WCRA: Lifting a box of photocopy paper injury not interfered with

 Tabcorp Holdings Ltd v Dank [2011] QCA 253

I refer to my earlier posting on the primary decision. His Honour Fraser JA delivered the leading judgment on appeal. Both liability and quantum were appealed.

Liability

With respect to liability the principle contention was in respect of the finding of breach of statutory duty and by not finding there was a defence pursuant to the former provision (prior to the amendment taking effect).  His Honour rejected this.

His Honour preferred the view in Calvert v Mayne Nickless Ltd (No 1) [2006] 1 Qd R 106; [2005] QCA 263:

[21] I do not accept the argument. As Jerrard JA observed in Calvert, once the employee proved that “she was not free from a trivial risk of injury created by her workplace or work activities … she established the prima facie conclusion that [the employer] had breached its obligation to ensure her workplace health and safety”, and the onus then shifted to the employer to establish that it had discharged its obligation or to establish a defence. Where the risk is trivial, an employer might readily rebut the prima facie liability established by proof of an apparent contravention of s 28.[15] Even so, the appellant did not fulfil that onus.

[22] The appellant’s pleaded defence to the alleged breach of statutory duty was that: the appellant “had in place a system of hazard identification, risk assessment and control implementation for all manual tasks at its workplace”; the risk of injury in the particular lift was assessed as being an acceptable risk of injury or was within the safe guidelines for manual handling in the workplace set out in the Workplace Health and Safety “Guide to Manual Handling” and Manual Tasks Advisory Standard 2000; as a result of the assessment, administrative control measures by way of manual handling training were deemed to be appropriate; the respondent was trained in manual handling; and in those circumstances the appellant discharged its obligations to the respondent to protect her from the relevant risk of injury. The appellant did not adduce evidence that supported that case. Nor did the appellant challenge the trial judge’s findings that the respondent’s supervisors were aware of the manner in which the respondent picked up the boxes and the respondent received no instructions, directions, or training about how to lift the boxes.

Quantum

His Honour refused to find that the Plaintiff had not mitigated her loss by giving up her lucrative job to take up a less paid job in which she preferred to work in, and which she thought would accommodate her injury.

Brisbane Barrister – David Cormack

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