WCRA: walking backwards training exercise & G v K

Weaver v Endeavour Foundation  [2013] QSC 93

 

JUDGE: McMeekin J
ORDERS: Judgment for the plaintiff in the sum of $369,000.02
CATCHWORDS TORTS – NEGLIGENCE – LIABILITY – where employer is responsible for outsourcing work – whether employer subjected employee to unsafe workplace – whether the injury was reasonably foreseeable – whether reasonable action was taken where plaintiff was subject to prior injury – whether the injury the subject of this matter caused the injury where numerous conflicting expert opinions– where the extent of the injury was in issue – whether there was significant physical and psychiatric impairment – whether future care should be awarded Background

[4] The defendant, as is well known, provides employment for persons with intellectual disabilities. Sometimes their clients become agitated and even violent. The defendant has a duty to ensure that reasonable steps are taken to protect their employees from acts of aggression from clients. To discharge that duty the defendant had engaged persons to train certain of their employees in techniques to deal with aggressive people in a variety of situations. The plaintiff was one such employee and she had been trained by Paul and Claire Sheehan. The techniques are taught in a course known by the acronym “PART” – Professional Assault Response Training.

[5] Those employees so instructed then become trainers in those techniques. The plaintiff was acting as such when she says she was injured.

[6] One technique that is taught is known as the “Back Steps” manoeuvre. The manoeuvre is intended to be adopted when a worker is confronted by an aggressive client and must retreat. The trainee is expected to walk backwards on the balls of the feet in a slightly crouched position while keeping their attention directed not to where he or she was going but ahead of them towards the aggressor. When attempting to demonstrate the manoeuvre the plaintiff fell onto her buttocks and back on a carpeted surface and suffered the injuries which are the subject of these proceedings.

Principles

[16] It is convenient to look at the duties owed by an employer.

[17] Mrs Weaver bases her claim in negligence.

[18] The duty owed by an employer was explained by Windeyer J in Vozza v Tooth & Co Ltd[4] in this way: “[F]or a plaintiff to succeed it must appear that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”

[19] In Hamilton v Nuroof (WA) Pty Ltd[5] it was said that the duty of an employer is “… to take reasonable care to avoid exposing [its] employees to unnecessary risks of injury”.

[20] The qualifying “unnecessary” makes plain that an employer is not required to guard against all risks of injury.[6] However it has long been recognized that what is a reasonable standard of care for an employee’s safety is “not a low one”: O’Connor v Commissioner for Government Transport.[7] Further an employer is not entitled to disregard the possibility of inadvertence or even carelessness on the part of an employee: see Bankstown Foundry Pty Ltd v Braistina.[8]

[21] While it seems obvious it is relevant to note that the duty owed is to each individual personally. So when assessing the foreseeability of risk the employer must take into account the shortcomings and idiosyncrasies of the employee in question.[9] That is not to say that special vulnerabilities unknown to the employer and which the employer could not reasonably be expected to know are relevant: Waugh v Kippen.[10]

[22] On the question of breach Mason J’s formulation in Wyong Shire Council v Shirt[11] explains the response expected of a reasonable man, there being a foreseeable risk of injury (with my emphasis):

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

[23] It was no part of the defendant’s case that there was any “expense, difficulty and inconvenience” in taking any proposed alleviating action.

[24] In McLean v Tedman[12] Mason, Wilson, Brennan and Dawson JJ said[13]:-

“The employer’s obligation is not merely to provide a safe system of work; it has an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer. … And in deciding whether an employer has discharged his common law obligation to his employees the Court must take into account the power of the employer to prescribe, warn, command and enforce obedience to his commands.”

[25] That power to “prescribe, warn, command and enforce obedience to his commands” is an essential part of the plaintiff’s case here.

[26] Another important aspect of the employer’s duty is relevant here. The employer does not avoid liability by delegating the task of properly training its employees. An employer is not simply under a duty to exercise reasonable care towards its employees but is under a higher duty – a duty to ensure that reasonable care is taken. That duty “is said to be non-delegable because a principal who engages another to perform work will be liable for the negligence of the person so engaged, notwithstanding that he exercised reasonable care in the selection of the contractor.”[14]

[27] Wilson and Dawson JJ put the relevant proposition in this way in Stevens v Brodribb Sawmilling Co Pty Ltd:

“Where an independent contractor is employed to do the very thing which, if done by the employer himself, would constitute a breach of duty on his part, then the employer will nevertheless be liable for any consequent loss or damage.”[15]

[28] No contrary submission was made here.

