John L Thom v Juan Carlos Carle - [2014] ACTSC 4

JOHN L THOM v JUAN CARLOS CARLE
[2014] ACTSC 4 (28 January 2014)

NEGLIGENCE – PERSONAL INJURY – claim by employee against employer – system of work – formwork carpenter employed on multi-storey office project – plaintiff required to carry large sheets of formply – plaintiff sometimes carrying two sheets – each sheet weighing 23 kg – plaintiff required to nail kickboards at ankle level – unsafe system of work – employer negligent
DAMAGES – PERSONAL INJURY – injury to lumbar spine – pre-existing degenerative changes – impairment of earning capacity – possible future surgery – plaintiff unable to return to work as formwork carpenter – permanent partial loss of earning capacity

No. SC 301 of 2010

Master Harper
Supreme Court of the ACT

Date: 28 January 2014

IN THE SUPREME COURT OF THE     )
  )          No. SC 301 of 2010
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOHN L THOM
Plaintiff

AND: JUAN CARLOS CARLE

Defendant

ORDER

Judge:  Master Harper
Date:  28 January 2014
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the plaintiff in the sum of $337,334.42.

the plaintiff’s costs be paid by the defendant.

the order as to costs be stayed for 21 days.

This is a claim for damages for personal injury by an employee against an employer. The injury is said to have happened on 30 October 2008 on a building site at Phillip. The defendant was a subcontractor providing formwork for a multi-storey building being constructed as Commonwealth government offices. The plaintiff was a formwork carpenter, and suffered a low back injury as he straightened up from a bending or kneeling position where he had been nailing boards into place at a little above floor level.

The defendant admits on the pleadings that he was the plaintiff’s employer but denies negligence and pleads contributory negligence.

The plaintiff was born in July 1985. He was 23 at the date of injury and is now 28. He is a single man, with a son now aged six who lives with his mother at a country town some two hours drive from Canberra. The plaintiff visits his son every weekend.

The plaintiff left school at the end of year 10. He had learning difficulties associated with dyslexia. His reading and writing skills are very poor. He completed a TAFE course in carpentry in 2001. Thereafter, he worked in the building industry, when work was available. He moved to Canberra to live with his parents in about 2007, and worked for a year or so as a barman at a hotel. In September 2008, he started work with the defendant, initially through a company controlled by the defendant which has since been deregistered. There was plenty of work and he was well paid. He worked six days a week from 6:30 am until 4:30 pm, and was paid $1,100.00 net per week.

The Phillip project was one which took several months. The plaintiff’s evidence was that he underwent a site induction when he started employment. His job…

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.

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Details

Case: [2014] ACTSC 4
Decision Date: 28 January 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, John L Thom, the plaintiff, instituted a claim against Juan Carlos Carle, the defendant, asserting that the defendant's negligence caused him personal injury. Thom, a formwork carpenter, was employed by the defendant on a multi-storey office construction project. Thom alleged that he was required to carry large sheets of formply, each weighing 23 kg, and sometimes had to carry two sheets at once. Additionally, Thom was tasked with nailing kickboards at ankle level, which he argued constituted an unsafe system of work. Thom contended that these conditions led to an injury to his lumbar spine, resulting in a permanent partial impairment of his earning capacity.

The court had to determine whether the defendant was negligent in the system of work provided to Thom, which caused his injury. Furthermore, the court had to assess the extent of Thom's injury, its impact on his earning capacity, and whether the injury arose from the defendant's negligence. The court needed to consider whether the system of work, which required Thom to carry heavy sheets and work at an awkward posture, constituted a breach of the defendant's duty of care. The court also had to evaluate the extent of the injury and its impact on Thom's ability to earn income in his former occupation.

The court found that the defendant was negligent in the system of work provided to Thom, which led to his injury. The court held that the requirement for Thom to carry heavy sheets and work at an awkward posture constituted an unsafe system of work. The court found that this breach of duty caused Thom's injury to his lumbar spine, which resulted in a permanent partial impairment of his earning capacity. The court awarded Thom damages for his injury, taking into account his pre-existing degenerative changes and the possibility of future surgery. The court held that Thom was unable to return to work as a formwork carpenter and had suffered a permanent partial loss of earning capacity.

The court ordered that judgment be entered for the plaintiff in the sum of $337,334.42, that the plaintiff's costs be paid by the defendant, and that the order as to costs be stayed for 21 days.

Orders

Orders of the court

1. judgment be entered for the plaintiff in the sum of $337,334.42.

2. the plaintiff’s costs be paid by the defendant.

3. the order as to costs be stayed for 21 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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