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
 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 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.
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
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.
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
Employers and host employers can avoid adverse findings in
negligence if they can provide (documented) evidence of appropriate
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.
3.Courts are imposing larger fines and compensation for non-economic loss for contraventions of the Fair Work Act.
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