By Clint Kanther, Senior Associate

McGrory v Medina Property Inc Services involved a hospitality worker lifting an ice bin.  Both liability and quantum were disputed, with the plaintiff seeking damages in excess of $285,000 for injuries that she allegedly sustained to her shoulders.

Employer’s responsibility for mitigating risk

Despite inconsistencies with the plaintiff’s reporting as to the amount of ice contained in the bin, the court ultimately accepted her evidence given at trial and found that the employer should have taken further measures to mitigate the risk of injury such as limiting the amount of ice placed in the bin or the size of the bin itself.  The plaintiff succeeded on liability.

The medical evidence accepted

Medical evidence was given by Dr Allan Cook for the plaintiff and Dr John Walters for the defendant.  The Court preferred the evidence given by Dr Walters, on the basis it was consistent with the other experts that had examined the plaintiff.  Dr Walters noted, and the court accepted, that the plaintiff did not seek significant medical attention and did not report that any difficulties she had were “overly troubling”.  There was little evidence of any significant injury in the radiology.

Whilst Dr Walters had accepted that the plaintiff had a very modest permanent impairment, he was of the opinion that there was no workplace injury that precluded the claimant from continuing in her ordinary role as a housekeeper, and this opinion had a significant impact on the assessment of quantum.

The result

The plaintiff was awarded general damages and past economic loss only.  There was no award for future economic loss.  The award for damages was $10,434.48, less than the Defendant’s mandatory final offer.  The Defendant has sought an order for its costs.

Key points for employers

The Court accepted that the task was not performed regularly by the plaintiff but that a rudimentary risk assessment would have identified the potential hazard and prompted the employer to take simple and cost-effective measures to mitigate the risk of injury.

While the ultimate result in this case was tempered by a very low quantum outcome, the case emphasises the importance of ensuring that comprehensive risk assessments are conducted that include consideration of ‘one-off’ or irregular tasks.