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The onerous obligation on an employer to instruct and warn

HCWeaver v Endeavour Foundation [2013] QSC 93
McMeekin J
12 April 2013

Background

The Plaintiff, Ms Weaver, was employed as a senior support worker for the employer, and sustained a lumbar spine injury (and secondary psychological injury) on 1 May 2008 in Rockhampton when she was facilitating a PART course (Professional Assault Response Training). She was demonstrating a "Back Steps" manoeuvre when she fell and landed on her buttocks.

Liability

Liability was vigorously contested in circumstances where it was considered that there was no negligence on the part of the employer.

The principal case advanced by the Plaintiff on liability was that the Plaintiff should have worn her usual flat soled shoes as opposed to joggers and that the manoeuvres should have been performed on a wooden or vinyl surface, as opposed to carpet.

His Honour found that the employer was not liable on the basis that the premises were inappropriate or inadequate or that there was any negligence in the Plaintiff's choice of footwear. However, the principal negligence found by His Honour in this case was that, in the first instance, the Plaintiff was not trained to do this manoeuvre moderately or slowly.

Judgement

Judgment was delivered for the Plaintiff in the sum of $369,000.02.

Discussion

This judgment effectively imposes a standard akin to perfection on an employer and goes to the scope of an employer's duty of care generally. The employer was found liable for doing its very best to train staff to minimise foreseeable risks of injury in the workplace.

Appeal

QCA 371

Holmes and Fraser JJA and Margaret Wilson J

10 December 2013

WorkCover's appeal was allowed and Plaintiff's claim dismissed. The worker suffered an injury when she fell while demonstrating a backward steps manoeuvre during staff training about dealing with attacks from violent clients. She won in the Supreme Court in Rockhampton on the basis that the employer's instruction to do the move quickly was unreasonable. This decision was overturned on appeal.

The Queensland Court of Appeal (QCA) accepted that the employer instructed her to learn to do it slowly but then increase her speed as she became more competent. The QCA considered this a reasonable instruction given the purpose of the training was to escape a potential attacker.

The court also clarified how to assess damages for paid services. The trial judge had extended the impact of the Cameron v Foster decision but the QCA took a narrower approach.

Special leave to the High Court

HCASL 132

6 August 2014

The Plaintiff sought special leave to the High Court of Australia (HCA), arguing that the Queensland Court of Appeal (QCA) was in error in overturning the decision at first instance and allowing the appeal.

The High Court of Australia refused the special leave application, meaning that the Queensland Court of Appeal decision stands.  This decision serves to remind us that although the duty of care imposed on an employer is onerous, the duty imposed is a duty to take all reasonable care.