[29] In summary for an employee to succeed in a cause of action against the employer in negligence the employee must establish:-

(a) that the task involved a foreseeable risk of injury;

(b) that there were reasonably practical means of obviating that risk;

(c) that her injury belonged to the class of injury to which the risk exposed her; and

(d) that the employer’s failure to eliminate the risk showed a want of reasonable care for her safety.[16]

 

 

Want of Reasonable Care

[70] Plainly enough the plaintiff’s injury fell into the class of injury to which the risk exposed her.

[71] The final issue to consider is whether the defendant’s failure to eliminate the risk showed a want of reasonable care for the plaintiff’s safety. This was the principal focus of the defendant’s submissions. The submissions require a judgment to be made as to whether the risk of injury was so low as to be safely ignored by a reasonable employer.

[72] I have mentioned already Mr McDougall’s observations on the magnitude of the risk in this particular case. Mr McDougall also supplied statistics on the incidents of trips and falls and the potential for injury that such events obviously carry in a wider sense.[45] His evidence was unchallenged. Slips, trips and falls are a major cause of injury in Australian industry. Approximately two-thirds occur on the same level. By far the largest single cause of being admitted to hospital in Australia is from falls – nearly twice the next most common cause. It is plainly reasonable to expect employers to be alert to the risks involved. The risk was not one that could reasonably be completely disregarded.

[73] The defendant argued that statistics of injury showed that incidents of harm when carrying out PART training were relatively rare. There had been four incidents involving injury recorded over the years with only one incident involving time lost[46] despite a great deal of training.[47] Little is known as to the cause of the injuries or their severity. What incidents there were had occurred when the Sheehans had been in charge of delivering the training. There were no instances after the time that Mr Unger took over. In the absence of more information it is difficult to draw any conclusion. But the defendant’s statistics are only one small aspect of the overall picture and do not inform, at least solely, the determination of the magnitude of the risk or the likelihood of its occurrence.

[74] The defendant argued that the plaintiff could have elected to carry out the training on the dance floor nearby to where she in fact demonstrated the back step manoeuvre. That assumes that the grip characteristics of the carpet were a causative factor and significantly different to the dance floor – a possibility but not necessarily established. But assuming that to be established the submission involves the concept of an employee determining the safe means of carrying out the task, and an employee without any demonstrated training or skill in carrying out such an assessment.[48] If the wooden floor was safer and would have avoided the risk then it was the employer’s duty to direct that the surface be used, not the plaintiff’s task to work that out.

[75] Emphasis was laid by the defendant on the need to approach the question of breach prospectively and not with the benefit of hindsight, not to argue from the known and established injury through a chain of causation back to what might have avoided the injury, and to bear in mind that the reasonable response of an employer might be to do nothing in relation to the risk citing Vairy v Wyong Shire Council[49]; Lusk v Sapwell[50]; Hegarty v Queensland Ambulance Service[51]. The judgement of Hayne J in Vairy was quoted: “The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’.”[52]

[76] Those general principles can be accepted as applicable to any negligence action. But the cases relied on involve a significant difference to this case. Each of those cases was a case of omission – it was alleged in each that the defendant had failed to do something which would have obviated the risk. The complaint here – restricted to the question of instruction – is one of commission. The crucial point here is that the employer through its contractor positively increased the risk of injury to which the plaintiff was exposed. The plaintiff was endeavouring to perform her duty to the best of her ability. She felt duty bound to carry out her instructions to perform the task quickly. Mr Unger’s approach shows that the instruction was unnecessary.

[77] No case was cited to me where an employer has escaped liability where it has directed an employee to carry out a task, which already carried an obvious risk of tripping up and falling, in a manner designed to increase the risk by directing that it be done quickly. The reliance on cases such as Hill-Douglas v Beverly[53], O’Connor v Commissioner for Government Transport[54], Thompson v Woolworths (Qld) Pty Ltd[55] and Rasic v Cruz[56] misses this point. In the first two cases the plaintiff asserted that the breach of duty lay in the failure to take some positive action – warn or instruct about an every day hazard or, additionally in Hill-Douglas, alter the layout of a vehicle. In the latter two cases the court was concerned with plaintiffs who created the risk by their own carelessness. The defendant seeks to assert that the plaintiff has created the risk here by her own carelessness but that is not right at all.

