Workers’ Compensation and the Burden of Proof

Caruso v Black and White Distribution Pty Ltd [No 2] [2013] WADC 145

The plaintiff, Mr Caruso (C), alleged that on 2 December 2002, whilst employed by the defendant, he suffered an injury caused by their negligence, breach of employment contract and/or breach of theOccupational Safety and Health Act 1984, which rendered him totally unemployable for the rest of his life.

As part of his claim, C said that the defendant required him to service motor vehicles, despite knowing that he had sustained previous back injuries in 1992 and 1995.

The defendant denied that C suffered an injury at work on 2 December 2002 as a result of any specific incident and contended that, if he had, it was not caused by their breaches of duty.

In the alternative, the defendant also argued that, if there was a discrete incident on 2 December 2002, it was caused or contributed to by C’s own negligence and, in any event, he failed to mitigate his loss by not obtaining work that he was able to undertake.

It was evident that C had suffered a relatively minor back injury in 1992 and a more significant back injury in 1995. In fact, ten pages of the judgment are dedicated to outlining his medical treatment following the 1995 incident, which included 47 attendances on his GP.

His Honour found that, notwithstanding the 1992 and 1995 incidents, C was capable of working as a workshop manager with a hands-on component because he knew his limitations, knew the work restrictions and tried to avoid them.

Findings as to the incident on 2 December 2002

C claimed that the 2002 injury occurred while he was checking the wheel bearings/suspension on a vehicle. Evidence was led from C’s colleague, who had witnessed the incident in his ‘peripheral vision’, as well as from 13 medical practitioners C had seen.

Despite this, his Honour was not satisfied on the balance of probabilities that the injury occurred as pleaded and was only satisfied that, whilst at work and servicing a vehicle that he experienced pain in his back. He was unable to determine what task C was performing at the time of experiencing that pain.

Nevertheless, the claim was not dismissed solely on this basis. His Honour commented that issues of negligence involve a consideration of the evidence as a whole and that if it can be reasonably inferred that the incident was due to the negligence of the defendant then, subject to causation, a finding can be made in favour of the plaintiff (Mummery v Irvings Pty Ltd [1956] HCA 45).

Breach of duty of care

As mentioned above, C submitted that his employer required him to perform physically demanding duties for extended periods of time, with full knowledge of his previous injuries. Again, his Honour was not satisfied that a breach of duty had occurred, on the basis that C was in charge of the workshop and could organise the work in the workshop and determine who did the work, how it was done and which tasks he personally would or would not perform.

His Honour also found that, there was nothing to indicate that immediately prior to December 2002, C’s duties should have been restricted to clerical or other sedentary work.

Accordingly, he dismissed C’s claim. However, he accounted for the possibility that he had not reached the correct conclusion and provisionally assessed C’s damages above the capped amount.


Whilst to establish a workers’ compensation liability, it is generally enough to demonstrate that an injury occurred at work, in order to prove negligence and access common law damages, a plaintiff has to be able to prove exactly how an injury occurred.

The decision shows that employees in supervisory roles cannot place themselves in harm’s way or exceed their physical limitations and then claim negligence on the part of their employer if they subsequently become injured.

For more information on this article or any other insurance matters please contact Ashley Crisp or Ken Grunder on (08) 9321 3755.

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