An abattoir worker who was seriously hurt when a 200kg pallet cage fell on him has won a compensation battle with the site owner and his labour hire employer.

Brett Scott was left with a misaligned spine, chronic pain and a “chronic adjustment disorder with mixed anxious and depressed mood” after the July 2017 workplace accident, the NSW Supreme Court heard. The judge found he has no future earning capacity.

“Both defendants resist Mr Scott’s claims, but they did not pursue cross-claims against each other,” Acting Justice Monika Schmidt says in her ruling.

“Nor, curiously, did either call evidence from any of those who witnessed how Mr Scott came to be injured, or from those who could have shed light on what lies in issue between them and Mr Scott about how he came to be injured and how work was undertaken at the abattoir.”

Mr Scott was starting his shift as a labourer when a colleague moving the 1.8m-tall pallet cage – or stillage – by forklift spilt the load from height.

The stillage hit Mr Scott on the head and back, knocking him unconscious. He was taken to hospital by helicopter and had spinal fusion surgery.

In awarding Mr Scott damages – albeit not all those he claimed – the court found the forklift driver was negligent and Mr Scott was not “contributorily negligent”, as argued by the defendants.

Abattoir owner Usinch was vicariously liable for the worker’s negligence, and both Usinch and Epona – which had the same sole director – breached their duty of care.

Usinch was found to have greater responsibility. It had argued Mr Scott’s injuries were due to a “casual act of negligence” by the forklift driver, for which it was not responsible.

Epona accepted it had a “duty to take reasonable care to avoid Mr Scott being exposed to unnecessary risk of injury”, which required it to ensure care was taken by Usinch. But it argued Usinch’s “many failures had been causal, with the result that it had primary liability for the accident which resulted from its unsafe system of work”. 

However, the judge says: “It was the result of the negligence of [the forklift driver], Usinch and Epona that Mr Scott was injured as he was ... Not only Usinch but Epona was aware that Usinch’s written forklift policy was not in practical operation at the abattoir and that the system of work Usinch had in operation was unsafe.” 

The driver was not licensed or trained in safe operation of the forklift, but Usinch left him to operate the vehicle unsupervised “despite concerns about his safe operation of the forklift having earlier been raised”, she says. Mr Scott was hit while standing “in what he understood to be a designated safe space”. 

Mr Scott’s evidence was challenged amid claims he was “not a reliable historian”, gave “inconsistent and incomplete accounts”, and exaggerated his symptoms and pain. 

The judge acknowledges “aspects of Mr Scott’s evidence must be approached with some caution” but finds “parts of Mr Scott’s evidence have to be accepted, including as to how forklift work was not safely undertaken at the abattoir”. 

She is also satisfied his injuries “continue to cause him ongoing pain” and he has a psychological injury, but she has reduced the assessment of his non-economic loss due to his “physical injuries not being as significant as he still claims”. 

The judge awarded damages – yet to be fully calculated – for non-economic loss, lost earnings and out-of-pocket costs. 

See the judgment here.