Clayton v Jetcrete Oz Pty Ltd [2017] QDC 3

Facts of the case

Ms Wendy Clayton was employed as a concrete truck driver and operator for a concreting contractor, Jetcrete Oz Pty Ltd (“Jetcrete”).

During one of her shifts, the concrete truck ran out of water and the concrete became hard in consistency, meaning that it had to be manually pushed out from the chute of the truck. Ms Clayton alleges that she was instructed by her co-worker to manage the concrete flow, and she did so with maximum strength using her hands and a scraper. As a result, Ms Clayton said she suffered from debilitating lower back pain.

Ms Clayton alleged that the injury was caused by the breach of duty by Jetcrete as her employer and/or its negligence in failing to provide and maintain a safe system of work.

What was the legal issue?

The issue was whether Ms Clayton was injured in the alleged way, and if so, whether the injury was caused by Jetcrete’s breach of duty or negligence.

What does the law say?

An employer owes a duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.

In order to be liable under Workers’ Compensation and Rehabilitation Act 2003 (Qld) for an employee’s injury sustained in the course of his or her employment, the employer’s breach of duty must have caused the injury.

What was the judgement?

The evidence given at trial suggested that:

  • Ms Clayton was to accompany her co-worker as a mere observer with no defined role. He did not instruct her to perform any role at any time on that occasion;
  • She did not manually push concrete out at any time during the concrete pour; and
  • Ms Clayton had a long history of lower back pain. She did not properly inform Jetcrete of this at any stage in the course of her employment.

The judge found that Ms Clayton could not prove that her injury occurred as a result of her manually pushing concrete out of the chute in the first instance. Her injury could not be said to have been caused by any breach of duty on the part of Jetcrete. Her case was dismissed due to the lack of evidence linking her injury with the alleged breach.

Lessons Learned

This case demonstrates that:

  • Employers should seek to ensure a safe system of work to avoid any foreseeable risk of injury to their employees;
  • An employee ought to inform his or her supervisor of any non-work related injury that may become aggravated during the course of the shift; and
  • An employee wishing to bring a claim against his or her employer for a work-related injury needs to prove that the injury occurred as a result of a breach of duty by his/her employer.

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