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.

Facts

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.

Decision

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

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