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.
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.
