Witherington v Lev's Fabrications Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Witherington v Lev’s Fabrications Pty Ltd [2014] QDC 266

PARTIES:

Jason Witherington

(plaintiff)

v

Lev’s Fabrications Pty Ltd

(defendant)

FILE NO/S:

4193/2012

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

14 - 16 July 2014

JUDGE:

Kingham DCJ

ORDER:

1. The Defendant must compensate the Plaintiff for the injuries to both his shoulder and his ankle.

2. I will hear from Counsel as the form of final orders to give effect to my reasons on the assessment of damages and on costs.

3. Unless those matters are agreed by way of consent orders, the Defendant has leave to provide written submissions by 4pm on Thursday 28 November and the Plaintiff has leave to provide written submissions by 4pm on Monday 1 December.

CATCHWORDS:

CIVIL – WORKERS COMPENSATION – LIABILITY – where plaintiff sustained two injuries at work – where liability admitted for one but not the other – whether the task undertaken by the plaintiff represented a real and foreseeable risk of injury to his shoulder – whether the defendant took reasonable steps in relation to that risk –defendant found liable for both injuries

CIVIL – WORKERS COMPENSATION – ASSESSMENT OF QUANTUM – where the plaintiff had dislocated his shoulder at work – where he dislocated it prior to the work injury – where the plaintiff subsequently had shoulder surgery – whether the work dislocation worsened his condition and contributed to the need for surgery – how the prior dislocation should be reflected in the assessment of damages

CIVIL – WORKERS COMPENSATION – ASSESSMENT OF QUANTUM - where the plaintiff had two injuries that affected his ability to perform manual work – where the plaintiff had some residual earning capacity – how damages for future economic loss should be assessed

COUNSEL:

R Morton for the plaintiff

J McClymont for the defendant

SOLICITORS:

Morton & Morton for the plaintiff

BT Lawyers for the defendant

Background

1. In a period of only 3 months while working for Lev’s Fabrications Pty Ltd, Mr Witherington, then a 20 year old trades’ assistant, was injured twice; first on 12 April 2010 when he injured his shoulder lifting a coil of pipe; and later on 14 July 2010 when a large unsecured metal fabricating machine fell on his ankle. He seeks compensation from Lev’s for breaching its duty of care to him as an employee.

1. WorkCover conducted the defence case and admitted Lev’s must compensate Mr Witherington for the bimalleolar fractures he sustained to his right ankle during the second incident. However, it denied Lev’s was liable to pay any damages for the shoulder injury.

1. Mr Witherington contended Lev’s should have identified, assessed and managed the risk the task exposed him to; provided him with assistance with the task; or trained or instructed him in how to perform the task safely. He pleaded its failure to do so constituted breaches of statutory obligations under the Workplace Health and Safety Act…