Small v K & R Fabrications (W’Gong) Pty Ltd [2015] NSWSC 559

Supreme Court New South Wales

Medium Neutral Citation: Small v K & R Fabrications (W'Gong) Pty Ltd [2015] NSWSC 559 Hearing dates: 23-27 June 2014 Decision date: 15 May 2015 Jurisdiction: Common Law Before: Fullerton J Decision: 1. Verdict for the defendant. 2. Plaintiff to pay defendant's costs on the ordinary basis up to and including 15 August 2012. 3. Costs thereafter are to be on an indemnity basis up to date of judgment. Catchwords: TORTS – negligence – personal injury – back injury sustained while working as trades assistant at steelworks – question whether injury sustained as plaintiff claimed Legislation Cited: Civil Liability Act 2002 (NSW) Category: Principal judgment Parties: Raymond Small (Plaintiff) K & R Fabrications (W'Gong) Pty Ltd (Defendant) Representation: Counsel: B Dooley SC / S Longhurst (Plaintiff) R Cavanagh SC / T Berberian (Defendant)

Solicitors: Carroll & O'Dea Lawyers (Plaintiff) HWL Ebsworth Lawyers (Defendant) File Number(s): 2010/101731

Judgment 1. HER HONOUR: By a further amended statement of claim filed within days of the hearing, the plaintiff brings proceedings in negligence for an injury to his lumbar spine he claims he sustained when a steel beam he was holding whilst it was being cut with oxyacetylene equipment by a boilermaker employed by the defendant dropped unexpectedly whilst he was working at the premises of BlueScope Steel ("BlueScope") at Port Kembla on 23 January 2007.

The cases in summary 1. On 23 January 2007 the plaintiff was engaged by the defendant, K and R Fabrications Wollongong Pty Ltd, a steel fabrications company under labour hire through Allmen Industrial Services Pty Ltd ("Allmens"), as a member of a work crew to work the night shift at BlueScope's premises. The defendant was under contract to BlueScope to undertake structural repairs and general maintenance at the steelworks as required by BlueScope from time to time. 2. The plaintiff submitted that I would accept his evidence as to the circumstances in which he sustained his back injury as both credible and reliable, and that his immediate report of injury to the defendant reinforces his credibility. 3. The plaintiff submitted that even were I not persuaded that the injury to his back was probably sustained in the particular and detailed circumstances he described in his evidence, whether due to his mistaken recollection of certain features of the system of work in which he was engaged and/or error in his reconstruction of the particular mechanism within that system of work which caused his injury, I would nonetheless be satisfied that he was injured as a result of a breach of the defendant's duty of care as particularised in the further amended statement of claim. The plaintiff further submitted that I would be satisfied that the particular risk of harm was both foreseeable and not insignificant (as provided for in ss 5B(1)(a) and (b) of the Civil Liability Act 2002 (NSW)) and that there was no legal impediment to his recovery of damages, the quantum of which has been agreed, subject to the issue of contributory negligence. 4. The defendant accepted that it owed the plaintiff a duty of care as a member of a work crew under labour hire, and that the nature of the duty and its scope were analogous to the duty an employer owes an employee, but that in order for its liability in negligence to be determined in accordance with ss 5B, 5C, 5D and 5E of the Civil Liability Act, the Court would first need to be satisfied that the plaintiff's injury was sustained in the circumstances and by the mechanism he described in his evidence (or that it was probably sustained in that way). Without that primary finding of fact the defendant submitted that the risk of harm against which its liability in negligence falls to be assessed under s 5B(1) of the Civil Liability Act cannot be meaningfully addressed. 5. The defendant accepted that the plaintiff did injure his back whilst undertaking work assigned to him as a trades assistant at some time during a 12-hour night shift which commenced at 7pm at the steelworks on 23 January 2007, but that I would reject the plaintiff's evidence as to the circumstances in which the injury was sustained as internally inconsistent, generally improbable and in other respects impossible of acceptance. 6. The defendant further submitted that even were I satisfied that the plaintiff's back injury was sustained as he claims, or if not precisely in accordance with that mechanism, that what he described in his evidence was sufficiently supported by other evidence for it to be the probable cause of the injury, I would not be satisfied that the injury was a consequence of any breach of its duty to provide a safe system of work and/or to provide adequate instruction or supervision (the primary particulars of breach in the amended statement of claim), but as a consequence of the plaintiff's failure to be alert to the risks he knew to be inherent in the manual handling tasks he was required to perform as a trades assistant.