Australia: An employer's duty of care does not extend to safeguarding the employee completely from all perils

Last Updated: 29 December 2016
Article by Robert Tidbury

Last week, Queensland's District Court found in favour of an employer in a common law claim for damages brought by a petrol station's customer service representative who was injured whilst replenishing stock from a freezer. In finding for the employer, the Court was satisfied with the prior moderate level of training and instruction implemented by the employer for what was considered a "fairly routine task".

In this alert, Partner Robert Tidbury discusses the case of Solomona v No. 1 Riverside Quay Pty Ltd (2016) QDC 289.

Takeaway points

  • In Queensland, an employer's duty of care for its employees does not require it to forewarn or safeguard its employee against every conceivable risk associated with the performance of a work task, particularly if the task in question is a simple or trivial one.
  • An employer is entitled to expect that an employee will exercise care in carrying out straightforward activities.
  • In Queensland, section 305B(1) of the Workers' Compensation and Rehabilitation Act 2003 (WCRA) provides that a person does not breach a duty to take precautions against risk of injury to a worker unless:
    • The risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
    • The risk was not insignificant; and
    • In the circumstances, a reasonable person in the position of the person would have taken the precautions
  • The elements in section 305(B)(1) of the WCRA are to be judged from the viewpoint of the employer, in the circumstances that were known, or ought to have been known, to the employee at the time of the alleged injury. This analysis must be undertaken prospectively, not retrospectively with the wisdom of hindsight.


The plaintiff worked as a customer service representative at the defendant's service station in Labrador. On 1 November 2010 she was replenishing stock which involved her lifting baskets containing ice cream products out of a flat top freezer positioned in a public area of the service station. The plaintiff alleged that the bottom of one of the baskets had become frozen to the freezer's surface due to the build-up of ice. After initially encountering some resistance, the plaintiff continued pulling on the basket in order to remove it from the freezer and in the course of doing so she injured her lower back.

Evidence was given, unopposed, by another employee of the service station called by the defendant to the effect that as a matter of common sense, staff did a visual check to see if there was a build-up of ice on products stored in the freezer before attempting to remove the product. That staff member also agreed that stock replenishing was a fairly routine task.

No evidence was presented at trial that the defendant was aware of any previous incidents or complaints of the same or similar type of injury. Nor were any changes made to the method of how the task was carried out after the incident.

The plaintiff admitted in evidence that at the commencement of her employment she was supplied with a learner's handbook which referred to manual handling hazards and mentioned that one of those hazards was sudden or jerky movements. The plaintiff further admitted that she had previously undertaken an orientation and training programme in January 2010 which involved an 8 hour online course covering lifting and handling of items. The plaintiff accepted that there were "activity cards" at the workplace including "the Targeted Replenishment card" which stated that an employee should always follow manual handling procedures. Meanwhile, the defendant's service station manager accepted in cross examination that no specific instructions or directions about how to deal with baskets in the ice cream freezer being stuck with ice were provided by the defendant to its employees.


The presiding judge, Dorney QC DCJ, viewed the plaintiff's case as one primarily concerning an alleged failure to warn or alternatively, instruct and in its consideration of the issues, His Honour referred with approval to a passage in Glass, McHugh and Douglas, The liability of employers, second edition, the Law Book Company Limited, 1979 at page 23 to the effect that

 "Simple uncomplicated operations such as the method of using his tools of trade by a tradesman could not reasonably require the provision of a system by the employer. Nor will there be much scope for alleging the necessity for a system in the case of a casual or isolated tasks of a simple character which do not involve any real risk if ordinary care is exercised."

In the case at hand, the Court acknowledged that whilst there was no evidence of previous complaints of injury arising from similar incidents, that does not necessitate a conclusion that the risk of injury was slight. However, when that fact was considered together with the fact that the task was a routine one, the degree of probability of risk of harm was sufficiently low to be considered insignificant. The Court was also mindful that the avoidance of sudden and/or jerky movement was something that had been identified in the defendant's safe work documentation as a relevant matter to be considered when replenishing stock.

Having regard to these considerations, the Court found the defendant was not in breach of its duty to take precautions pursuant to section 305(B)(1) of the WCRA because there was nothing more a reasonable person in the position of the defendant would have done in order to safeguard the worker from the circumstances which ultimately gave rise to her injury. This was particularly so where the plaintiff's expert engineer implicitly, if not explicitly, accepted that the references contained in the defendant's Targeted Replenishment activity card (with its internal reference back to the learner handbook) were the very types of things which would constitute relevant instruction and warning and about which the plaintiff had been trained.

Of interest, the Court did not accept that, even if a separate and specific freezer orientated activity card were to have been made available it had been, on balance, established that this additional measure would have prevented or minimised a minor injury being sustained to an ordinary worker, or that the plaintiff would have effectively followed the directions stipulated in the activity card.

From a quantum perspective, it was noteworthy that the Court made no allowance in its assessment of damages for future economic loss because the plaintiff was only off work for a couple of weeks post incident and her resignation from employment occurred a significant time afterwards as a result of reasons unrelated to the consequences of her injury.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions