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We met Phil in 2009 as a seriously injured person. We took him through the difficulties of a WorkSafe litigation process that refused to accept his entitlements to compensation. And we eventually delivered for him a jury verdict that has placed him and his family in a position to move forward with their lives. Henry Carus, Principal of Henry Carus + Associates, shares Phil’s story:
“Phil was a young man, aged 29 at the time, with a wife who had recently come from China to work as a Chef at a CBD hotel in Melbourne. He was very excited by his new job, having worked for the same organisation in China. Phil’s position was as one of the assistant chefs in the main kitchen of the hotel. His roster involved him working the afternoon shifts, including Saturdays.
Part of Phil’s work duties on the Saturday was to receive a delivery of fruits and vegetables at the loading dock. The task was normally done by two men during the week, but Phil, alone on Saturdays, did the task by himself.
On one particular Saturday in November 2008, Phil bent down to pick up a 20 kg box of bananas from the loading trolley to place them on a low level shelf. In doing so, he suffered a massive injury to his lower back. Phil was taken to hospital and underwent an extensive conservative rehabilitation program. Attempts to return to work failed, and eventually everyone accepted he had no future work capacity.
The compensation scheme for persons injured at work requires the worker to ask WorkSafe for permission to seek compensation and this is done by way of a Serious Injury Application. Our office did the work for Phil, and requested the ability to ask for compensation for Pain & Suffering and his inability to work. WorkSafe granted our application and we advised that we would proceed to seek compensation.
Asking for compensation from WorkSafe turned out to be a very difficult process. Initially, we were advised that the employer had done nothing wrong and in fact Phil was lifting a box of about 5 kgs at the time that his accident occurred. Although we repeatedly advised that the representation was false, those acting on behalf of WorkSafe refused to accept that representation. Further, we argued that the task involved – the lifting from the trolley and the placement on the lower shelf – was a manual handling task which was inappropriate and dangerous in the circumstances. Our arguments again were disregarded.
Eventually, we had to commence proceedings against the hotel seeking compensation for the change in Phil’s life and his inability to work. In the process we asked again and again for documentation from the hotel concerning their work practices, and in particular what efforts they had made to comply with the relevant Occupational Health & Safety Regulations, which require assessments of all manual lifting tasks. We were met by a stone wall.
Initially, the representation from those solicitors acting for the hotel on behalf of WorkSafe was that there were no such documents in existence. When we eventually showed that was wrong, we were flooded with an extreme amount of documentation!
After detailed examination of all the documentation, it was clearly revealed that the tasks involved – being the loading and unloading of items from the loading dock into the kitchen – was a task that had been identified by numerous audits conducted under the Occupational Health & Safety Act, and unfortunately, especially for Phil, had not been adequately addressed.
We engaged on Phil’s behalf a respected expert in WorkSafe practices, who advised that any lift in the manner Phil was doing at the time of his accident of 10 kgs or above placed him at serious risk of a back injury. That evidence was put forward to the solicitors acting for the hotel, and again there was refusal to accept responsibility for Phil’s injuries.
Two mediations were conducted in this matter where we were unable to get any offer from WorkSafe whatsoever to compromise and resolve Phil’s claim. Instead, we were told again and again, no offer of money would be made, as they felt the employer had met all its responsibilities.
The matter than preceded to a trial at the Supreme Court in front of a jury, and because of the extensive documentation and the conflict of views in respect of responsibility, the trial lasted over 4 weeks. At the end of the 4 weeks, the jury was given all the evidence and advised that it was in their hands to make a decision as to whether or not Phil’s injuries were caused by either the negligence of the hotel or its failure to comply with the legislation and regulations under the Occupational Health & Safety Act. The jury did not hesitate, and returned a verdict on both grounds in favour of Phil finding the hotel negligent.
The jury then was instructed to consider the value that should be given to Phil for the changes in his life and his inability to earn. The jury was kind to Phil, and awarded him $275,000.00 for his Pain & Suffering and $525,000.00 for his Loss of Income.
The total amount of the verdict was amended in light of some payments Phil had received in the past, and eventually Phil left the court house with approximately $600,000.00 in his favour.
We are honoured to have been able to help Phil on this journey and see him and his family reach an outcome that will allow them to now move forward with their lives.”
