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No lifting equipment - $1.3 million payout

A court has found an employer negligent in failing to provide lifting equipment.
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No lifting equipment - $1.3 million payout

No lifting equipment - $1.3 million payout

12 January 2021

By Gaby Grammeno

A court has found an employer negligent in failing to provide lifting equipment that could have prevented serious back and hip injuries, and awarded the injured worker almost $1.3 million in damages.

The injuries

The worker was employed as an electrician with a joint venture company providing gas and electricity in the Australian Capital Territory and south-east New South Wales. From the end of 2010 he was carrying out installation work for new developments.

The job involved working in trenches about 1.4m deep, out of which he needed to climb around 15 times a day, which caused him to feel stiff and sore as the day went on. He also had the task of fitting small switchboards to streetlights through an access door 300 to 400 mm above the ground level, and connecting the switchboard to the wiring already in the light pole. This task required him to crouch for about 20 minutes, leaving him with sore hips.

By 2013 he was noticing increased levels of pain, fatigue and cramping in his lower back and right hip. He submitted an injury report in December 2013 – subsequently referred to as ‘the 2013 injury’ – after stabbing pains in his hip were significantly limiting his ability to carry out domestic tasks.
This led to medical assessment and a recommendation for hip surgery, but at work his physical duties did not change, despite having been promoted to be ‘Site Lead’ in his section.

In July 2014 had surgery on his hip and was off work for three months, returning on restricted duties until his return to full duties in February 2015.

In late 2017 he was transferred to a different section, with tasks involving maintenance work on high voltage switching stations, including some welding from a crouching position, which caused hip pain. In December that year, he was engaged at Canberra Airport in removing and replacing a switchboard weighing about 400 kg. This task required the switchboard to be lifted from its location, which was done manually by the worker and three other men.

A very sharp pain in his lower back signalled a serious lower back injury – later referred to as ‘the 2017 injury’.

This was followed in October 2018 by ‘the 2018 injury’ affecting his lower back and left hip, which he suffered while manually lifting a similar switchboard into position at the Australian National University. Medical investigation recommended hip surgery.

When his employer’s insurer declined to cover the cost of the planned left hip operation, he sought legal advice and became aware that he could bring an action for damages in relation to the three injuries.

The case was heard in the Supreme Court of the Australian Capital Territory.

In court

Evidence was put forward that the injury was foreseeable, considering the weights and dimensions of the 2.5-metre-tall switchboards and the awkward lifting postures necessitated by the presence of a trench.

The court heard that it would have been easy for the employer to have provided appropriate lifting equipment – such as a scissor lift – to help move the switchboards, but no such equipment was provided, despite the obviously hazardous nature of manually lifting such large, heavy items.

The court noted that even if the conclusion as to the employer’s liability under common law was mistaken, the employer had failed in its statutory health and safety duty to identify and control risks as per ss 34, 35 and 36 the Work Health and Safety Regulation 2011 (ACT).  

The employer had also failed to appropriately manage the risk that the worker would sustain a musculoskeletal injury from undertaking such a hazardous manual task, in breach of s 60 of the regulation.

The court dismissed the worker’s application for an extension of the limitation period in relation to the 2013 injury. However, it found the employer was liable for the other two injuries, and that the worker was entitled to recover damages of $1,115,754.00 and $181,475 respectively, or $1,297,229 in total.

The bottom line: Manually lifting heavy loads and undertaking tasks requiring physical exertion while in an awkward posture carries a clearly foreseeable risk of serious injury.

Read the judgment

Roberson v Icon Distribution Investments Limited and Jemena Networks (ACT) Pty Ltd trading as ActewAGL Distribution [2020] ACTSC 320 (2 December 2020)

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