WCRA: Acts of folly or attending to the task

McCormack v Ethnic Community Care Links Inc [2017] QDC 102

Durward SC DCJ

The plaintiff was a support worker employed by the defendant while working at the Ayr Hospital, the third party. In June 2011, a client of the defendant, Mr Beltrame, arrived at the hospital car park in a maxi taxi. When the plaintiff first encountered Mr Beltrame at the car park, he was lying face down in the stationary taxi with his legs halfway out of the taxi.

The plaintiff alleged that while Mr Beltrame was being assisted out of the maxi taxi by employees of the hospital, the plaintiff suffered a shoulder injury because of Mr Beltrame falling into the plaintiff.

Issues

The issues before Durward SC DCJ were:

  1. whether the plaintiff acted within the scope of her duties in assisting Mr Beltrame in the way that she did;
  2. whether Mr Beltrame fell into the plaintiff during the attempts by the hospital staff to extract him from the maxi taxi, causing her to fall backwards in the vehicle and suffer injury; and
  3. whether the third party was liable to indemnify the defendant if the plaintiff succeeded on liability

Liability

As to whether the plaintiff was acting within the scope of her duty when she was injured, his Honour stated:

[70] In Jones v Persal & Co (a firm) [2000] QCA 386 White J at [45] that a duty upon an employer to foresee a “casual act of folly on the part of an employee not engaged in the task in hand” would “impose an unreasonable obligation on the [employer] and be inconsistent with its duty under the [WHSA]”…

[71] The underlined statement above distinguishes Jones from this case. The plaintiff was carrying out her work task under the direction of the defendant’s supervisors. What is in issue is whether she should have been inside the maxitaxi and whether she should have placed her hands on Mr Beltrame as he was being removed by the hospital staff.

[72] I do not consider that the conduct of the plaintiff was in any way “careless.” Nor was it an “act of folly.” She was carrying out her work task that had been simply described as “comforting” Mr Beltrame. He was in a very distressed state as the defendant knew or at least must have known. His fall was a real risk that the defendant knew about, had sought and received expert advice about but had not given clear and unequivocal instructions to the plaintiff as to the extent of the “comfort” she should provide to Mr Beltrame.

[75] The risk in this case was real. It was not farfetched or fanciful. It was plainly foreseeable. So what should the defendant have done to avoid that risk?

[88] The defendant had appropriate advice as to how to deal with Mr Beltrame: that is, to provide for use and respect of his transportation a bariatric ambulance or bariatric wheelchair. It did not do so. [89] Furthermore, the support given to a client such as Mr Beltrame cannot be proscribed with specificity so as to cover all foreseeable events. It is unrealistic to require a support worker to provide undefined “comfort” to Mr Beltrame when the emerging situation (such as in this case) may be quite dynamic, given his history of falls – a matter of fact known by the defendant.

[94] The defendant was negligent and failed in its duty of care to the plaintiff, and by reason of that failure she suffered physical injury for which the defendant is responsible. The foreseeability of the risk to the plaintiff was real. It would not have sought the expert advice of Ms Willis and in order to help provide a safe and proper system for the defendant’s employees and for the proper care of Mr Beltrame, if that were not so. The defendant did not act upon the expert evidence it sought and received from Ms Willis. I consider that it was unreasonable for it not to so act.

Contributory negligence & third party indemnity

As to whether there was contributory negligence on behalf of the plaintiff, his Honour was not satisfied that the plaintiff’s actions, based on the defendant’s instructions, contributed to her injury.

The defendant further submitted that the hospital should be liable to the extent of 75% because its employees failed to remove the plaintiff from the situation at the carpark and by allowing the plaintiff to assist the hospital employees. Finding that the defendant was not entitled to indemnity by the hospital, Durward SC DCJ said:

[97] The hospital staff appear not to have been told of Mr Beltrame’s visit and were not ready to receive him, but acted relatively promptly to provide assistance when confronted by a difficult, distressing and dynamic situation in the carpark. They did what they could in circumstances of Mr Beltrame’s arrival in a maxi taxi in which he had fallen and was unable to get upright without the physical assistance of and physical exertion by others. They eventually were able to extract him from the maxi taxi and put him into a bariatric wheelchair (as I understand) which they had provided in order to take him into the hospital.

Conclusion

Judgement was entered for the plaintiff against the defendant and for the hospital against the defendant. Durward SC DCJ assessed the plaintiff’s damages as $332,189.99.

David Cormack – Brisbane Barrister & Mediator

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