Decision highlights importance of thoroughly briefing staff

Digby v The Compass Institute Inc and Anor [2015] QSC 308

Atkinson SCJ

30 October 2015

Background

The plaintiff was employed by the Compass Institute as a support worker. Compass contacted Queensland Police Service (QPS) to request a police officer attend their premises and provide a presentation regarding stranger danger.  A police officer attended the premises and during the course of the presentation, activated the police siren, which caused a client of Compass with a disability to startle and fall.  The plaintiff attempted to arrest his fall and in doing so suffered an injury to her right shoulder.

She subsequently developed a constant tremor in her right hand and arm, along with severe pain in her right upper body and a psychiatric injury.  She had not returned to work since the incident in 2008.

The employer's evidence was that the police officer was instructed not to activate the siren without first warning the staff so that vulnerable clients could be removed from the presentation to prevent any risk of this type of incident occurring.

The trial turned on whether the employer had breached its duty of care to the plaintiff for failing to provide a safe system of work and whether the QPS had breached its duty of care by failing to give a warning prior to activating the police siren. The evidence of the plaintiff's co-workers about the level of instruction provided to the police officer prior to the presentation was critical.

Judgment

Judge Atkinson found that the employer failed to thoroughly brief its staff and there was insufficient planning by the staff as to precisely what to do once the warning to activate the siren was given.  She preferred the evidence of the police officer about his level of instruction from the employer on the day over the evidence of the employer's witnesses.

At the beginning of the trial Crown produced surveillance evidence of the plaintiff showing that she was not as incapacitated as she alleged and this resulted in a reduction in her award of damages.  The Judge stated that the plaintiff had “failed to persuade me on the balance of probabilities that she has suffered from more than a mild shoulder injury complicated by a minor somatic symptom disorder in the immediate aftermath of her injury and a consequent addiction to painkillers which she continues to use”. The disclosure of Facebook material was critical to her claimed psychiatric condition. She had failed to disclose to any psychiatrists other significant stressors in her life.

In relation to the assessment of quantum, Judge Atkinson generally accepted the employer's submissions. The Judge allowed the plaintiff to amend her pleadings at the end of the trial as she found that the employer did not suffer any prejudice by this amendment despite the fact the employer would not be able to cross-examine witnesses on the relevant facts.

Liability

The plaintiff had received $50,924.19 in WorkCover weekly benefits. An occupational therapist gave evidence that the plaintiff was fit for administrative employment. The plaintiff failed to show on the balance of probabilities that her mild physical disability or her mild somatic symptom disorder would prevent her from working in an administrative role were she motivated to do so. She applied a global award of $40,000 and superannuation of $4,532.

Justice Atkinson gave judgment for the plaintiff against the employer in the sum of $158,045.00 (after the WorkCover refund).  This included general damages and past and future economic loss.

The case against the second defendant, State of Queensland (Queensland Police Service - QPS) was dismissed.