Work Injury Damages Case Witherington v Lev’s Fabrications Pty Ltd [2014] QDC 266

PUBLISHED 01 Oct 2015

The Plaintiff in these proceedings, Mr Witherington, was working as a trade’s assistant and was 20 years of age at the time of the injuries. He had two separate injuries whilst working for the Defendant employer. The first injury was sustained as he was lifting a coil of pipe, causing an injury to his shoulder. It is important to note that the Plaintiff suffered previous shoulder problems. The second injury occurred when a large piece of metal fabrication fell onto his ankle. The Plaintiff argued that the Defendant should have identified, assessed and managed the risks he was being exposed to. Furthermore, it was argued that assistance should have been provided with the tasks or alternatively, proper training or instruction ought to have been given.

The Defendant was of the opinion that they had not breached their duty of care, stating that the pipe was not heavy, and the Plaintiff was “young and fit.” Furthermore, they stated he was familiar with the basic principles of manual handling. Reference was also made to his pre-existing shoulder injury.


His Honour noted there were three issues in this case, they were as follows:

1)      Did the task present a real and foreseeable risk of injury to Mr Witherington’s shoulder?

2)      Did the Defendant take reasonable care to avoid the risk?

3)      What damages should the Plaintiff be awarded for his injuries?


In respect of the first issue, ultimately the judge found that there was a foreseeable risk. He stated that because of the shape and dimension of the coil, the height it had to be lifted and the difficulty in gripping the coil, the risk of harm was evident.

In respect of the second issue his Honour quoted the decision on Czatyrko v Edith Cowan University (2005) 215 ALR 349, whereby it was found that:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury…the employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work.”

Ultimately it was found that there were safer ways to perform the task and there would have been no difficulty in the Defendant assisting with this via training, or via supervising the Plaintiff.

In respect of the second issue, the main concern of the Defendant was that of the prior shoulder injury. As such, His Honour awarded a 30% deduction in respect of the shoulder injury.

The Plaintiff was awarded over $500,000.00 as a result of his injuries. Of note were the following:

1)      $60,000.00 for general damages, being non-economic loss or pain and suffering.

2)      At the time of the injury the Plaintiff was earning $858.25 per week. He was 25 at the time the orders were made. His Honour made an order for future economic loss on the basis that the Plaintiff would work until 70 years of age, at a deduction of 45%, which totalled over $400,000.00 in itself.

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