[78] No doubt many employees throughout Australia walk backwards at some point in their working day to carry out their tasks. It is an everyday event carried out without injury or incident in the vast majority of cases. Generally speaking an employer would not be liable for a worker tripping over as they walked – forward or backwards, absent some other feature.[57] To succeed the plaintiff must take this case out of the usual. There are four features which in my opinion do that:

(a) The plaintiff was a middle aged overweight lady, not a robust or athletic person, or even a person accustomed to physical activity – the likelihood of a fall occurring was greater for her and the potential consequences more serious;

(b) The plaintiff did not choose how she walked backwards – she was directed how to do so. She was supposed to walk backwards on the balls of her feet. This too increased the risk of mishap;

(c) The plaintiff was not to keep her attention where she was headed so she could see where she was to place her feet. Rather her attention was required to be directed to the “aggressor” in front of her from whom she was retreating. Again this increased the risk of mishap;

(d) To this ever increasing risk of mishap is added the requirement that this unnatural activity be done quickly.

[79] The defendant can legitimately argue that PART training is an important safety measure and the risk of injury worth running to prepare an employee for a possible assault.[58] I would accept that that argument would carry the day if the unusual features were restricted to the first three features I have mentioned. But why add the last instruction? It significantly increases the chance of a mishap. It may be that in a real life situation an employee would have to move quickly – but there the risk justifies the action. In the training situation there is no pretence of getting an employee used to this unnatural action, if it were possible. I cannot see that there is any countervailing benefit to the instruction. Mr Unger’s approach supports that view. Far from a need to move quickly Mr Unger maintained that his approach was useful to ensure the maintenance of eye contact with the aggressor.[59]

[80] If, contrary to Mr Unger’s approach, it be thought essential to convey the possible need for speed in the performance of the manoeuvre then the suggestion that there be a video demonstration of the technique would meet the need. There, at least, the risk of injury could be substantially reduced as conditions could be controlled and the participants younger and more agile.

[81] Underlying the defendant’s case here is the notion that this was just an everyday, obvious risk against which the employer need take no precautions. Similar arguments were considered in Anderson v. Mt Isa Bastketball Association Incorporated[60] where a basketball referee succeeded in an action for damages against her employer where she suffered an injury whilst running backwards in the course of a game. There it was not in issue that running backwards on a basketball court involved an unnecessary risk of injury. After referring to factors such as the magnitude of risk, the degree of probability of occurrence, the expense, difficulty, and inconvenience of taking alleviating action and other conflicting responsibilities which the defendant may have Davies JA and Demack J added:

“The above statement of factors requiring consideration in determining breach of duty is not intended to be exhaustive. Two other factors mentioned in some cases are the obviousness and the ordinariness of the risk. There are, however, two difficulties in the way of placing too much weight on these factors negating a breach of duty. The first is the increasing recognition given by courts to the need to take into account the possibility of inadvertent or negligent conduct on the part of others and consequently a decreasing weight being given to the obviousness or ordinariness factors. The second is they assume less relative importance where the risk of injury can be eliminated without undue difficulty or expense. That appears to be the case here.”[61]

[82] The same considerations apply here and with more force – a positive instruction was issued here which increased the risk.

[83] To adopt the language of Hamilton v Nuroof (WA) Pty Ltd[62] the employer here exposed its employee to an unnecessary risk of injury. There is no countervailing consideration, whether it be expense, difficulty and inconvenience or some wider consideration as was relevant in Vairy and Hegerty, to excuse the employer from having given an instruction to proceed quickly or prevents a finding that an instruction to proceed at a slow or moderate pace be seen as reasonably required.

[84] In my view liability is established.

[85] Contributory negligence, whilst pleaded, was not argued.

Future Care

[182] The plaintiff claims $130,000 for future paid care.

[183] Section 308E of the Workers’ Compensation & Rehabilitation Act 2003[106] (“WCRA”) is relevant. It provides:

“Services not required by or provided to worker before injury

(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.”

[184] For the purpose of that section the following terms are defined in s 308A:

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

[185] It was not in issue that the plaintiff satisfied the pre-condition in s 308E, that is, she “usually did not require or was not provided with particular services before [she] sustained the [subject] injury”.

