Prove it or lose it

Key Points
  • In order to recover common law damages it is necessary for a worker to establish not only that the injury occurred, but that the injury was caused by some negligent act or omission on the part of the employer.
  • The worker bears the onus of establishing the circumstances of the incident, and hence that there was some breach of duty by the employer, even where the injury is admitted by the employer.


In this recent NSW Court of Appeal decision, an employer escaped liability for an injury allegedly suffered by a worker in the course of his employment as a trade’s assistant. The worker allegedly suffered a severe aggravation of a pre-existing injury when, while holding a beam that was being cut, the beam fell unexpectedly towards him.

The employer conceded that the worker had suffered an injury, however disputed that the injury was caused in circumstances that gave rise to a claim against the employer in negligence.

The worker was working his first shift as part of a labour hire team at the BlueScope Steel Port Kembla steelworks, assisting boilermakers in the removal of rusted steel beams. The work involved the removal of steel beams approximately 3 metres in length; the practice used to remove the beams involved a boilermaker cutting the beams at the midpoint, before cutting the beams at either end so that each length was about 1.5 metres long. The worker alleged that he was required to hold up the beams while they were being cut with oxyacetylene torches. He was unaware that the beam had been cut at the midpoint and was therefore unaware that the beam would fall, causing him to twist and injure his back.

The employer disputed the worker’s allegations regarding how the incident occurred and also alleged that the worker would have been aware of the cut and hence the drop would not have been unexpected.

The trial judge dismissed the worker’s claim on the basis that he had failed to prove the circumstances of the alleged injury and hence had failed to establish any breach of duty on the part of his employer.

The worker appealed the decision, arguing that the trial judge had failed to take to draw a negative Jones v Dunkel inference from the failure of the employer to call certain witnesses and also on the basis that the trial judge’s reasons for not accepting the evidence given by the worker in relation to the circumstances of the incident were inadequate. He also argued that the trial judge’s findings were contrary to compelling inferences to be drawn from the available evidence.

The Court of Appeal considered that the trial judge was entitled to reach the conclusion that the worker had not established his case in circumstances where significant evidence that was available disputed the worker’s recount of the incident and the way in which the injury had occurred. The Court of Appeal considered no other conclusion was available to the trial judge and the trial judge’s reasoning was not erroneous or inadequate given the inadequacy of the evidence in support of the worker’s version of events. The Court of Appeal also pointed to the fact that the trial judge did not make a finding that the injury did not occur, rather that it did not occur in the way that the worker alleged.

Further, the Court of Appeal considered that the possibility that the trial judge could have drawn a negative inference against the employer did not assist the worker in establishing his version of events or in establishing any breach of duty on the part of the employer.

Consequently the Court of Appeal dismissed the appeal.

Post by Nicole Laughlin

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