WCRA: trivial risk – s.28 WPHSA & prima facie presumption

Chapman v University of Southern Queensland Student Guild [2010] QDC 318

CATCHWORDS

EMPLOYEE’S WORKPLACE INJURY – trivial incident – no negligence – prima facie breach of statutory duty – defence under Workplace Health and Safety Act – assessment of damages.

Issues

The trial preceded the amendment to the Workplace Health and Safety Act 1995 (QLD) (“WPHSA”) by inclusion of sections 37A and 197, removing the civil cause of action flowing from a breach of s.28. The plaintiff claimed for an injury when standing from bending down to connect a gas bottle to an outdoor heater. The plaintiff asserted it had been caused by heavy work during the day and had manifested itself only when he was standing back up from connecting the gas bottle. The plaintiff was employed as a cleaner and had during the course of the day performed various manual tasks, including carrying the gas heaters (15kgs) and bottles (9kgs) to a hall.

For determination was the content of the duty of care both in negligence and contract, together with the WPHSA duty.

Reid DCJ

His Honour preferred the evidence of the defence on the whole. He preferred the evidence of employer’s supervisor as to what she observed about the plaintiff performing the work, the nature of the task, available assistance and when the event/incident took place. His Honour preferred Drs Morris and Weidman to Dr Cook, whom he found conjectural/counterintuitive and trying to reconstruct the plaintiff’s case to overcome its difficulties:

[44] I make a number of observations about this evidence. First, it seems to me that he is raising it as no more than a possibility that “he may well have” suffered the injury seconds or minutes before the onset of sharp pain. He does not assert that it in fact occurred in this way, on the balance of probabilities. He did not assert how this might have occurred or what task he was performing. In my view, his view, even if I accepted it, does not discharge the necessary onus and would not allow me to conclude on balance that he in fact suffered an injury in that way. Second, it seems to me inconsistent with the view he expressed in his report of 18 March 2008 when he refers to the injury as being a result of “the incident” that occurred in the course of his work. In my view, the incident Dr Cook was referring to in his report was, as I have said, the sudden onset of pain when he was down on both knees. In my view, it is counterintuitive, as I have already said, to think that he was referring at that time to earlier work performed on the day. If he had, I have no doubt that any experienced medico-legal practitioner, such as Dr Cook, would have clearly said so. I gained the impression that he was really trying to reconstruct the plaintiff’s case, to overcome difficulties associated with the fact of his injury arising from a trivial incident. Furthermore at p 119, line 38 of the transcript, Dr Cook accepted injuries such as the plaintiff suffered can arise from such trivial movements as doing up a shoe lace or picking up a spanner.

[45] In any case, I do not accept that the plaintiff was injured at an earlier time. Such a view would be contrary to evidence given at trial by another experienced orthopaedic surgeon, Dr John Morris and by a neurosurgeon, Dr Michael Weidman.

[48] In my view, Dr Cook does not mount such a case on the balance of probabilities and in any case I prefer the evidence of Dr Morris and Dr Weidman. In my view, the case mounted on behalf of the plaintiff is both conjectural and counterintuitive. I do not accept that the plaintiff suffered an injury on an earlier occasion in the day, but find that he in fact suffered injury to his spine in the course of connecting the gas bottle to the heater, either as he bent down to do so or, as he attempted to get up.

His Honour dealt with negligence and contractual duty in short shift:

[49] The question that remains, of course, is whether or not the defendant is liable for such an injury. The obligation on an employer at common law is to take reasonable care to ensure the safety of its employees in the carrying out of their duties at work. It has a similar contractual duty. I have already indicated that I accept the evidence of Ms Abbott and in particular I accept that she herself had performed all of the duties without difficulty and found none of them particularly strenuous. These included the duties associated with setting up for the graduation ceremony. In any case, as I have said, since the injury occurred in connecting the gas bottle to the space heater, it is really an examination of this task that is of importance. In my view it was a trivial and everyday task that a cleaner could reasonably be expected to perform without a risk of injury. In my view, the performance of all of the duties of a cleaner by Ms Abbott, and the engagement of an experienced cleaner, who was doing an Organisation Management and Engineering course at the university to prepare the cleaning procedures document and to train the plaintiff was a reasonable approach to assessing risks associated with performing the task of a cleaner. The cleaning procedure document, Exhibit 17B, sets out the general nature of the regular cleaning duties that were required to be performed. Exhibit 17C sets out a complete break up of the tasks that were required and the reasonable timeframes in which to perform them. Quite clearly, none of the documentation refers specifically to the task of connecting a gas bottle to a space heater. In my view nothing turns on this. The whole of the documentation, and the evidence of Ms Abbott and Ms Jacobs, to which I have referred, supports the view that the defendant’s approach to assessment of the risks associated with being a cleaner was satisfactory. It is of course impossible to envisage every task that someone might ever undertake. In my view, the failure to have specifically considered, in the preparation of the documents what was involved in bending over to couple a gas bottle to a space heater is irrelevant. If it had been considered, nothing could or would have been done differently or in any way which would have resulted in the plaintiff not suffering the injury he did. There is no suggestion that the way in which he was connecting the gas bottle or kneeling down as he did so, placed him at particular risk. In my view, as Dr Weidman said, it is just one of those injuries that can, from time to time, occur as a result of a trivial incident. In the circumstances, I find that there was no negligence or breach of contract.

