Kup-Ferroth v A1 Custom Stainless and Kitchens Pty Ltd [2022] QDC 3
- Incident date – 18 July 2016
- Decision delivered – 21 January 2022
Background
Michael Kup-Ferroth was employed by the defendant as a sheet metal tradesman. The defendant was tasked with installing a stainless-steel benchtop, which weighed approximately 120kgs. After its installation, the benchtop was moved by people not associated with the defendant. It appears that, in the process of this move, the benchtop was damaged. The defendant was asked to repair the damage.
The defendant tasked Mr Kup-Ferroth along with other employees to attend the site and repair the benchtop. Mr Kup-Ferroth alleges that whilst there, he and one other co-worker attempted to move the benchtop. He also had to lift one end of the benchtop to enable a co-worker to conduct repairs.
Subsequent to the first lifting, Mr Kup-Ferroth alleges that he started to experience pain in his lumbar spine. This pain continued thorough the second lifting and for the remainder of the day. Later, after returning to the defendant’s premises Mr Kup-Ferroth turned to wave goodbye to a college. He alleges that, in doing so, he suffered and continues to suffer debilitating pain in his lumbar spine. He also has sustained a psychiatric injury from the pain which prevents him from working, at least full time, and it affects his daily life and requires medication to manage.
Liability
Mr Kup-Ferroth claims damages of $750,000. He claims that, while working for the defendant, he received no training or documentation on safe manual handling of heavy objects. In essence, he claims damages in tort arising from the alleged negligence of he defendant in its system of work.
The defendant denied any liability, asserting that Mr Kup-Ferrpth never lifted the benchtop and that any back injury was caused by Mr Kup-Ferroth twisting his back when waving goodbye to the colleague. There was also evidence that the injury is an exacerbation of a pre-existing back condition. The defendants contended that Mr Kup-Ferroth was an experienced sheet metal tradesman who had received oral training and instructions from the defendant and, in any event, had been fully trained in safe systems of work during his apprenticeship and in his earlier jobs. The defendant, in the alternative, contends that Mr Kup-Ferroth should have been aware of the obvious risk to him of lifting the heavy benchtop, particularly given his pre-existing back condition, and therefore asserts 100% contributory negligence by Mr Kup-Ferroth.
A large aspect of this case concerned Mr Kup-Ferroth’s credit. It was documented that his statements to a number of doctors are inconsistent with his evidence, which (together with other evidence) the defendants submitted should lead the court to disbelieve his version of the events at the premises on 18 July 2016. In particular, medical records show that Mr Kup-Ferroth told doctors the injury was caused by turning around and waving goodbye without any mention of the lifting he did earlier in the day.
Barlow DCJ did not disregard his evidence on the basis of this inconsistency:
‘All these answers appeared to be spontaneous and had the ring of truth about them. Except when he was asked about his earlier activities, he did not think to mention them as a possible cause as he related his injury to his movements at the moment when he felt the “excruciating pain.” That explanation is not necessarily inconsistent with Dr Rupa’s records…’
The judge ultimately held Mr Kup-Ferroth’s recount of the events should be believed, concluding:
‘I find that the injury that Mr Kup-Ferroth has suffered to his back was caused by his lifting the benchtop with Mr Powell, carrying it from the storage room to the kitchen and putting it into place. It was no doubt exacerbated by then lifting one end of the benchtop and by the work that he then had to do to repair the benchtop. It all came to a head when he twisted his back toward the end of the day.’
The judge also found that despite other stressors in his life, the medical evidence was sufficient enough to conclude that the most significant stressor contributing to Mr Kup-Ferroth’s psychiatric injury was the lifting injury.
Was the defendant negligent?
The judge found that the defendant breached its admitted duty to take reasonable care for his safety in the workplace by providing a reasonably safe system of work. This is because:
(a) Having regard to the weight and irregular shape of the benchtop, the risk of harm to Mr Kup-Ferroth if he and only one other person were to move it and the risk to him if he were to lift one end of it were entirely foreseeable
(b) the risk of that harm was not insignificant, given the weight of the benchtop and the lifting equation involved in the activities;
(c) if harm occurred, there was a significant risk that it would constitute serious injury to Mr Kup-Ferroth’s back;
(d) the obvious way to avoid the risk of injury from the lifting and moving was to have more people or appropriate lifting equipment (or both) come to the premises to help lift and move it – while that may have involved waiting for their arrival or returning with enough people and equipment to lift and move the benchtop safely, that was not an overly burdensome manner of alleviating the risk of serious injury by only two people lifting and moving it;
(e) the obvious way to avoid the risk of injury from lifting the end of the benchtop was, again, to have someone else assist him in doing so or to bring appropriate lifting equipment to make or help in the lift;
(f) therefore, a reasonable person in the defendant’s position would have taken some or all of those steps to avoid the risk and injury.
Was there contributory negligence by the plaintiff?
The judge found that Mr Kup-Ferroth’s conduct could not amount to contributoty negligence:
‘Mr Kup-Ferroth was complying with the duties that he understood his employer required him to undertake, in the only way open to him in the circumstances that he was facing. Although he should have appreciated that the task involved a risk of injury, he was placed in the position that, in order to complete the task required of him, he needed to take on the risk and undertake the task that he was instructed, by his employer, to do. It was not reasonably practicable for him to have insisted on an alternative way to do the job. [128] Mr Kup-Ferroth was placed in the position he faced because of his employer’s failure to have sufficient manpower or machinery to lift and move the benchtop safely.’
‘In the circumstances, I do not accept that Mr Kup-Ferroth’s conduct in carrying out that task in accordance with his instructions amounted to contributory negligence on his part.’
Verdict
As there was no fault form the plaintiff, the judge awarded the $750,000 as well as including interest of $5,282.78. Therefore, the total amount awarded was $755,282.78.