WCRA: s.305B – everyday common sense activities excluded

Solomona v No 1 Riverside Quay Pty Ltd [2016] QDC 289

Dorney QC DCJ

The plaintiff worked as a customer service representative at a BP service station when she suffered a lower back injury while attempting to dislodge a frozen basket from a freezer’s surface. The plaintiff’s evidence included training about manual handling, being provided with a learner handbook which related to the handling of hazards, one of which included sudden or jerky movements.

The defendant called another employee of the BP service station who gave evidence that checking for ice build-up was common sense and that replenishing freezer stock was a routine task. The defendant’s service manager conceded in cross-examination that no specific training hand been provided about how to deal with such a task.

Liability

Under s 305B(1) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), a person does not breach a duty to take precautions against risk of injury to a worker unless:

  • The risk was foreseeable;
  • The risk was not insignificant; and
  • In the circumstances, a reasonable person would have taken precautions

Finding for the employer, Dorney QC DCJ referred to the passage in Glass, McHugh and Douglas, The Liability of Employers, 2nd ed which relevantly stated:

Simple uncomplicated operations such as the method of using his tools of trade by a tradesmen could not reasonably require the provision of a system by the employer. Nor will there be much scope for alleging the necessity for a system in the case of casual or isolated tasks of a simple character which do not involve any real risk if ordinary care is exercised.

Dorney QC DCJ further referred to Fox v State of Queensland, stating that although no prior injuries had been reported arising out of the build up of ice as in the present case, that itself does not render the risk slight. His Honour said:

[43] … although the fact that there was no evidence of previous complaints about, or injuries sustained as a result of, such ice, that does not necessitate a conclusion that the risk of injury is slight … But when that fact is considered together with the fact that this implementation of the planogram was a routine task, I conclude that the degree of probability of risk of harm by way of any appreciable personal injury was sufficiently low as to be “insignificant” within the terms of the provision

Finding that there had been no breach of duty, Dorney QC DCJ stated that:

[47] Considering the specific training, instruction and warning given by the defendant to the plaintiff with respect to the replenishing of items (which involved essentially the same tasks of lifting, removing and replacing, even if a slightly more planned way), I find that nothing more was necessary for the defendant to do either in some further “replenishment” risk assessment or in terms of additional training, instruction and warning

As to the notional assessment of damages, Dorney QC DCJ allowed:

Head of damages Amount
General damages $2,360.00
Past economic loss $1,100.00
Past loss of superannuation $99.00
Special damages $7,129.97
Total $10,688.97

Judgement was entered for the defendant against the plaintiff.

David Cormack – Brisbane Barrister & Mediator

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