This case study demonstrates
- An employer will not necessarily be found negligent for a trivial incident.
The injured worker (the claimant) was employed as a cleaner/maintenance officer by the University of Southern Queensland Student Guild (the defendant).
On 7 April 2006 the plaintiff performed his usual cleaning duties, as well as additional duties setting up for a graduation ceremony. One of the additional duties was lifting, carrying, and moving 15 kilogram heaters and nine kilogram gas bottles.
The injured worker claimed that in the course of all his duties on the day he began to experience severe back pain.
The injured worker's manager gave evidence that she saw the injured worker start to stand up and lean up against a wall. The manager approached the injured worker and he said words to the effect of: 'It's my back'.
The injured worker's supervisor gave evidence that she saw the injured worker kneeling down on one knee. She then saw him put one hand on his leg to get up and as he attempted to stand, he stopped. The supervisor stated the injured worker told her his pain had started when he pushed off from his leg.
A few days later the injured worker and his manager signed an accident report form. In this form the injured worker stated he was 'kneeling down and tried to stand up' and he was '...kneeling down connecting a heater to a gas bottle and went to stand up, back went into spasm'.
The injured worker told the Court he suffered his injury when performing strenuous duties during the course of the day. However, he was not in pain until he was bending down connecting gas bottles to the heaters.
The Court accepted the injury was sustained while the plaintiff was connecting the gas bottle to the heater, either as he bent down, or as he attempted to get up.
The Court believed the task of connecting a gas bottle to a heater was a trivial and everyday task that a cleaner could reasonably be expected to perform without a risk of injury.
Prior to the incident, the employer had reviewed its cleaning procedures and had prepared a document addressing such procedures. In preparing the document, the injured worker was allowed extra time to perform his duties as he tended to be slow. At that time the injured worker was trained in the cleaning procedures step by step.
The Court was satisfied with the employer's approach to assessing risks associated with being a cleaner. The Judge stated it was impossible to foresee every task that someone may undertake.
Even though the employer failed to specifically consider, within their cleaning procedures document, what was involved in bending over to join a gas bottle to a heater, the Court ruled this was irrelevant. The Judge said even if the employer had considered this cleaning task, nothing would have been done differently.
The Court accepted the medical evidence submitted that the injured worker's injury was one of those that can, from time to time, occur as a result of a trivial incident.
The injured worker also argued his employer had breached the Workplace Health and Safety Act 1995 (the Act).
The law at the time of this judgement (Bourke v Power Serve Pty Ltd & Anor) lead the Court to find there was a beach of the Act, as the employer did not ensure the safety of the injured worker at his work. This was simply due to the fact the injured worker was injured at work. Although the risk of injury was trivial, this was not relevant in determining if there was a breach of the Act.
Although at the time there were no regulations or ministerial notices recommending a way to prevent or minimise exposure to the risk associated with bending down to connect a gas bottle to a heater. Nor were there any advisory standards or industry code of practice, in these circumstances the employer needed to show they chose an appropriate way to discharge its workplace health and safety obligation to establish a defence under the Act.
Prior to the workplace injury, the employer had the injured worker's supervisor perform all the injured worker's duties, so that she could satisfy herself that the tasks he was required to perform were not too difficult. The employer also arranged that an experienced cleaner; a mature age engineering and organisation management student, prepare the cleaning procedures document. The organisation management student also provided an estimate of time needed to perform the tasks and instructed the injured worker on his duties.
The court concluded the employer had ensured the workplace health and safety of the worker in that it had taken reasonable precautions and had exercised reasonable precautions.
As such the defendant had discharged its obligation and there was no breach of statutory duty. The Court also found that there had been no negligence or breach of contract.
Court: District Court Toowoomba
Insurer: WorkCover Queensland