The recent decision of Rayner v Brisbane City
Council  QDC 100 reaffirms that Local Councils, like any
employer, may escape liability for workplace injuries where the
circumstances were not foreseeable and an employee deliberately
conceals a relevant history of past injury.
Mr Christopher Rayner ("the Plaintiff") alleged that
in May 2009 he suffered a significant neck injury in the course of
his employment as a bus driver for Brisbane City Council
("Council"). His claim focussed on an incident which
occurred when he was driving a bus and he turned his head to the
left to attend to a commotion between passengers. This action is
said to have caused a prolapsed disc on a history of cervical
spondylosis. Following the incident, the Plaintiff was off work for
a month and then followed a graduated return to part time work and
light duties. However he was terminated in January 2010 as he was
deemed unfit for work and has not worked since.
The principal issue before the District Court was whether
Council breached its duty to exercise reasonable care by failing to
provide adequate training and a safe system of work, as was alleged
by the Plaintiff.
In considering this issue, Clare SC DCJ considered whether there
was a causal link between the contended breach on the part of
Council and the injuries sustained by the Plaintiff. This required
the court to determine whether Council's duty to the Plaintiff
extended to protecting him from injury caused by turning his head.
Her Honour also gave regard to evidence concerning the level of
training provided to the Plaintiff, particularly in terms of the
operation of the driver's swivel seat intended to reduce the
pressure of the driver turning his or her head to face passengers
entering the bus through the front door.
"...it was found that it was not foreseeable
to a reasonable employer that in turning his head, the Plaintiff
was at risk of sustaining a significant injury
The Plaintiff's credibility was a significant issue in this
case and caused the Court to weigh the evidence that was given in
terms of the mechanism of injury and what prompted the Plaintiff to
turn in the first place.
The court held that the risk of injury did not satisfy the
reasonable foreseeability test provided in Wyong Shire Council
v Shirt. This was because it was found that it was not
foreseeable to a reasonable employer that in turning his head, the
Plaintiff was at risk of sustaining a significant injury. Her
Honour considered that the Plaintiff's prior history of
work-related neck injuries suggested he was not suitable for bus
The Plaintiff's failure to disclose this prior history to
Council when it should have been disclosed during the pre
employment health assessment meant there were no reasonable grounds
on which it could be contended that Council knew or ought to have
known of the Plaintiff's unsuitability for the role. Further,
the Court held that turning the head to the left was an unavoidable
occurrence when driving a bus, and there were no practicable means
of offsetting this risk, which was essentially a daily incident of
driving. Therefore, the Plaintiff was unable to establish causation
and Council was not found liable to compensate the Plaintiff for
Additionally, Her Honour dismissed the allegation that the
Plaintiff was not trained in the operation of the relevant swivel
seat as records indicated he had undertaken training in all types
of buses and had spent 404 hours driving a vehicle with the same
swivel seat operation as the vehicle in question. However, this had
no effect on the conclusion on liability because the Plaintiff
could not establish causation.
Foreseeability is an issue often tested in Court. This decision
affirms that liability will not be found in circumstances that are
so ordinary that the risk of significant injury is not foreseeable.
Further, it upholds that Local Councils may be provided protection
from an adverse decision where an employee has a relevant prior
history of injury that they failed to disclose in pre-employment
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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