A recent NSW Court of Appeal decision has eschewed the proposition that a system of work involving lifting and twisting creates a foregone risk of injury. The NSW decision is a sensible determination and contradicts recent Queensland authorities.

The case of Hawkins v Ross Human Directions Ltd1('Hawkins') involved a claim brought by Ms Hawkins against her employer Ross Human Directions Ltd. Ms Hawkins sustained a significant injury to her back as a result of lifting two archive boxes and twisting around to carry them to secure storage. The primary judge found that the weight lifted by Ms Hawkins on the occasion was no more than 7kg. The judge held the view that Ms Hawkins had not shown that the Employer should have been aware of a risk of injury, when she lifted a 7 kg box and twisted. Accordingly the Judge found there was no breach of duty by the Employer.

Ms Hawkins then appealed this decision of the primary judge and it came before the NSW Court of Appeal. While some error was found in the primary judge's decision, the Court of Appeal provided that in order for the appeal to succeed, Ms Hawkins needed to show there was a real risk of injury in her lifting boxes (that potentially weighed up to 9.8 kg) such that the Employer was obliged to take precautions in respect of that risk. The Court of Appeal found that Ms Hawkins failed to establish this and the appeal was dismissed.

Saliently Justice Beech-Jones remarked that if the employer had a responsibility to mitigate risks of injury, "the only system that could have prevented [the worker's] accident from happening was one in which she was precluded from lifting any box... It is difficult to accept that an office environment could function if employees in [the worker's] position were precluded from lifting any box of documents."

The decision is quite different from the approach taken in Queensland in Tabcorp Holdings Ltd v Dank2('Tabcorp'). In this case, the worker sustained a back injury at work when she lifted a box of photocopy paper (12.7 kg) from the floor to her desk. The trial judge found the employer had breached their duty of care as:

  • The worker had received no instructions in how to appropriately lift the box; and
  • The risk could have been obviated by ensuring that storeman or other employees placed the boxes on her desk or the employer could have had in place a system for storing such boxes at knuckle height; and
  • There was a clearly foreseeable risk of injury.

Tabcorp appealed the decision but the Court of Appeal affirmed the trial judge's finding that the risk of injury was foreseeable.

A key difference between the two cases is that in the Tabcorp decision the evidence was that the worker did not know how to properly and safely lift a box and this, inter alia, was the cause of the injury. Whereas in Hawkins the allegations were more general, that manual lifting created a foreseeable risk of injury.

While the Hawkins v Ross Human Directions Ltd decision is not binding in Queensland Courts, it is useful obiter and cause for some optimism in future similar cases.

Footnotes

1[2015] NSWCA 265

2[2011] QCA 253

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