Australia: Defending manual handling cases - Is generic manual handling training ever enough? Australian Legal Update

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Manual handling cases are notoriously difficult for employer's to defend in any common law claim. The law requires an employer to assess the manual handling risks associated with its workplace and put in place reasonable measures to alleviate or minimise manual handling risk. Such measures can include mechanical devices, the implementation or enforcement of team lifting environment for certain tasks, and in almost all cases a level of instruction and direction is required to be given to the workforce setting out how to safely approach and manage any specific manual handling involved in the particular workplace.

There are some (admittedly rare) cases where generic manual handling training will be sufficient to discharge a duty of care providing the lifting was relatively innocuous and associated with a general activity of daily living. A case which illustrates this point is the District Court decision of Solomona v Number One Riverside Quay Pty Ltd [2016] QDC 289. This is a decision of Dorney DCJ in the District Court at Southport. The worker Ms Soraya Solomona was aged 33 and was employed as a customer service representative at a BP Service Station at Labrador.

Ms Solomona alleges she was injured on 1 November 2010 when she was replenishing ice-cream stock in the freezer at the service station. She claimed that the edge of one of the baskets became frozen which caused her to pull on the basket to loosen it – it was this jerking action which Ms Solomona caused her to sustain a lower back injury.

Credit issues emerged in the hearing, for example, initially Ms Solomona denied that she had ever completed this particular task but it was later conceded that she had. Ms Solomona's explanation for the various inconsistencies in her reporting was that English was not her first language. Dorney DCJ held that he did not detect any real problem with Ms Solomona expressing herself in an understandable way in English. Also troubling to the court and going to Ms Solomona's credit was her late disclosure of her business Coco and Co relevant to her economic loss claim.

In determining whether the employer was in breach of its duty the court found that there was no specific instruction or direction that was required to be provided to Ms Solomona in these circumstances, that is, there was no specific direction required to address the risk associated with one of the basket within a freezer becoming frozen and a worker having to pull it free.

It is important to note in this respect that Ms Solomona had been provided with a handbook on manual handling hazards which specifically advised her to avoid sudden or jerky movements. Although it was found that the presence of ice might be foreseeable in a freezer (hardly surprising), it was determined that the risk of injury to a worker for this straightforward task was not significant and there was no specific instruction or training required by the employer to address this particular task. It is important to note in this respect that there be no previous complaints or injuries associated with undertaking this task- replenishing ice-cream in a freezer.

This was one of those rare cases in which generic manual handling was sufficient to defeat a negligence claim.

This case can be contrasted with a more recent decision of Baig v AWX Pty Ltd [2017] QSC 325. Mr Baig was a refugee who worked in a meatworks in Rockhampton. Mr Baig alleges he suffered a back injury on 5 July 2010 while leaning across a table to pull a portion of a carcass towards him in order to slice part of it off.

At the relevant time, Mr Baig was 19 and had been in Australia for one year having fled his hometown in Afghanistan. Unlike the case of Solomona, the Court accepted that Mr Baig's English was poor and an interpreter was used throughout the trial.

Once again the credit of Mr Baig was called into question, in particular his failure to disclose a previous back injury and inconsistencies in reporting of the mechanism of injury.

Ultimately these credit issues did not gain any traction with the court in that McMeekin J concluded that Mr Baig was not fluent in English and the inconsistencies needed to be seen in that context and were therefore not given significant weight.

Regarding the question of negligence, Justice McMeekin included the Mr Baig was required to complete a one handed pull on a very large object (weights between 50-90kg) using his weaker hand at an extreme outreach making it highly probably that the forces involved exceeded those recommended.

Justice McMeekin concluded in this case that there was negligence in failing to provide proper instruction on the use of the stop button which halted the chains and which would have obviated the risk of injury. Critically on the question of negligence and the instruction required to manage this manual handling risk the court found that by not providing clear instructions on when to use the stop button, the employer had effectively left responsibility to an untrained, 19 year old Afghani refugee with 10 weeks experience to devise the system of work.

Mr Baig was awarded significant damages, close to a million dollars ($964,254.11).

Practical Ramifications

These two cases demonstrate the importance of ensuring clear manual handling training and instruction is provided to all workers, even if the risk of injury is considered low and the task is considered to be quite simple. After all, had the employer not done this in the case of Solomona, the outcome of that case may have been very different.

The case of Baig goes further and reminds us that an employer's obligation to instruct and train is onerous – it is not sufficient to leave it to employees to devise a system, or to otherwise proceed on a 'common sense' basis on which any manual handling task is to be undertaken in the workplace.

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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