WCRA: The proverbial slip on a fallen grape, but at work

Deans v Maryborough Christian Education Foundation Ltd [2018] QDC 123

The plaintiff, a mentor to school teachers, claimed for personal injuries for fractured patella as a consequence of slipping on a grape during a ‘fruit break’ for primary aged school children. There was no dispute the incident occurred. However, liability and the damages claimed were denied.

The plaintiff’s claim was dismissed at every turn. His Honour Farr J considered the modification to the common law under ss 305B – 305D of the Workers Compensation and Rehabilitation Act 2003 (WCRA).

His Honour determined the first step required was to identify the risk, which his Honour considered as an injury being sustained because of slipping on a piece of fruit while walking through the foyer area of the classroom block at the time of the fruit break. His Honour was however not persuaded that it was reasonably foreseeable as defined by section 305B(1)(a) because there was no evidence similar events had occurred previously over the five years that the fruit break had been taking place or that there was knowledge that the children did or would drop their fruit.

Notwithstanding his Honour’s finding, Farr J considered the next element, namely was the risk of injury not insignificant? Unsurprisingly, given the finding of foreseeability, his Honour was not persuaded that it was not an insignificant risk. Again, Farr J relied on the absence of prior incidents or complaints to conclude the risk of harm was low, which was magnified by the amount of pedestrian traffic over the five years during the fruit break.

Moving on to the next element of taking precautions, in the event his Honour was mistaken about the first two elements, his Honour noted that the breach of duty was only established if the probability and seriousness of the potential injury required precautions – Clarricoats v JJ Richards & Sons Pty Ltd [2017] QSC 214 at [104]. Hence, what was required was an analysis of the reasonable response to the risk – Brisbane Youth Services Inc v Beven [2017] QCA 211 at [186].

His Honour turned to consider the matters alleged by the plaintiff that the defendant ought to have undertaken to reasonably overcome the risk. The plaintiff’s pleading was very broad and generic and included, failing to reasonable care for the plaintiff’s safety; failing to establish, maintain and enforce safe methods and systems for the plaintiff to carry out her employment. In respect of the first ground, his Honour did not consider it because it was too broad. In response to the second allegation, the plaintiff provided examples of preventative measures, such as changing the flooring to carpet as was subsequently done; requiring the children to take their fruit break in a different area; instructing the teachers to supervise the children to ensure that any spillages were quickly cleaned up; instructing the two grounds staff to provide supervision and clean up services; not having the fruit break at that time, but as morning tea in a designated area; supervision and training and instruction.

His Honour was, however, satisfied with the response of the defendant that the teachers were tasked with supervision of the children and making sure the foyer area was clean. His Honour considered that it was not necessary for extra ground staff to be engaged. His Honour did not consider the plaintiff needed supervision because she was “very proficient in her duties and her skills and abilities were highly regarded”.

Similarly, as to the allegation of training or instruction, Farr J was not persuaded that any further instruction was required because the task of walking from one area to another was a very ordinary task – Campbell v CSR Limited & CSR Plain Creek Pty Ltd [2002] QSC 266; Moreton v Ivor Fritz Removals Pty Ltd & Ors [2013] QDC 293 at [22] and Solomona v No. 1 Riverside Quay Pty Ltd [2016] QDC 289.

His Honour accepted the evidence of the defendant that the linoleum flooring was 17 years old and hence was replaced with carpet and not in response to the incident.

The plaintiff alleged that there ought to have been a system of inspection and cleaning. However, Farr J considered that given the timing of the incident at 8:55 am; a time at which the fruit break was happening, with a large number of students and staff, it was not clear to his Honour how it would have worked, and if undertaken that it would have detected that one grape had fallen to the floor – Strong v Woolworths Ltd (2012) 246 CLR 182 at p 196.

His Honour was satisfied that there was an adequate system which involved the teachers responsible for the students of the three classrooms ensuring it was kept clean.

Farr J was not persuaded that the students ought to have stored their bags elsewhere and considered if this took place the risk of fruit falling to the ground would increase.

Lastly, his Honour saw no reason as to why the fruit break ought to be cancelled.

Accordingly, his Honour found that the defendant did not breach its duty and hence the question of causation was irrelevant.

Notwithstanding, the plaintiff being unsuccessful, his Honour considered the allegation of contributory negligence and obvious risk. The plaintiff was walking in her usual manner and carrying a large book to the front and was looking to the doorway in the direction she was walking. His Honour did not find this conduct to contrary to taking reasonable care for her own safety – Samways v Workcover Queensland & Ors [2010] QSC 127 at [57].

David Cormack – Brisbane Barrister & Mediator

Appeal by the plaintiff dismissed:

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

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