Discharging duty of care

Caine v Bunnings Group Limited [2012] QDC
Noud DCJ
4 September 2012

This is a case where the court found that the employer had discharged its duty of care by providing an adequate system of work, training and instruction.

Background

The plaintiff was struck on her toe by a melamine sheet at her place of employment suffering a fracture involving the terminal phalanx of the right little toe. The plaintiff was wearing steel-capped boots at the time.

The plaintiff alleged she was removing the sheet from the top of a stack above head height and the cause of her accident was that she was required to pull on the top sheet harder than usual as there was suction between the top sheet and the sheet immediately below.

In this trial, liability and quantum were both in dispute.  The main issue for determination in respect of liability was whether the defendant failed to take measures or adopt means reasonably open to them which would have protected the plaintiff from danger. In particular, the judge considered whether the plaintiff was trained and instructed not to lift above head height and whether the employer breached its duty of care by stacking the sheets too high.

Judgment

The judge preferred the evidence of the plaintiff's supervisor and concluded the plaintiff was instructed not to attempt to lift the melamine sheets if those were stacked too high despite her allegation to the contrary. Even though no evidence was led as to what measures the employer should have implemented to address the suction between the melamine sheets, the Judge found that even if the sheets were stacked lower there was no evidence that those measures would have prevented the sheets from sticking which caused the plaintiff's accident.

Although the judge found in favour of the defendant, quantum was still assessed. The judge was of the view that if the plaintiff had proved negligence then she would be entitled to $12,184.00 (including WorkCover's refund). No allowance for economic loss was made.

WorkCover has a 'best offer policy' whereby our best offer is made at the compulsory conference and maintained leading up to trial. This was a great example of how we are implementing our best offer policy. At the compulsory conference WorkCover offered the plaintiff $12,799.90 (including WorkCover's refund) and the plaintiff did not accept that offer. As a result WorkCover was entitled to recover costs from the plaintiff.

The judgment reinforces that if the employer is able to demonstrate an adequate system of work whereby training and instruction has been provided this can result in the employer discharging their duty of care and judgment being entered in their favour.