implemented the following changes:

  • setting WHS objectives and targets that were communicated to all workers
  • implementing tool box talks to improve consultation with their workers
  • developing worker inductions and competency checks
  • checking and recording of safety issues each day by the site foreman
  • checking the competency all workers for the operation of high risk plant
  • updating incident reporting in line with the new legislation
  • encouraging workers to record near misses
  • providing suitable duties to injured workers
  • developing safe work methods and risk assessments for each job
  • training some staff members in a certificate IV in workplace health and safety
  • engaging a consultant to assist with developing a workplace bullying policy.

Laspina Trabucco contract manager Tony Nave said safety only worked when the company had the commitment of all workers and management.

“I’m fortunate to have total commitment from our supervising manager, who conveys the importance of safety at a site level,” he said.

“Our workers have a collective ownership of safety when they are involved in consultation of our everyday work processes and when they see an update to work practices as a result of their input.”

For the 200 employers who have been actively involved with IPaM during 2011-12, preliminary results identify some encouraging trends:

  • a positive change in statutory claims outcomes in the past year with the average claim costs decreasing by 24 per cent
  • a reduction in the total statutory claims costs by $2.2 million in the first year.

Further information

For more information and resources to improve your business’s injury prevention and management systems visit www.worksafe.qld.gov.au or www.workcoverqld.com.au (non-Queensland Government link) or call the WHS Infoline on 1300 369 915.

David Cormack – Brisbane Barrister

 

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