“Sometimes it is worth taking a stand because employers can win. Nicole Lythall, a Senior Associate at Bruce Thomas Lawyers and a member of WorkCover Queensland’s approved panel of lawyers analyses the recent decision in Chapman v University of Southern Queensland [2010]QDC and identifies key steps employers should take to be in a position to defeat a common law workplace injury claim. The facts of the case are based on an all too familiar situation – a claimant with a history of WorkCover claims sustaining a back injury whilst doing a seemingly innocuous task.”

On 12 August 2010 His Honour Justice Reid of the Toowoomba District Court handed down judgment for the Defendant in a workplace injury case. This article looks at this important reminder of the steps which an employer can take to increase their prospects of successfully defending claims of this nature.

THE FACTS

The Plaintiff was employed continuously by the Defendant from late 1996.  He was initially engaged to work as a trainee barman but at the time of his alleged injury, and for a significant period prior to it occurring, he was employed as a cleaner/maintenance officer. 

While working as a cleaner with the Defendant the Plaintiff suffered injuries to his lower back in November 1998 and August 2001.  On each occasion, he received workers’ compensation benefits for a period of approximately three months before returning to work initially on light duties and thereafter on full duties. 

The Plaintiff subsequently claimed damages for a back injury allegedly sustained on or about 7 April 2006 as a result of the negligence and/or breach of contract and/or breach of statutory duty of the Defendant employer.  He was 32 years at the time of the alleged injury and 36 years of age at the time of trial. 

On the day in question, the Plaintiff performed his usual daily cleaning duties as well as additional duties associated with setting up the University’s Recreational Centre for a graduation ceremony.  One of the additional duties performed was collecting, lifting, carrying and moving 15kg heaters and 9kg gas bottles which were hired for the ceremony.

The Defendant called the Plaintiff’s Manager and immediate Supervisor to give evidence.

The Manager gave evidence that she, along with about 15 other staff members, were present in the Recreation Centre at the time of the incident.  She was about 15 – 20 metres away from the Plaintiff when she saw him “starting to stand up and lean against the stadium wall”.  She approached him and he said words to the effect: “it’s my back”. 

The Plaintiff’s Supervisor gave evidence that she recalled being about 10 metres from the Plaintiff and seeing him kneeling down on one leg.  She saw him put one hand on his leg to get up and that as he attempted to do so, he stopped.  She and other staff members attended upon the Plaintiff.  He later told her that his pain had started “when he pushed off from his leg”. 

An Accident Report Form was completed a few days later.  That document stated the Plaintiff suffered injury when he was “kneeling down and tried to stand up”.  It also stated he “was kneeling down connecting a heater to gas bottle and went to stand up, back went into spasm”.  The document was signed by the Plaintiff and other staff members.

THE OUTCOME

His Honour awarded judgment for the Defendant.  The parties were invited to make submissions as to costs. 

THE ISSUES

The “Incident”

The case developed by the Plaintiff at trial was, according to His Honour, “somewhat unusual”.  In essence, the Plaintiff asserted that the injury he suffered occurred when performing strenuous work during the course of the day but that it did not manifest itself in the sense that he felt actual pain until he was bending down connecting the gas bottle to the heater.  His Honour observed that approach was no doubt taken because the task which the Plaintiff was performing when he appeared to injure himself (i.e. connecting the heater and the gas bottle) was a trivial one and proving a breach of duty would be difficult.

In support of his case, the Plaintiff relied on the evidence of Dr Alan Cook (orthopaedic surgeon).  Dr Cook had expressed the view in his written report that the Plaintiff was essentially unemployable in the open labour market and assessed a 13% whole person impairment as a result of the incident that occurred in the course of his work on 7 April 2006. 

At trial, Dr Cook gave evidence that the Plaintiff “may well have” suffered his injury either seconds or minutes before, perhaps while lifting or carrying the gas bottle or the heater and that he didn’t feel the pain for some seconds or minutes later.

His Honour rejected Dr Cook’s evidence in that regard.  Importantly, he noted that Dr Cook raised it as no more than a possibility that the Plaintiff “may well have” suffered the injury seconds or minutes before the onset of sharp pain.  He did not assert that it occurred on the balance of probabilities.  His Honour noted therefore, that even if he was inclined to accept Dr Cook’s evidence, it did not discharge the necessary onus and would not allow him to conclude on balance that the Plaintiff in fact suffered an injury in that way.

Furthermore, His Honour was of the view that Dr Cook’s oral evidence appeared inconsistent with the view he expressed in his written report when he referred to the injury as being the result of “the incident” that occurred in the course of the Plaintiff’s work.  In His Honour’s view, the incident Dr Cook was referring to in his report was the sudden onset of pain when the Plaintiff was down on both knees, rather than earlier work performed on that day (in the absence of any express statement to that effect).  His Honour also noted that Dr Cooke accepted in his oral evidence that injuries such as the Plaintiff suffered can arise from trivial movements.

His Honour preferred the evidence of the Defendant’s medical specialists, Dr John Morris (orthopaedic surgeon) and Dr Michael Weidman (neurosurgeon).  Dr Morris and Dr Weidman both gave evidence that it was possible to get a back injury when standing up from a squat and, further, if the Plaintiff had suffered an injury from prior work they would have expected he would have felt some pain before he knelt down to connect the gas bottle.  His Honour felt those opinions were consistent with what would be expected from “common experience”.  He also noted that neither doctor accepted the Plaintiff’s injury was “more likely than not” to have been due to previous activities performed on that day.

