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The Reasonable Foreseeability Threshold - unfortunate accidents can happen

Micallef v Endeavour Foundation [2013] QDC 142

Harrison DCJ

28 June 2013

WorkCover Queensland was recently successful in defending a matter for Endeavour Foundation in the District Court Decision of Micallef v Endeavour Foundation [2013] QDC 142. The matter was determined before Harrison DCJ in the Innisfail District Court.

It was concluded by the Trial Judge that the Plaintiff was injured as a consequence of an unforeseen accident – not as a consequence of any negligence on the part of the employer, Endeavour Foundation.

Background

The Plaintiff, Ms Julie Corralie Conway (formerly Micallef), was employed as a casual Disability Support Worker for the Insured Defendant and worked at the Defendant's Respite Centre in lnnisfail. The Plaintiff commenced her employment on 15 January 2008 (approximately one month prior to the subject incident). On 21 February 2008, the Plaintiff and a co-worker were supervising two children at the Warrina Lakes and Gardens Community Pool across the road from the lnnisfail Respite Centre when the Plaintiff alleges that she was injured when one of the children jumped into the pool and landed on her neck.

Liability

The principal case advanced by the Plaintiff on liability was that the Defendant knew that the child in question was unpredictable. It was further argued that the risk could have been minimised by a higher ratio of carers.

Liability was vigorously contested on behalf of the Defendant in circumstances where it was considered that there was no negligence on the part of Endeavour Foundation. Further, it was argued that even if there was an identifiable risk (which was denied), there was nothing that the Defendant could have done, without the benefit of hindsight, to minimise such risk and the incident was simply “an unfortunate accident”.

Findings

His Honour accepted the Plaintiff's evidence both in relation to what happened on the day in question and her symptoms and ongoing problems since the accident. In terms of liability, however, His Honour was not satisfied that it was reasonably foreseeable to the Defendant that the Plaintiff was at risk of being injured in the circumstances at the pool on 21 February 2008. Whilst His Honour found that the Defendant knew that the boy in question (Master Andersen) could be unpredictable, he found that there was nothing in the boy's history to suggest that his behaviour constituted a risk of injury to employees , particularly while swimming (an activity the boy enjoyed). Accordingly, His Honour was not satisfied, on balance, that the Defendant breached its duty to the Plaintiff and found for the Defendant on liability (page 13, paragraphs [118] & [119]).

Judgment was entered for the Defendant. The Plaintiff has appeal rights and has until Friday, 26 July 2013 to appeal.

Implications

Although an employer's duty of care to employees is onerous, this decision reinforces the principle that the employer's duty is to take reasonable care; it is not a duty of perfection. Obviously when looking after minors or people with impaired capacity (for example, people with disability) Courts will impose a high standard on carers, although this case illustrates that despite best intentions, unfortunate accidents can happen.