Clayton v Jetcrete: The importance of expert evidence in personal injury litigation

The recent decision of the District Court of Queensland in Clayton v Jetcrete Oz Pty Ltd serves as a reminder of the importance of credibility of and the reliability of expert evidence in personal injury litigation.

The Plaintiff, aged 57 at trial, was employed by the Defendant as a concrete agitator truck driver/operator, and worked two weeks on, two weeks off on a fly-in, fly-out basis at the Ernest Henry Mine in Northern Queensland.

A claim was brought by the Plaintiff under the Workers Compensation and Rehabilitation Act 2003, seeking damages resulting from an alleged back injury she sustained at work on 13 July 2012 when she was pushing/regulating the flow of concrete down the chute of a concrete truck.

Prior to the alleged injury, and during a two-week period off work, the Plaintiff experienced an episode of back pain, and received chiropractic treatment for sciatica. Upon attending work, and before the start of her shift on 13 July 2012, the Plaintiff claimed that she informed two of her supervisors about the injury. Those conversations were disputed at trial.

The Plaintiff alleged that her injuries were caused by the negligence of the Defendant. The Defendant denied that it was liable to the Plaintiff for those injuries.

Three primary issues for Justice Morzone QC to determine at trial were as follows:

1. Whether the Plaintiff was in fact injured in the way she alleged;
2. Whether the Plaintiff’s injury was caused by the Defendant’s negligence/breach of duty of care; and
3. How much the Plaintiff’s claim was worth if she succeeded.

Due to conflicting versions of events between the parties, the Plaintiff was called to give evidence at trial, and the Defendant called three witnesses.

The Plaintiff’s case ultimately turned on her honesty as a witness and the reliability of her evidence. She was found to be an unfavourable witness on account of several factors including her version of events, the misreporting of her pre-existing back and psychiatric injuries in the pre-employment process with the Defendant, and the concealment of her financial circumstances following the alleged workplace incident.

While Justice Morzone QC found that the first witness called by the Defendant was obstructive, his Honour preferred the evidence of the following two Defence witnesses. The version of events described by these witnesses was in stark contrast with that of the Plaintiff, especially in relation to the mechanism pushing concrete down the chute of the concrete truck.

It was because of this evidence that the Plaintiff failed to establish, on the balance of probabilities, that her injuries were caused in the way she alleged.

Despite the Plaintiff’s failure to establish that her injury was attributable to any work-related event, the Court also addressed the issues of whether the Defendant owed a duty of care to the Plaintiff, and whether the Defendant breached their duty of care as the Plaintiff had alleged.

There is clear authority that in all workplace master/servant arrangements, employers owe a non-delegable duty to ensure reasonable steps are taken for the safety of their employees, including taking reasonable care to avoid exposing employees to unnecessary risks of danger.

At law, a person does not breach a duty to take precautions against a risk of injury to a worker unless:

1. The risk was foreseeable;
2. The risk was not insignificant; and
3. In the circumstances, a reasonable person in the position of the person would have taken the precautions.

The Court addressed each of these factors, and held that the Plaintiff failed to establish that the Defendant breached its duty of care to the Plaintiff. In making his determination, Justice Morzone QC considered an expert liability report adduced by the Plaintiff, which was found to have failed to provide an objective assessment of the task the Plaintiff was carrying out when she was allegedly injured.

His Honour also accepted the Defendant’s submissions that the report and opinion was written through the prism of hindsight. His Honour held that hindsight has no place in the assessment of the risk of injury, relying on the reasoning of Justice Garling in the decision of Benic v New South Wales [2010] NSWSC 1039, noting: “The assessment of the risk of harm is one made in prospect and not in retrospect. Hindsight has no part to play.”

His Honour, in addressing the question of damages, concluded that the Plaintiff stood to be awarded $191,366.59 had she succeeded.

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