Foreseeable Risk, Inadequate System of Work & Pre-existing Degeneration
By Emily Brown
In January 2014, the plaintiff was attending to his normal duties at work. This included operating a vacuum lifter to move and unload glass panes onto a production line. The panes varied in size and weight. Some of the heaviest items would be as long as 2.5m and weigh up to 96kg.
The plaintiff alleged he was required to work quickly to maintain a constant supply of glass panes for the production line. He placed the first glass pane on the production line and began moving the next glass pane. However, due to the size of the panes, he was required to move the second pane in an awkward fashion causing injury to his lower back.
The Decision at Trial
The Court found the defendant had a system of work which required supervised, on-the-job training. It further found the plaintiff had not been specifically instructed in this system of work and was simply left to perform the task as he best saw fit. The Court held the risk of injury was foreseeable and not insignificant, despite there being a lack of similar cases in either of its New South Wales or Victorian facilities. Furthermore, the Court stated it was not persuaded by the defendant’s submission that this type of incident had not occurred elsewhere. It found the defendant had not adequately implemented or enforced a reporting system to document such an event and therefore could not be persuaded that such events had not occurred.
The Court went on to find moving items, such as large glass panes, would create a foreseeable risk of injury as the forces required to move glass panes are not insignificant. The defendant submitted the plaintiff was particularly susceptible to suffering an injury due to the pre-existing degeneration in his lumbar spine. The Defendant argued the forces involved in the task he was performing would not likely injure a normal worker who did not suffer such degeneration. The Court did not accept that submission and found the plaintiff’s degeneration was largely asymptomatic prior to the event.
Ultimately, the Court found the employer breached their duty of care. Had the plaintiff been appropriately trained in the defendant’s system of work, the risk of injury would have been minimised or prevented because it would have been brought to the plaintiff’s attention to not operate the lifter in the manner he did.
After determining liability, the Court considered whether the plaintiff would have suffered injury in the absence of the workplace event or in other words, whether the workplace event had simply accelerated the inevitable. The defendant’s expert considered the plaintiff would have suffered a disc prolapse by age 60 based on the opinion of Dr Labrom. The Court did not accept that opinion, preferring the evidence of Dr Olson, that despite the plaintiff suffering from pre-existing degeneration, he would not have suffered a disc prolapse in the absence of the workplace event.
The plaintiff was 57 years of age at the time of incident and 62 at the time of trial. The court accepted he would have continued to work until age 68 rather than retiring at the normal retirement age of 67. Due to the nature of his injuries and his current age, the Court found the plaintiff would be unlikely to return to work due to his age and the nature of his injuries and assessed future economic loss in the sum of $205,000.
Implications for you
This case reinforces the need for employers to ensure they have undertaken appropriate risk assessments of their workplace and prepared systems to minimise or prevent the risk of injury when performing tasks. It also highlights the need to ensure all training and instruction is well documented and all systems of work are appropriately enforced.
If you have questions about the findings you can call our office on (07) 3211 2233 or enquire using the form below.