In the recent decision of Gilmour v the State of Queensland a Queensland teacher was awarded $241,210.19 for injuries sustained after stepping into a hole. His Honour, Justice Dorney, held that ‘if an adequate system of inspection of the school grounds had taken place, a detection of the defect would have been made and the injury sustained would not have occurred’.
The worker was a 39 year old female teacher at Yarilee State School in Hervey Bay, Queensland. On 3 March 2010, she fractured her right ankle while crossing a pedestrian crossing within the school grounds. At the time of the incident she was accompanying a large class of children from the school property to the adjacent area where buses were parked. On the evidence put forward, His Honour concluded that ‘the worker inadvertently placed some part of her footwear into a hole’ that was 18 inches in length, 1 inch wide and half an inch deep.
The fundamental issues were when the hole came to be in the state it was at the time of the incident, and what, if any, measures were taken by the State of Queensland to inspect the school grounds to detect the defect.
The worker alleged the State of Queensland had knowledge of the existence of the hole ‘for at least one year prior to the worker’s fall and approximately one year prior to the date of the incident had painted yellow paint around the edges of the hole’.
The State of Queensland led evidence about inspections by QBuild, the body responsible for maintenance of Queensland government properties, including schools. It provided reports dated 13 February 2008, 8 October 2008 and 15 September 2009 which contained no reference to either the pedestrian crossing where the incident occurred or any part immediately adjacent to it. The State of Queensland submitted the conclusion to be drawn from the reports was the defect was not present at any time up to 15 September 2009 and an assessment on a yearly basis satisfies any standard of appropriate inspection for the detection of defects.
The worker submitted the inspections conducted by QBuild were not appropriate. Justice Dorney noted the reports produced by QBuild stated the assessments were not of ‘formal compliance inspection, audit or survey relating to health and safety, building codes and regulations, fire safety, or any other fitness-for-purpose issues’ and they were based on visual inspection of the buildings and building related assets by tradespeople competent in their field of expertise. The reports also contained a ‘disclaimer’ that any advice provided ‘should not be construed as a substitute for professional legal, engineering or risk management advice’. Justice Dorney stated the probable conclusion to be drawn was the QBuild inspections did not include the relevant pedestrian crossing and so there was no direct evidence that the defect was not in existence at the time of the last QBuild inspection on 15 September 2009.
Justice Dorney had the benefit of photographic exhibits of the defect. He concluded from those photographs it was not fresh broken concrete, it had therefore been present for some considerable time and was for at least the whole of the 2010 year to the time of the incident and probably from late in the year before.
On foreseeability, Justice Dorney concluded the subject incident was foreseeable, in the sense it was not ‘far fetched or fanciful’. In relation to breach, in light of the fact the worker was shepherding children and so she would not have been permanently be on the lookout for hazards on a step-by-step basis, His Honour concluded that steps needed to be taken to inspect, properly and adequately, and to take preventative measures. His Honour rejected the State of Queensland’s argument that the small size of the defect constituted an everyday hazard and did not require an urgent and excessive response such as barricading. He said knowledge of the defect demanded action including barricading until remedial action could be undertaken.
Justice Dorney also rejected the State of Queensland’s submission that the broken concrete could not be responded to in a timely fashion due to bureaucratic and budgetary constraints. (The defect ended up being repaired as part of a much larger area, costing $12,814, from funding that was not part of maintenance by early June 2010.) He held a simple examination of the pathways by the school’s groundsman prior to each term commencing would be easily achievable and bureaucratic constraints would not have stopped that particular form of inspection nor constrained the prompt placement of barricading around an area of concern.
Although not argued by the State of Queensland, Justice Dorney considered contributory negligence and concluded the worker was not guilty particularly when no other person had detected the defect and the defect was in an ordinary path of travel. The State of Queensland was therefore found liable to the worker.
The decision shows that in relation to prior safety inspections and the court’s satisfaction that a prior safety concerns did not exist, proof of the mere fact of prior inspections having occurred is not sufficient for an employer to succeed. The quality of the inspections must be considered and whether they actually addressed the subject safety concern.