WorkSafe.qld.gov.au redesign: We’re delighted to announce that our redesigned website has launched! Read more
Skip to content
Menu

Employer's duty of care is not absolute

Baker v Prescare (Corinda) [2014] QDC 159

Dorney QC DCJ

31 July 2014

This case highlights that while an employer's duty of care is onerous, it is not absolute. Furthermore, it demonstrates the steps which need to be taken to demonstrate to the Court that a self-represented plaintiff has been given every opportunity to obtain further legal advice/assistance.

Background

The Plaintiff was a community care worker who attended the homes of elderly or infirm clients of the Defendant. She alleged that, from 4 April 2008 to 8 August 2008, she experienced continual and increasing pain in her right shoulder from performing difficult, heavy and awkward tasks. In particular, on 8 August 2008 she alleged that she moved furniture in order to clean, performed vacuuming, carried heavy buckets of water for mopping, carried heavy grocery bags for shopping, and carried heavy buckets of fertiliser. The Plaintiff claimed damages for personal injuries on the grounds of negligence by the Defendant and/or by breach of contract or statutory duty. The Plaintiff also sought damages for an injury to her left shoulder as well as for an alleged psychological injury. It was also disclosed that a pre-existing medical condition in the Plaintiff's shoulders existed as well.

The Plaintiff was self-represented in this claim.

Liability

Plaintiff's evidence

The Plaintiff claimed that the tasks she performed in her employment were that of moving furniture while cleaning, vacuuming, moving and using a heavy bucket of water to mop the floor, undertaking heavy gardening, shopping and lifting heavy grocery bags, moving boxes, and personal care. It was a combination of undertaking several of these tasks that led to her alleged injuries. The Plaintiff was unable to provide evidence as to the exact weight of the vacuum cleaner. She did not provide evidence that the furniture she moved was heavy as well.

With her training, the Plaintiff gave evidence that she began work with no relevant experience and no training or instruction provided by the Defendant. She denied receiving orientation from the Defendant and admitted to only one occasion of supervised instruction when visiting a client's home. She alleged that she was never told to not perform a particular task and did receive instructions from her supervisor as to the alleged manual handling tasks that were performed.

Liability analysis

The Court accepted that the Plaintiff did suffer an injury on 8 August 2008 due to the expert medical evidence presented. However, this injury was classified as an exacerbation of a pre­existing condition with her employment being a relatively minor aggravating factor. This decision was reached using the report of Dr Simon Journeaux dated 14 December 2010 and the report of Dr Michael Treffene dated 28 October 2008. Dr Journeaux also stated that the Plaintiff's symptoms had not been caused by her work as a carer and that her symptoms arose in the cause of ordinary lifting and normal carer duties within her employment, with no specifically identifiable incident.

The Court also found from examining the records of the Defendant that the Plaintiff failed to report any tasks that were out of the normal range of work expected from a normal person. It was also of note that in the incident report completed by the Defendant and acknowledged by the Plaintiff, no mention of shifting furniture or gardening was made.

The Court found that the Plaintiff received training in her employment and was provided access to risk assessments for the clients she was to assist. This was due to the Plaintiff signing and initialing a document entitled "Orientation Program" on 4 April 2008. The document stated that the Plaintiff received a copy of the Staff Induction Manual and was provided with safe manual handling training and a manual handling manual. She also indicated that she received 'hands-on' supervision while performing her duties. Additionally, two home risk assessment documents were provided by the Defendant for clients for whom the Plaintiff was to provide services. These documents included a provision that no full bucket loads were to be used. The Defendant argued that these documents were made available to the Plaintiff prior to the incidents occurring.

The Court also heard and gave preference to the oral evidence of Ms Kay Drury, the Plaintiff's Case Manager at the time of the incident. Ms Drury gave evidence that she had the Plaintiff watch a video on manual handling. She also gave instructions to the Plaintiff to refuse to perform any heavy-lifting tasks that she was unable to do, and to report to her afterwards. The Plaintiff was also trained to limit the number of grocery bags she was to carry at one time. Ms Drury also stated that she never received complaints from the Plaintiff prior to the work report completed on 8 August 2008. The Court accepted this evidence over the Plaintiff's.

Due to this combination of oral and documentary evidence, the Court accepted that the Plaintiff was trained, instructed and warned, and had the system explained to her. From this, it deemed that if the Plaintiff had carried heavy buckets of water for mopping or heavy shopping bags, then it was contrary to her training and instructions. No demonstration of a defective system of work or lack of proper training, instructions or warnings was proved or found. Instead, the work carried out by the Plaintiff was characterised as normal for a person doing domestic chores, and that it was nothing out of the normal range of work expected from a normal person. This was due to the failure of the Plaintiff to report any extraordinary tasks.

The Plaintiff was deemed to have been unable to demonstrate that the repetitive nature of the work had a causal relationship with the injury suffered. She was also unable to demonstrate that the Defendant was made aware of any complaints or indication of pain or discomfort. Again, this was due to the documentary and oral evidence submitted by the Defendant.

In terms of quantum, the Court calculated that total damages would have been $10,985.28 clear of the statutory refund of $15,799.97 if liability had been proved. This was calculated in absence of substantial evidence.

Judgement

With regard to the alleged statutory cause of action, the Court found that a retrospective extinguishment existed for this cause of action due to the effect of s37A and s197 of the Workplace Health and Safety Act 1995.

Judgement was found for the Defendant against the Plaintiff on this claim. Subsequently, it was also ordered that the Plaintiff pay the Defendant's costs on a standard basis.