Tabcorp v Holdings Ltd v Dank  QCA 253
This case considered whether an employee was exposed to a reasonably foreseeable risk in performing an ordinary, everyday task. Also considered was whether the employee had breached her obligation to mitigate her loss by changing to a more physically demanding career following the injury.
The employee was employed as a secretary with Tabcorp Holdings Ltd. On 8 October 2004 the employee suffered a back injury when she lifted a box of photocopy paper from the floor to the desk in her office. The box lay adjacent to a photocopier and a wall and weighed approximately 12.7kg. The lift was said to be ‘awkward’ as it required the employee to lean forward over the box and twist as she lifted.
Three days after the accident the employee returned to work with the employer. However four months later the employee resigned to commence employment in her preferred career as a carer.
The trial judge found:
- “That she could have moved the box away from the wall and then lifted it in a different way is no answer to the fact that she was not instructed how not to lift boxes such as the one lifted.
- The disc prolapse which the [employee] suffered as she was lifting the box was due to the negligence of the [employer] in that it failed to instruct the [employee] not to lift in the way she did, instruct and ensure that storemen or other employees placed boxes of paper on her desk, and have in place a system for storing such boxes at knuckle height.
- It was clearly foreseeable that the [employee] risked injury should she lift the box from the floor in the way she did. The [employer] failed to take reasonable care to avoid the foreseeable risk of injury to the [employee]. The steps which the [employer] should have taken to avoid that risk were simple, easy and cost free. They were taken after the [employee] was injured and they should have been taken before. The risk of back injury to employees in lifting objects from the floor was known.
- Her loss in this area is to be approached on the basis of her present employment (it not being unreasonable for her to have left her employment with the [employer] for a career in aged care) and her impaired capacity, both past and for the future, to carry out that type of employment.”
The employer appealed on 19 grounds, however, at the hearing of the appeal the employer confined its case to the following contentions:
- In relation to negligence, the risk of injury was not reasonably foreseeable;
- The employer had discharged its statutory duty to ensure that persons were free from risk of injury in its workplace, or that they had taken reasonable precautions and exercised proper diligence to prevent a contravention of this statutory duty; and
- In relation to quantum, the trial judge erred by assessing the employee’s loss of earning capacity by reference to the impairment in her capacity to earn income only as a carer, which overlooked her unimpaired capacity to earn income as a secretary.
The employer submitted that the risk of injury was not foreseeable as the employee had stated that she had picked up boxes of photocopy paper in the same way on ‘hundreds of occasions’ or at least ‘lots of times’.
In considering the evidence, Justice Fraser noted that the medical experts for both the employee and the employer had recognised that a twisting movement whilst lifting exacerbated the risk of injury.
The employee conceded that she could have moved the box away from the wall however this had never crossed her mind because:
- this had always been the system;
- the employee’s supervisor’s had witnessed her lifting in this manner on many occasions and had even, on one occasion, assisted her with this lift; and
- she was never provided with any training or instruction in the lifting or storage of boxes.
The Court of Appeal upheld the trial judge’s finding that the employee’s injury resulted from the employer’s negligence and concluded:
“The [employee’s] failure to move the box sufficiently far away from the wall to avoid the foreseeable risk of injury was attributable to the [employer’s] failure to fulfill its obligation as her [employer] to take reasonable care, including by training.”
Breach of Statutory Duty
At the time of this accident the Workplace Health and Safety Act 1995 (Qld) provided in section 28 that:
“An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers in the conduct of the employer’s business or undertaking.”
Section 27(3) went on to provide that an employer discharged this obligation if the employer took reasonable precautions and exercised proper diligence to ensure that this obligation was discharged.
The employer submitted that it had discharged its statutory obligation or that there was a defence because the employee performed an ‘ordinary task which did not require anything further to be done beyond what was done’ by the employer.
This argument was not accepted by the Court of Appeal. Justice Fraser (with whom President McMurdo and Justice Mullins agreed) expressed the view that:
“… once the employee proved that she was not free from a trivial risk of injury created by her workplace or work activities … she established the prima facie conclusion that [the employer] had breached its obligation to ensure her workplace health and safety, and the onus then shifted to the employer to establish that it had discharged its obligation or to establish a defence. Where the risk is trivial, an employer might readily rebut the prima facie liability established by proof of an apparent contravention of s 28. Even so, the employer did not fulfill that onus.”
Assessment of Economic Loss
Following her resignation with the employer the employee found work as a carer with a number of different organisations. However she was ultimately restricted from performing much of the physically demanding cleaning tasks due to her back condition.
The employer submitted that the employee had left a job which would have been less strenuous on her back and exposed herself to heavier work as a carer. Accordingly, the employer submitted that the employee had lost some of her capacity to work as a carer but had lost none of her capacity to work as a secretary.
This argument was not accepted by Justice Fraser who noted that, although there was some evidence that the employee was capable of performing office work following the injury, such work aggravated her back condition. Evidence was also adduced that the employee had later applied for a job with the employer as a supervisor but that her application had been rejected due to occupational health reasons.
The Court of Appeal upheld the trial judge’s finding that a more lucrative career in office work was subsequently not available to the employee and that the trial judge had been correct in disregarding the prospect of such employment in assessing economic loss.
The employee succeeded with this claim because of the finding of a statutory breach of duty. The legislation which gave rise to such a finding in Queensland is no longer a basis for a claim to succeed. The legislation has been amended. However, even at common law ordinary everyday tasks can give rise to a reasonably foreseeable risk of injury. In order to discharge the common law duty of care an employer owes to an employee - it is necessary for reasonably foreseeable risks of injury to be identified, assessed and - where necessary - remedial action taken to reduce the risk of such injury occurring.
A copy of the Judgment can be found here.