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HG Insurance and Risk Alert: Employer not liable for worker’s injury arising from “kicking” bags of cement – 22 August 2014

In this Alert, Senior Associate Brooke Jacobs and Solicitor Elizabeth Harvey discuss the recent decision of the Queensland District Court in Tawera v BDS Recruit Pty Ltd & Anor [2014] QDC 167. The employer and host employer were able to defeat a claim for negligence in circumstances where appropriate manual handling training had been provided and the plaintiff’s injury arose from a failure to comply with that training.

The facts

The plaintiff was a labourer employed by BDS Recruit Pty Ltd (BDS).  BDS was engaged by the Brisbane City Council (Council) to provide contract labour on the Brisbane Grammar/Victoria Park Lighting Project.

On 22 February 2010, the plaintiff was trying to close the door of a cabinet inside a Council truck.  The door was not closing properly, as it was obstructed by a pile of bags of concrete and mortar.  The plaintiff snapped his Achilles tendon as a result of kicking the bags, rather than attempting to lift and move them.

The plaintiff brought a claim for damages against BDS as his employer and Council as his host employer.

Decision

Judge Andrews SC found that neither BDS nor Council breached the duty of care they owed to the plaintiff.

His Honour found that the employer had instructed the plaintiff in the proper method of manual handling and had conducted site inspections.  The plaintiff agreed in his evidence that he had received training in the proper way to move the bags, which involved squatting down, moving the bags individually and restacking them elsewhere.

His Honour was not persuaded that storing the bags by stacking them at a low height in the cabinet (which requires him to bend down to move them) represented a breach of duty.  The plaintiff was vested with sufficient manual handling training to enable him to move the bags safely however in this instance elected not to use his training.

The plaintiff failed on factual causation as well.  This is because the plaintiff’s own actions in kicking the bags, as opposed to any breach of duty by BDS or Council, were responsible for his injuries and any ensuing damages.

Quantum

If the plaintiff had succeeded on liability, the award of damages would have been a modest $47,122.31.

The plaintiff was 63 at the time of the incident and 68 at the date of judgment. There was no evidence of him suffering incapacity as a result of his left Achilles tendon injury and he had successfully engaged in work following this incident, without apparent restriction.  Judge Andrews made no award for future economic loss.

Key points

  • Employers and host employers can avoid adverse findings in negligence if they can provide (documented) evidence of appropriate training;
  • Workers have to assume some responsibility for their own safety at work; and
  • It is not a given that an older worker will achieve an award of damages for future economic loss for perceived disadvantage on the open employment market, even in circumstances where there was a reasonably significant injury.

For more information on Insurance and Risk matters, please contact HopgoodGanim’s Insurance and Risk team.

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