Onus of proof

Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168
Philippides J
19 June 2012

Background

On 27 July 2009 the injured worker was employed as an Assistant in Nursing (AIN).  She was relatively experienced with the tasks required of an AIN and whilst trying to transfer a patient, she sustained neck, shoulder and back injuries.  The injured worker asserts that she advised the employer about a previous back and shoulder complaint in February 2009.

The Facts

Liability and Quantum were in contention at trial.  Liability was in contention because the Claimant continued to allege that the employer knew of her previous back and shoulder complaint.  In addition to this, the Claimant changed her version of events numerous times throughout the claim.  The employer had provided the Claimant with adequate training and support to fulfil her duties as an AIN which contradicted the Claimant's arguments.  Quantum was in contention because the Claimant's expectations were too high. WorkCover had made appropriate offers of settlement to the Claimant during the pre-court process, however the Claimant was very unreasonable.

Judgment

The Claimant argued that the Defendant breached its duty of care to her on two basis:

1. The Defendant failed to take reasonable precautions in response to the Claimant's special vulnerability of which it was or ought to have been aware: and
2. The Defendant breached its duty by failing to provide the Claimant adequate training, supervision, and assistance to enable her to perform her duties safely on 27 July 2009.

Special Vulnerability:

In relation to the special vulnerability claim, Phillipides J stated she did not consider there was anything in the circumstances which did or should have altered the Defendant to the Claimant having a special vulnerability to spinal injury or that there was a need for special further inquiry following February 2009.  Phillipides J stated the Claimant simply reported an isolated occasion of having a sore neck, which required no treatment and only a few days' rest, and the Claimant returned to work with a medical certificate when she was fit to do so.

The Pleaded Injury:

Phillipides J stated the Claimant's evidence as to how her injury was sustained lacked clarity and was at times inconsistent.  Phillipides J stated there were discrepancies in the evidence regarding the actual date of the injury (22 July 2009 or 27 July 2009) due to the fact that the Claimant had been experiencing similar symptoms on the 22 July 2009 and appears to have clearly connected these symptoms with the injury date.  In addition to this, Phillipides J stated the vulnerability was unable to be known by the Defendant who remained unaware of the Claimant's symptoms she had been experiencing on or after the 22 July 2009 until 27 July 2009.

The difficulty with the Claimant's case is that there was no evidence to indicate that it was unreasonable for the Defendant to require the Claimant to engage in the transfer procedure in the circumstances pertained.

Phillipides J also referred to the Claimant's submissions which concerned lack of adequate training, adequate supervision and adequate assistance.

In relation to these submissions Phillipides J stated:

1. The Claimant did receive some instruction in respect of the care of dementia patients and under cross examination she accepted she received instruction that if a resident resisted the process of being rolled she was to stop that procedure.  There was no evidence as to what particular additional instruction or training ought to have been given, nor what specific respects the instruction and training given, nor what specific respects the instruction and training given was deficient, nor any evidence as to how such instruction would have prevented the injury.
2. It was contended the resident's uncooperative behaviours could have been obviated by the Defendant requiring three workers to attend the resident.  Phillipides J stated there was no evidence that such a system could have alleviated the risk of injury.  The cost of implications of having a third person were not subject of evidence either.

The Court found in favour of the employer and WorkCover Queensland and the Claimant was ordered to pay WorkCover's costs.  The Court believed that the Claimant would have recovered approximately $130,000.00 if she was successful on liability which was closer to WorkCover's pre-conference offer than the Claimant's.