Reasonableness of the employer’s response and proof of a practical alternative system of work

Griffiths v State of Queensland [2010] QSC 290

CATCHWORDS

INDUSTRIAL LAW – INDUSTRIAL SAFETY HEALTH AND WELFARE – QUEENSLAND – WORKPLACE HEALTH AND SAFETY LEGISLATION – LIABILITY – where the plaintiff claims for damages for personal injury incurred during the course of her employment – where the plaintiff was injured when a soda lime canister she lifted from a trolley slipped from her grasp – whether the employer was in breach of its obligation under s 28 Workplace Health and Safety Act 1995 (Qld) to ensure the plaintiff’s workplace health and safety

EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – NATURE AND EXTENT OF LIABILITY – GENERALLY – where the plaintiff claims for damages for personal injury incurred during the course of her employment – where the plaintiff was injured when a soda lime canister she lifted from a trolley slipped from her grasp – whether the employer was in breach of its duty of care in failing to provide a safe system of work.

Issues

Quantum was agreed at $600,000.00 clear of the WorkCover Queensland refund. Liability however, was in issue by reference to the application of sections 28 and 30 of Workplace Health and Safety Act 1995 (Qld), together with common law principles.

Daubney J

The plaintiff’s injury to her back on 5 October 2004 was said to have occurred as a result of:

[2] The plaintiff was employed in the Central Sterilising Service Department (“CSSD unit”), which resembles a large industrial washing-up area, equipped with large sterilizing dishwashers and other equipment for high grade medical sterilization and cleaning. At the time of her employment there, the CSSD unit processed tens of thousands of pieces of surgical equipment each month, of varying sizes and weights. Surgical items and equipment were transported on trolleys from operating theatres and other parts of the hospital to the CSSD to be cleaned, sterilized and returned. The trolleys had a number of shelves and a tub on each shelf. Each tub was covered with a fitted lid for safety and hygiene purposes. The height of the trolley at the top edge of the tub was 1066mm above floor level and the depth of the tub itself was 220mm, meaning, therefore, that the items were at a height of 846mm from the ground when they were removed from the trolley.

[3] The plaintiff’s injury was sustained when she removed a soda lime canister from a tub on a trolley in order to place it in a decontaminator approximately one metre away from the trolley. A soda lime canister is a piece of surgical equipment weighing about 5 kilograms. It is made predominantly from stainless steel. It comprises a base (about 165mm square) and 2 vertical steel plates at the side, joined by a crossbar at the top. Fully assembled, it is about 430mm long by 240mm in diameter. On the day of the plaintiff’s incident, the soda lime canister was unassembled, meaning the plastic internal canisters had been removed so that the equipment to be sterilized was only the base, the side plates and the top crossbar. A short hose of approximately 300mm in length was attached to the base of the item. The bottom of the square base was covered with a removable Perspex cover attached by three large screws which protruded from the base. The canister in question had been disassembled and rinsed off in theatre, before being brought to the sterilization area. The plaintiff described it as having droplets of water on it.

[4] The plaintiff claims to have lifted this disassembled soda lime canister from the trolley by grasping its top with her right hand and using a ‘flat palm grip’ with her left hand on the base, without attaching any part of her left hand onto or around any object (for example the screws protruding from the base). It slipped from her left hand and she bent down and to the right to catch the end she had dropped, and in doing so, injured her back.

Statutory Breach?

His Honour reviewed the legislation and noted that it was common ground the Manual Tasks Code of Practice 2000 (“Code”) applied.

From paragraphs 13 – 22 the seminal decisions (below) are helpfully summarised –

Parry v Woolworths Limited [2010] 1 Qd R 1; [2009] QCA 26; cited

Bourk v Power Serve P/L & Anor [2008] QCA 225; cited

Calvert v Mayne Nickless Ltd (No. 1) [2006] 1 Qd R 106; [2005] QCA 263; cited

Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518; [2000] QCA 18; cited.

 

[13] In Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2),[3] an employee at a childcare centre was injured whilst shovelling sand into a wheelbarrow and moving the wheelbarrow some distance before emptying it. In that case the force required to lift the sand was 8.5 kilograms and to move the wheelbarrow was approximately 14 kilograms.[4] This case preceded the introduction of the Code, the predecessor of which contained recommended maximum weight limits, which do not appear in the current standard. The weight involved was less than the recommended weight limits which were said to necessitate risk assessment.

[14] The Court concluded that there was no identifiable risk involved in this manual handling task that was likely to be a risk to health and safety, so no further risk assessment was necessary under the relevant standard. Nevertheless, the Court found that the employer had breached section 28(1) by failing to ensure the workplace safety of the employee, but the employer was not liable on the basis that it established a satisfactory defence under sections 26(3)(b) and 37(1)(b)(ii).

