Foreseeable risk: Employer gets out of the deep end

Introduction

The decision in Micallef v Endeavour Foundation [2013] QDC 142 demonstrates the need for an injury to fall within the scope of a foreseeable risk in order to establish liability against an employer.

Case

The plaintiff was a disability support worker employed by the defendant. The plaintiff and a co-worker had taken two children to a local swimming pool. After the children had exited the pool, the plaintiff had re-entered the pool to retrieve grapes which one of the children had thrown into the water. Both children were with her co-worker outside the pool at this time. As the plaintiff was resurfacing, one of the children jumped feet first on top of her, causing the plaintiff to sustain injury to her neck.

The defendant had completed a generalised risk assessment regarding pool visits and the plaintiff acknowledged that she was aware of the risks identified in this assessment, despite allegedly not being provided with this specific assessment.

Further, the child who had jumped into the pool was identified to have aggressive behaviour problems when he felt that his personal space was being invaded. The defendant noted that they were aware that in a psychologist's report, it was recommended the child should not be left unattended in any environment as his behaviour was unpredictable.

The plaintiff alleged that the child's actions in jumping into the pool were a foreseeable risk due to his unpredictable behaviour traits and suggested her exposure to this risk could have been minimised by a higher ratio of carers.

In response, the defendant denied that the child's actions were an identifiable risk and further, even if it was possible to foresee this risk, there was nothing the defendant could have done without the benefit of hindsight to minimise that risk.

Decision

The plaintiff's claim failed. The Court was not satisfied that it was reasonably foreseeable that the plaintiff was at risk of being injured in the particular circumstances.

In reaching this decision, Harrison J found that the plaintiff's case, at best, was that the defendant knew the child was unpredictable and his noted adverse behaviours arose in circumstances where he perceived that someone was invading his space and reacted accordingly. However, as there was nothing in the circumstances to indicate that the child's space was being invaded or that he was otherwise behaving unpredictably at the time of the incident, the child's behaviour did not fall within the scope of foreseeability.

Implications

Although this case was determined on its facts, the decision illustrates the process of reasoning undertaken in establishing foreseeability and risk of injury.

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