WCRA: special vulnerability & precautions required

Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168

The plaintiff claimed amongst other matters the employer knew of her special vulnerability from a prior injury and hence had a higher duty of care to her. Phillippides J considered the authorities (below) and dismissed that aspect. The case centred on a male resident in a nursing home suffering from dementia who required a transfer from his bed via a sling and a hoist. The patient was alleged to have moved unpredictably and caused the plaintiff’s back injury. In this respect, the plaintiff claimed the employer failed in its risk assessment, training, supervision and the provision of assistance for the task. In dismissing the claim, Phillippides J referred to Stitz v Manpower Services Australia Pty Ltd & Anor [2011] QSC 268 re: evidence required and the lack of coherency in the plaintiff’s evidence.

The special vulnerability claim

Relevant principles

[51] In New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 at 519, Kirby J stated the relevant principle concerning the duty owed by an employer to an employee with a special vulnerability as follows:

“Although an employer may not always have to take active steps to acquaint itself with special or unique weaknesses or predispositions to injury and damage on the part of particular employees, where the employer becomes aware that there is such a susceptibility, or should be so aware in the ordinary course of reasonable conduct, special precautions need to be taken by it, to fulfil the duty of care that is inherent in the employment relationship.” (footnotes omitted)

[52] Authorities such as Paris v Stepney Borough Council [1950] UKHL 3; [1951] AC 367 establish that an employer owes a duty to each employee as an individual and must take into account any special weakness or peculiarity of the worker of which it knows. But, as Thomas J observed in Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29 at 36, those authorities deal with actual knowledge by an employer of the particular vulnerability of the employee, and do not deal with the question of an employer’s duty to obtain such knowledge.

[53] In Finn, Thomas J and Williams J (with whose judgments McPherson JA agreed) each dealt with that additional question. Thomas J held that unless some fact, circumstance or state of affairs existed which should put an employer upon special inquiry, there is no duty at common law to interrogate either prospective or existing employees as to their health and medical history: see Bailey (by his next friend Bergin) v Baltoro Holdings Pty Ltd (WASC Full Court, 25 September 1998, unreported), Blackman v Commonwealth (1978) 20 ACTR 33, Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449. Williams J at 41, referred to the following comments of Manning J in Pitsiavas v John Lysaght (Aust) Pty Ltd [1962] NSWR 1500 at 1504, noting that it was too broadly stated, insofar as it should be limited to situations where the employer had knowledge or the means of knowledge of the susceptibility, but otherwise considered it to be good law:

“In my opinion there is no basis for imposing upon the employer the additional burden of taking care not to expose a particular employee to risks resulting from his inherent weakness. His duty is to act with reasonable care to protect his employees from unnecessary risk. He is not required to inquire into the question as to whether each labourer employed by him may be unfit for the work involved by reason of some constitutional defect or weakness.”

[54] In Stoker v Adecco Gemvale Constructions P/L & Anor [2004] NSWCA 449, Santow JA (with whom Sheller JA and Mason P concurred) affirmed that the relevant question was, as formulated in Finn, whether there was any fact or circumstance which should have alerted a reasonable employer to any need for special further inquiry into the medical condition of the employee.

Determination

[55] The special vulnerability claim was advanced on the basis that, in the circumstances of the defendant knowing that the plaintiff was returning to physical work following experiencing neck pain in February 2009, it was unreasonable for the defendant to require the plaintiff to return to her pre-injury duties without conducting any risk or vocational assessment or making other inquiries as to her fitness to resume pre-injury duties. It was contended that there were sufficient facts and circumstances to alert the defendant to a need for special further inquiry into the medical condition of the plaintiff, and the defendant was required to take special precautions to discharge its duty of care.[1]

[56] The evidence given by the plaintiff was not that she sustained any injury at work in February 2009, but rather that she had experienced a sore or stiff neck, “like she had slept badly” which caused her to have a few days off work. At its highest, the evidence was that the plaintiff told the clinical nurse that she had a “sore neck”. She was required to obtain a medical clearance before returning to work, which she did. Thereafter, she performed her work until 27 July 2009. As the plaintiff’s counsel conceded, there was no evidence that, when the plaintiff returned to work, she reported any continuing or further neck condition.

[57] I do not consider that there was anything in those circumstances which did or should have alerted the defendant to the plaintiff having a special vulnerability to spinal injury, or that there was a need for special further inquiry. This was not a case where the defendant was alerted to a history of neck or cervical spine pain. The plaintiff simply reported an isolated occasion of having a sore neck, which required no treatment and only a few days rest, and returned to work with a medical certificate that she was fit to do so.

[58] Even if it could be concluded that there was a need for further inquiry as to the plaintiff’s medical situation, there are other difficulties in the plaintiff’s case. In Stoker, it was held that the employer should have been alerted to the need for further inquiry as to the medical history of the employee (who had disclosed in employment application forms that he suffered from back problems, including back pain and back strain). Santow JA observed that that was not, however, the end of the matter, noting at [84]:

“… It must not be forgotten that the principle arising out of Paris v Stepney Borough Council applies to the question of what level of risk is reasonably to be anticipated by an employer having knowledge of the worker’s condition. It does not relieve the appellant as plaintiff of demonstrating that the system of work did contain an unreasonable risk for a person with his or her characteristics. The failure to make inquiries does not automatically mean that the employer has breached its common law duty of care to the employee. That result would only follow where the inquiries would have revealed to the reasonably prudent employer such information as would have prompted it to conclude that the risk to the particular employee was such that it was unreasonable to require him to perform the particular task in question.”