[15] In making this finding the Court observed:[5]

“To find otherwise would be to create an offence for failing to formally identify and manage trivial risks such as when an employee bends down to pick up a pen or reaches to take a book from the shelf and the employee suffers a consequential injury; it is notorious that sometimes serious back injuries are possible in such circumstances. The legislature could not intend such an unjust and unworldly outcome and the interpretation that will best achieve the purpose of the Act is to be preferred. The Act imposes penalties for its breach and is a penal statute requiring that if there are two reasonable constructions open, the more lenient one should be preferred. The appellant’s claim for breach of statutory duty must fail.” (citations omitted)

[16] In Calvert v Mayne Nickless Ltd (No 1),[6] the Court of Appeal considered the situation where a plaintiff nurse was injured whilst moving a patient who grabbed at her, pulling her to the ground and causing her to sustain an injury to her back. Jerrard JA (with whom McPherson JA and Atkinson J agreed) considered the decision in Schiliro:[7]

“In Schiliro the joint judgment made clear that s. 28 of the 1995 Act did not create an offence, or provide a right of civil action, when an employer failed to formally identify and manage, or assess, trivial risks.[8] That conclusion could be rephrased by saying an employer is not obliged to ensure the employer’s workers are not exposed to trivial risks, or by saying the employer is obliged to ensure that the employer’s workers are not exposed to risks that are more than trivial.”

[17] His Honour continued:[9]

“I consider that once Ms Calvert proved that she was not free from a trivial risk of injury created by her workplace or work activities, as she did, she established the prima facie conclusion that [the employer] had breached its obligation to ensure her workplace health and safety. The onus then lay on [the employer] to establish either of the matters specified in s. 26(3), and that it had accordingly discharged its workplace health and safety obligation, or to establish the defence provided by s. 37(1)(b) of that Act.”

[18] Reasonable foreseeability of injury was not required; rather, the obligation to ensure workplace health and safety hinged on proof that the worker was not free from a ‘non-trivial’ risk of injury.[10]

[19] In Bourk v Power Serve P/L & Anor,[11] the Court of Appeal allowed an appeal by a linesman who was injured in a fall from a power pole when the pole strap attached to his safety harness failed. Muir JA (with whom Keane and Fraser JJA agreed) said:

“[32] Under s 28(1) the employer’s duty to ensure the employee’s safety is absolute. It is not expressed as a duty to supply equipment, advice, training, conditions, or assistance of a particular type or at all. Subject to the operation of s 26, s 27 and s 37, if an employee such as the appellant is injured through the failure of a piece of necessary safety equipment provided to him by his employer there is a breach of the obligation imposed by s 28(1). The employer has failed to ensure the safety of the employee. Causation is established. If the employee’s safety had been ensured, the employee would not have been so injured.

[33] A requirement that the appellant prove that “had there been a system of inspections and checks the defect in the pole strap would have been detected” is not to be found in s 28(1). Nor is it justified by s 27. An employer can avoid liability, where there is no regulation, ministerial notice, advisory standard or industry code within the meaning of s 27(1), by choosing “any appropriate way to discharge the … workplace health and safety obligation for exposure to the risk” and by taking “reasonable precautions” and exercising proper diligence to ensure the obligation is discharged. The employer may also establish a defence under s 37 or discharge the obligation imposed by s 28(1) by acting in accordance with s 26. Section 26 has no relevance for present purposes. Section 27 however does not define the obligation under s 28(1). It states, in quite general terms, a means by which such obligation may be discharged.

[34] The unchallenged finding at first instance was that the first respondent did not have the benefit of a defence under s 27. That being the case, the appellant was entitled to succeed. Whether the defect in the pole straps would have been detected by a proper “system of inspections and checks” diligently carried out would have been relevant to the application of s 27 or s 37 had there been such a system. Absent such a system and the application of s 27(3) or s 37(1)(c) what such a system may or may not have detected was irrelevant. It sufficed for the appellant’s purposes that he was provided by his employer with a defective pole strap which failed, causing him injury.” (citations omitted)

 

[20] In Parry v Woolworths Limited,[12] the Court of Appeal again considered the breadth of liability under section 28(1). That case involved a butcher who sustained a lower back injury whilst assisting another employee to lift a tub of meat. The tub of meat was accepted to weigh about 44 kilograms and evidence was given that each employee grasped a handle of the tub with one hand and used their other hand to assist in tipping the contents of the tub into a nearby bin. The trial judge dismissed the plaintiff’s claim for damages and the plaintiff appealed on the basis that the trial judge erred in finding that the plaintiff had failed to prove that the employer was negligent, in breach of contract or in breach of the respondent’s obligation under s 28 to ensure the plaintiff’s workplace health and safety.

