Background
Thomas Pratt, a labourer employed by Patrick Ditton, suffered a crush injury to his left foot at a Pennant Hills construction site in June 2016. Steel I-beams, each weighing at least 750 kg, were being unloaded by crane. After a pair of beams was set down, Mr Ditton’s supervisor and licensed dogman, Gary Dries, called out “They’re right”. Mr Pratt reasonably understood this as an instruction that it was safe to approach and remove the lifting chains. The unstable beams toppled and crushed his foot.
Mr Pratt brought a work injury damages claim under Part 5 of the Workers Compensation Act 1987 (NSW). He had undergone numerous operations and experienced chronic pain, foot and ankle instability, psychiatric conditions and related incapacity. Mr Ditton denied negligence and alleged contributory negligence. The parties also disputed the extent of Mr Pratt’s economic loss.
The Court’s Holding
Fagan J held that Mr Ditton breached his non-delegable duty as employer. A safe system required a qualified dogman to inspect the heavy beams from a safe position after placement, ensure their stability, resettle them if necessary, keep other workers clear, and provide a barrier or separate supervision of the danger area. Those precautions were omitted, and Mr Dries affirmatively directed an untrained worker to approach an unchecked load.
The breach caused the injury: had the required precautions been taken, Mr Pratt would not have approached the unstable beams. The Court found no contributory negligence because Mr Pratt acted on his immediate supervisor’s direction and reasonably understood it to mean the load was safe. It found that the injury had effectively eliminated his practical earning capacity, but discounted the economic-loss assessment by 30% to reflect his irregular pre-injury work history and likely future employment uncertainty.
Key Takeaways
- An employer must provide a safe system for workers near crane-unloaded heavy materials, including inspection of load stability before anyone approaches.
- A supervisor’s instruction to approach an unsafe load can itself constitute negligent breach by the employer.
- A worker who follows a supervisor’s safety-related direction will not necessarily be contributorily negligent.
Why It Matters
The decision illustrates the stringent practical content of an employer’s duty in high-risk site work. Licensing a dogman or appointing a foreman is insufficient if the unloading process does not prevent untrained workers from entering the danger area before a load has been checked.
It also shows that a court may find total practical loss of earning capacity while applying a substantial discount to the assumed pre-injury earnings path where the worker’s prior employment record was intermittent and uncertain. Judgment was entered for Mr Pratt for $1,030,742.67, with costs reserved.