WCRA: round two of the slip & fall on a grape at work

Deans v Maryborough Christian Education Foundation Ltd [2019] QCA 75

Further to my earlier post, the plaintiff appealed.

Sofronoff P, Gotterson and Morrison JJA

Facts

The appellant was employed by the Maryborough Christian Education Foundation to work as a specialist schoolteacher at the Riverside Christian College. On 4 March 2015, the appellant was working in the prep area of the school when she slipped on a grape on the floor and broke her left patella. The grape had been dropped by an unknown five or six-year-old student during their regular morning “fruit break” in a highly trafficked foyer area with a linoleum floor. The appellant was carrying a large book at the time of the incident and did not see the grape on the floor. [2]-[3], [9]-[13].

Issue

At trial, the appellant claimed for personal injury, namely a fractured left patella as a result of the incident. The injury caused her pain and suffering and the loss of the amenities of life, together with ongoing medical treatment and costs. [4].

The appellant’s claim was based in negligence against her employer. The appellant alleged her employer failed to have a system of cleaning the foyer area after the fruit break; failed to warn her of the risk; failed to supervise the appellant to ensure she carried out her work safely; failed to take reasonable precautions against a non-insignificant risk. [22]-[23].

On appeal, the issues related to the findings of the trial judge about foreseeability of the risk of injury; the significance of the risk; the provision of safeguards against the risk; and the provision of a safe workplace. [37].

Applicable Law

[28] The common law principle for determining whether a duty of care had been breached is as enunciated by Mason J in Wyong Shire Council v Shirt.

[29] The Workers Compensation and Rehabilitation Act 2003 (Qld) ss305B, 305C modifies the common law by requiring courts to apply ss 305B and C. An employer does not breach a duty of care unless the risk was foreseeable, non-insignificant, and a reasonable person would have taken precautions against the identified risk.

[53] The meaning of a “not insignificant” risk is as enunciated by Fraser JA in Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2012] QCA 315.

Decision

At trial

  • The risk was not reasonably foreseeable as there had no other similar incident during the five years the fruit break had been happening. [31].
  • The risk of injury was insignificant for the same reason. [33].
  • The appellant failed to prove that the provisions of safeguards against the risk would have avoided the risk of harm. [34]-[36].

On appeal

  • The trial judge was incorrect to rule that because no similar accident had occurred, the risk was not reasonably foreseeable. The risk is foreseeable even if the risk of the incident occurring is very low. It is foreseeable that a young child would drop a grape, not pick it up, somebody would walk past later without seeing it, and injure themselves after slipping on it. [39]-[49].
  • The trial judge was correct to view the risk of injury as insignificant. If the risk is insignificant, there is no breach of duty. [50]-[56].
  • The trial judge was correct to rule that the appellant failed to establish that reasonable precautions being taken would have avoided the risk of harm (i.e. a system of cleaning the foyer regularly), mainly due to the appellant not providing any evidence of what system ought reasonably to have been adopted. [57]-[63].
  • The trial judge was correct to rule that the respondent had no duty to give a warning or instruction about the risk. The appellant was an experienced staff member who should have been aware of the risk, and all adults should maintain awareness of objects on the floor. [64]-[65].
  • The trial judge was correct to dismiss the claim of failing to provide a safe working environment. The appellant failed to produce any evidence that replacing the linoleum with carpet would have avoided the injury. [66]-[67]

Orders

The appeal was dismissed with the appellant to pay the respondent’s costs. [68]-[69].

David Cormack – Brisbane Barrister and Mediator

Matthew Stephen – research assistant

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