Plaintiff’s notice of motion dismissed over material differences

Date: Nov 28, 2018

Team-building activities are a great way to promote positivity within work teams in a fun and safe environment. But in this particular case, smiles turned to frowns as an employee sustained an injury which lead to a complex work injury compensation legal battle.

Background of the case

On 6 November 2009, the plaintiff was participating in a treetop adventure course as part of a team-building event. He was required to manoeuvre a plank of wood to transport himself from tree to tree. When doing so he lost his footing, causing him injuries to his back.

Later in the month, the plaintiff filed a worker's inquiry form claiming both his employer and the treetop adventure establishment breached their duty of care. Thereafter, he received appropriate treatment for his back injury until 2012, when he experienced an exacerbation of the pain. A 2013 MRI scan revealed a number of issues with his spine.

The plaintiff was then exposed to a medical assessment on behalf of his employer where he was found to have a whole person impairment of 20 per cent. He was then paid a lump sum entitlement.

On 11 June 2016, the plaintiff filed a statement of claim against both defendants, and they responded with a defence days later.

Coming to a conclusion

When submitting a claim for work injury damages, plaintiffs must follow a set procedure. This includes submitting the claim within a specific time frame, giving the employer enough notice and ensuring all facts are correct. 

However, the court found that both claims submitted by the plaintiff were materially different – especially in the description of what caused the injuries to his back. In the pre-filing statement, he said he was required to lift the plank of wood and twist the body in the direction of where the planks needed to go. This supposedly caused his injuries. However, in the amended statement of claim, the plaintiff asserted it was the loss of his footing that caused him to sustain his debilitating back injuries. 

When statements of claims are profoundly different, they are deemed defective, and in this case, the court was forced to dismiss the proposed claim. 

Workers' compensation claims like the above demonstrate that success isn't always easy. This is why it pays to have an expert legal team on hand to help. If you're trying to seek compensation for a work-related injury that wasn't your fault, get in touch with the team at Gerard Malouf & Partners today.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.