Published 05 Feb 2016
Practice Area: Workers Injury Compensation Claims
This is the case study of Ataera v Thomas Borthwick and Son Pty Ltd  QDC. The Plaintiff in this matter was Ms Ataera. She had been working for the Defendant employer and was 22 years of age at the time of injury.
The Plaintiff worked as a labourer in the abattoir owned by the Defendant. As part of her role, she would be required to pack products of the meatworks into boxes for shipment. She developed carpal tunnel syndrome in both hands as a result of the repetitive nature of this task.
The Plaintiff ultimately argued the following points:
- Her work as a print term operator exposed her to a risk of injury, in particular, the risk of developing carpal tunnel.
- Her injury was caused by the negligence of the employer in failing to provide a safe system of work, and in failing to ensure her rotation from work as a print term operator on a regular basis.
The Plaintiff relied on the evidence of Dr Olsen, a consultant physician in occupational and environmental medicine. Dr Olsen stated that if a proper rotation system had been in place the injury would not have happened.
After a two day hearing, the Judge found the following:
- The Defendant failed to take reasonable care to avoid a known risk of injury in the form of carpal tunnel.
- The risk of injury could have been minimised by a proper system of rotation.
- No system of rotation was in place.
- The Defendant failed to minimise the risk of harm.
An award for $114,634.80 in favour of the Plaintiff.
Following this, the Defendant attempted to appeal the decision, arguing that there was a lack of evidentiary support in respect of:
- The Plaintiff not developing carpal tunnel had a rotation system been in place.
- The Plaintiff’s work was the cause of the injury.
The Judge on appeal agreed with the findings of the primary judge. In order to have a successful appeal the findings of the primary judge would need to be “glaringly improbable” or “contrary to compelling inferences in the case,” the required tests for such an appeal as set out in Fox v Percy (2003) 214 CLR 118. The Judge did not deem that this was the case and made an order for the appeal to be refused.
The award for the Plaintiff made by the primary judge was upheld.