Test v Forgacs Engineering Pty Limited - [2012] QDC 318

DISTRICT COURT OF QUEENSLAND

CITATION:

Test v Forgacs Engineering Pty Limited [2012] QDC 318

PARTIES:

JERRY ALAN TEST
(plaintiff)

v

FORGACS ENGINEERING PTY LIMITED
(ACN 000 019 616)
(defendant)

FILE NO:

816/11

DIVISION:

Civil

PROCEEDING:

Personal Injuries Claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 October 2012

DELIVERED AT:

Brisbane

HEARING DATES:

10-12 September 2012

JUDGE:

Robin QC, DCJ

ORDER:

Claim dismissed

CATCHWORDS:

Damages claim by employee against employer - whether safe system of work for removing zinc anodes from ship’s hull by chiselling them off in pieces from an elevated work platform - painful symptoms noticed when bending next day - plaintiff’s credibility suffers from highly inflated lost earnings claim and misleading of medical experts - employment by defendant (casual) unlikely to have continued in any event.

COUNSEL:

Mr J. R. Sewell for the plaintiff

Mr R. C. Morton for the defendant

SOLICITORS:

TrilbyMisso Lawyers for the plaintiff

MVM Legal for the defendant

This is a claim for damages for personal injury which the plaintiff employee asserts occurred in consequence of breach of duty by the employer defendant company. Mr Test is now 50. His employment as a trades assistant was casual. He first worked for the defendant in early June 2009. The place of work was the Cairncross Dry Dock. Typically, work was offered when a ship was in the dock for repairs. Payment dates, appearing to reflect days of work in the week (or perhaps a shorter period) leading up to them were 9, 16 and 23 June 2009, 1, 7, 14 and 28 July 2009, 4 August 2009, 10, 17 and 24 November 2009, 1 December 2009 and 27 April 2010. This suggests 8 weeks of work at the outset, 4 weeks in November 2009 and a final 2 days (which the evidence shows was the end of that particular call), which are greatly outweighed by the interruptions of 13 and 22 weeks.

The last date reflects the plaintiff’s final two days of employment on 21 and 22 April 2010 in respect of the vessel “Sun Princess”. The plaintiff on those days did not perform his accustomed tasks at the dock, which were in the painting section, nor the “sentry” role (effectively a time keeper one to ensure that workers in confined locations were not there for too long), that he said that he had been called in for, but was used rather in the electricians’ field. The work was not really electrical, being labouring work in removing zinc “anodes” bonded to the hull of the vessel.

It was difficult to get from the witnesses a clear explanation of the situation. The anodes were said to be ovals some 900 mm wide and about 75 mm thick, about 5 on each side of the hull, all nestling in oval shaped recesses or “cradles” in the hull, and secured by a single bolt (said to corrode away) on installation and by some (what Mr Mansfield thought a resin) bond at the back and around the sides. The electricians…

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 Test v Forgacs Engineering Pty Limited

Details

AGLC: Test v Forgacs Engineering Pty Limited [2012] QDC 318
Case: [2012] QDC 318
Decision Date: 24 October 2012

CaseChat Overview and Summary

In the case of Test v Forgacs Engineering Pty Limited, the Fair Work Commission considered a damages claim brought by an employee against his employer. The central issue was whether the employer had provided a safe system of work for the removal of zinc anodes from a ship’s hull, which involved chiseling them off in pieces from an elevated work platform. The employee experienced painful symptoms when bending the next day, and his claim included substantial lost earnings. However, the plaintiff's credibility was questioned due to his exaggerated claims and misleading conduct towards medical experts.

The legal issues before the Commission included determining the adequacy of the employer’s safety measures and the credibility of the plaintiff’s evidence. The Commission had to assess whether the employer's casual employment arrangement was likely to have continued beyond the incident. The employer argued that the plaintiff's claims were overstated and that the employment relationship was unlikely to have continued due to other factors.

The Commission found that the employer had taken reasonable steps to ensure a safe work environment. Despite the employee's complaints, the Commission concluded that the plaintiff's credibility was compromised due to his exaggerated lost earnings claim and misleading conduct. Additionally, the Commission determined that the employment was unlikely to have continued beyond the incident. Therefore, the claim was dismissed.

The Fair Work Commission dismissed the employee's claim and ordered that the claim be dismissed in its entirety. The decision highlighted the importance of credibility in damages claims and the need for accurate reporting of injuries and lost earnings.

Orders

Orders of the court

Claim dismissed

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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CITATION:	Test v Forgacs Engineering Pty Limited [2012] QDC 318
PARTIES:	JERRY ALAN TEST (plaintiff) v FORGACS ENGINEERING PTY LIMITED (ACN 000 019 616) (defendant)
FILE NO:	816/11
DIVISION:	Civil
PROCEEDING:	Personal Injuries Claim
ORIGINATING COURT:	Brisbane
DELIVERED ON:	24 October 2012
DELIVERED AT:	Brisbane
HEARING DATES:	10-12 September 2012
JUDGE:	Robin QC, DCJ
ORDER:	Claim dismissed
CATCHWORDS:	Damages claim by employee against employer - whether safe system of work for removing zinc anodes from ship’s hull by chiselling them off in pieces from an elevated work platform - painful symptoms noticed when bending next day - plaintiff’s credibility suffers from highly inflated lost earnings claim and misleading of medical experts - employment by defendant (casual) unlikely to have continued in any event.
COUNSEL:	Mr J. R. Sewell for the plaintiff Mr R. C. Morton for the defendant
SOLICITORS:	TrilbyMisso Lawyers for the plaintiff MVM Legal for the defendant