[186] The common law provides that if as a result of the tortiously inflicted injuries the plaintiff has a need for the provision of services, whether paid for or gratuitously provided, the cost of the provision of those services should sound in damages: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. The damages are to compensate for the plaintiff’s reduced capacity to meet her own needs. Section 308E removes the entitlement to claim damages for services to be required in the future whether to be paid for or gratuitously provided but only where services that have been received after the injury were gratuitously provided. It follows that where services are provided post injury but are within the definition of “paid services” the common law entitlement remains.

[187] The plaintiff’s case is that she falls into this category. The defendant made no submission to the contrary.

[188] The plaintiff gave evidence[107] of having paid a number of individuals – her mother, her neighbours, a friend – for services rendered that were plainly of a domestic nature. However there was no evidence that the payments satisfied the definition of paid services – that is, “at commercial rates by another person in the person’s professional capacity or in the course of the person’s business”. Rather they were services rendered by members of the family or friends and the payments made do not seem to be at commercial rates. Some payments for example were not only in cash but in kind – petrol and free accommodation and board. Thus even though paid for the services are defined to be “gratuitous services”.

[189] However in addition the plaintiff engaged Blackwater Commercial Cleaning to provide cleaning services at her residence. That firm has provided five hours of cleaning at $65 per hour.[108] While there is no express evidence that the rates charged reflected commercial rates, the inference is plainly that they were. Thus the services provided to the plaintiff after her injury were partly gratuitous and partly paid.

[190] The plaintiff’s argument is that the outlay of $325 would entitle the plaintiff, if her case was otherwise accepted, to damages of $130,000. There are reasons to doubt that the legislature intended such a result: the approach largely removes the barrier that the legislature sought to put in place in restricting access to such damages; as well this approach has the effect, presumably unintended, that those plaintiffs who are better off and can afford to engage others, or better advised, or who are friendless, are at a considerable advantage. The difficulty is in coming up with any other workable meaning for the section.

[191] In Foster v Cameron[109] the Court of Appeal considered the application of s 308C of the WCRA which excludes the payment of damages where the injured party usually performed the services in question before the injury “if the services that have been provided to the worker after the worker sustained the injury are gratuitous services”. Thus the disqualifying condition was precisely the same as in s 308E. It was there held that where the services provided subsequent to the injury were partly gratuitous and partly paid that the exclusion in the section did not apply.

[192] I see no reason to distinguish the two sections. Hence I am required to apply the approach set out in Foster v Cameron.

[193] The plaintiff then is entitled to damages for the need for future services if the evidence justifies the claim. Give the size of the claim I would have expected some examination of it but there was none. As best I can see there is no medical or other expert evidence touching on the matter.

[194] The plaintiff says that she effectively is unable to do most ordinary household chores. Hence she has obtained assistance, and claims a need for future assistance, with cooking, cleaning, washing, washing up, yard work, mowing, vacuuming, driving, feeding pets and the like. Given the lack of any challenge to the plaintiff’s assertions I propose to accept them. The plaintiff assesses her own claim as a need for eight hours assistance per week at a cost of $35 per hour for 13.5 years.[110]

[195] I was not informed of any agreement as to the rate per hour, but given the hourly rate charged by Blackwater Commercial Cleaning the amount claimed would seem reasonable.

[196] How the eight hours was derived is not apparent. In the absence of any cross examination or argument I will assume the claim reflects a reasonable number of hours for the various tasks mentioned. It is not inherently improbable.

[197] There are a number of factors that have the potential to impact on the plaintiff’s capacity to carry out these various tasks had she remained uninjured. The pre-existing shoulder and neck problems that had not completely subsided, her morbid obesity, and the possibility of the diabetes becoming less well controlled all might come against the plaintiff.

[198] Consistently with my findings above, I will assume there is a good prospect of a substantial recovery from her present difficulties within a relatively short period of time.

[199] I will allow $30,000. That equates to a continuing need at the present level for about two years. I do not make that assumption but rather assume a gradual recovery with improving function over the next few years with some further amount for a residual continuing need.

 

David Cormack – Brisbane Barrister
NB

Endeavour Foundation v Weaver [2013] QCA 371

: overturned on appeal –

 

 

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