Ultimately, taking into account all the lay and medical evidence, His Honour found the Plaintiff’s injury was sustained while he was connecting the gas bottle to the heater, either as he bent down to do so or as he attempted to get up.  His Honour did not accept that any injury had been sustained on an earlier occasion in the day.

Special Duty of Care

The Plaintiff sought to argue that by reason of the Defendant’s knowledge of his earlier back injuries in November 1998 and August 2001 that the Defendant owed him a “special duty of care”. 

His Honour noted that there was no suggestion, either in the Plaintiff’s pleadings or submissions or in the medical evidence, that the earlier injuries placed the Plaintiff’s back at any heightened risk of injury from performing the work which he did in the course of his employment. 

His Honour held that in the absence of evidence that the Plaintiff’s back, to the Defendant’s knowledge or means of knowledge, made him particularly vulnerable to injury, no special duty could arise merely because he had twice suffered injuries to his back prior to the subject incident.  Importantly, His Honour noted that the Plaintiff’s evidence at trial was that he had completely recovered from the effects of those prior incidents well prior to the alleged injury on 7 April 2006 and had no ongoing symptoms or pain and was able to do all work and domestic duties. 

Breach of Duty

The evidence showed that:-

• The Plaintiff’s Manager had herself done all of the tasks the Plaintiff was required to do numerous times (including setting up for graduation ceremonies) and found none difficult or particularly strenuous;
• During a day when the Centre was set up for a graduation ceremony, there were adequate staff engaged to carry out that work;
• If help was required to perform a task, the Manager or other supervisory staff working on the day could readily be approached.  All staff had been told to ask for help if required;
• Despite the Plaintiff not being a “quick worker” he was not pressured to work more quickly;
• At no time had the Plaintiff reported that he found his duties too heavy or that he was unable to do the work of a cleaner;
• The Defendant had reviewed its cleaning procedures prior to the subject incident.  In particular, it engaged one of the Engineering and Organisation Management students who had also worked as a casual cleaner for the Defendant to assist in preparing a document described as “cleaning procedures”.  In preparing the document, extra time was allowed because the Plaintiff tended to be slow in performing his duties;
• The student/cleaner also trained the Plaintiff in the necessary procedures, step by step. 

Ultimately, His Honour was of the view that the task performed by the Plaintiff at the time his injury was sustained was a “trivial and every day task” that a cleaner could reasonably be expected to perform without a risk of injury.  The performance of all of the duties of a cleaner by the Plaintiff’s Manager, and the engagement of an experienced cleaner who was doing an Organisation Management and Engineering course at the University to prepare the cleaning procedures documents and to train the Plaintiff was a reasonable approach to assessing risks associated with performing the task of a cleaner.

His Honour was of the view that nothing turned on the fact that the documentation did not specifically refer to the task of connecting a gas bottle to a space heater.  His Honour observed it is “impossible” to envisage every task that someone might ever undertake.  However, if the Defendant had considered that particular task, then nothing could or would have been done differently or in any way which would have resulted in the Plaintiff not suffering the injury.  In that regard, His Honour noted there was no suggestion that the manner in which the Plaintiff was connecting the gas bottle or kneeling down as he did so placed him at particular risk. 

His Honour was also of the view that there was no breach of the Defendant’s relevant statutory duty.  Although there was a prima facie breach of Section 28 of the Workplace Health and Safety Act in that the employer did not ensure the safety of the Plaintiff at work, the Defendant was able to establish a defence under Sections 27 and 37 of the Act.  His Honour was of the view that having the Manager perform all of the functions to satisfy herself that the tasks the Plaintiff was required to perform were not too onerous, having an experienced cleaner and mature age student prepare the cleaning procedures document and an estimate of the time for performing each task and instructing the Plaintiff in his duties showed the Defendant chose an appropriate way to discharge its workplace health and safety obligations for exposure to the risk.

In an addendum to his judgment, His Honour noted that the Manual Task Advisory Standard 2000 applied to the task performed by the Plaintiff.  His Honour thought it arguable the Defendant had complied with the Standard by undertaking the above steps to address the Plaintiff’s safety.  Although a specific assessment of the risk associated with the task of connecting the gas bottles was not undertaken, His Honour did not consider the Standard required such an assessment.  The task was a “trivial task”.  In His Honour’s view, no risk assessment would therefore have dictated that the Plaintiff do the job in other than the manner he was performing it.  In those circumstances, there was not basis for a finding against the Defendant based on a breach of the Manual Task Advisory Standard 2000. 

THE SIGNIFICANCE OF THE DECISION

This decision serves as a useful reminder of the following:

• It is important to clearly identify the “incident” which gives rise to a worker’s injury.  It is necessary for a Plaintiff to prove, on the balance of probabilities, the necessary causal link between the alleged incident and their injury;
• In order to establish that the Defendant owed a “special duty of care”, a Plaintiff will need to prove that the Defendant knew or ought to have known that the Plaintiff was particularly vulnerable to injury. The fact that a Plaintiff has suffered prior injuries will not, of itself, give rise to a special duty of care. 
• While it is, to use His Honour’s terminology, “impossible” to envisage every task a worker might ever undertake, an employer may be able to successfully defend a claim if they can nevertheless show that they assessed the risks associated with a worker’s duties and took appropriate steps to address the risk of injury. Any assessment/review of procedures should be documented.  There is also some benefit in introducing practical components into the assessment, such as input from workers performing the tasks and/or having a supervisor or member of the management team perform the tasks on a trial basis.
• Failure to perform a risk assessment of a “trivial task” will not give rise to an adverse finding against a Defendant if it can be shown that an assessment of that task would not have resulted in any change to the manner in which the task was performed and, therefore, would not have prevented the injury.

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