WCRA: walking backwards case dismissed & Foster v Cameron narrowed

Endeavour Foundation v Weaver [2013] QCA 371

Further to my earlier post, the plaintiff’s claim has been dismissed.

Holmes JA with whom Fraser JA and Margaret Wilson J concurred:

[41] The distinction which the learned judge drew between the situation of a real-life attack, in which moving quickly backwards would be justified and the training situation, in which there was “no pretence of getting an employee used to this unnatural action” similarly suffers from some flaws. The evidence was that both the manual and the actual training emphasised practice as a means of getting employees accustomed to the movement. The “stay out of the way” instruction recommended practice of the “crouch” position until it felt natural and Mrs Sheahan’s unchallenged evidence was that she suggested to participants in the courses she ran that they undertake the movements slowly and practise them until they became confident.

[42] Those errors were significant. There is a real difference between the findings which the trial judge made, that Mrs Weaver was required to move quickly and in an “unnatural action” at which there was “no pretence” of getting her accustomed, and the conclusion to which the evidence, in the form of the manual’s instructions, Mrs Sheahan’s description and Mrs Weaver’s own understanding, pointed: that she was to move within the limits of her physical capacities as improved by practice. In my respectful view, his Honour misapprehended the nature of the instruction given. The question which now falls for consideration is whether that instruction was reasonable.

[43] The trial judge was correct in his conclusion that Mr Unger’s evidence supported a different manner of proceeding. As to that, the submission for Mrs Weaver as to the effect of Mr Unger’s evidence must be accepted. It was, that the manoeuvre should be performed slowly and carefully, not merely at the commencement of training, but also in the context of an actual attack; Mr Unger’s specific reference to moving in that manner to prevent loss of eye contact with an attacker makes that clear. The question remains, though, whether it was reasonable to give Mrs Weaver an instruction that she should move as quickly as she could, rather than “slowly and carefully”. The fact that Mr Unger regarded the latter as an appropriate way of training employees to respond does not mean that a different view, that an employee should gain the capacity to move as quickly as possible away from the threat, was not reasonable.

[44] Mrs Weaver’s case at trial did not involve any suggestion that there was a difference between instructions which might reasonably be given to an employee as to how to escape an attack and those which might be appropriate for an employee being taught how to train others in avoiding assault. It was not contended that if the instructions given to Mrs Weaver were reasonable in the former context, they were not reasonable in the latter. There undoubtedly was some risk entailed in Mrs Weaver’s performing the manoeuvre, whether for the purposes of practice or demonstration. But the reasonableness of the Endeavour Foundation’s response to the risk had to be assessed in the larger context of the purpose of the activity, which was to provide Mrs Weaver and other employees with the means of avoiding an attack.

[45] In concluding that there was “no countervailing benefit” to the instruction in any circumstance short of actual assault, the trial judge seems to have overlooked the benefit pointed to by the Endeavour Foundation: that an employee would, presumably, be more able to move quickly in a real-life assault situation for having practised the back steps manoeuvre with the aim of performing it as quickly as possible. Certainly, the ability to perform it slowly and carefully seems unlikely to prove of value, except in evasion of an equally slow-moving aggressor. Anderson v Mt Isa Basketball Association was a different case: there the employer had no conflicting responsibility which might prevent it from giving the instruction against running backwards. In this instance, with the Endeavour Foundation’s responsibility of safeguarding employees from attack, the instruction to move as quickly as possible was a reasonable one.

[46] It was, of course, possible for a video to be used to demonstrate the technique. However, there was an absence of evidence as to the effectiveness of a video demonstration as a form of training. As the Endeavour Foundation pointed out, Mrs Sheahan and Mr Unger were not questioned on the point, and Mr McDougall, as a mechanical engineer, was not in a position to assist. Indeed he did not purport to do so; his opinion was as to the efficacy of videos in minimising risk, not in teaching. In any case, to ask Mrs Weaver to demonstrate the manoeuvre to others as quickly as she was capable of doing was not unreasonable. There was no logic in training her with the aim that, through practice, she achieve whatever speed she could manage in the manoeuvre, only to require that she demonstrate it in slow motion or through use of a video. The concern against which the activity was directed, the risk of assault, with the corresponding need to be able to move with expedition, had not ceased to operate.

[47] In my respectful opinion, the appellant has made out some of its appeal grounds: that his Honour mistook the nature of the instruction; that he erred in finding that there was “no pretence of getting an employee used to this unnatural action”; and, crucially, that he erred in concluding that the instruction given to Mrs Weaver was unreasonable. Its appeal should be allowed. But it is necessary also to consider the ground of appeal relating to the damages awarded for future services, in case my conclusion on liability does not stand.

The award for future services

[48] Mrs Weaver claimed $130,000 for future paid assistance, on a basis of eight hours per week at $35.00 per hour for 13.5 years. The trial judge summarised the tasks identified in her quantum statement as “cooking, cleaning, washing, washing up, yard work, mowing, vacuuming, driving, feeding pets and the like”. He awarded damages of $30,000 to reflect Mrs Weaver’s need for assistance over a two year period.

[49] His Honour applied s 308E of the Workers’ Compensation and Rehabilitation Act 2003:

308E Services not required by or provided to worker beforeinjury

(1) This section applies if the worker usually did not require or was not provided with particular services before the worker sustained the injury.

