01-08-2016    |    Resource   |   Arthur Fogarty

The difficulties that arise in relation to claiming compensation when a person suffers an injury in a building case have been highlighted in a Decision of the NSW Supreme Court in the matter of Sharp v. Emicon Pty Limited [2014] NSW SC 1072 which was handed down on 12 August 2014.

In that matter the person that was injured had initially commenced proceedings against the builder which was occupying the site.  The proceedings were subsequently amended to include the company that had built scaffolding and against his employer.

The Plaintiff in the proceedings had suffered an injury in 2008 when he was fixing guttering to the facia of a building.  He was standing on scaffolding at the time which was approximately 5.3 metres above the ground.  He attempted to recover his tape measure which had moved out of his reach.  He stood on the railing of the scaffolding.  The scaffolding moved causing the Plaintiff to fall the 5.3 metres and he suffered a significant injury to his back.

Ultimately the Plaintiff was unsuccessful against the builder and he in fact discontinued those proceedings against the builder during the course of the hearing.  He lost his claim against the scaffolder as he was unable to establish that the scaffolder had breached its duty in erecting the scaffolding.  He was successful against his employer but his damages were reduced by 15% as a result of his own contributory negligence by standing on the railing of the scaffolding.

A large number of problems arose in the case because the Plaintiff had failed to properly look at documentation that had been obtained by the WorkCover Authority, when it investigated the accident, and, in particular, photographs of the scaffolding.  As a result the Plaintiff appeared to have provided different descriptions as to how his injury had taken place.  If the Plaintiff had had access to the photographs that were obtained by the WorkCover Investigator immediately following the accident at an earlier stage he might have been able to provide a correct description of the circumstances of his accident to the expert who was qualified by the Plaintiff, and, in his statement which was ultimately tendered to the Court as his evidence.  It also resulted in the Plaintiff having to amend his Pleadings in the Court during the running of the hearing which is unsatisfactory.

The Plaintiff lost his claim against the scaffolder.  The Court was satisfied that the scaffolding was defective.  However it was not satisfied that the defective scaffolding had been caused by the company that erected the scaffolding.  The Director of the scaffolding company had given evidence that had suggested that the scaffolding may have been cut by workers at the site prior to the Plaintiff gaining access to the level of the scaffolding where he had his accident.  The Plaintiff has the onus to establish a breach of duty by any Defendant.  The Court was of the view that the Plaintiff had not established that the scaffolding company had failed to erect the scaffolding properly.  The Plaintiff had to establish that the scaffolder had caused the defect in the scaffolding.   There was no evidence of any request from the builder to the scaffolder to carry out further repairs to the scaffolding.  On that basis the Court was unable to find any breach of duty on the part of the scaffolder.

Ultimately, as the Plaintiff was only successful against his employer, his damages were significantly reduced by reason of the Workers' Compensation Legislation which limits the damages a worker can receive from his employer to economic loss only.

The question of costs is still to be determined.  However if costs follow the event the Plaintiff will be likely to be ordered to pay the costs of the scaffolder, as the scaffolder was successful in defending the claim.

The Case clearly demonstrates that a Plaintiff, has to obtain access to all documentation prior to commencing any proceedings.  Once the documentation has been obtained it is essential that the documentation be shown to the injured person so that the exact circumstances surrounding the injury can be ascertained and those circumstances be put to all of the doctors and any experts who are qualified on behalf of the Plaintiff for the purpose of his or her case.  Any witness statement prepared on behalf of the Plaintiff must set out the circumstances on the incident that were provided to any such expert. 

A Plaintiff must carefully consider any pleadings once the circumstances leading to the incident have been ascertained and the expert opinions based on those circumstances have been obtained.

Most Personal Injury Claims are complicated.  Any person that is injured in an accident who is considering claiming compensation should confer with a Law Society Accredited Specialist in Personal Injury in an effort to reduce any complications that could ultimately result in less compensation being provided.

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