WCRA: Weaver distinguished on the facts

Munro v State of Queensland [2014] QDC 003

 

Further to my earlier posting, I draw your attention to the factual distinction in similar case of being instructed to walk backwards and tripping or falling, by McGill DCJ:

 

Analysis

[25] There was no evidence independent of Mr Howell to confirm that it was reasonable for an instructor to combine instruction in the stamp technique with instruction in the moving backwards technique. Moving backwards is a process which does necessarily involve some risk[16], and that risk is obviously going to be increased if the participant in the course is asked to move backwards in an unusual way immediately after having practiced for the first time something which has presumably never been previously attempted. There does seem to me to be some sense in Mr Turner’s opinion that the instruction ought not to have been given in this way, and there was no independent evidence to support the view that it was reasonable for the instruction to have been given in the way adopted by Mr Howell. In those circumstances, I accept this evidence of Mr Turner, and on the basis of it I find that Mr Howell’s approach was not a reasonable one in relation to this aspect of the conduct of the course.

 

[26] Inevitably there was some risk of injury from a course of this nature, but the advantages of participation in such a course would ordinarily outweigh the disadvantages of that risk, so that it was not unreasonable to expect employees who were potentially faced with aggressive behaviour to expose themselves to the risks involved in undergoing such a course, provided that reasonable care was taken to minimise those risks.[17] In my opinion however those risks could have been further minimised in the present case by a process of instruction in relation to this technique which involved splitting up the technique and teaching the different parts separately before they were combined, rather than attempting to teach the combined technique of the stomp and then backing away in one process. On the evidence of Mr Turner I accept that it was not reasonable to teach the technique in that way, and I infer that as a result the risk of injury from, relevantly, the participant’s falling was increased. That risk could and should have been reasonably reduced by breaking up the teaching of the technique in the way described by Mr Turner, and accordingly it was negligent of the instructor to fail to do so. The defendant is liable for that negligence. The employer failed to take reasonable steps to minimise the risk of injury to its employee. There were no relevant countervailing considerations.

 

[27] Reference was made in submissions to the decision in Weaver v Endeavour Foundation [2013] QSC 93, where the plaintiff had been injured as a result of a fall in the course of a training program similar to that in the present case, while performing a “back steps” manoeuvre, which essentially involved moving backwards away from an aggressive client. That plaintiff had previously been trained in the course, and was demonstrating this manoeuvre as an instructor to others when the fall occurred. The plaintiff was demonstrating the manoeuvre quickly, as she had been trained: [41]. One of her feet appeared to catch on the carpet, and she fell backwards. The employer was held to be liable, essentially on the basis that the risk of falling when performing such a manoeuvre could have been reduced by not requiring that the manoeuvre be performed quickly.

 

[28] After the trial in the present matter an appeal from that decision was allowed: Endeavour Foundation v Weaver [2013] QCA 371. The appeal was successful on the basis that the finding of the trial judge as to the instruction that the plaintiff had been given to perform the manoeuvre quickly had involved an overstatement of the evidence, which when properly considered indicated that the instruction in fact given to, and understood to be given by, that plaintiff was simply that she was to move at a pace of which practice had rendered her capable, bearing in mind her physical capacities: [40]. The court considered that there was a real difference between the approach of the trial judge and what actually followed from the evidence: [42]. The finding that the instruction in fact given to the employee was unreasonable was also rejected, on the evidence: [47].

 

[29] Although that case also involved someone falling while moving backwards in connection with a self-defence training exercise for employees, the particular circumstances of that case differ in detail from those of the present, and the evidence was different. The importance of the decision in my opinion is essentially that the court recognised that there was undoubtedly some risk entailed in performing the manoeuvre being performed by that plaintiff, and that the reasonableness of the employer’s response to the risk had to be assessed in the larger context of the purpose of the activity, which was to provide employees with the means of avoiding an attack: [44]. It also emphasised that the mere fact that there was evidence that a different method of training was an appropriate way of training employees did not mean that the method used was unreasonable: [43]. I am certainly conscious of both of those factors, but I do not consider that it necessarily follows that the plaintiff’s case fails. In my opinion the evidence of Mr Turner justifies a finding that Mr Howell’s approach was unreasonable, notwithstanding his contrary view. The decision in Weaver does not mean that in circumstances such as this the employer is relieved of the obligation to take reasonable care to minimise risks to which the employee is exposed.

 

[30] I also find that the negligence caused the plaintiff’s injury. I have explained how I believe the fall came about, essentially because the plaintiff had not achieved a clear understanding of how to do the step and drag, and how to transition from the stomp to the step and drag. This is precisely the difficulty that Mr Turner’s proposal would have been likely to avoid. In those circumstances, I consider it reasonable to infer that, had Mr Turner’s technique been followed, the plaintiff would probably have coped better with sliding her feet over the matting, and therefore would probably not have fallen.

 

Brisbane Barrister – David Cormack

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