(2) A court can not award damages for the cost or value of any services provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services.”

[50] The Endeavour Foundation contended that his Honour should, instead, have adverted to s 308C of the Act:

“308C Worker performed services before injury

(1) This section applies if, before the worker sustained the injury, the worker usually performed particular services.

(2) A court can not award damages for the cost or value of services of substantially the same type that have been provided to the worker after the worker sustained the injury, or that are to be provided to the worker in the future as either gratuitous services or paid services, if the services that have been provided to the worker after the worker sustained the injury are gratuitous services.”

[51] The Workers’ Compensation and Rehabilitation Act 2003 defined various terms used in both sections:

gratuitous services means services, other than paid services, that are provided to a worker by a member of the worker’s family or household, or by a friend of the worker.

paid services means services that are provided to a worker at commercial rates by another person in the person’s professional capacity or in the course of the person’s business.

services means services of a domestic, nursing or caring nature.

Examples of services

• assisting with personal hygiene-needs

• changing bandages

• cleaning

• cooking

• dressing wounds

• gardening

• housekeeping

• mowing the lawn”.[7]

[52] Mrs Weaver’s evidence, accepted by the trial judge, was that she had, after her accident, paid her mother, neighbours and a friend for domestic assistance, but not at any commercial rate and sometimes through means other than cash: accommodation or provision of petrol. In addition, however, she had retained a commercial cleaning service which had provided five hours of cleaning at $65.00 per hour. The learned trial judge found that only the commercial cleaning could be classified as a paid service as defined in the Act, but relied on the decision of this court in Foster & Anor v Cameron[8] to conclude that because the services provided were partly gratuitous and partly paid, the exclusion in s 308E did not apply.

[53] The plaintiff in Foster & Anor v Cameron could not, because of his injuries, mow his lawn. Members of his family usually performed the task for him, but on seven or eight occasions, when they were not available, he engaged a commercial contractor to perform the task. As here, the trial judge had applied s 308E, but this court regarded s 308C as applicable. The court ruled that the services – some paid, some not – did not, taken collectively, fall within either the definition of paid services or that of gratuitous services. Instead, they were a hybrid, with which s 308C(2) did not deal. The provision of those services did not, therefore, preclude the award of damages to the plaintiff in respect of the need for lawn mowing services.

[54] The Endeavour Foundation argued that the reference in s 308C(2) to “services of substantially the same type” required attention to the particular types of services being performed pre-injury and a corresponding distinction between types of services performed post-injury in determining whether they had been provided gratuitously or not. The only paid services his Honour found that Mrs Weaver had received were house cleaning services; the quantum statement claimed for a broader range of services without any differentiation so as to allow for assessment of the cost of the house cleaning services; and his Honour had allowed damages for all of the types of services claimed. He should not have made any award because Mrs Weaver had not established the extent of the “services of substantially the same type” as those she had previously performed.

Discussion

[55] According to Mrs Weaver’s quantum statement, she had previously carried out the tasks for which she now claimed future assistance. The Endeavour Foundation is, accordingly, correct in saying that s 308C(1), not s 308E(1), was enlivened. Its submission as to the distinction between services entailed in s 308C(2) must also be accepted. The words “substantially the same type” suggest a categorisation of services, although not necessarily precise delineation. To construe the section as contemplating that the court would deal with services at large in considering their classification as gratuitous or paid would produce absurdity. By way of example, if a plaintiff were over a matter of years between injury and trial to benefit from a wide range of gratuitous services – driving, nursing, cleaning, housekeeping – and on one occasion to pay a commercial enterprise for lawn mowing, all the other services, on that construction, would lose their character as gratuitous and move into the ‘hybrid’ category.

[56] It is, accordingly, not a correct approach to deal collectively with “cooking, cleaning, washing, washing up, yard work, mowing, vacuuming, driving, feeding pets and the like”, as his Honour did. In this case, cleaning services (which would rationally include vacuuming) were the only type of service of which it could not be said unequivocally that they were “gratuitous” services; instead, they fell within the “hybrid” category referred to by Chesterman JA in Foster & Anor v Cameron. The Endeavour Foundation is correct in saying that it was only in respect of those services that Mrs Weaver was entitled to damages.

[57] It was submitted for Mrs Weaver that if that were the conclusion, an allowance for cleaning at 5 hours per week at $65.00 per hour for two years was, in any event, a fair and reasonable finding open on the evidence; and that would be higher than $30,000. The evidence was certainly scant as to how much cleaning Mrs Weaver needed assistance with. An invoice from the cleaning firm she had engaged showed that it had cleaned for her on two days in one week, working shifts of three and two hours; which might give rise to an inference that in any given week, of the eight hours assistance claimed, five hours were needed in respect of cleaning. Some assistance for that fragile inference is obtained from the activities described in the quantum statement; one could, on a broad-brush approach, infer that cleaning chores comprised about two-thirds of the tasks with which Mrs Weaver required assistance. If one were to moderate the award accordingly, it would make a difference of about $10,000.00; 2.7% of the total award of $369,000.00. A variation of those proportions would not, in my view, justify interference with the judgment: Elford v FAI General Insurance Company Limited.[9]

Brisbane Barrister – David Cormack

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