As to the WPHSA duty the turning point was the strict liability in s.28 only established a prima facie presumption, which could be rebutted:

[50] The plaintiff also relies on breach of s 28 of the Workplace Health and Safety Act (“the Act”). The relevant provisions of the Act are set out in detail in two relevant Court of Appeal decisions: Bourk v Power Serve Pty Ltd & Anor [2008] QCA 225 and Parry v Woolworths Ltd [2009] QCA 26.

[51] Consistent with those decisions, I find that there was a prima facie breach of s 28 of the Act in that the employer did not ensure the safety of the plaintiff at his work. In my view, this flows from the fact that the plaintiff was injured in the course of his employment. No questions of foreseeability of risk of such injury are implied in the obligation under s 28(1) of the Act. Although the risk of injury was a trivial one, this is not relevant in determining whether there was a prima facie breach of s 28.

[52] In paragraphs 35 and 36 of his judgment in Parry v Woolworths Ltd (supra) Fraser JA, with whom McMurdo P and White AJA (as she then was) agreed, said:

“[35] However, Jerrard JA[1] was not there concerned with the question raised here by the respondent, which is whether the onus shifts to the employer to establish compliance with s 27 or a defence under s 37 once the employee has proved that a workplace activity exposed the employee to a risk of injury, even if the risk is characterised as a trivial one. Furthermore, Jerrard JA introduced that part of the judgment by observing that it was strictly unnecessary to rule on the argument there under discussion.

[36] My own view is that the judgment in Schiliro[2] made it clear that though the workplace activities there in question exposed the employee only to a trivial risk of injury, a prima facie contravention was established because of the absolute nature of the obligation in s 28(1). The significance of the triviality of the risk lay in the relative ease with which the employer could rebut the prima facie case of liability established by proof of an apparent contravention of s 28.

[54] … in order to establish a defence under s 27 of the Act, the defendant must show it chose any appropriate way to discharge its workplace health and safety obligation for exposure to the risk.

[55] It did so only if it did “take reasonable precautions, and exercise proper diligence, to ensure the obligation is discharged.”

[56] In my view, the matters I have referred to, including having Ms Abbott perform all of the functions to satisfy herself that the tasks the plaintiff was required to perform were not too onerous, have an experienced cleaner and mature age student prepare the cleaning procedures document and an estimate of the time with necessary meal breaks, for performing each task referred to in paragraph 17C and to instruct the plaintiff in his duties, should be considered an appropriate way, involving reasonable precautions and the exercise of proper diligence, to ensure the obligation to ensure the plaintiff’s workplace health and safety was discharged Consequently, I find that the plaintiff has discharged its obligation by reason of its compliance with s 27 and s 37 of the Act.

[57] Consequently, I find there to be no breach of the defendant’s relevant statutory duty. In making these determinations of defence under s 27 and s 37, I am particularly fortified by the last sentence of paragraph 36, quoted above, from the judgment of Fraser JA, namely that the significance of the triviality of the risk lay in the relative ease with which the employer can rebut the prima facie case of liability established by proof of an apparent contravention of s 28.

Quantum

[76] In the circumstances it is apparent that the measure of his damages, if I am wrong about liability, will not be great.

[77] I assess his general damages in the sum of $20,000, having regard to the passage of a little over two years from injury until his return to work and a relatively slight ongoing effect of the aggravation thereafter.

[78] I will allow interest on three-quarters thereof at 2% per annum since 7 April 2006, amounting to 4.33 years. This totals some $1,300.

[79] I assess past economic loss at $550 gross per week from 7 April 2006 to 1 August 2008 (120 weeks) less tax of some $60 per week. This amounts to the net loss of some $58,800. I would discount this to $50,000 because of the matters referred to above, in particular the possibility that he might have been injured, perhaps at home, performing a trivial task, at some time after the subject accident.

[80] I will allow interest on only $6,752, having regard to his net WorkCover payments of $22,056 and net Centrelink of $21,202 at 5% per annum for 4.3 years. This amounts to some $1461

[81] I have not deducted the net income he received from the defendant for the year ended June 2007, after the subject accident, because I have assumed that this was holiday pay or some sort of long service entitlement that he would have received in due course in any case and did not arise out of any work he performed after 7 April 2006.

[82] For the future I asses economic loss at only $10,000. I do so because:

(a) he is earning a commensurate income at the moment;

(b) in my view he is likely to work greater hours in the future;

(c) his incapacity for heavier work is only partially related to the incident and is more due to his pre-existing degenerative condition, which would quite probably have caused him to change the nature of his employment in any case.

[83] I will allow superannuation at 9% on past and future losses amounting in all to $5,400.

[84] The plaintiff claims out of pocket expenses in Exhibit 9 as follows:

1. Pharmaceuticals ($40 per month from 7 April 2006 to February 2010) $1840.00
2. Massage/acupuncture $100.00
3. CRS refund $6385.50
4. Travel (1,500 kilometres at $0.60 per kilometre) $900.00
5. Medicals $176.15
6. WorkCover – hospital $715.00
– medical $8,702.10
– rehabilitation $2,474.54
– other $138.00
7. Fox v Wood $3,808.00

Brisbane Barrister – David Cormack

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