 

[22] Fraser JA (with whom McMurdo P and White AJA agreed) referred to the decisions in Bourk and Calvert before making the following comments on the decision in Schiliro:

 

“[36] My own view is that the judgment in Schiliro made it clear that though the workplace activities there in question exposed the employee only to a trivial risk of injury, a prima facie contravention was established because of the absolute nature of the obligation in s 28(1). The significance of the triviality of the risk lay in the relative ease with which the employer could rebut the prima facie case of liability established by proof of an apparent contravention of s 28.”

 

[23] The Court found that no defence to section 28 was established by the employer and allowed the plaintiff’s appeal.

 

With respect to the Code and the application of s.28 his Honour noted:

[30] The defendant, therefore, had an obligation under the Code to identify problem tasks, bearing in mind that while all tasks could be identified as some sort of hazard, it is important to prioritise tasks which have significant risk associated with them. Chapter 7 – Risk identification, lists the first step in managing risk as being to target potentially risky jobs/tasks for assessment. It suggests that problem tasks could be identified when changes to the work environment are planned, when there are indications for potential injury or after an incident or injury has occurred. The Code suggests that consultation with employees can be ‘valuable’ in identifying risks as workers will know best the difficulties they experience in performing particular manual tasks. Once problem tasks are identified, the employer must decide which tasks are most in need of assessment by considering the number of risk factors involved, the frequency of the task and the proportion of workers who are completing the task.

Mr O’Sullivan gave evidence for the plaintiff about the awkward nature of the item and the potential forces applied to the plaintiff’s body, however and critically in the end result, Mr O’Sullivan did not consider the feasibility or practicality of countermeasures to the system of work, and no other evidence was led:

[40] Mr O’Sullivan had regard to the Manual Tasks Advisory Standard 2000 in identifying possible countermeasures to the risk. He suggested that staff should be instructed to obtain a secure grip of any item by using a hook grasp or similar as opposed to flat palm contact or to lower the height of the tubs or tilt the tubs toward one side to improve accessibility. When cross-examined, it became apparent that no inquiry into the feasibility or practicality of these had been undertaken in the course of his preparation of the report.

His Honour noted the task happened about once a week. The plaintiff did not make a formal complaint until after the injury, but said that she did ‘whinged’ about it, although not officially. The plaintiff’s failure to take the matter, ultimately weighed heavily against her [para 46].

It was accepted the item was awkward, but that no official complaint had been made to warrant a specific risk assessment in context of the 12,000 other items processed a month by the same unit:

[44] The issue of the soda lime canister specifically must be considered in the context of the overall activity of the CSSD and the factors referred to in the Code, namely the number of risk factors involved, the frequency of the task and the proportion of workers who are completing the task. The uncontradicted evidence before me was that the CSSD processed more than 12,000 items each month, many of which could be considered awkward (due to factors such as length, size or weight distribution) or even dangerous (such as scalpels and other sharp objects). This item weighed only 5 kilograms, which is considerably less than the weight referred to in Schiliro, where the court held that shovelling 8.5 kilograms of sand was of minimal risk and did not warrant a risk assessment. The task was performed infrequently; it would appear that the soda lime canister was brought to the CSSD only about once a week and that the same staff member was not required to process it each time.

[45] The Code provides that problem tasks could be identified when changes to the work environment are planned, when there are indications for potential injury or after an incident or injury has occurred. Prior to the plaintiff’s injury, there had been no change to the work environment considered and no incident or injury had previously occurred in relation to the soda lime canister. While it appears there had been occasional ‘whinging’ and complaining between employees relating to the awkwardness of the item, no person had made an official complaint or had suggested that it was dangerous or likely to cause injury. Ms Ricardi had herself been required to handle the soda lime canister on several occasions and did not feel that it posed any risk of injury.

[46] The plaintiff’s counsel placed great weight in their written submissions on the issue of consultation, namely that the Code required a formal process of consultation with workers during the risk identification process. However, the Code states that consultation ‘can take the form of informal on the job interaction during a walk through of the work unit’ and recommends that it may be desirable to put a formal structure into place. Ms Ricardi worked alongside the other employees in the CSSD and appeared to be willing to listen to their concerns as evidenced by her actions in noting concerns about the soda lime canister and attempting to make other arrangements through discussions with theatre staff. The plaintiff and Ms Currey both seemed well aware that they were able to make formal or written complaints about any item they had an issue with14 and that their concerns would be considered. Ms Ricardi said that it was known to all staff that they were able to fill out a risk assessment form if they felt that any item or object that they were handling was a risk.