[59] Santow JA held at [86] that had the employer made inquiry in that case, medical information would have discerned:

“… the existence of a degenerative spinal condition and perhaps by inference susceptibility to back pain and injury but also … that such a condition had not hitherto prevented [the employee] from working full duties as a trades assistant in the construction industry. Furthermore, nothing would have appeared as to the seriousness of the degenerative spinal condition, or its current prognosis. … That knowledge in and of itself certainly does not determine the question of whether it was unreasonable of [the employer], cognisant of his greater risk, to assign to [the employee] the task of operating the hoist, or whether [the employer] should have taken some reasonable steps which would have guarded against the risk.

The real question is whether this job of operating this hoist contained an unreasonable risk of injury to a person with a back problem. It is at this point that [the employee’s] claim again confronts what is to my mind the overarching difficulty with his claim and the present appeal. Common sense aside, there is just insufficient evidence for the Court to make the necessary finding upon which negligence is predicated. …

It is of course trite law that the existence of a reasonably foreseeable risk though necessary, is not determinative of negligence. There is simply no evidence to suggest that the kick-plate and chain operation was one such that it would be unreasonable for an employer to require a worker in the position of [the employee] to perform it. How can the response of the reasonable employer be ascertained in accordance with the calculus in Wyong Shire Council v Shirt (supra) at 47-8? That is to say, how can the magnitude of the risk or the degree of probability of its occurrence be assessed in relation to the particular task, let alone all the other relevant factors?

Even if [the employer] were entirely cognisant of [the employee’s] condition and symptomatology, nothing appears from the medical evidence or any other evidence to substantiate [the employee’s] claim that it was unreasonable to expose a person with a degenerative back problem to this risk of injury in this task. This is so whether the particular risk is conceived as a pure risk of back injury or the risk of making an asymptomatic pre-existing condition becoming symptomatic. Furthermore, I am not prepared as a matter of common sense and without further evidence to draw the conclusion that the particular employment of operating the hoist was unsafe for [the employee].”

[60] Those observations are apposite in the present case, particular the allegations of breach of duty, other than paras 11(a) to (c), dealt with below. As for the allegations made in paras 11(a) to (c), which can conveniently be considered together, for the reasons already stated, in the circumstances of this case, I do not consider that there was any relevant breach in failing to conduct any risk assessment or vocational assessment. The plaintiff had a medical certificate which cleared her for work and made no complaint of continuing symptoms on her return. On her evidence, there were no symptoms from February until 22 July 2009. I accept the defendant’s submissions that, even if the employer had made inquiries, it was not evident that it would have been told of any matter raising concern. In this regard, I also note that Dr Fraser considered the information in Dr Law’s medical record too sparse to say whether the symptoms complained of in February 2009 had anything to do with the condition complained of by the plaintiff in July 2009. Dr Campbell did not venture a clear opinion on that matter.

[61] I also accept the submissions made by counsel for the defendant that there was no evidence about what a risk assessment or vocational assessment should have revealed and there was thus no causal relationship shown between the alleged failure and the suffering of the injury. In the circumstances, I do not consider that a reasonable employer could have appreciated that it was unsafe for the plaintiff to return to her usual duties. Further, there was nothing in the evidence adduced by the plaintiff to suggest that the system of work she returned to was not safe. As discussed below, there was nothing to show that the tasks represented an unreasonable risk of injury to a “normal” employee: see Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156.

The pleaded injury on 27 July 2009

[62] In relation to the injury sustained by the plaintiff, her evidence as to how it was sustained lacked clarity and was at times inconsistent with the pleaded case. The lack of coherence in her evidence was reflected in the confusing accounts she gave to the reporting doctors.

[69] The defendant relied on the following statements of McMeekin J in Stitz v Manpower Services Australia Pty Ltd & Anor [2011] QSC 268 as apposite in the present case:

“[55] As I have said there was no evidence led as to the level of force imposed on the spine by any of the identified risks. In my experience that is invariably proved, as indeed it needs to be, as it is fundamental to the assessment of whether a reasonable employer should respond to the risk. Virtually any activity in life is accompanied by some risk. Hard manual labour obviously carries with it the risk of manual handling injuries. But it has never been the law that an employer must remove all risk of injury. And appeals to general principles such as that the standard of care expected of an employer is high does not fill the evidentiary gap.

[56] As French CJ and Gummow J said in Kuhl v Zurich Financial Services Australia Ltd

‘To satisfy the element of causation … it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of that action … would have prevented or minimised the injuries the plaintiff sustained.’ (my emphasis)

[57] If the forces involved were at a level not likely to injure a man of normal fortitude then the fact that those forces could have been reduced so as to be even less likely to injure such a man does not establish a need to act. A failure to take such measures does not connote negligence in an employer.” (footnotes omitted)

[75] The plaintiff had the use of a hoist which was capable of lifting the resident and had the assistance of Ms Moran. There is no evidence to show that a risk assessment would have revealed that the task should have been done in any different way or what that way might be or that it would have prevented injury. No evidence was called to show that it was unreasonable to effect a transfer as occurred with two people who were trained for the task. Nor was there evidence adduced on behalf of the plaintiff that there was any safer way to carry out the task. The proposition that three workers were required to assist in the transfer procedure was simply one advanced by the plaintiff’s counsel in submissions and there was no evidence that the postulated system was one that could have alleviated the risk of injury, let alone one that ought reasonably to have been implemented. Nor was it evident that the postulated system would not have involved placing the third co-worker, engaged in holding or otherwise guiding the resident’s hands, at risk. Further, as the defendant submitted, the cost implications of having a third person present were not the subject of evidence and such that the court could come to a view whether it was unreasonable for the employer to fail to have a third person present. In the circumstances, I do not find this allegation of negligence made out.

Brisbane Barrister – David Cormack

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