Australia: Workers Compensation - Court holds that even a straight-forward light manual task requires prior instructions

The recent Supreme Court decision of D'Arcy v The Corporation of the Synod of the Diocese of Brisbane [2017] QCS 103 found that an employer was liable for failing to train and instruct a worker how to lift a wheelie walker from the boot of a vehicle. However, when it came to assessing quantum the Court took into account surveillance obtained by the Defendant when assessing the competing medical evidence. Partner, Robert Tidbury and Senior Associate, Janine Oberhardt discuss the case and its findings further.

Facts

The Plaintiff, 37 year old Ms D'Arcy, was employed with Spiritus as a personal care worker. As part of her role, she was responsible for transporting clients to and from medical appointments. On 5 October 2010, the plaintiff took a client to an appointment. That client used a wheelie walker which had been placed in the boot of the car. When the Plaintiff attempted to unload the wheelie walker from the car, she suffered an injury to her back.

Decision – Liability and quantum

The Court found in favour of Ms D'Arcy after finding that Spiritus had failed to provide her with appropriate training and instruction in safe handling methods. In doing so, Justice Byrne rejected the defendant's contention that unloading the lightweight wheelie walker from the vehicle was "a simple and everyday task that did not require specific training and instruction". It is noteworthy, that the weight of the wheelie walker was not proved at Trial but the Defence described the equipment as weighing 5.6 kilograms.

The Court considered manual handling guidelines which had been put in place by Spiritus. Those guidelines described Spiritus' approach to identifying and controlling risks involved with manual handling and canvassed the transportation of wheelie walkers in passenger vehicles. Relevantly, the guidelines stated that workers must be provided with adequate information, training and supervision to enable them to undertake actions in the safest possible way. Those guidelines also anticipated that workers would undertake a competence assessment of manual handling skills and provide an acknowledgement of that assessment before completion of their probationary period of employment.

However, the Court found that no actual instructions in relation to proper handling methods of wheelie walkers was provided to the Plaintiff, which was relevant given her role required frequent unloading and loading of wheelie walkers. In circumstances where the Court concluded that there was a significant risk of injury, in the absence of such instructions and where the burden of taking the appropriate precautions was minimal, the Court had little hesitation in arriving at a finding of negligence against the defendant.

However, it was an altogether different story when it came to the Court's assessment of quantum.

During the trial, the Court heard medical evidence from Dr Scott Campbell, Dr Richard Williams and Dr Robert McCartney. Dr Campbell provided an initial report in which he diagnosed the Plaintiff as suffering an L5/S1 disc protrusion and assessed a 10% whole person impairment. By contrast, Dr Williams diagnosed the Plaintiff as suffering a musculoligamentous injury of the lumbar spine, which had resolved. Dr McCartney was of the opinion that the Plaintiff was not fit to perform the role of personal care worker without significant risk of aggravation.

A joint report was later prepared by Doctors Williams and Campbell, in which they agreed that the Plaintiff suffered a soft tissue lumbar injury arising in the context of pre-existing degenerative change of the lumbar spine. Both considered the whole person impairment should be assessed at 5%.

During the hearing the doctors were shown video recordings of the Plaintiff performing activities at the gymnasium and elsewhere over a couple of days before the Trial. In the footage, the Plaintiff demonstrated a full range of movement of the lumbar spine with no signs of distress.

Dr Williams, after having viewed the video, noted it would be very difficult or painful for her to perform her gymnasium exercises if she had any symptoms arising from the lumbar spine. Therefore, Dr Williams firmly adhered to the opinions expressed in his first report, namely that the Plaintiff's injury is musculoligamentous and the symptoms would have resolved in six weeks. Dr Campbell altered his opinion following review of the footage stating that he had 'no doubt' that her condition was not significant. Dr McCartney too changed his view concluding that the Plaintiff did have the functional capacity necessary to carry out her nursing duties.

Ultimately the Court preferred the revised evidence of Doctors McCartney and Williams finding that the injury resolved early and ceased to be influential before 2012. Economic loss was assessed by SJA Byrne at $20,000.

Practical tips

  • This case highlights that whilst employees may be performing, at first glance, what appears to be a simple everyday activity, it is still important to ensure they are properly trained and instructed in relation to those activities, particularly if they are performing those duties with relative frequency.
  • Employers must also ensure that they follow through on their policies and procedures. For example, if a risk assessment identifies a risk and suggests appropriate control measures, it is important to ensure those control measures are introduced and enforced.
  • In appropriate cases surveillance may be useful in assisting the defendant to persuade the court to prefer the defendant's medico legal evidence over that of the plaintiffs, particularly where there is a significant gulf between the Plaintiff's self-report of his/her level of restrictions and the diagnosis arrived at by the parties medico legal experts, based on their review of the radiological evidence and their clinical findings during examination.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.