So you suffered an injury – now prove how!– Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70

A plaintiff still bears the onus of proving the circumstances of how an injury occurred, even when the defendant admits that the plaintiff suffered an injury in the course of their employment.

K & R Fabrications (W'Gong) Pty Ltd (the defendant) had a contract with BlueScope Steel Ltd to undertake maintenance work at its Port Kembla steelworks. Raymond Small (the plaintiff) was one of a team of 10 labour hire contractors supplied to the defendant by Allmen Industrial Recruiting (the plaintiff's employer). The maintenance work involved the replacement of three-metre-long steel channel beams which ran between stanchions holding a conveyer belt. The system of removing the old beams involved a boilermaker using an oxyacetylene torch to firstly cut the beam in the centre and then to cut it at each end, near the stanchion.

The plaintiff alleged that he was asked by a boilermaker to assist in that task and was holding a beam when it fell unexpectedly, twisting in his arms. As a result, the plaintiff took half the weight of the beam, about 17kg, and thereby suffered a back injury.

The defendant admitted that the plaintiff had suffered an injury at work, however, submitted that it was an injury entitling him to workers compensation and not one which gave rise to a cause of action in negligence against the defendant.

The plaintiff served an evidentiary statement written by him, which was prepared about seven years after the accident, and gave brief details of how the accident occurred. About three months later, the plaintiff served a supplementary evidentiary statement giving significantly more detail. He also relied on a liability expert, Dr　Adams, who prepared a report, and on the defendant's written records of the plaintiff's complaint of injury. The plaintiff asked the Supreme Court of New South Wales to draw inferences as to the defendant's failure to call evidence from seven of the nine other team members (evidence from two of those persons was called) or from the person who prepared the defendant's report of injury.

The trial judge² found:

• While there was no doubt that the plaintiff had reported the incident to the defendant the following day, and gave a consistent history to his doctor a week later, he had not reported it in the course of his shift, as he alleged. As a result, the trial judge concluded that, whilst the plaintiff suffered an injury, it was not of the severity described by him in his evidence, whatever its circumstances
  
  
• The trial judge rejected the plaintiff's description of the circumstances in which the injury occurred, namely that the boilermaker was standing inside the conveyer belt structure and below the level of the beam, on one knee and, as such, needed the plaintiff to hold the beam up while he cut it. The judge accepted the defendant's evidence that boilermakers did that work in a standing position outside the frame and held that it was implausible that welding would be done from a crouching or kneeling position
  
  
• The trial judge rejected the plaintiff's evidence that he was not aware prior to the incident of the system of cutting the beams.

As the trial judge was not satisfied that the plaintiff had discharged his onus of proof as to proving the circumstances of how the injury occured, the plaintiff was unsuccessful at first instance. That was notwithstanding that the trial judge accepted that, if the plaintiff's version of events was believed, negligence may be found and that the defendant did not offer an alternative explanation as to how the plaintiff had hurt himself.

In the New South Wales Court of Appeal (the Court of Appeal), Basten JA, with whom the other judges agreed, noted that there was no affirmative finding that the injury was not sustained whilst holding the beam. Rather, the plaintiff failed to persuade the trial judge that the incident occurred in the manner he described. The reversal of the onus of proof in this way was not insignificant because an appellate court may be more willing to intervene in circumstances where the trial judge has made a finding of fact in favour of the party bearing the onus of proof than where he or she has declined to make such a finding.³

The plaintiff's appeal proceeded on the incorrect assumption that the trial judge had made a finding as to the circumstances in which the injury occurred. That had not been the case. To the contrary, the trial judge had failed to be satisfied as to the plaintiff's version of events.

His Honour noted that the appeal court had the same powers and duties in respect of the drawing of inferences and the making of findings of fact as the trial judge.⁴

There had been various challenges to the adequacy of the trial judge's reasons. His Honour held that the plaintiff had fallen into the error of compartmentalising the reasoning process and had contravened the established principle that the reasons for decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.⁵

His Honour took the view that the trial judge was entitled to make the findings that she had made.

In respect of the plaintiff's submission regarding the failure by the defendant to call witnesses in the plaintiff's team, his Honour described that submission as having an 'air of unreality'. No criticism was made of the witnesses who were in fact called and, in any event, as those persons were employees of the plaintiff's employer, and not of the defendant, it could not be said that they were 'in the defendant's camp'. To the contrary, it was the plaintiff's employer who would have had an interest in the plaintiff succeeding in his claim against the defendant, which would have resulted in the plaintiff's employer recovering workers compensation benefits.

In respect of the failure to call the person to whom the plaintiff reported the incident, his Honour noted that the plaintiff did not give evidence of any conversation contrary to that recorded in the report of injury.

Whilst it might be inferred that the failure to call these witnesses would not have supported the defendant's case, it did not follow that this allowed 'greater confidence' in the plaintiff's case.

Whilst this case did not involve a claim for work injury damages (WID), it may be of assistance to case managers defending WID claims, as it reinforces the principle that the plaintiff bears the onus of proving how the accident occurred, even in circumstances where the occurrence of a work injury has been admitted.

In every WID claim, by virtue of s 151H of the Workers Compensation Act 1987 (NSW), there will have either been a complying agreement entered into by the insurer agreeing to an amount of whole person impairment (WPI) greater than 15% due to the work injury or a medical assessment certificate to that effect. As a result, insurers defending WID claims make admissions on the pleadings that injury was suffered in the course of employment.

Notwithstanding those admissions, this case is important in demonstrating that, in appropriate cases, the plaintiff's assertion as to how the incident occurred should be put to proof, particularly if there is factual evidence which seriously questions the plaintiff's allegations as to the circumstances in which the injury occurred.

Often factual evidence will only be obtained in the course of the WID claim and after workers compensation benefits, including a WPI payment, have been paid. Nonetheless, case managers should be aware that a plaintiff still bears the onus of proof and may fail in establishing negligence if he/she is not accepted.

Case managers should also be aware that it will not always be necessary to incur the cost of an extended trial calling every available witness, particularly where pertinent witnesses are called and the plaintiff fails to make a serious attack on their recollection or credibility generally.