His Honour concluded:

[48] It is important to note that the Code recognises that all manual tasks could potentially be recognised as a hazard, but that not all manual tasks have significant risks associated to them such as would warrant the implementation of a formal risk assessment. It is my opinion that, having regard to all the factors and the requirements of the Code, namely the relatively light weight of the soda lime canister, the infrequent nature of the task, the other options available to the hospital to have a vital piece of equipment sterilized, the lack of suggestion of possible injury, the large number of items processed in the CSSD and the nature of the work being undertaken in general in the area, that the defendant was reasonable in not identifying this as a task which would require a formal risk assessment under the Code.

[49] This situation resonates with the sentiments conveyed by Fraser JA in Parry that the significance of the triviality of the risk is important, not in determining liability under section 28(1), but in the ease with which the defendant can rebut the prima facie liability established by the proven contravention.

[50] I am satisfied that the defendant has discharged its duties under the WHSA and would therefore not grant the relief sought for breach of section 28(1) WHSA.

As to the civil cause of action and s.30 WPHS his Honour concluded:

[52] In O’Brien v TF Woollem & Son Pty Ltd15, Philippides J held that section 30(1) WHSA did not confer a civil cause of action. The plaintiff points to criticisms of this point by Dutney J16 and McMeekin J17 to found an argument that a similar approach should be taken to civil liability under section 30(1) as is taken by the courts in regard to section 28(1). Given the recent legislative amendments to the WHSA which clarify the position and remove any civil cause of action resulting from contravention of any section of the WHSA, it is clearly not the legislative intention for this section to be relied on to found a civil cause of action and I am not willing to extend its application. Accordingly, I find that section 30(1) does not confer a private right of action.

15 [2002] 1 Qd R 622.

16 Henderson v Dalrymple Bay Coal Terminal [2005] QSC 124 at [22].

17 Wilkinson v BP Australia Pty Ltd [2008] QSC 171 at [25]-[26].

Breach of duty (negligence) or breach of contract of employment

His Honour reviewed the authorities below in respect of duty of care and foreseeability, coming to the unsurprising conclusion there was a duty and the risk was not ‘far fetch or fanciful’ –

Black v Warwick Shire Council [2009] QSC 123; cited

Kondis v State Transport Authority (1984) 154 CLR 672; applied

O’Brien v TF Woollem & Son Pty Ltd [2002] 1 Qd R 622; cited

Wyong Shire Council v Shirt (1980) 146 CLR 40; applied.

As to the reasonableness of the employer’s response and breach, his Honour applied Vairy v Wyong Shire Council:

[59] It is necessary, in determining the response of a reasonable employer, not to be swayed by the benefits of hindsight. Justice Hayne in Vairy v Wyong Shire Council22  explained what was required by the tribunal of fact in making this determination:

“When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although the judgment must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as ‘consideration of the magnitude of the risk and the degree of the probability of its occurrence’. It is only by looking that due account can be taken of forward ‘the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have’.”

22 [2005] 223 CLR 422 at [126] – [127].

His Honour dismissed the plaintiff’s claim:

[60] A reasonable employer, prior to the incident, would not have foreseen a serious and probable risk of an employee picking up the soda lime canister in this unorthodox way, dropping it and causing injury so as to warrant the expense, difficulty and inconvenience which would be involved in altering its equipment and system of work. I make this finding in light of all the circumstances, namely, the many and varied items which are sterilized in the department, the importance of having sterile equipment in a hospital environment and the training and precautions which have already been undertaken by the employer in relation to workplace health and safety.

[61] The plaintiff submits the duty of care includes a duty ‘to provide adequate plant and equipment, a safe place of work and a safe system of work’23 and alleges a failure to maintain a safe system of work. The plaintiff bears the onus of establishing a reasonably practical alternative system and, once established, it remains for the employer to prove the impracticality thereof.24

[62] As discussed above at [40], the possible countermeasures identified by the plaintiff by which it is submitted the risk could have been avoided, were to lower the height of the tub on the trolley or to tilt the tub on the trolley. No study into the feasibility or practicality of these countermeasures was conducted by the plaintiff and no evidence was led regarding the implementation of these alternatives. I am not satisfied that the plaintiff has established a reasonably practical alternative system.

[63] I find that the defendant has not breached its duty to the plaintiff.

23 Per Wilson and Dawson JJ in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 44.

24 Neill v New South Wales Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; McLean v Tedman

(1984) 155 CLR 306 at 314.

Brisbane Barrister – David Cormack

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