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HG Insurance and Risk Alert: A win for the employer - repetitive task did not cause back injury 30 October 2014

It is generally accepted that the cumulative effect of manual work may result in injury to the worker at some point but when is an employer liable for such an injury?

In this Alert, Senior Associate Anna Hendry and Solicitor Hannah Staunton consider the recent decision of Fofana v Inghams Enterprises Pty Ltd [2014] QDC 224 in which District Court Judge Richard Jones dismissed a female process worker’s claim for damages for a back injury arising out of several years of repetitive twisting and bending at work.

Facts

The plaintiff commenced work for Inghams Enterprises Pty Ltd (employer) in April 2007.  Her role as a process worker required her to frequently work at two work stations referred to as the “skinner” and the “feeder” stations.

The plaintiff continued to work until December 2009 when she went on maternity leave, returning to work in July 2010.  Approximately two months later in September 2010, the plaintiff reported the onset of back pain which she alleged was caused by carrying out constant and repetitive tasks at the “skinner” and the “feeder” work stations.  She ceased employment with the employer on 14 December 2010 due to her back pain.

While the plaintiff made a number of allegations regarding acts and omissions constituting a breach of duty on the part of the employer, her primary allegations were that:

  • The employer failed to implement a safe system of work; and

  • The employer ought to have made modifications to the “skinner” station prior to her injury (those modifications allegedly having been made afterwards).

Evidence

Judge Jones accepted that the work performed by the plaintiff was repetitive and that she was required to work at pace, particularly at the “skinner” station.  He also accepted the evidence of the plaintiff’s supervisor that the modifications to the “skinner” station were in fact made prior to the plaintiff’s return from maternity leave and the evidence of the plaintiff’s ergonomic expert that the modified “skinner” station was less likely to cause injury than the unmodified station due to the postures adopted by workers.  This evidence effectively disposed of the plaintiff’s allegations as they related to the “skinner” station.

The court also accepted the evidence of Dr Campbell, neurosurgeon, for the plaintiff.  Dr Campbell opined that the plaintiff developed back pain after undertaking repetitive bending and twisting movements at work over a period of two or three years (including the period prior to her maternity leave).  He noted that activities outside the plaintiff’s employment would reasonably be regarded as having contributed to her back pain also.

Judgment

Having made the above evidentiary findings, the critical question for the court then was:

“...whether the defendant has provided a safe system of work and, more particularly, appropriately designed, constructed and maintained plant and equipment and ensured that the plaintiff was not otherwise unreasonably exposed to risk of injury having regard to the manual tasks she was required to perform”.

Judge Jones held that the plaintiff failed to prove, on the balance of probabilities, that her employer was liable for her back injury based on the following reasoning:

  • The plaintiff did not sufficiently satisfy the court that the employer had failed to properly instruct the plaintiff prior to her working on the “feeder” and “skinner” stations.

  • The plaintiff failed to establish that there was an unsafe system of work in place for the “skinner” station. In particular, when the plaintiff returned to work after maternity leave in July 2010 the “skinner” station had been ergonomically redesigned.

  • The plaintiff submitted insufficient evidence to link her work at “the feeder” station to her back injury.

In his closing remarks on liability, Judge Jones stated:

“In this case it was at least equally open to infer that the injury was not the consequence of any breach of duty on the part of the defendant but was simply an unfortunate work related injury resulting from the cumulative effects of her work...together with...other non work related activities”.

Take Away Points

While this District Court of Queensland decision provides some comfort for employers whose workers undertake repetitive manual work, employers should ensure:

  • adequate risk assessments are carried out in relation to all manual tasks and are repeated periodically and following any changes to the system of work;

  • rotation of work duties is implemented and enforced; and

  • consideration is given to the involvement of ergonomic specialists in re-designing plant and equipment.

For more information regarding insurance and risk matters, please contact HopgoodGanim’s Insurance and Risk team.

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