A recent NSW Court of Appeal decision has eschewed the
proposition that a system of work involving lifting and twisting
creates a foregone risk of injury. The NSW decision is a sensible
determination and contradicts recent Queensland
The case of Hawkins v Ross Human Directions Ltd 
NSWCA 265 ("Hawkins") involved a claim brought by Ms
Hawkins against her employer, Ross Human Directions Ltd. Ms Hawkins
sustained a significant injury to her back as a result of lifting
two archive boxes and twisting around to carry them to secure
storage. The primary judge found that the weight lifted by Ms
Hawkins on the occasion was no more than 7kg. The judge held the
view that Ms Hawkins had not shown that the Employer should have
been aware of a risk of injury, when she lifted a 7 kg box and
twisted. Accordingly the Judge found there was no breach of duty by
Ms Hawkins then appealed this decision of the primary judge and
it came before the NSW Court of Appeal. While some error was found
in the primary judge's decision, the Court of Appeal provided
that in order for the appeal to succeed, Ms Hawkins needed to show
there was a real risk of injury in her lifting boxes (that
potentially weighed up to 9.8 kg) such that the Employer was
obliged to take precautions in respect of that risk. The Court of
Appeal found that Ms Hawkins failed to establish this and the
appeal was dismissed.
Saliently Justice Beech-Jones remarked that if the employer had
a responsibility to mitigate risks of injury, "the only
system that could have prevented [the worker's] accident from
happening was one in which she was precluded from lifting any
box... It is difficult to accept that an office environment could
function if employees in [the worker's] position were
precluded from lifting any box of documents."
The decision is quite different from the approach taken in
Queensland in Tabcorp Holdings Ltd v Dank  QCA 253
("Tabcorp"). In this case, the worker sustained a back
injury at work when she lifted a box of photocopy paper (12.7 kg)
from the floor to her desk. The trial judge found the employer had
breached their duty of care as:
The worker had received no instructions in how to appropriately
lift the box; and
The risk could have been obviated by ensuring that employees
placed the boxes on her desk or the employer could have had in
place a system for storing such boxes at knuckle height; and
There was a clearly foreseeable risk of injury.
Tabcorp appealed the decision but the Court of Appeal affirmed
the trial judge's finding that the risk of injury was
A key difference between the two cases is that in the Tabcorp
decision the evidence was that the worker did not know how to
properly and safely lift a box and this, inter alia, was the cause
of the injury. Whereas in Hawkins the allegations were more
general, that manual lifting created a foreseeable risk of
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