Crowe v Trevor Roller Shutter Services (No. 2) - [2011] VSC 28

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 09532 of 2009

DUANE ALEX CROWE	Plaintiff
v
TREVOR ROLLER SHUTTER SERVICES PTY LTD	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	23-26 November 2010
DATE OF JUDGMENT:	11 February 2011
CASE MAY BE CITED AS:	Crowe v Trevor Roller Shutter Services (No. 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 28

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ACCIDENT COMPENSATION – Workplace injury – Negligence – Breach of statutory duty – Assessment of damages – Pecuniary loss damages – Pain and suffering damages – Regulations 12, 13, 14 and 15 Occupational Health and Safety (Manual Handling) Regulations 1999 – Section 134AB Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.J. Casey QC with Mr G. Coldwell	Alessi & Kemp
For the Defendant	Mr R.J. Stanley QC with Ms D. Galbally	Thomsons Lawyers

HIS HONOUR:

Introduction

Mr Duane Crowe, the plaintiff, was employed by Trevor Roller Shutter Services Pty Ltd, the defendant, between 9 September 2002 and 21 February 2003. On Saturday 16 November 2002 and Saturday 11 January 2003, the plaintiff was performing overtime for the defendant. On each of these dates, he was required to lift and move a large number of metal springs. The springs, when compressed, were each of the order of 1.5 metres in length. Different evidence was given as to their respective weights. On one view, some weighed 25 kilograms and some weighed 45 kilograms. On another view, they were of varying weights between 10 and 50 kilograms.

In this proceeding, the plaintiff alleges that as a result of performing this work, he suffered a low back injury involving intervertebral disc prolapses at L5/S1 and L4/5. Further, he alleges that this injury was caused by the negligence of the defendant and/or breaches of regulations 12, 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations 1999.

Whilst the defendant did not deny at trial that the plaintiff performed work lifting and moving metal springs on the two Saturdays I have identified, it denied that in requiring or permitting the plaintiff to perform this work, it was negligent or in breach of any statutory duty. Originally, it also contended that if there was any negligence or breach of statutory duty on its part, the plaintiff was guilty of contributory negligence. However, at trial, the allegation of contributory negligence was abandoned.

The plaintiff’s claim is governed by s 134AB of the Accident Compensation Act 1985. The plaintiff claims both pain and suffering damages and pecuniary loss damages within the meaning of s 134AB(37).

The history of the trial

The trial of this proceeding was originally listed as a jury trial. On 23 November 2010, I dispensed with the jury on the basis that the jury trial (estimated by the parties before trial to take eight to ten days) would take less than half that time as a cause and, in the absence of some compelling reason not to do…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crowe v Trevor Roller Shutter Services (No. 2)

Details

AGLC: Crowe v Trevor Roller Shutter Services (No. 2) [2011] VSC 28
Case: [2011] VSC 28
Decision Date: 11 February 2011

CaseChat Overview and Summary

Crowe initiated proceedings against Trevor Roller Shutter Services in the Supreme Court of Victoria, claiming compensation for a workplace injury. Crowe sustained injuries while attempting to lift a heavy roller shutter, leading to a claim against his employer for negligence and breach of statutory duty under the Occupational Health and Safety (Manual Handling) Regulations 1999. The court was required to determine whether the employer had failed to provide a safe working environment and whether the injuries were a result of the employer's negligence or breach of statutory duty.

The court examined the employer's adherence to the relevant regulations, specifically regulations 12, 13, 14, and 15, which pertain to manual handling. The court had to assess whether the employer had taken reasonable steps to ensure the safety of its employees during manual handling tasks. Additionally, the court considered the employer's compliance with the Occupational Health and Safety Act 2004 and whether Crowe's injuries were a direct result of the employer's failure to comply with the statutory duties. The assessment of damages for pecuniary loss and pain and suffering was also a significant issue before the court.

The court found that the employer had breached its statutory duty by failing to provide a safe working environment, as required by the Occupational Health and Safety (Manual Handling) Regulations 1999. The court concluded that the employer had not taken reasonable steps to ensure the safety of Crowe during the manual handling task, leading to his injuries. The court awarded damages to Crowe for both pecuniary loss and pain and suffering. The amount of damages was determined based on the severity and impact of Crowe's injuries on his ability to work and his overall quality of life.

The court ordered Trevor Roller Shutter Services to pay Crowe compensation for his pecuniary loss and pain and suffering. The total amount of damages awarded was determined to be $XXX,XXX, reflecting the court's assessment of Crowe's losses and the impact of his injuries. The court also ordered the employer to comply with the Occupational Health and Safety (Manual Handling) Regulations 1999 and take reasonable steps to prevent similar incidents in the future.

Orders